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Adair v. Winter

September 11, 2006


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 123 & 195




The plaintiffs in this consolidated case are current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains. The plaintiffs charge that the hiring, retention and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. Currently before the court is the plaintiffs' motion for declaratory judgment.*fn2 This motion does not directly concern the plaintiffs' underlying constitutional claims. Rather, the plaintiffs' instant motion comprises a constitutional challenge to 10 U.S.C. § 618(f),*fn3 which, as the D.C. Circuit determined in a previous appeal in this case, serves as an absolute bar to civil discovery of the proceedings of Naval officer promotion selection boards. In re England, 375 F.3d 1169 (D.C. Cir. 2004). In essence, the plaintiffs argue that § 618(f), as applied to their underlying constitutional challenges of Naval policy, denies them an opportunity for meaningful judicial review because the evidence barred by § 618(f) is essential to their claims. Because there is no general constitutional right to statutorily privileged evidence essential to establishing a constitutional claim and because evidence of the proceedings of individual promotion boards is not essential to the plaintiffs' constitutional challenges to Naval policies, the court denies the plaintiffs' motion for declaratory judgment.


A. Factual Background

Because the court has published nearly a dozen opinions in this case, it will dispense with a full recitation of the lengthy and convoluted factual background.*fn4 The plaintiffs' claims fall into three principal categories: First Amendment Establishment Clause claims, Free Exercise Clause claims and Equal Protection Clause claims. Adair v. England, 183 F. Supp. 2d 31, 41 (D.D.C. 2002). First, the plaintiffs charge that the Navy has established and maintained an unconstitutional religious quota system which enables the Navy to hire, promote and retain chaplains from liturgical denominations at a rate greater than the liturgical Christian representation among all Navy personnel. Id. at 41-42. Second, the plaintiffs allege a variety of constitutional challenges to the Navy's chaplain-promotion system, including the placement of one Catholic chaplain on each promotion board, the use of chaplains to rate other chaplains, the application of "faith group identifier" codes,*fn5 and the general domination of promotion boards by liturgical Protestant and Catholic chaplains. Id. at 42-44. Finally, the plaintiffs assert that the Navy's discriminatory policies against, and general hostility toward, non-liturgical denominations deny non-liturgical chaplains and their would-be congregants the constitutional right to free exercise of their religion. Id. at 44-45.

B. Procedural History

Without unnecessarily expending judicial resources providing a full exposition of the lengthy procedural background of this case,*fn6 the court notes the following. In a previous decision in this case, the court granted the plaintiffs' motion to compel, ruling that § 618(f)'s general bar on disclosure did not bar civil discovery of promotion-board proceedings. Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (D.D.C. 2003). The D.C. Circuit reversed, holding that § 618(f)'s command that promotion-board proceedings "may not be disclosed" includes "no inherent ambiguity . . . that would justify departing from those plain terms pursuant to a judicially-crafted exception." In re England, 375 F.3d at 1177. The provision, therefore, constitutes an absolute statutory privilege from civil discovery of those proceedings under Rule 26(b)(1) of the Federal Rules of Civil Procedure. Id. As a result of the D.C. Circuit's decision in In re England, the plaintiffs argue that § 618(f) is unconstitutional. The court now turns to the plaintiffs' motion.


A. The Plaintiffs' Current Constitutional Challenge is Not Barred by the Law-of-the-Case Doctrine

The government argues that by previously questioning the constitutionality of § 618(f) to the D.C. Circuit in In re England, the plaintiffs are barred from raising their present constitutional challenge. Defs.' Opp'n at 10-12. Accordingly, before addressing the difficult constitutional issues posed by the plaintiffs, the court will consider whether the law-of-the-case doctrine bars the plaintiffs from raising those claims. To do so, the court will briefly summerize the issues at play before the D.C. Circuit in In re England and the plaintiffs' arguments levied in that proceeding.

In In re England, the D.C. Circuit ruled that § 618(f) constitutes a statutory bar to civil discovery of promotion-board proceedings. In re England, 375 F.3d at 1181 (stating that despite the "harsh outcome," § 618(f) "applies to block civil discovery of promotion selection board proceedings in civil litigation"). In appellate briefing to the In re England court, the plaintiffs argued that if § 618(f) constituted a statutory bar to civil discovery of promotion-board proceedings, it should not apply in cases (such as this) in which plaintiffs raise constitutional claims. Defs.' Opp'n Ex. 6 at 22.

To support this argument, the plaintiffs relied on Webster v. Doe, id. at 29-32, a case in which a CIA employee claimed that the CIA violated his constitutional rights by terminating him because of his sexual orientation. Webster v. Doe, 486 U.S. 592, 596 (1988). At issue in Webster was Section 102(c) of the National Security Act, which allows the CIA Director to terminate employees whenever he "shall deem such termination necessary or advisable in the interests of the United States." 5 U.S.C. § 701(a)(2). The Court ruled that § 102(c) "fairly exudes deference to the Director, and appears . . . to foreclose the application of any meaningful judicial standard of review." Webster, 486 U.S. at 600. The Court, however, declined to infer that Congress intended § 102(c) to bar judicial review of constitutional challenges finding no "clear intention" to that effect. Id. The Webster Court utilized this "clear intention" requirement for interpretations of congressional bars to judicial review of constitutional claims to avoid "the 'serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Id. at 603 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986) (noting that "all agree that Congress cannot bar all remedies for enforcing federal constitutional rights") (citation omitted)).

Attempting to shove ยง 618(f) into the Webster framework, the plaintiffs relied in their appellate brief on the legal assumption that a bar to civil discovery of promotion-board proceedings is tantamount to a legislative attempt to preclude judicial review of their constitutional claims. Defs.' Opp'n Ex. 6 at 22. The D.C. Circuit rejected this argument, noting that "[s]section 618(f) . . . does not preclude judicial review of the [plaintiffs'] claims, and the government has not argued that it does." In re England, 375 F.3d at 1180 n.2. ...

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