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In re England

July 27, 2004

IN RE: GORDON R. ENGLAND, SECRETARY OF THE NAVY, ET AL., PETITIONERS


On Petition for Writ of Mandamus and Appeals from the United States District Court for the District of Columbia (No. 00cv00566) (No. 99cv02945)

Before: Ginsburg, Chief Judge, and Garland and Roberts, Circuit Judges.

The opinion of the court was delivered by: Roberts, Circuit Judge

Argued April 22, 2004

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," 10 U.S.C. § 618(f), and board members take an oath of confidentiality to implement this requirement. Certain current and former Navy chaplains and their particular endorsing agency, the Chaplaincy of Full Gospel Churches (CFGC), sued the Navy, alleging that it discriminates against chaplains affiliated with the CFGC in, among other things, promotion decisions. The chaplains and the CFGC sought to compel the Secretary of the Navy to release selection board members from their oath of confidentiality, to allow them to testify about selection board proceedings leading to the challenged decisions.

The district court ruled that Section 618(f) did not preclude disclosure of selection board proceedings through civil discovery, because Congress had not expressly addressed the question of such discovery in providing that board proceedings "may not be disclosed." The court accordingly ordered the Secretary to release selection board members from their oath. We reverse and hold that Section 618(f) bars the disclosure through civil discovery of promotion selection board proceedings.

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't of 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 Warfighting 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 "is professionally qualified to represent that faith group within the military Chaplaincy." Chaplain Candidate Program Officer Handbook Glossary; see Directive ¶¶ 5.1-5.2. Ecclesiastical endorsement must be maintained throughout a chaplain's career; withdrawal of ecclesiastical endorsement at any point in a chaplain's career could result in separation from the Navy. Directive ¶ 5.1.4.

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 10 U.S.C. § 611(a). Continuation on active duty decisions occur when the needs of the Navy require the selection of certain officers -- otherwise subject to discharge or retirement for failing to be promoted to the next rank -- to continue on active duty for an established period of time. See id. § 637(a)(1), (d). Conversely, selective early retirement decisions generally involve the selection of officers in the grade of captain who were passed over for promotion two or more times for involuntary, early retirement. Id. § 638(a)(1).

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 10 U.S.C. § 611(a); continuation on active duty and selective early retirement boards are convened under 10 U.S.C. § 611(b). Selection boards must consist of five or more active-duty naval officers who "must be serving in a grade higher than the grade of the officers under consideration by the board, except that no member of a board may be serving in a grade below ... lieutenant commander." 10 U.S.C. § 612(a)(1). At least one member of the board must be from the category being considered; thus, if a selection board is considering chaplains, at least one board member must be a chaplain. See id. § 612(a)(2)(A).

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 10 U.S.C. § 615(a), (b). A precept is the Secretary's official guidance to the board, consisting of: (1) the maximum number of officers that the board may recommend for promotion, (2) "information or guidelines relating to the needs of the [Navy] for officers having particular skills," and (3) applicable guidelines from the Secretary of Defense. Id. § 615(b). A promotion selection board considers these items and recommends those officers "whom the board ... considers best qualified for promotion." Id. § 616(a).

The promotion board reports its recommendations to the Secretary, 10 U.S.C. § 617(a), who takes action on the report in accordance with Section 618. If the Secretary "determines that the board acted contrary to law or regulation or to guidelines furnished the board under Section 615(b)," the Secretary must return the board's recommendations with a written explanation for further proceedings. Id. § 618(a)(2). The Secretary otherwise reviews the board's recommendations and adopts or modifies the list, and then forwards it to the President through the Chairman of the Joint Chiefs of Staff and the Secretary of Defense. See id. § 618(b), (c). The President ultimately appoints recommended officers for promotion to the next rank, subject to confirmation by the Senate for promotions above the rank of lieutenant (junior grade). See id. § 624.

The other statutory selection boards -- continuation on active duty and selective early retirement -- are convened under Section 611(b) and have somewhat different procedures. The Secretary has final authority over these boards, and no Presidential or Senatorial action is involved. In addition, unlike the situation with promotion boards, there are no statutory guidelines that dictate what information other statutory selection boards may consider.

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]." 10 U.S.C. § 613. As noted, members of promotion selection boards may not disclose the proceedings of the board to anyone not a member of the board, "[e]xcept as authorized or required by [Section 618]." Id. § 618(f). Navy regulations also require all selection board members to take an oath to "not divulge the proceedings of this board except as authorized or required by the Secretary of the Navy or higher authority." Mem. in Support of Mot. for an Order Requiring Def. Secretary of the Navy to Release Personnel Associated with Chaplain Promotion Boards from their Oath Not to Disclose Promotion Board Proceedings (Oct. 29, 2002) (Pls.' Mot.), Ex. 1, Oaths; see also SECNAV Instruction 1420.1A, Promotion and Selective Early Retirement of Commissioned Officers on the Active Duty Lists of the Navy and Marine Corps ¶ 12(f) (Dep't of the Navy Jan. 8, 1991) ("Each member ... shall swear or affirm that he or she will not disclose the proceedings or recommendations of the board except as authorized or required by SECNAV or higher authority.").

Section 618(f) was enacted as part of the Defense Officer Personnel Management Act (DOPMA), Pub. L. No. 96-513, 94 Stat. 2835 (1980) (codified in scattered sections of 10 U.S.C.). Through DOPMA, Congress sought to update the existing statutory framework for military promotions established by the Officer Personnel Act of 1947, Pub. L. No. 80-381, 61 Stat. 795, by eliminating the services' individual promotion systems in favor of "a single, permanent promotion system under a single, applicable statutory grade table and under laws that would be the same for each service." S. Rep. No. 96-375, at 3 (1979). Section 618(f) codified in a uniform manner the established practice in the individual services of barring the disclosure of selection board proceedings. See, e.g., Brenner v. United States, 202 Ct. Cl. 678, 686 (Ct. Cl. 1973) ("The proceedings of selection boards are ...


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