In Re: Gordon R. England, Secretary of the Navy
Opinion for the Court filed by Circuit Judge ROBERTS.
Navy chaplains, like other Navy officers, are recommended for promotion by “selection boards” consisting of superior officers who meet and discuss the relative merits of candidates for promotion. The federal statute establishing the procedures for such selection boards, which applies to all the armed services, provides that board proceedings “may not be disclosed to any person not a member of the board,”
I. Background
A. The History and Organization of Navy Chaplains
In November 1775, the Continental Congress adopted the first regulations to govern the fledgling Continental Navy. See Rules for the Regulation of the Navy of the United Colonies of North America (Nov. 28, 1775), reprinted in relevant part in 1 Clifford M. Drury, The History of the Chaplain Corps, United States Navy 3 (Bureau of Naval Personnel 1984). Although those regulations did not expressly create a chaplain position, Article 2 provided that “[t]he Commanders of the ships of the thirteen United Colonies, are to take care that divine service be performed twice a day on board, and a sermon preached on Sundays, unless bad weather or other extraordinary accidents prevent.” Id. These duties often fell to the captain himself or a designee: only two chaplains were known to have served in the Continental Navy during the Revolutionary War, and the Navy limited the number of chaplains on active duty to nine until 1842 and to 24 from then until 1914. Drury, supra, at 5, 62.
Early chaplains were responsible for educating midshipmen and sailors in addition to their religious duties. The Navy placed great emphasis on the chaplains’ role as teacher, selecting them “more for their teaching ability than for their experience or training as ministers.” Id. at 18. Indeed, the first “naval academy” was established 200 years ago at the Washington Navy Yard by Chaplain Robert Thompson, who taught midshipmen mathematics and navigation. Id. at 18-20. The success of that academy led to the establishment of the United States Naval Academy at Annapolis, Maryland in 1845.
From those beginnings, the Navy Chaplain Corps has grown with the service to over 800 strong. It is the responsibility of Navy chaplains to “provide for the free exercise of religion for all members of the [Navy and Marine Corps], their dependents, and other authorized persons.” Directive No. 1304.19, Appointment of Chaplains for the Military Services ¶ 3 (Dep’tof Def. Sept. 18, 1993) (Directive). The Navy chaplain’s mission is to accommodate the religious needs of sailors and Marines by providing religious services, counseling, and support. See Marine Corps Warfight-ing Publication 6-12, Religious Ministry Support in the United States Marine Corps 1-4, 1-5 (Dec. 12, 2001). In addition to this religious ministry, Navy chaplains also provide ethics instruction and critical incident debriefings, and advise commanders on religious, moral, and ethical issues. Id. at 1-5.
A Navy chaplain’s role within the service is “unique,” involving simultaneous service as clergy or a “professional representative[ ]” of a particular religious denomination and as a commissioned naval officer. OPNAVINST 1730.1,
Chaplains Manual
1-2-1-3 (Dep’t of the Navy Oct. 3, 1973). A chaplain must satisfy not only the normal physical and educational requirements to become a commissioned officer, but also must have a graduate level theology degree or. equivalent and an ecclesiastical endorsement — official notice from a faith group endorsing agency that a candidate
The Navy categorizes chaplains into four general religious categories or “faith groups” according to similarities in religious denominations: Roman Catholic, Liturgical Protestant, Non-Liturgical Protestant, and Special Worship. Liturgical Protestant primarily includes those protestant denominations that trace their origins to the Protestant Reformation and whose religious services are characterized by a set liturgy or order of worship, including the Lutheran, Episcopal, Methodist, and Presbyterian denominations. CFGC Second Am. Compl. ¶ 12(a) (CFGC Compl.). Non-Liturgical Protestant refers to protestant denominations “without a formal liturgy or order in their worship service” whose clergy do not wear religious dress during services, comprising the Baptist, Evangelical, Pentecostal, Bible, and Charismatic churches. Id. ¶ 12(b). The Special Worship category includes the Christian Orthodox, Jewish, Muslim, and Mormon faiths. Appellants’ Br. at 5.
B. The Personnel System
The Navy uses the same personnel system for all officers, including chaplains. That system seeks to manage officers’ careers to provide the Navy with the best qualified personnel through three critical personnel decisions: (1) promotion; (2) continuation on active duty; and (3) selective early retirement. A naval officer must be recommended by a promotion selection board to advance in rank from lieutenant (junior grade) through rear admiral (lower half).
See
Each of these personnel decisions involves a selection board comprised of naval officers who deliberate, make selections, and then submit their recommendations to the Secretary of the Navy. Promotion selection boards are convened under
Promotion selection boards may only consider an eligible officer’s official military personnel file and the selection board “precept” issued to the board by the Secretary of the Navy.
See
■ The promotion board reports its recommendations to the Secretary,
The other statutory selection boards — continuation on active duty and selective early retirement — are convened under
By statute, each member of a selection board must take an oath to perform his duties “without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy].”
C. Procedural History
Plaintiffs — current and former Non-Liturgical Protestant chaplains and their endorsing agency, the Chaplaincy of Full Gospel Churches (CFGC) (collectively “Chaplains”) — filed two separate suits against the Secretary of the Navy, other Navy officials, and the Navy (collectively “Navy”), alleging that “the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments.”
Chaplaincy of Full Gospel Churches v. Johnson,
As pertinent here, the Chaplains allege that the Navy discriminates against cháp-lains endorsed by the CFGC through promotions and retention.
See CFGC,
The Chaplains requested that the Secretary release board members from their oath of confidentiality to allow them to testify; the Secretary declined to do so. The Chaplains thereupon filed a motion to compel discovery of selection board proceedings, seeking to depose board members.
See
Pis.’ Mot. The Navy argued that
II. Appellate Jurisdiction
This court has appellate jurisdiction over “final decisions” of the district court.
“The collateral order doctrine is best understood not as an exception to the ‘final decision’ rule laid down by Congress in
1. It is undisputed that the district court conclusively ordered the Navy to release board members from their oaths not to disclose board proceedings. The district court considered and rejected all the Navy’s arguments opposing the motion to compel, and, with respect to the question on- appeal, concluded that “
2. To satisfy the second requirement under the collateral order doctrine, the Navy must show that “appellate review will resolve an
important
issue completely
separate
from the merits of the action.”
Philip Morris,
“Importance” is a more subjective inquiry. The Supreme Court has explained that this inquiry requires a “judgment about the value of the interests that would be lost through rigorous application of [the] final judgment requirement,” and that “ ‘important’ in
Cohen’s
sense [means] being weightier than the societal interests advanced by ordinary operation of final judgment principles.”
Digital Equip.,
In
Philip Morris,
we analyzed whether the collateral order docfrine provided appellate jurisdiction to hear an interlocutory appeal challenging denial of an attorney-client privilege claim. The court held that the attorney-client privilege was “important” under
Cohen,
concluding that “the institutional benefits of allowing interlocutory review of attorney-client privilege claims outweigh the costs of delay and piecemeal review that may result.”
Philip Morris,
The Navy argues that
The statutory nature of the claimed privilege also supports a finding of importance under
Cohen.
In
Digital Equipment,
the Supreme Court suggested that “[w]here statutory and constitutional rights are concerned,” it is easier to conclude that they are “weightier than the societal interests advanced by the ordinary operation of final judgment principles.”
3. To satisfy the final requirement for invoking the collateral order doctrine, the appellant must show that the district court’s order “will be effectively unreviewable on appeal from a final judgment.”
Philip Moms,
So too here. The right at issue — the Navy’s claim of statutory privilege — would be destroyed if board members were compelled to testify; there would be no privilege to protect on appeal from final judgment. “It would be impossible for [this] court to sort out and redress the harm caused by the incorrect disclosure.”
Philip Morris,
Having found that this interlocutory appeal satisfies the
Cohen
requirements, we hold that the collateral order doctrine provides appellate jurisdiction to review the district court’s order.
1
We now turn to the
III. Merits
The Federal Rules of Civil Procedure encourage the exchange of information through broad discovery. .
1. We begin with the plain language of the statute in question. “It is well established that ‘when the statute’s language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.’ ”
Lamie v. United States Tr.,
Except as authorized or required by this section, proceedings of a selection board convened undersection 611(a) of this title may not be disclosed to any person not a member of the board.
This is the language of command — “may not be disclosed” — in a context in which commands are expected to be obeyed. There is no inherent ambiguity in the phrase “may not be disclosed” that would justify departing from those plain terms pursuant to a judicially-crafted exception.
That conclusion is fortified by the fact that Congress provided an express exception to the otherwise categorical ban on disclosure. The opening clause of
“[W]here the terms of a statute are unambiguous, judicial inquiry is complete,”
Adams Fruit Co. v. Barrett,
Disclosure of selection board proceedings in civil discovery would certainly undermine, if not totally frustrate, the purpose of
[DJetermining which officers are best qualified for promotion from a pool of many fully qualified candidates involves inherently difficult and subjective evaluations. ... Release of information regarding these proceedings to the public will severely undermine the ability of the Department of the Navy to effectively operate its promotion and selective early retirement systems.
Id.
2.
The Supreme Court has addressed the question of whether broad, statutory bans on disclosure should be applied according to their terms, when doing so interferes with a civil litigant’s effort to obtain discovery of relevant material under
Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title • — ■
(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.
The Court recognized that the discovery rules “encourage open exchange of information,” and quoted the admonition in
St. Regis Paper
to avoid construing statutes to suppress otherwise competent evidence.
Congress, of course, can authorize disclosure in executing its constitutional obligation to conduct a decennial census. But until Congress alters its clear provisions under§§ 8(b) and 9(a) of the Census Act, its mandate is to be followed by the courts.
Id.
at 362,
The Court noted that Congress’s purpose in barring disclosure was to promote the success and accuracy of the census by assuring the public that responses would be kept confidential, and that “[disclosure by way of civil discovery would undermine the very purpose of confidentiality contemplated by Congress.”
Id.
at 361,
3. The district court took a different approach here and declined to apply the plain language of
The district court seriously overread those precedents.' In
Laxalt,
for example, we held that the Privacy Act did not prohibit disclosure of protected material in discovery, but the provision in question expressly
permitted
disclosure “pursuant
Friedman
and
Freeman
considered different versions and clauses of
In
Freeman,
the clause at issue provided that the Secretary of Agriculture “may publish” the results of investigations and statistical information of interest to the public, “except data and information which would separately disclose the business transactions of any person and trade secrets or names of customers.”
See
4. In
Baldrige,
the Court noted that a conclusion that a statutory privilege exists “shields the requested information
from
disclosure despite the need demonstrated by the litigant.”
Our unwillingness to soften the import of Congress’ chosen words even if we believe the words lead to a harsh outcome is longstanding. It results from “deference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill.”
Lamie,
5.
The plaintiffs’ motion to compel was titled “Motion for an Order Requiring Defendant Secretary of the Navy to Release Personnel Associated with Chaplain Promotion Boards from their Oath Not to Disclose Promotion Board Proceedings.” Although the title mentioned only promotion boards, the plaintiffs requested the court to compel the Secretary to release all members of “promotion, selective early retirement (‘SER’) and other statutory boards” from their oath of nondisclosure. Mem. in Support of Pis.’ Mot. at 2. The plaintiffs used the term “selection board” throughout the motion to refer collectively to all types of selection boards. See id. at 7, 9; see also id. at 7 (citing to the complaint for allegations of impropriety in the selective early retirement process).
The Navy understood the plaintiffs to be seeking disclosure of promotion boards and selective early retirement boards. Defs.’ Opp. to Pis.’ Mot. at 5 n.3. Throughout the opposition, the Navy used the term “selection board” and did not distinguish among the different types of boards.
See id.
at-2, 6, 16, 17. The Navy argued that the district court should deny “discovery into the deliberations of Chaplain Corps promotion and selective early retirement (‘SER’) boards” because “
On appeal, neither of the parties distinguished between the different types of selection boards. The plaintiffs referred collectively to “selection boards,”
see
Ap-pellees’ Br. at 37, 46, and also discussed both promotion selection boards,
see id.
at 40, 44, and selective early retirement boards,
id.
at 45, in their arguments against the existence of a statutory bar. The plaintiffs never argued that
We are frankly a bit surprised that throughout this dispute about whether a one-sentence statutory provision barred disclosure of selection board proceedings, neither party pointed out that the statute, by its terms, applied only to certain types of selection board proceedings. This calls to mind what Judge Friendly described as
IV. The Chaplains’ Pendent Claims
In their brief, the Chaplains present two additional issues, arguing that the district court erred in rejecting their claims that (1) Navy chaplains should be considered clergy, not naval officers, for the purpose of evaluating their constitutional claims, and (2) allowing Navy chaplains to sit on promotion boards violates the Establishment Clause of the First Amendment. See Appellees’ Br. at 46, 52-55. Recognizing that these issues are not presently appeal-able by themselves, the Chaplains nonetheless urge this court to exercise pendent appellate jurisdiction to review them now.
“This court does not exercise pendent appellate jurisdiction frequently or liberally.”
National R.R. Passenger Corp. v. ExpressTrak,
* * *
We reverse the district court’s decision with respect to promotion selection boards, vacate the district court’s decision with respect to continuation on active duty and selective early retirement selection boards, and remand for further proceedings consistent with this opinion. The petition for mandamus is dismissed as moot.
Notes
. In a related case, the Ninth Circuit summarily dismissed for lack of jurisdiction a similar appeal from an order requiring disclosure, citing
Bank of America v. National Mortgage Equity Corporation,
. As the district court recognized,
see CFGC,
The Chaplains also seek support for their clear statement rule from
Webster v. Doe,