Adair v. Winter
| Decision Date | 11 September 2006 |
| Docket Number | Civil Action No. 00-0566 (RMU).,Civil Action No. 99-2945 RMU. |
| Citation | 451 F.Supp.2d 202 |
| Court | U.S. District Court — District of Columbia |
| Parties | Robert H. ADAIR et al., Plaintiffs, v. Donald C. WINTER,<SMALL><SUP>1</SUP></SMALL> Secretary of the Navy et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v. Donald C. Winter, Secretary of the Navy et al., Defendants. |
Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.
Michael Q. Hyde, Washington, DC, for Defendants.
In the latest iteration of this longstanding dispute between non-liturgical naval chaplains and the United States Navy, the Navy challenges Magistrate Judge Facciola's ruling that the plaintiffs are entitled to discovery of proceedings of Selective Early Retirement ("SER") boards. The plaintiffs' underlying allegation is that they were the victims of religious discrimination at the hand of the SER boards and, in preparing this case, seek discovery of SER-board proceedings. In the proceedings before Judge Facciola, the government claimed that the plaintiffs were barred from discovery into these proceedings pursuant to both federal statutes and the Federal Rules of Civil Procedure. Judge Facciola rejected these assertions and the defendants filed a motion for reconsideration. Because Judge Facciola's ruling is not clearly erroneous or other wise a violation of law, the court affirms Judge Facciola's discovery order and denies the defendants' motion for reconsideration.
The plaintiffs in this case allege that the Navy established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments. Second Am. Compl. at 2. According to the plaintiffs, until the 1980s, the Navy hired chaplains from various faith groups based on objective criteria, such as the relative percentage a religion represented in the total American population. Id. at 23-24. In response to a shift in America's religious demographics away from liturgical Protestant denominations and toward non-liturgical Christian faith groups, however, the Navy allegedly abandoned its objective criteria and adopted a subjective "thirds policy." Id. at 24. Under the thirds policy, the Navy allegedly reserved one-third of its Chaplain Corps slots for Catholics, one-third for liturgical Protestants, and one-third for members of all other religions (including non-liturgical Christians). Id.
According to the plaintiffs, the Navy applied the thirds policy not only to accessions,2 but to promotions and retentions. Id. at 25. To identify officers for promotion and early retirement, the Navy uses selection boards that evaluate a chaplain's capacity and potential for further service. Id. at 28, 30 (citing 10 U.S.C. §§ 612 et seq.). The plaintiffs allege that to maintain liturgical control of the Chaplain Corps, the Navy uses the promotion and SER boards to diminish non-liturgical chaplains' opportunities for promotion and to "thin down" the number of non-liturgical chaplains at the higher ranks by forcing them out of service. Id. at 24, 28, 32-33. In support of their allegations, the plaintiffs set forth various statistics and anecdotal evidence. E.g., id. at 4-9, 14-17, 19-20, Exs. 2-4, 6. The plaintiffs also point to a 1995 report ("the Ellis Report") noting a "clear" and "disconcerting" institutional bias against non-liturgical chaplains in key Navy positions and a 1997 report ("the Stafford Report") indicating that one promotion board "may have systematically applied a denominational quota system, perhaps to ensure balanced denominational representation across the Chaplain Corps." Id. at 26-27, 32, Exs. 5, 8.
The plaintiffs filed their complaint in November 1999. Two years later, in January 2001, the court's Calendar Committee transferred this case and the related case of Adair v. Johnson, Civil Action No. 00-0566, to this member of the court. On January 10, 2002, the court issued a comprehensive memorandum opinion granting in part and denying in part the defendants' motion to dismiss both consolidated cases. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002). The court concluded, inter alia, that the plaintiffs had successfully stated a claim that the defendants' policies and practices violated the Constitution. Id.
On October 29, 2002, the plaintiffs filed their motion to compel the testimony of Navy Chaplain promotion selection boards and SER boards. Chaplaincy of Full Gospel Churches v. Johnson ("Chaplaincy I"), 217 F.R.D. 250, 254 n. 4 (D.D.C.2003). They contended that the testimony of selection-board personnel is material to their claims and that the Navy had refused to allow such personnel to testify on the grounds that the proceedings of a selection board "may not be disclosed to any person not a member of the board." Pls.' Mot. to Compel at 1 (citing 10 U.S.C. § 618(f)). This court, on September 2, 2003, granted the plaintiffs' motion to compel, ruling (1) that the requested testimony was relevant to the plaintiffs' claims, (2) that the information sought was not shielded from civil discovery by the deliberative-process privilege, and (3) that 10 U.S.C. § 618(f) did not bar limited discovery. Chaplaincy I, 217 F.R.D. 250. On appeal, the D.C. Circuit reversed in part and vacated and remanded in part. In re England, 375 F.3d 1169 (D.C.Cir.2004). The Circuit court ruled that 10 U.S.C. § 618(f) (in conjunction with 10 U.S.C. § 611(a)), constitutes an absolute bar to disclosure of promotion selection board proceedings in civil discovery. Id., at 1177-1178. Because the parties had not briefed this court on the applicability (or non-applicability) of § 618(1) to SER boards specifically, the D.C. Circuit remanded to this court the determination, in the first instance, of whether SER-board proceedings are similarly exempt from civil discovery.
Acting upon an April 4, 2004 referral by this court for discovery disputes, Judge Facciola issued a memorandum opinion ruling on this issue on March 8, 2006. Judge Facciola ruled that § 618(f) did not shield SER-board proceedings from civil discovery, that 10 U.S.C. § 14104 did not bar discovery into SER-board proceedings, and that Navy regulations prohibiting board members from discussing board proceedings did not limit discovery into SER-board proceedings. Chaplaincy of Full Gospel Churches v. England ("Chaplaincy II"), 234 F.R.D. 7 (D.D.C.2006). Additionally, Judge Facciola reaffirmed this court's prior ruling that discovery into SER-board proceedings is discoverable pursuant to Federal Rule of Civil Procedure 26(b)(1) and is not shielded by the deliberative-process privilege. Id. at 12-13 (citing Chaplaincy I, 217 F.R.D. at 256-58)., The instant motion for reconsideration followed.
A party may invoke Federal Rule 72(a) and Local Rule 72.2 to seek reconsideration of a magistrate judge's determination in a discovery dispute. FED. R.Civ.P. 72(a); LcvR 72.2. Upon review, "the magistrate judge's decision is entitled to great deference" and will not be disturbed "unless found to be `clearly erroneous or contrary to law.'" Boca Investerings P'ship v. United States, 31 F.Supp.2d 9, 11 (D.D.C.1998). "In view of this standard, the court will affirm the magistrate judge's determination unless `on the entire evidence' the court `is left with the definite and firm conviction that a mistake has been committed.'" Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289 (D.D.C. 2000) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948)); Arakelian v. Nat'l W. Life Ins. Co., 126 F.R.D. 1, 2 (D.D.C.1989).
The defendants raise four principal arguments in challenging Judge Facciola's March 3, 2006 Memorandum Opinion. First, the defendants argue that Navy instruction 1420.1A ("SECNAVINST 1420.1A"), adopted pursuant to a delegation of authority by Congress, protects the Navy from disclosing SER-board proceedings. Defs.' Mot. to Recons. ( ) at 8-9. Second, the defendants assert that they are protected from civil discovery of SER-board proceedings by 10 U.S.C. § 14101. Id. at 9-10. Third, the defendants argue that as a matter of policy—to encourage "candid discussions" amongst SER board members—the court should not require disclosure of SER-board proceedings. Id. at 12-13. Fourth, the defendants argue that Judge Facciola erred in adopting this court's prior determination that the plaintiffs' discovery request into SER-board proceedings is discoverable under the Federal Rules of Civil Procedure and that the government was not entitled to a deliberative-process privilege. Id. at 13-25. The court addresses each of these arguments. However, because the defendants organized their motion in a disorganized and confused manner, the court will address each of these arguments utilizing its own structure.
Judge Facciola appropriately begins his analysis with the plain text of the statute. Chaplaincy II, 234 F.R.D. at 11 (citing In re England, 375 F.3d at 1177). Reading the statute, Judge Facciola concluded that 10 U.S.C. § 618(d) does not bar civil discovery into SER-board proceedings. Id.
Section 618(f) provides that "[e]xcept as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board." 10 U.S.C. § 618(f). Referenced explicitly in this provision, § 611(a) "provides authorization to convene `selection boards to recommend for promotion.'" In re England, 375 F.3d at 1181. SER boards, at issue in the instant matter, are...
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In re Navy Chaplaincy
...that they needed to prove their constitutional claims. Judge Urbina agreed with plaintiffs as to the first point, see Adair v. Winter, 451 F.Supp.2d 202, 206 (D.D.C. 2006) (allowing discovery of selective early retirement board proceedings), but not the second, see Adair v. Winter, 451 F.Su......
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In re Navy Chaplaincy, Misc. Action No. 07-0279 (RMU).
...I, 217 F.R.D. at 256-58). The defendants appealed Judge Facciola's decision, but this court denied the appeal. Adair v. Winter, 451 F.Supp.2d 202, 204 (D.D.C.2006). On October 17, 2006, the President signed the National Defense Authorization Act for Fiscal Year 2007, H.R. 5122, 109th Cong. ......