The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
These cases were referred to me by Judge Urbina for the resolution of discovery disputes. Currently pending before me is the issue of whether the deliberations of the Navy Chaplain Corps' active-duty selective early retirement selection boards are discoverable. For the reasons stated herein, I find that such deliberations are discoverable.
Current and former non-liturgical Protestant members of the Navy Chaplain Corps and their endorsing agency, the Chaplaincy of the Full Gospel Churches (collectively "plaintiffs"), brought these two lawsuits against the Navy, the Secretary of the Navy, and Navy officials (collectively "defendants" or "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 and the Religious Freedom Restoration Act ("RFRA") of 1993, 42 U.S.C. § 2000-bb et seq.*fn1 Plaintiffs allege that the Navy's discriminatory practices favor Catholic and liturgical Protestant chaplains to the detriment of non-liturgical Protestant chaplains.*fn2 Plaintiffs' specific allegations include the assertion that the Navy discriminates against non-liturgical Protestant chaplains in promotion and retention. The two lawsuits were consolidated for the limited purpose of consideration and determination of preliminary motions.
On October 29, 2002, plaintiffs filed a 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. In that motion, plaintiffs sought an order permitting discovery of the deliberations of active-duty promotion and selective early retirement selection board proceedings. Judge Urbina granted the motion, finding that the requested discovery was reasonably calculated to lead to the discovery of admissible evidence, that the deliberations were not shielded from discovery by the deliberative process privilege, and that 10 U.S.C. § 618(f) does not bar civil discovery of selection board deliberations.
Chaplaincy of Full Gospel Churches, et al. v. Johnson, 217 F.R.D. 250, 256-61 (D.D.C. 2003).
The Navy appealed the order granting plaintiffs' motion and the court of appeals ruled that 10 U.S.C. § 618(f) operates as a complete bar to discovery of the deliberations of active-duty promotion selection boards. In re England, 375 F.3d 1169, 1177-82 (D.C. Cir. 2004). The court of appeals noted that section 618(f) expressly references promotion selection boards, but contains no reference to continuation on active-duty or selective early retirement selection boards. Id. at 1181-82. Accordingly, the court of appeals reversed Judge Urbina's order with regard to promotion boards only and vacated the order with regard to continuation on active-duty and selective early retirement boards, remanding for determination by this court whether there is a statutory prohibition to discovery of continuation on active-duty and selective early retirement boards. As the court of appeals explained:
[I]n reversing the district court's decision with respect to promotion selection boards, we do not decide whether proceedings of other statutory selection boards are discoverable. Neither the district court nor the parties addressed that as a distinct question, and analysis of it may turn in part on a proper understanding of Section 618(f). We accordingly, vacate the district court's decision with respect to continuation on active-duty and selective early retirement selection boards, and remand for further consideration. The parties should be afforded the opportunity to litigate, and the district court in the first instance to decide, whether continuation on active-duty and selective early retirement board proceedings are protected, and to what extent, in light of our decision on the proper reading of Section 618(f).
Pursuant to the court of appeals decision, a briefing schedule was established and the parties submitted argument whether active-duty selective early retirement board deliberations are discoverable.*fn3 See Plaintiffs' Brief in Response to the Court's 4/4/05 Minute Order on Why 10 U.S.C. § 618(f)'s Bar to Discovery of Proceedings of Promotion Boards Convened Under 10 U.S.C. § 611(a) Can Not Apply to Selective Early Retirement and Continuation Boards Convened Under 10 U.S.C. § 611(b) ("Pls. Brief"); Defendants' Opening Memorandum Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active-Duty Selective Early Retirement Boards ("Defs. Br."); Plaintiffs' Reply to Defendants' Opening Memorandum Regarding Discoverability of Deliberations of Navy Chaplain Corps Active-Duty Selective Early Retirement Boards ("Pls. Reply Br."); Defendants' Reply Memorandum Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active-Duty Selective Early Retirement Boards ("Defs. Reply Br.").
A. There Is No Statutory Prohibition to the Discovery of Active-Duty Selective Early Retirement Selection Board Deliberations
1. The Statutory Framework
The Navy's personnel system, which applies to all officers, including chaplains, is governed by 10 U.S.C. §§ 501 et seq. (the "statute"). Under this system, promotion, continuation on active-duty, and selective early retirement determinations involve a selection board comprised of naval officers who deliberate, make selections, and then submit their recommendations to the Secretary of the Navy. See 10 U.S.C. §§ 611-640. Selection boards for promotion are convened under 10 U.S.C. § 611(a), while selection boards for continuation on active-duty and selective early retirement are convened under 10 U.S.C. § 611(b). 10 U.S.C. §§ 611(a)-(b). The procedures under the two provisions differ. One significant difference is that, for promotions, the Secretary of the Navy forwards the recommendations to the Chairman of the Joint Chiefs of Staff and the Secretary of Defense, and the ultimate appointment is made by the President, subject to confirmation by the Senate for promotions above the rank of lieutenant. 10 U.S.C. § 618. In comparison, the Secretary of the Navy has final authority over continuation on active-duty and selective early retirement determinations. See 10 U.S.C. §§ 637(c), 638. Another significant difference is that the statute provides guidelines dictating what the selection board may consider for promotion recommendations, see 10 U.S.C. § 615, but the statute contains no such guidelines for continuation on active-duty and ...