In the United States Court of Federal Claims
* Selective Early Retirement;
ROBERT F. CHRISTIAN, II, * Jurisdiction;
* Defense Officer Personnel Management
laintiff, * 10 U.S.C. §§ 638, 638a;
* 10 U.S.C. § 1552;
* DoDD 1332.32;
* ABCMR Review;
* RCFC 15(a);
v. * Amendment of Pleadings;
* RCFC 23;
* Class Certification;
* Intervention as Plaintiff;
* Fifth Amendment Due Process Clause;
THE UNITED STATES, * Racial Classification;
* Strict Scrutiny;Defendant. * Gender Classification.
John K. Larkins, Jr., Law Offices of Chilivis, Cochran,
Larkins & Bever, LLP, Atlanta, GA, for plaintiff. Nickolas
P. Chilivis and J.D. Dalbey, Law Offices of Chilivis,
Cochran, Larkins & Bever, LLP, Atlanta, GA, of counsel.
Lt. Col. Billy Nix, U.S. Army (Ret.), Newnan, GA, pro
se applicant for intervention as plaintiff.
Armando O. Bonilla, with whom were James M. Kinsella,
Assistant Director, David M. Cohen, Director, Commercial
Litigaton Branch, and Frank W. Hunger, Assistant Attorney
General, Civil Division, U.S. Department of Justice, Washington,
D.C., for defendant.
Lt. Col. Terry L. Elling, Chief, Military Personnel Litigation,
and Cpt. Joanne P. Tetreault, Army Legal Services Agency,
U.S. Department of the Army, Arlington, VA, of counsel.
SMITH, Chief Judge.
This case, and the constitutional claim raised in this case, is
not about race. However, it involves deeply held concerns about
creating a society free of the scourge of racial injustice that
has, during much of our history, diminished the quality of life
for African-Americans as well as other racial, ethnic, or religious
minorities. Today, the court is called to examine whether a modern
affirmative action program of the United States Army upholds the
promise of justice for individuals of all races. This promise is,
forever enshrined in the law of the land by the tears and triumphs
of the great civil rights struggles of the past century and a half.
How, then, should this court determine whether the program at issue
is fundamentally just and consistent with our Constitution? In 1963,
Dr. Martin Luther King, Jr. gave the following answer:
An unjust law is a human law that is not rooted in eternal
law and natural law. Any law that uplifts the human personality
is just. Any law that degrades human personality is unjust.
All segregation statutes are unjust because segregation distorts
the soul and damages the personality. It gives the segregator
a false sense of superiority and the segregated a false sense
of inferiority, . . . and ends up relegating persons to the
status of things.
Martin Luther King, Jr., Letter from Birmingham Jail, in
I Have a Dream: Writings and Speeches that Changed the World
83, 89 (James M. Washington ed., Harper Collins 1992).
Racial prejudice is ugly and foul. It not only harms those whom
it is directed towards, but it also destroys the souls of those
in whose hearts it resides. The militarys efforts to eradicate
it are praiseworthy in the best sense. Just as our Armed Forces,
of all races, have ensured our freedom with the blood of thousands
and thousands of our best and brightest, they are now attempting
to ensure a military that is focused on merit, but blind to color.
That task, however, cannot be achieved by unjust and unconstitutional
means, no matter how worthy its goal. Dr. King himself repeatedly
observed that the moral cause of racial justice cannot be fought
by immoral means, and that freedoms of whites and blacks are "inextricably
bound" to one another. See, e.g., King, Jr., I Have
a Dream, in I Have a Dream: Writings and Speeches that Changed
the World 101, 103 (James M. Washington ed., Harper Collins 1992).
Race is a constitutionally suspect classification. Government cannot
hire, fire, promote, retire, reward, award, evaluate, or choose
on the basis of race. There is no such thing as "separate but
Procedurally, the case is before the court on defendants
Motion to Dismiss and for Judgment upon the Administrative Record,
plaintiffs Cross-Motion for Judgment upon the Administrative
Record, and plaintiffs Motion for Class Certification. Plaintiff,
U.S. Army Lt. Colonel Robert F. Christian, II, claims that he was
illegally retired from the Army because the statutes and procedures
governing his selective early retirement were violated and because
the Armys race and gender-based retention goals and retirement
selection procedure violated the equal protection component of the
Due Process Clause of the Fifth Amendment. During the course of
this litigation, another former Army Lt. Colonel, Billy Nix, filed
a Motion to Intervene as plaintiff, pressing substantially the same
For the reasons stated below this court GRANTS Defendants
Motion to Dismiss in part, GRANTS plaintiffs Cross-Motion
For Judgment Upon the Administrative Record in part, and GRANTS
plaintiffs Motion for Class Certification in part. Additionally,
the Court DENIES the Motion to Intervene, but INCLUDES Lt. Col.
Nix as a member of the class.
In 1980, Congress enacted the Defense Officer Personnel Management
Act (DOPMA). Pub. L. No. 96-513, 94 Stat. 2835 (Dec. 12, 1980).
Under DOPMA, Regular Army Lieutenant Colonels (LTCs) twice considered
but not selected for promotion to Colonel and not placed on another
promotion recommendation list may be considered for mandatory early
retirement by a Selective Early Retirement Board (SERB). 10 U.S.C.
§ 638(a)(1) (1997). DOPMA requires that the Secretary of the
Army submit a list of officers to the selection board which includes
all mandatory retirement-eligible LTCs between the most junior and
the most senior LTC to be considered. 10 U.S.C. § 638(e)(2)(A)
(1997). The Secretary must specify the number of eligible LTCs which
a SERB may recommend for early retirement. Such number may not be
more than thirty percent of the number of officers considered in
each grade in each competitive category. 10 U.S.C. § 638(a)(2)
On January 13, 1992, the Secretary of the Army issued a Memorandum
of Instruction (MOI) to the SERB contained selection goals and requirements
for different LTC career fields and skills. The MOIs substantive
selection policies were set forth in Enclosure 1, Guidance, while
the MOI deliberation process was set forth in Enclosure 2, Administrative
Instructions, ¶ 3, Concept of Operations. The parties stipulated
that the SERB followed the MOI. In addition to the description immediately
below, the court will also discuss appropriate details along with
its deliberations on the various counts.
The Concept of Operations established four phases for the SERBs
internal decision making. At Phase I, the SERB evaluates the records
of all officers in accordance with the standards specified in the
Guidance (hereinafter Phase I evaluation), assigns a numeric score
to each record, and establishes an order of merit list regardless
of the career field or skill. As fully discussed below, the Guidance
announced a goal for the percentage of minorities and women to be
retired and provided different evaluation standards for minorities
and women than for officers in general, ostensibly due to possible
past personal or institutional discrimination.
At Phase II, the SERB selects from the order of merit the quantity
of officers necessary to meet the MOIs optimum number of retirees.
The SERB then engages in a statistical comparison of minority and
female selections with selections of other officers. Phase II also
created selection goals for minority and female officers which called
for the SERB to achieve a percent of minority and female officers
recommended for retirement not greater than the rate for all officers
in the zone of consideration. In evaluating minority and female
officers, the SERB was again instructed to take into account past
personal and institutional discrimination, as defined in the Guidance,
which may have disadvantaged the officer. If the comparisons are
unfavorable, either overall or in a certain field, the SERB reevaluates
the records of minority and female officers in accordance with the
same MOI Guidance standards (hereinafter Phase II reevaluation)
and may revote on merit scores assigned to the records (hereinafter
Phase II revote) so as to change their place on the list. The SERB
then prepares the tentative retirement selection list.
During the last two phases, the SERB engages in adjustments related
to career fields and skills. Phase III involves preparation of separate
orders of merit for each career field or skill specified in an annex
to the MOI and selection of officers who are not fully qualified
or fitting to meet the needs of the Army in those areas. Finally,
during Phase IV, the SERB is supposed to conduct a final vote on
the list of officers to be retired while ensuring that the Secretarial
career field and skill requirements are met. If these requirements
were not met during prior steps but the overall optimum number was
met, the SERB was to reduce the number of LTCs to be recommended
for retirement. The list was to be reduced to a number equal to
or greater than the minimum number the SERB could recommend for
retirement. If the overall number to retire was already at the minimum
level, then the board was to replace LTCs in undesired career fields
who were not initially selected for early retirement with LTCs in
desired career fields or skills who were initially selected for
early retirement. The replacement was to proceed in reverse order
The MOI Guidance listed a number of factors for evaluation of officer
records, to wit: military bearing and physical fitness, military
and civilian education and professional training, assignment history
and professional development, record of performance, including character,
communication skills, and teaching abilities, derogatory information,
weight control, medical profiles, the Officer Evaluation Reports
(OERs), career development, and marital status. The Guidance, just
like Phase II Concept of Operations, also created selection goals
for minority and female officers which called for the SERB to achieve
a percent of minority and female officers recommended for retirement
not greater than the rate for all officers in the zone of consideration.
In evaluating minority and female officers, the SERB was instructed
to take into account past personal and institutional discrimination,
as defined by the Secretary, which may have disadvantaged the officer.
The Guidance defined potential indicia of discrimination to include
"disproportionately lower evaluation reports, assignments of
lesser importance or responsibility, and lack of opportunity to
attend career-building military schools," in effect, setting
forth a special standard for evaluation of ones service record.
Administrative Record at 189 (hereinafter AR). By its terms, this
standard applied both at Phase I and Phase II evaluations. SERB
was required to report any failures to meet the goal and explain
the situation. The 1992 After-Action Report indicates the revote
procedure was used, and that some minority officers were selected
for retention following the revote. See AR at 123. Women,
however, benefitted only from a special Phase I evaluation, because
their selection during Phase I comported with the proportionality
The SERB convened January 14, 1992 pursuant to the MOI from the
Secretary and recessed on February 6, 1992, recommending the retirement
of 1169 LTCs. The Secretary of the Army approved the SERBs
recommendations on February 29, 1992, and the plaintiff and others
selected for retirement were required to retire no later than August
31, 1992. Eight months after the SERB recessed, Congress enacted
a law that amended DOPMA at 10 U.S.C. § 638a. Pub. L. No. 102-484.
The newly inserted paragraph, effective October 23, 1992, gives
the Secretary the option of submitting all the names of eligible
LTCs in a competitive category or submitting the names of LTCs in
a competitive category who are also in particular year groups, specialties,
etc., as was already the case for lower grade officers. 10 U.S.C.
§ 638a(c)(3). The sections language in effect at the
time of the 1992 LTC ACC SERBs deliberations was silent on
submissions by criteria within a competitive category, but not expressly
prohibitive of such submissions.
Plaintiff applied to the Army Board for Correction of Military
Records (ABCMR) for administrative remedy on March 25, 1993. The
plaintiff submitted additional comments to his application to the
ABCMR on May 31, 1995. On April 10, 1996, the ABCMR denied his request
for a hearing and denied all relief requested. On March 14, 1997,
plaintiff filed a Complaint in this court and a Motion for Class
Certification. On July 14, the defendant filed a Motion to Dismiss
and for Judgment upon the Administrative Record. Plaintiff responded
with a Cross Motion for Judgment upon the Administrative Record
on August 11, 1997. The court heard initial oral argument on October
On November 4, 1997, plaintiff filed a Motion for Leave to Amend
his Complaint, and on May 15, 1998, plaintiff filed a Motion for
Leave to Amend his Motion for Class Certification. The new filings
related to the Fifth Amendment Due Process claim. The court granted
plaintiffs Motion for Leave to Amend his Complaint and Motion
for Leave to Amend his Motion for Class Certification on June 12,
1998. Defendant renewed its Motion to Dismiss and for Judgment upon
the Administrative Record on September 15, 1998.
Separately, on September 15, 1998, retired Lt. Colonel Billy Nix
of the U.S. Army Aviation Corps applied with this court pro se
to intervene as plaintiff, either as a matter of right or by permission.
Applicant Nix was retired by the same SERB as plaintiff, and the
Motion to Intervene alleged interests directly related to those
of Lt. Col. Christian.
Plaintiff renewed his Cross-Motion on December 3, 1998. The court
heard a new oral argument on the Amended Motions and defendants
renewed Motion to Dismiss on April 1, 1999.
Plaintiffs complaint, as amended, contains four counts. The
first and second counts allege that the Secretarys MOI and
the SERBs compliance therewith violated 10 U.S.C. §§
638 and 638a, and Department of Defense Directive (DoDD) 1332.32
and, thus, were illegal and void. The third count alleges that by
denying the relief requested in plaintiffs application for
administrative remedy, the ABCMR violated 10 U.S.C. § 1552.
The fourth count alleges that the Armys race and gender-based
goals and revote procedure violated the Due Process Clause of the
Fifth Amendment. Plaintiff prays for monetary and other relief.
I. JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction to entertain all claims presented by
plaintiff pursuant to the Tucker Act, 28 U.S.C.A. § 1491(a)(1)
(claims for money judgment) and (2) (relief "incident of and
collateral to" a monetary judgment) (1997). The money mandating
statutes which support the Tucker Act jurisdiction are the Military
Pay Act, 37 U.S.C. § 204, and 10 U.S.C. § 1552 (1997).
If plaintiffs retirement was "involuntary and improper"
under the Constitution or the governing statutes and directives,
he retains his right to active duty pay under section 204. See
West v. United States, 35 Fed. Cl. 226, 230 (1996). Section
1552, which deals with correction of military records by Armed Services
boards, is itself money mandating. See French v. United States,
42 Fed. Cl. 49, 53 (1998).
In light of the governments introduction of matters outside
the pleadings, the Court will treat its Motion to Dismiss under
RCFC 12(b)(4) as an RCFC 56 Motion for Summary Judgment. See
RCFC 12(b). The same standard applies for the parties Cross-Motions
for Judgment upon the Administrative Record. See Wells
v. United States, 2000 WL 283841, at 2 (Fed. Cl. 2000); Weaver
v. United States, 46 Fed. Cl. 69, 76 (2000). Summary judgment
may be granted only if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
RCFC 56 (c). However, "[d]isputes over facts which are not
outcome-determinative under the governing law will not preclude
the entry of summary judgment." Wells, 2000 WL 283841,
at 2. Because the parties cross-moved under RCFC 56.1, "each
party bears its own burden to demonstrate the lack of genuine issues
of material fact [and] the court infers all evidence in light most
favorable to the nonmovant." Weaver, 46 Fed. Cl. at
75 (citations omitted). However, plaintiff must show by "cogent
and clearly convincing evidence" that the ABCMRs decision
was arbitrary, illegal, or in bad faith, and that he suffered substantial
prejudice as a result. French, 42 Fed. Cl. at 56.
II. GOVERNING STATUTES AND PROCEDURES
In his first two counts, plaintiff claims that the 1992 MOI and
the actions of the SERB in accordance therewith violated the statutes
and procedures governing selective early retirement, 10 U.S.C. §§
638, Selective Early Retirement, and 638a, Modification to Rules
for Continuation on Active Duty; Enhanced Authority for Selective
Early Retirement and Discharges, as well as DoDD 1332.32, Selective
Early Retirement of Regular Commissioned Officers on Active Duty.
The controlling statute, 10 U.S.C. § 638, does not expressly
prohibit the Secretary of the Army from dividing up the eligible
LTCs into career fields or skills and requiring or recommending
retention of a certain number of LTCs in these fields. The government
argues that the authority is discretionary and necessary to maintain
the objectives of the Army in this era, and this court agrees. There
is little less suited for judicial decision-making than the decision
over which skill mix will enhance our Nations defense. In
a similar situation involving an Air Force regulation, this court
found that "in the absence of a statute prohibiting the Air
Force from implementing the regulation in the manner described,
the court is without authority to interject itself in this dispute."
Small v. United States, 37 Fed. Cl. 149, 153 (1997), affd
158 F.3d 576 (Fed. Cir. 1998); see also Murphy v. United States,
993 F.2d 871 (Fed. Cir. 1993)(review of military personnel decisions
is only appropriate where discretion of Secretary of Defense is
limited, and Congress has established tests and standards against
which a court can measure the Secretarys conduct).
The governing statute states that the Secretary "shall specify
the number of officers . . . [a SERB] may recommend for early retirement
. . . [and] that number shall "not be more than 30 percent
of the number of officers considered in each grade in each competitive
category." 10 U.S.C. § 638(a)(2) (1997); accord 10
U.S.C. § 638a (c)(1) (retaining the same requirement for temporary
modifications of section 638 regarding LTCs). "Grade"
means officer rank, in this case LTC, and both parties agree that
"competitive category" means non-line versus line officers.
See 10 U.S.C. § 621; DoDD 1332.32(C)(3); Small
37 Fed. Cl. at 154 n.4, 156. Thus, the Secretary could not specify
a number that the SERB could recommend for retirement that was more
than 30 percent of the line LTCs eligible for retirement. Here,
the Secretary specified that 30 percent of all line LTCs being considered
could be recommended for retirement by the SERB and the actual number
retired by the SERB was 25.8%. AR at 104,167-68, 173.
Plaintiff claims, however, that the Secretary did violate the 30
percent cap by specifying a number greater than 30 percent of the
LTCs being considered. Plaintiffs theory is that by requiring
that certain numbers of LTCs be retained in certain career fields,
the Secretary, in effect, removed eligible LTCs from consideration
without changing the number of LTCs that could be recommended for
retirement. Plaintiff also alleges that by doing so the Secretary
also violated 10 U.S.C. § 638(e), requiring submission of a
list of all SERB-eligible officers from the most junior to most
senior in the grade and competitive category. Plaintiff states,
for example, that once the maximum number of Special Forces LTCs
that could be retired - six - was achieved, no more Special Forces
LTCs could be considered for retirement. The court finds this logic
unpersuasive because anyone of the SERB-eligible Special Forces
LTCs could end up being one of the retired six. They were all still
part of the group that had a chance of being retired. The Secretarial
instructions satisfied both the numerical and the enumeration provisions
of section 638.
The plaintiff also claims that the Secretary violated DoDD 1332.32
because his MOI disturbed the SERBs independent judgment and
the fairness of the process. The plaintiff, however, could not cite
a specific example of these values of independent judgment and fairness
in the Directive which would contradict Secretarial instructions.
The document sets forth only a very general charge concerning fairness
and also states that the Secretary may recommend policy changes
to the Directive. It does contain an express requirement that the
SERB consider all eligible officers. However, as the court found
above, the Secretary complied with this requirement. The court GRANTS
defendants Motion to Dismiss and for Judgment upon the Administrative
Record for Counts I and II.
III. ABCMR REVIEW
In plaintiffs third Count, he claims the ABCMR violated 10
U.S.C. § 1552 by denying plaintiffs application for an
administrative remedy for the alleged illegal acts set forth in
Counts I and II. Section 1552 authorizes the Secretary, acting through
a board, to "correct any military record of the Secretarys
department when the Secretary considers it necessary to correct
an error or remove an injustice." Id.
The Court of Federal Claims review "of the administrative
decision is limited to whether the . . . action [of the military
board] was arbitrary, capricious, or in bad faith, or unsupported
by substantial evidence, or contrary to law, regulation, or mandatory
published procedure of a substantive nature by which Plaintiff has
been seriously prejudiced." Clayton v. United States,
225 Ct. Cl. 593, 595 (1980) (quoting Sanders v. United States,
219 Ct. Cl. 285, 298, 594 F.2d 804, 813 (1979)); King v. United
States, 19 Cl. Ct. 703, 705 (1990). Plaintiff must provide "clearly
convincing proof" that the ABCMR acted in such a manner in
order to prevail. Dzialo v. United States, 5 Cl. Ct. 562,
567 (1984); King 19 Cl. Ct. at 705. This court cannot substitute
its "judgment for that of the military departments when reasonable
minds could reach differing conclusions on the same evidence."
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)
(quoting Sanders, 594 F.2d 804, 813-14, 219 Ct. Cl. 285 (1979)).
Plaintiff argues that his application for administrative remedy
and additional comments presented the ABCMR with sufficient evidence
to demonstrate bad faith and illegalities. He further reasons that
the ABCMR violated 10 U.S.C. § 1552 since it failed to seek
an advisory opinion on that additional evidence or, in the alternative,
failed to release the opinion to plaintiff, and ultimately denied
him relief. Plaintiff made, however, no specific showing that the
Boards decision was arbitrary, or capricious, or contrary
to the governing statutes or procedures as interpreted earlier with
respect to the first two Counts of plaintiffs complaint. Accordingly,
the court must grant defendants Motion to Dismiss as to Count
On June 12, 1998, the court granted plaintiffs Motion for
Leave to Amend Complaint, and now explains its ruling in greater
detail as follows. Rule 15(a) of this courts rules states
that leave to amend a partys own pleading after a response
has been served is to be freely given when justice so requires.
If, however, a response has not yet been served, a party may amend
its own pleadings once as a matter of right. Other circuits have
decided for purposes of Federal Rule of Civil Procedure 15(a) that
a motion to dismiss is not a "responsive pleading" and,
thus, the plaintiff may not need the leave of the court to file
an amendment to his complaint. See Hopi Tribe v. United States,
20 Cl. Ct. 782, 784 (1990)(citing Reuber v. United States,
750 F.2d 1386, 1388 (9th Cir. 1984); Barksdale v. King, 699
F.2d 744 (5th Cir. 1983); LaBatt v. Twomey, 513 F.2d 641,
651 (7th Cir. 1975). As this court noted in Hopi Tribe, leave
to amend a complaint should be granted liberally. This contributes
to the rationality and efficiency of the litigation. Regardless
of whether a motion to dismiss is a "response," there
are sufficient grounds to grant leave to amend.
The practical reasons for granting plaintiffs Motion for
Leave to Amend are preservation of judicial resources and reduction
in the time and money spent on the dispute by the parties. Granting
leave to amend would avoid imposing filing costs, docketing, and
the delay inherent in filing a separate complaint. Additionally,
justice will be served by allowing the plaintiff to add this question
involving common operative facts so that the court may look at the
whole controversy. Failure to grant the Motion would also risk the
costs of appeal should the issue be decided in favor of the plaintiff.
Defendants first argument as to why leave should be denied
is that the plaintiff has engaged in undue delay by waiting to amend
the complaint until after oral argument on the Motion to Dismiss.
At the time plaintiffs Motion for Leave to Amend was filed,
however, no substantive motion had been decided by the court. Although
plaintiff did not attempt to amend his Complaint until almost eight
months after filing it, the Motion was filed about three weeks after
the Federal Circuit held in Baker v. United States, 127 F.3d
1081, 1088-89 (Fed. Cir. 1997), that a separate complaint alleging
unconstitutional affirmative action in SERB instructions should
be allowed to proceed. The initial dismissal in Baker may
have discouraged plaintiff from including the proposed amendment
in his initial complaint. 34 Fed. Cl. 645 (1995), vacated,
127 F.3d 1081.
Defendant also argues that since plaintiff did not raise the new
allegation in his appeal to the ABCMR, the waiver doctrine precludes
him from making that claim in this court. Generally, under the waiver
doctrine, issues and arguments not made before the relevant military
correction board or administrative agency are deemed waived and
could not be raised in a judicial tribunal. See, e.g. Laningham
v. United States, 30 Fed. Cl. 296 (1994); Frecht v. United
States, 25 Cl. Ct. 121 (1992); Walden v. United States,
22 Cl. Ct. 532 (1991). Plaintiff, however, points to Federal Circuit
precedent holding that although a plaintiff may not generally raise
issues involving agency expertise for the first time in this Court,
a plaintiff may raise a constitutional claim for the first time
in federal court. In Beard v. General Services Administration,
801 F.2d 1318, 1321 (Fed. Cir. 1986), the Federal Circuit stated
that plaintiffs failure to present certain arguments to the
Merit Systems Protection Board did not preclude him from raising
those contentions before the court. The court went on to state that
"the principle of exhaustion of administrative remedies does
not always apply to constitutional challenges to the agencys
action." Id.(citing Hayes v. Dept. of the Navy,
727 F.2d 1535, 1539 (Fed. Cir. 1984); Sullivan v. Dept. of the
Navy, 720 F.2d 1266, 1274 n. 2 (Fed. Cir. 1983)).
Defendant asks that, if leave to amend is granted, the amended
claim be remanded for ABCMR proceedings out of judicial deference
for agency expertise. Plaintiffs amended complaint, however,
does not deal with issues that the ABCMR has particular experience
or expertise in. Plaintiffs proposed amendment deals solely
with an issue of law, namely whether or not the MOI given the SERB
was unconstitutional on equal protection grounds. The United States
Supreme Court has stated that in these circumstances, "[c]onstitutional
questions obviously are unsuited to resolution in administrative
hearings and, therefore, access to the courts is essential to the
decision of such questions." Califano v. Sanders, 430
U.S. 99, 109 (1977). The court cannot shrug this solemn duty off
any more than it can aggrandize unto itself matters outside of its
Finally, the government is not prejudiced by the amendment
because the facts that the amendment relies on are already in the
Administrative Record, and the court has provided the government
ample time and an oral argument to respond to the new claim.
FIFTH AMENDMENT DUE PROCESS CLAIM
Plaintiffs fourth Count claims a violation of the Due Process
Clause of the Fifth Amendment. Plaintiff alleges that the right
to equal protection guaranteed by the Due Process Clause was infringed
upon through the imposition of "unlawful gender and racially
classified retention goals and selection consideration factors,
and unlawful, gender and racially classified remedies for the possible
disadvantages of societal discrimination." Am. Compl. ¶
The SERB was directed to attempt to retire 1,352 LTCs, but required
to retire at least 1,127 LTCs. The MOI set forth four phases to
this process: Phase I and Phase II are implicated in this case.
In relevant part, the MOI stated the following requirement for evaluation
of minority and female officers:
a. The Army is firmly committed to providing equal opportunity
for minority and female officers in all facets of their career development,
utilization, and progression. The goal for this board is to achieve
a percent of minority and female officers recommended for early
retirement not greater than the rate for all officers in the zone
of consideration. This goal is important because, to the extent
that each board achieves it, the Army at large will have a clear
perception of equal opportunity and the officers not recommended
for early retirement will enjoy the opportunity for continued career
progression to the benefit of the Army. This goal is not intended
as guidance for you to meet any "quota."
b. In evaluating the records of minority and female officers,
the board should consider that past personal and institutional discrimination
may have disadvantaged minority and female officers. Such discrimination
may include, but certainly is not limited to, disproportionately
lower evaluation reports, assignments of lesser importance or responsibility,
and lack of opportunity to attend career building military schools.
Take these factors into consideration in evaluating these officers
potential to make continued significant contribution to the Army.
c. Prior to recess, the board (in the report of officers recommended
for early retirement) must review and report the extent to which
minority and female officers were recommended at a rate greater
than males and non-minority officers. Although the board may have
met the overall goals for minorities and women, it will identify
any situation in which minority and female selections were not comparable
to the overall population in specific branches or where a particular
minority-gender grouping did not fare well in comparison to the
overall population. Explain such situations fully in the boards
AR at 189 (emphasis added).
Phase I required evaluation of minority and female officers in
accord with the above factors. See AR at 181 (directing the
SERB to conduct evaluations in accordance with Enclosure 1 factors).
Phase II, which was triggered if the MOI goal for minority and female
officer retention was not met, required a re-evaluation of minority
and female officers. The Phase I factors for minority and female
officers were required to be taken into consideration again during
Phase II. In this case, the Phase II revote procedure was triggered
for minority officers, although not for female officers. See
AR at 123.
Plaintiff and defendant disagree as to whether the revote procedure
actually displaced members of the class who would otherwise have
been retained. However, if the numerical goals, the evaluation factors
for past personal and institutional discrimination, and the mere
existence of the revote procedure do not meet the Constitutions
requirements as plaintiff contends, then it is not necessary to
resolve this factual question. Accordingly, the court begins its
inquiry with an examination of the factors for the evaluation of
minority and female officers.
It is clear on its face that the MOI created a race and gender-based
goal and that it required consideration of different factors in
evaluating minority and female officers than when evaluating white
male officers. The court must now determine whether this policy
crossed the line between lawful government action and unconstitutional
A. Racial Classification
The general requirements of the Due Process Clause of the Fifth
Amendment are quite clear: "[A]ll racial classifications, imposed
by whatever federal, state, or local governmental actor, must be
analyzed under strict scrutiny." Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 227 (1995). Strict scrutiny means that
"[f]ederal racial classifications, like those of a State, must
serve a compelling governmental interest, and must be narrowly tailored
to further that interest." Id. at 235.
The government argues that the MOI does not create a racial classification.
The court disagrees. In Baker v. United States, 34 Fed.Cl.
645 (1995), vacated on other grounds, 127 F.3d 1081 (Fed.
Cir. 1997), this court found that a Charge to an Air Force SERB
to be sensitive to the possibility of past discrimination was not
a racial classification in circumstances where there was no goal.
The court pointed out that the Charge did not mandate that members
of the SERB consider race in discharge decisions. The Charge did
not establish a quota or goal for the percentage of minorities
to be discharged. The Charge did not include race in its list of
factors that SERB members should consider in making separation decisions.
Baker, 34 Fed.Cl. at 656 (emphasis added).
In contrast, the present case is all about a race-based goal. On
its face the MOI unequivocally states: "The goal for this board
is to achieve a percent of minority and female officers recommended
for early retirement not greater than the rate for all officers
in the zone of consideration." See AR at 189. Moreover,
at Phase I, the MOI requires a special evaluation of minority and
female officers records under which "the board should
consider that past personal and institutional discrimination may
have disadvantaged minority and female officers." See
id. In addition, the Phase II procedures, requiring the reevaluation
of members of minority groups when their race did not meet the specified
goal percentage and, possibly, a revote, gives members of certain
races different opportunities from other races, and follows the
same MOI standards for "personal and institutional discrimination"
as set forth at Phase I. See id.
It is clear that the SERB had to apply different standards when
evaluating minority officers than nonminority officers. If, to use
an example from the MOI itself, a minority officer had not attended
an elite military school or was not stationed on a prestigious assignment,
the Board would have to consider whether discrimination were a cause
of that circumstance. A nonminority male officer, on the other hand,
would not receive this benefit. Indeed, under the generally applicable
MOI rules quite the opposite is true. As to school attendance, the
MOI provides that "[t]he board will not establish selection
for or attendance at Command and General Staff College (CGSC), the
Army War College (AWC), or their equivalent, as a substitute for
evaluation of an officer." AR at 185. As to tours of duty,
the MOI affirms "[t]odays Army assignment philosophy
. . . that all assignments are important assignments." Id.
at 184. The After-Action Report, likewise, candidly discloses that
the SERB equaled ones minority race to anothers professional
performance. "Of those [minorities] revalidated for early retirement,
their overall manner of performance and potential was clearly
below that of their contemporaries." AR at 169 (emphasis
added). Thus, nonminority officers were required to try harder during
their careers and held to a heightened standard when evaluated against
minorities than against other nonminority officers.
The government admits a racial goal, but emphasizes that its program
pursued a goal rather than a quota. As a defense of a race-based
affirmative action policy, however, "[t]he... rejoinder
that the Policy is not a quota is a non sequitur."
Wessman v. Gittens, 160 F.3d 790, 794 (1st Cir. 1998). As the
District of Columbia Circuit noted in Lutheran Church-Mo. Synod
v. FCC, 141 F.3d 344, 354 (D.C.Cir.1998), "we do not think
that it matters whether a government hiring program imposes hard
quotas, soft quotas, or goals. Any one of these techniques induces
an employer to hire with an eye toward meeting the numerical target.
As such, they can and surely will result in individuals being granted
a preference because of their race." The governments
assertion that there were "no resulting repercussions or adverse
consequences [to SERB members] for not meeting any/all female or
minority selection or retention goals," Defs. Resp. and
Reply at 7, even if semantically correct, does not make the classification
less suspect. To pressure SERB members into making racially tainted
decisions, the MOI contains a special requirement to "fully
explain" SERBs failure to reach the "goals"
in an after-action report. Such reporting was plainly designed
as a coercive accountability measure, not an innocuous statistical
compilation. The Phase II reevaluation and revote procedures, which
kick in should the special evaluation of minorities and women at
Phase I fail to produce a desirable racial balance, can each be
viewed as special administrative burdens imposed on SERB members.
Even if there were no numerical goal or preordained outcome, the
mere existence of special procedures and invocation of special factors
for evaluating minorities confirms a suspect racial classification.
See Hopwood v. Texas, 78 F.3d 932, 937 (5th Cir. 1996) ("In
addition to maintaining separate presumptive TI levels for minorities
and whites, the law school ran a segregated application evaluation
process.") When the SERB "granted preferential treatment
to [minority officers] in its layoff decisions, plaintiff received
discriminatory rather than equal treatment." Cunico v. Pueblo
School Dist. No. 60, 917 F.2d 431, 441 (10th Cir. 1990). The
SERB was clearly instructed to apply one standard to one racial
group and a different standard to another racial group. See Lutheran
Church, 141 F.3d at 351("The crucial point is not . . .
whether they require hiring in accordance with fixed quotas; rather,
it is whether they oblige stations to grant some degree of preference
to minorities in hiring."). When special procedures have been
invoked in the past on the basis of racial classification, minorities
generally have been the victims. While in this instance the avowed
purpose may be benign, the effects of government policies are no
less invidious. Shielding these procedures from judicial review
is no less dangerous to minorities, for "by transforming equality
into a subjective standard, the concept is reduced to a spoils system,
and . . . support for equality will depend on whose ox is gored."
Clint Bolick, Unfinished Business: A Civil Rights Strategy for Americas
Third Century 35-36 (Pacific Research Institute for Public Policy
The assertion that unequal process for members of different races
should not be subject to strict scrutiny is rather curious, to say
the least, in the context of Due Process litigation. It is with
availability of fair process for all that the Fifth Amendment Due
Process Clause is traditionally concerned. Race, on the other hand,
"seldom provide[s] a relevant basis for disparate treatment."
See Adarand, 515 U.S. 200, at 228 (citing Fullilove
v. Klutznick, 448 U.S. 448 (1980)(Stevens, J., dissenting)).
The Supreme Court has long recognized such classifications to be
"by [their] very nature odious to a free people whose institutions
are founded upon the doctrine of equality" before the law.
Hirabayashi v. United States, 320 U.S. 81, 100 (1943). Government
decision-making tainted by suspect, usually arbitrary classifications
such as race is a special concern of the Clause. See, e.g.
Bolling v. Sharpe, 347 U.S. 497 (1954).
The government finally claims that the MOIs "limited
guidance -- rhetorically not offered for white men because
this group was never subjected to specific discriminatory acts based
upon their race, ethnicity, or gender -- cannot be construed as
an unconstitutional preference or benefit
bestowed upon minority and female officers." Def. Resp. and
Reply at 6. This view misconstrues both the applicable law and its
historical foundations. As the Fifth Circuit aptly summarized recent
Supreme Court precedent, "there is absolutely no doubt that
courts are to employ strict scrutiny when evaluating all racial
classifications, including those characterized by their proponents
as benign or remedial." Hopwood,
78 F.3d 932, at 940 (citations omitted). As a matter of principle,
case law now for over forty years recognized that the requirement
of equal protection "is not directed solely against discrimination
due to a two-class theory that is, based upon
differences between white and Negro," Regents
of University of California v. Bakke, 438 U.S. 265, 295 (opinion
of Powell, J., announcing judgment of the Court) (citing Hernandez,
347 U.S. 475, 478 (1954)), or even between whites and "minorities"
in general. Indeed, historically "the white majority
itself is composed of various minority groups, most of which can
lay claim to a history of prior discrimination at the hands of the
State and private individuals. Not all of these groups can receive
preferential treatment and corresponding judicial tolerance of distinctions,
for then the only majority would be the new minority
of white Anglo-Saxon Protestants." Bakke, 438 U.S. at
295. This court will not help the government exhume a theory
long put to rest by the Supreme Court.
The Constitutions scrutiny of racial discrimination covers
the entire spectrum of government action, from the sweetest carrots
to the heaviest sticks. See, e.g. Adarand, 515 U.S. 200 (strict
scrutiny applied to a federal financial incentive program to hire
subcontractors presumed economically disadvantaged because of their
ethnicity). A contrary holding would resurrect the ghost of "Jim
Crow" and signal that the federal government may discriminate
if the responsible employees are creative or well-intentioned enough.
The Supreme Courts pronouncement in Adarand is not
ambiguous: "All governmental action based on race... should
be subjected to detailed judicial inquiry to ensure that the personal
right to equal protection of the laws has not been infringed."
515 U.S. at 227 (citations omitted). It is clear that the instructions
to the SERB, at evaluation, reevaluation, and during the revote,
set forth different procedures for retirement of officers based
on race. This policy constitutes a racial classification subject
to strict scrutiny.
When there is a racial classification, the government has the burden
of proving that its affirmative action program served a compelling
governmental interest. See Croson, 488 U.S. at 500; Wygant,
476 U.S. at 277 (plurality opinion). The court finds that none of
the interests proffered by the Army, whether nonremedial or remedial,
are strong enough to justify a racial classification.
1. Nonremedial Interests.
The MOI statement that the race-conscious goals were "important
because, to the extent that each board achieves it, the Army at
large will have a clear perception of equal opportunity and the
officers not recommended for early retirement will enjoy the opportunity
for continued career progression to the benefit of the Army,"
is an insufficient justification for the racial classification.
AR at 189. As the Croson plurality noted, "[c]lassifications
based on race carry the danger of stigmatic harm. Unless they are
reserved for remedial settings, they may in fact promote notions
of racial inferiority and lead to the politics of racial hostility."
488 U.S. at 493; see also Hopwood, 78 F.3d at 945 ("Diversity
fosters, rather than minimizes, the use of race. It treats minorities
as a group, rather than as individuals. It may further remedial
purposes but, just as likely, may promote improper racial stereotypes,
thus fueling hostility.").
The governments desire to manipulate private perceptions
can never by itself justify the use of race-conscious policies.
See Wygant, 476 U.S. 267 (plurality opinion) (1986) (asserted
need for more minority role models); Hopwood, 78 F.3d 932
(change of perception that the law school is a hostile institution
for minorities). Private attitudes are simply too subjective to
rely upon as a justification for trampling an individuals
right to be treated equally regardless of race. Because of this
inherent subjectivity, the thought management rationale may be used
to exculpate almost any instance of racial discrimination while
simultaneously avoiding any meaningful judicial scrutiny. The Constitutions
guarantee of equal protection of the laws presumes that private
perceptions will improve when the government treats all persons
consistently and even-handedly in both word and deed. But this is
more than a mere academic presumption. It is a mandate embodied
in the law of the land. Discrimination in the name of equality only
perverts and retards this principle instead of advancing it. "Racial
preferences appear to even the score . . . only if one
embraces the proposition that our society is appropriately viewed
as divided into races, making it right that an injustice rendered
in the past to a black man should be compensated for by discriminating
against a white." Croson, 488 U.S. 469, 527-528
(Scalia, J., concurring in judgment). Without question, it is
a legitimate goal to "have a clear perception of equal opportunity,"
but this court likewise concludes it is not a compelling government
interest justifying separate procedures based upon race.
The fact that the minority officers retained will enjoy additional
opportunities could be a compelling interest of the governments
if there is a special interest in minorities enjoying such opportunities
which is not possessed by other groups. This justification amounts,
in practice, to the diversity or role models rationales rejected
by the Courts of Appeals in other affirmative action contexts. See
Lutheran Church, 141 F.3d 344, 355 (D.C. Cir. 1998); Wessman,
160 F.3d 790, 796 (1st Cir. 1998); Hopwood v. State of Texas,
78 F.3d 932, ("[W]e see the caselaw as sufficiently established
that the use of ethnic diversity simply to achieve racial heterogeneity,
even as part of the consideration of a number of factors, is unconstitutional.")
(5th Cir. 1996); Podberesky v. Kirwan, 956 F.2d 52, 56 n.4
(4th Cir. 1992). The court does not see how race could possibly
be relevant in this context and the government has not proposed
that minority officers possess different intrinsic qualities than
nonminorities. Were it to try to do so, the governments position
would be on thin constitutional ice indeed. The court holds that
no compelling interest exists for this purpose.
The government argues, however, that the MOI "furthers a compelling
Government interest in preventing possible past discrimination against
a particular minority officer from detrimentally affecting the Armys
present consideration of that officers professional attributes
and potential for future contributions if retained on active duty."
See Def. Resp. and Reply at 37. This justification is not
actually remedial: the government is setting forth a compelling
interest in accurately assessing the professional attributes of
the officers it reviews for retirement selection. The court finds
a compelling interest would exist for the Army in such endeavors.
But this program is not actually particularized as the government
contends. The distinction here is subtle, but decisive, and turns
on the phrase "possible past discrimination". By being
a member of a minority race, an officer receives a particular interpretation
of his past record, including but not limited to such things as
assignments and military schools attended. Specifically, the MOI
instructs the SERB to take into account that lower achievements
of minority and female officers in certain areas "may"
indicate discrimination. This is not the same thing as a finding
that the particular minority officer was in fact discriminated against.
Such an interpretation of the record does nothing to help the Army
to accurately assess whether, in fact, that record was tainted by
discrimination. This court will not infuse a compelling interest
proffered during litigation into a racial classification scheme
which is irreconcilable with that interest.
2. Remedial Interests.
The court finds, however, that the government has alleged a compelling
government interest: remedying "actual past discrimination."
In light of the MOI and the Declaration of Lt. General Frederick
E. Vollrath, the U.S. Army Deputy Chief of Staff for Personnel (DCSPER),
the court concludes that remedying actual past discrimination was
a motivation for the Armys policy. Remedies for actual discrimination
against the individual appear to be supported by a compelling interest
under any current theory of the Due Process Clause. Justice Scalias
rigorous view of strict scrutiny requirements, currently the minority
view, would be satisfied by this understanding of the Armys
affirmative action program. See Adarand, 515 U.S. at 239
(Scalia, J., concurring) ("In my view, government can never
have a compelling interest in discriminating on the
basis of race in order to make up for past racial discrimination
in the opposite direction. Individuals who have been wronged by
unlawful racial discrimination should be made whole; but under our
Constitution there can be no such thing as a creditor or a debtor
race.") (citations omitted).
However, courts are not obligated to receive proffered remedial
reasons as fact and rubber-stamp the governments race-based
programs. See Croson, 488 U.S. at 500 (citing Weinberger
v. Wiesenfeld, 420 U.S. 636, at 648 (1975)). If this were the
case, a clever lawyer could justify every single act of racial discrimination
imaginable. Rather, "where the [government] actor puts forth
a remedial justification for its racial classifications, the court
must make a factual determination as to whether remedial
action is necessary." Wygant, 476 U.S. at 277-78. Because
there is no Federal Circuit precedent on the precise contours of
such inquiry, this court adopts the test put forth by the Fifth
Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
Under Hopwood, the government must first and foremost
provide the court with a "showing of prior governmental unit
involved." 78 F.3d 932, 949 (citing Wygant, 476 U.S.
at 274 (plurality opinion) and Hazelwood Sch. Dist. v. United
States, 433 U.S. 299 (1977)). Second, "the relevant governmental
discriminator must prove that there are present effects of past
discrimination of the type that justify the racial classifications
at issue." Hopwood, 78 F.3d at 952 (5th Cir. 1996).
The evidence presented by defendant before the court in support
of its race-based scheme falls far short of Hopwoods
As to the first prong, the court finds the MOI invalid because
the relevant governmental unit here is the SERB and not the Army
in general. Where an affirmative action program is imposed in a
setting different in kind from the setting in which a supposed violation
occurred, courts infer that the program is either motivated by some
impermissible interest or is not narrowly tailored. See Croson,
488 U.S. at 469 (citys focus on discrimination in the construction
industry at large "provides no guidance for a legislative body
to determine the precise scope of the injury it seeks to remedy.");
Hopwood, 78 F3d at 951 ("In this situation, an inference
is raised that the program was the result of racial social engineering
rather than a desire to implement a remedy.") These inferences
arise because "when one [actor, the 1992 LTC ACC SERB,] begins
to justify racial preferences based upon the actions of other [Army]
agencies, [such as promotion boards, unit commanders, etc.,] the
remedial actors competence to determine the existence and
the scope of the harm -- and the appropriate reach of the remedy
-- is called into question." See Hopwood, 78
F.3d at 951. Equal protection caselaw abounds with examples where
comparably disparate settings were rejected as improper for remedial
programs. Thus, the Supreme Court in Croson struck down the
racially preferential contracting scheme by the City of Richmond
which allegedly targeted discrimination in the construction industry
nationwide. Likewise, the Hopwood Court found that the University
of Texas School of Law could not administer an affirmative action
plan supposedly to remedy racial discrimination in the secondary
schools of the State of Texas or the undergraduate institutions
of the University of Texas System.
The proffered remedial scopes in these cases are simply dwarfed
by the breadth of the so-called remedy in the MOI. The commands,
agencies, schools, installations, recruitment facilities, and duty
stations of the United States Army literally span the planet. See,
e.g. 1998 Statistical Abstract of the United States, 357-368
(118th ed.). Every year, the Armys numerous promotion, disciplinary,
and retirement boards convene to make personnel decisions. Various
military school selection boards, some operating jointly with other
service branches, make thousands of admissions decisions. Unit commanders
and personnel authorities routinely execute tens of thousands of
duty station assignments. In contrast, the SERB as an institution
was established with a limited mission in mind: to evaluate retirements
of a certain number of Lieutenant Colonels for the 1992 fiscal year.
However, by directing SERB members to accord special consideration
to promotions, assignments, and military school attendance of minorities,
the MOI magically transformed the 1992 LTC SERB into a super-prosecutor
and a super-judge of racial discrimination practices in other Army
units and boards, encumbered neither by scope, nor time, nor, apparently,
Assuming arguendo that the relevant governmental discriminator
is the entire Department of the Army, defendants compelling
interest argument still suffers from constitutionally fatal flaws.
Specifically, the meaning of "actual past discrimination"
needs clarification. It appears that the regulations themselves
address personal and societal discrimination, see AR at 189,
which do not provide a compelling interest. See Croson, 488
U.S. 469, at 497-500 (1989). Most troubling is the express creation
of a separate evaluation and revote process for minorities because
they may have been disadvantaged by "past personal discrimination."
It is well-settled that the government may never assert private
racially intolerant attitudes as a pretext for the governments
own racial classification. See Palmore v. Sidoti,
466 U.S. 429 (1984). As the Supreme Court declared in that case:
The question, however, is whether the reality of private biases
and the possible injury they might inflict are permissible considerations
. . . We have little difficulty concluding that they are not. The
Constitution cannot control such prejudices but neither can it tolerate
them. Private biases may be outside the reach of the law, but the
law cannot, directly or indirectly, give them effect. Public
officials sworn to uphold the Constitution may not avoid a constitutional
duty by bowing to the hypothetical effects of private racial prejudice
that they assume are widely and deeply held. Palmer v.
Thompson, 403 U.S. 217, 260-261 (1971) (White, J., dissenting).
Id. 466 U.S. 429, 433.
Private personal discrimination does not supply a compelling interest
for a racial classification. If allowed, it would make all racial
classifications permissible upon a subjective showing that a person
had been discriminated against somehow, somewhere, or by someone,
Equally as troubling is the requirement that the evaluation of
minority and female officers take into account a "lack of opportunity
to attend career-building military schools." AR at 189. This
"lack of opportunity" factor is all-encompassing in its
reach. It indicates what social order -- one full of opportunities
-- should have existed throughout the lives of minority and female
officers, and presents an open invitation for speculation by SERB
members in accordance with their own ideal world theories. This,
in turn, indicates that the Army impermissibly sought to remedy
past societal discrimination, and not simply "actual past discrimination."
See Wygant, 476 U.S. at 276 (plurality opinion) ("Societal
discrimination, without more, is too amorphous a basis for imposing
a racially classified remedy.") As noted in Croson,
"the mere recitation of a benign or legitimate
purpose for a racial classification is entitled to little or no
weight." 488 U.S. at 501. It seems clear from the goal itself
that one purpose of the program, the remedying of "personal
discrimination", does not pass constitutional muster. Likewise,
to the extent the remedy for "actual past discrimination"
includes the remedy for "societal discrimination," the
court accordingly holds that no compelling interest existed for
The government also fails the second prong of its evidentiary burden,
one concerning present effects of past discrimination. The Supreme
Court has held that the government must have "a strong basis
in evidence for its conclusion that remedial action was necessary."
Croson, 488 U.S. at 500 (quoting Wygant, 476 U.S.
at 277 (plurality opinion)). Although there would be a compelling
interest in remedying actual discrimination, the government must
prove that such a remedy was needed. In this case, the evidence
presented to the court is largely statistical evidence that minorities
were promoted at different rates from white officers. See generally
Vollrath Dec., Ex. F. Moreover, the author of the report relied
upon by the government to explain these statistics appears to use
an interpretation of the Army promotion data which counts societal
discrimination as part of the harm to be remedied: "[I]nstitutional
discrimination is a difference in what happens to people in an organization
a difference which 1. is correlated with skin color; 2. results
from the normal functioning of the organization; and 3. operates
to the consistent disadvantage of persons of a particular skin color."
Id. at 402. It is, finally, unlikely in this case that a
compelling interest existed to remedy discrimination against all
minorities. See Croson, 488 U.S. at 506 ("The gross
overinclusiveness of Richmonds racial preference strongly
impugns the citys claim of remedial motivation.").
The Declaration presented by the Army to explain its program, however,
expresses doubt about the meaning of the statistical disparities
in promotions between different groups of officers. According to
Lt. Gen. Vollrath, "[I] oversaw an examination into the reasons
for the persistent discrepancy in these promotion rates. We were
unable, however, to definitively pinpoint any single systematic
reason for the disparity we observed. It was because of this
uncertainty that the Army instituted the EO review
and revote procedure. This procedure was crafted to
examine on a board-by-board basis the possibility that some
of the aggregate pattern we were observing was due to some actual
discrimination against particular individual members of these ethnic
and gender minority groups." Vollrath Dec., ¶ 62 (emphasis
added). These so-called findings are a far cry from "pervasive,
systematic, and obstinate discriminatory conduct [necessary
to] justif[y] a narrowly tailored race-based remedy." Adarand,
515 U.S. at 237 (citing plurality, concurring, and dissenting opinions
in United States v. Paradise, 480 U.S. 149 (1987)). There
is an obvious concern that the Armys plan was not addressing
the present effects of past discrimination, but merely statistical
disparities it did not like, whatever the reason for their existence.
The government argues that the revote procedure at Phase II is
based on actual discrimination because it is only triggered when
the percentage of minority officers selected for retirement is not
in proportion to the general selection rate. The court finds this
logic misleading, for there is no evidence that the failure to meet
the Armys chosen racial percentage goal was caused by discrimination
in the first place. The government thus bootstraps inconclusive
data onto a racial classification and then purports to justify that
classification on the basis of bare statistical variations in the
data. As a result, defendant completely sidesteps any inquiry into
the root causes of these statistical differences. However, even
if Phase II revote is limited to "actual discrimination",
the special evaluation or reevaluation at Phases I or II used a
racial classification which applied irrespective of the percentages
in a particular year. The court rejects the governments contention
that only the revote procedure could raise constitutional issues.
During the evaluation or the reevaluation, the SERB was required
to take into account the possibility of "past personal and
institutional discrimination" upon its review. This affirmative
action could only have been justified by the governments statistical
and anecdotal evidence, and not on the later failure to achieve
the MOI numerical goal. Indeed, as plaintiff notes, the special
record evaluation and revaluation also applied to female officers,
and thus provided them a benefit, even though the revote procedure
was not applied to them in 1992.
The Armys reliance on simple proportionality comparisons
between races is not probative of discrimination, for such comparisons
are appropriate for use in entry level positions cases only. See
Croson, 488 U.S. at 501 (1989). Here, on the other hand,
careers of skilled professional officers are at stake. "[W]here
special qualifications are necessary, the relevant statistical pool
for purposes of demonstrating discriminatory exclusion must be the
number of minorities qualified to undertake the particular task."
Id. at 502. Nothing in the record before the court indicates
that such an inquiry was ever made before the MOI was prepared.
Accordingly, the Army should have conducted fact finding to determine
the strength of the statistical evidence as proof of institutional,
not societal or personal, discrimination, and whether the statistics
so considered provide convincing evidence of a compelling government
interest in remedying racial discrimination. As for the revote procedure,
the record likewise does not indicate that sufficient evidence of
institutional discrimination is provided by the revote process to
create a compelling interest. Part of this inquiry would depend
on the governments ability to distinguish those minority officers
who benefitted from the "personal discrimination" remedy
from those who benefitted from the "institutional discrimination"
remedy. Based upon the Administrative Record and the governments
evidentiary submissions in support of the affirmative action program,
there is no genuine issue of material fact regarding the existence
of a compelling interest. The government will not be able to carry
the evidentiary burden due it in equal protection cases, see
Hopwood, 78 F.3d at 948-950, and, accordingly, a trial is
This case may also be resolved without recourse to trial, and plaintiffs
Cross-Motion for Judgment upon the Administrative Records may be
granted if the governments affirmative action policy is not
narrowly tailored. As the Adarand court explained, even with
a compelling governmental interest, the racial classification "must
be narrowly tailored to further that interest." 515 U.S. at
235. Indeed, "racial classifications are simply too pernicious
to permit any but the most exact connection between justification
and classification." Id. at 236 (quoting Fullilove
v. Klutznick, 448 U.S. 448, 535 (1980) (Stevens, J., dissenting)).
The Armys tailoring of its policy to cover "personal
discrimination," at both Phases I and II, is unconstitutional.
Also, the government has not shown how "institutional discrimination"
is different from societal discrimination. As was explained above,
remedying societal discrimination is not a compelling government
interest. Indeed, the Armys remedy for societal discrimination
is not particularly well-tailored to that purpose, as it instructs
the SERB to take into account societal discrimination which "may"
have had an impact on the officer. Assuming, arguendo, the
constitutionality of the affirmative action remedy in all other
respects, the goal and revote procedure should have required consideration
of "institutional discrimination" alone, omitting reference
to the wrongs of society or individuals. By not doing so, the policy
failed the constitutional requirement that it be "narrowly
In fact, the governments view of this case in terms of remedying
discrimination in Army promotions underlines how difficult it would
be for this affirmative action plan to meet strict scrutiny. Affirmative
action in minority retirement selection is not the least intrusive
means to remedy Army discrimination in promotions. In Wygant,
the plurality rejected a plan which involved termination of senior
nonminority teachers to retain less senior minority teachers. The
plurality concluded that the plan was not narrowly tailored because
"[o]ther, less intrusive means of accomplishing similar purposes
such as the adoption of hiring goals are available."
See Wygant, 476 U.S. at 283. Although the facts of this case
are less severe than in Wygant minorities merely receive
an opportunity to be retained which is unavailable to nonminorities
the applicable rule is identical. There are less intrusive means
of battling the effects of discrimination in Army promotions.
The government could always use targeted affirmative action measures
at the hiring or recruitment stage to remedy past institutional
discrimination in promotions. Additional promotions might be made
as long as there was no discrimination based on race against nonminority
officers. To the extent affirmative action goals were necessary
to remedy prior discrimination, promotion goals implemented at
a board responsible for the identified institutional discrimination
would show the most exact connection with the least intrusive
burden. As a result, there is not "the most exact connection"
between the justification and the classification in this instance.
Duration of the Policy
Racial and gender classifications based on remedying past discrimination
may not have an infinite life span; to be narrowly tailored, there
must be some circumstance which would end the need for the affirmative
action policy. Thus, the Adarand Court remanded to the
Court of Appeals because that court had not decided, under the
strict scrutiny standard, "whether the program was appropriately
limited such that it will not last longer than the discriminatory
effects it is designed to eliminate." 515 U.S. at 238 (citations
and quotations omitted). In Wygant, the plurality eschewed
a "role model" justification for an affirmative action
plan because it "allows the Board to engage in discriminatory
and layoff practices long past the point required by any legitimate
remedial purpose." 476 U.S. at 275. See also Croson,
488 U.S. at 510 (noting importance of findings "to assure
all citizens that the deviation from the norm of equal treatment
of all racial and ethnic groups is a temporary matter.");
Wygant, 472 U.S. at 276 (plurality opinion) ("In the absence
of particular findings, a court could uphold remedies that are
ageless in their reach into the past, and timeless in their ability
to affect the future."). As the Wygant plurality stated,
there must be some "logical stopping point." See
Wygant, 476 U.S. at 275. None exists for the Phase I minority
selection standards, and likewise, upon a closer look, for Phase
II reevaluation and revote procedures.
In Stewart v. Rubin, 948 F.Supp. 1077 (D.D.C. 1996), a
promotion case permitting reevaluation for minorities upon which
the government puts great weight in support of its program, the
court explained that one of the reasons its reevaluation procedure
was narrowly tailored was its short and definite duration. That
"interim procedure [was] also short termi.e., it will
not be used once the new promotion systems are implemented. The
temporary nature of the provision [was] an important factor in
support of approval." See id. at 1098. No such
protections are in place here. The government in this case has
not stated that its program will end for female officers when
there are no longer former members of the WAC in the Army, or
that it will not use the MOI affirmative action guidelines in
future years, or that certain concrete evidence that there is
no longer a compelling interest in remedying past Army discrimination
will terminate the affirmative action policy. Instead, it appears
that this program may continue for as long as the Army makes use
Defendant argues its affirmative action plan is of temporary
duration because the revote procedure is only triggered where
a goal is not achieved. It would, under that theory, no longer
be triggered when the Army no longer has racially unbalanced statistics.
But a mere failure of the SERB to meet the Armys self-imposed
goal is not discrimination. Failure to meet the goal would not,
on its own, constitutionally justify a revote. If, for example,
twenty years passed, anecdotal evidence was minimal, and promotion
rates were identical across races and gender, there is no assurance
the revote would not still be triggered whenever a SERB failed
to meet its goal. This is not indicative of a short duration.
Furthermore, notwithstanding the fact that the revote procedure
has no obvious end date, the governments argument fails
because the goal itself is a racial classification which applies
at both phases of the SERB procedure.
- Race-Neutral Alternatives.
"In determining whether race-conscious remedies are appropriate,
we look to several factors, including the efficacy of alternative
remedies." United States v. Paradise, 480 U.S. 149,
171 (1987). The government has not, on this record, attempted
race neutral alternatives prior to implementing its affirmative
action program. See Croson, 488 U.S. at 507 (expressing
concern with an affirmative action plan because "there
does not appear to have been any consideration of the use of
One neutral possibility would be to apply the goal and revote
procedure to all races and both genders. The government appears
convinced that race and gender discrimination has not harmed
white male officers. But presumably the symptoms of race and
gender discrimination, which the government assures the court
its SERB was highly trained to detect, see Defs. Br. at
32, would also be recognizable if they ever occurred in the
white male context. This remedy might require more time and
effort, but, as discussed in the Baker case, it has been
used before. Moreover, administrative efficiency is no excuse
for a racial classification. See Croson, 488 U.S. at
508 ("[T]he interest in avoiding the bureaucratic effort
necessary to tailor remedial relief to those who truly have
suffered the effects of past discrimination cannot justify a
rigid line drawn on the basis of a suspect classification.").
Another possibility would be to provide additional training
and preparation for top military schools or prestigious assignments
to officers from educationally underprivileged backgrounds of
all races. This approach will expand the pool of qualified applicants
by benefitting those who were in fact denied opportunities for
advancement due to discrimination and other factors. It will
provide real assistance to real victims. This approach will
also help address any societal discrimination concerns the Army
may have, yet without employing a suspect classification.
- Additional Problems.
Another concern about the affirmative action program would apply
to the "institutional discrimination" remedy. Among examples
of institutional discrimination provided in the MOI which the SERB
should look for are assignment to a station of lesser importance
or responsibility and disproportionately lower evaluation reports.
The difficulty with these standards is that they do not eliminate
instances in which an assignment of lesser importance came from
non-discriminatory sources (including the personal wishes of the
officer), or instances in which the lower evaluation report came
from simple poor officer performance. There is no evidence in the
record providing a standard which distinguishes the different causes
of lower officer evaluations. On its face, the program appears to
protect minorities and female officers who did not suffer from past
discrimination. Thus, a hypothetical SERB officer is likely to read
the MOI and provide a revote to a minority officer who had a low
evaluation report who had never been discriminated against. A nonminority
officer, in the same context, would not receive this benefit. The
government argues against such possibilities because of the equal
opportunity training it provides to its officers, but this does
not change the fact that the racial classification leaves these
factors open to broad discretion. Such a discretion violates the
requirement that the remedy be narrowly tailored.
Recent circuit court decisions have held that compelling interests
do not include the desire to protect a race from underrepresentation:
"Underrepresentation is merely racial balancing in disguise
another way of suggesting that there may be optimal proportions
for the representation of races and ethnic groups in institutions."
Wessman, 160 F.3d 790, 799 (citing Lutheran Church,
141 F.3d at 352). Racial balancing, of course, is not an acceptable
justification for a racial classification, and the court finds these
holdings persuasive for that reason. The governments policy
appears to be tailored to prevent underrepresentation, and not to
remedy past racial discrimination. Notably, the revote procedure
would not be triggered to protect a victim of past discrimination
who was selected in a year when his or her overall race or gender
group did well compared to all eligible officers. Female officers
did not benefit from the revote procedure during the 1992 FY SERB,
yet this fact hardly indicates that female officers were not harmed
by past discrimination if the governments interpretation of
statistical and anecdotal evidence is to be believed.
In Wessman v. Gittens, 160 F.3d 790 (5th Cir. 1998), the
plaintiff, Sarah Wessman, had been denied admission to an "examination
school," Boston Latin School (BLS), and sued under the Equal
Protection Clause of the Fourteenth Amendment. Examination schools
are public secondary education institutions operated by the City
of Boston, which require entrance examinations for admissions. BLS
had used a complex admissions system, under which an applicant had
to be in a qualified applicant pool (QAP), which was comprised of
the top 50% of the applicants to the school, ranked by a combination
of the applicants test score and grade point average. Half
of the admissions were then based entirely on the applicants
ranking. The other half were decided based on the proportions of
each race in the remaining qualified applicant pool (RQAP), after
the top half was removed. BLS would fill its remaining open seats
based on rank order, but only insofar as the number of students
from each racial/ethnic group matched its proportion in the RQAP.
The Wessman court found the affirmative action program was
not narrowly tailored because, among other reasons, if one racial
minority did particularly well in one year, and was poorly represented
in the RQAP, it could be displaced by white and Asian students.
Although the affirmative action program in this case does not function
with the potential to discriminate against its alleged beneficiaries,
it does ignore their plight whenever the number of minorities or
women selected for retention is especially high. This indicates
a greater emphasis on racial and gender percentages than on rectification
of tangible past wrongs. The revote procedure, thus, "cannot
be said to be narrowly tailored to any goal, except perhaps outright
racial balancing." Croson, 488 U.S. at 507.
The court concludes that the Armys affirmative action program
for the 1992 FY SERB was not narrowly tailored, and therefore violates
the Due Process Clause of the Fifth Amendment. Both the evaluation
aimed at attaining the goals and the revote procedure, if the goals
are not met, call for the SERB to "take into consideration"
factors including "but certainly not limited to, disproportionately
lower evaluation reports, assignments of lesser importance or responsibility,
and lack of opportunity to attend career-building military schools."
AR at 189. A racial classification tailored to remedy personal and
societal discrimination and to assure racial balancing is included
at both stages, and, not surprisingly, does not come close to the
exact fit required of a constitutional remedy for institutional
- Gender Classification
The MOI goal and revote procedure represent a gender classification
for the same reasons stated above in the racial classification context.
See AR at 188-9. Without repeating that discussion, the court
simply notes that the MOI incorporates female officers into the
identical policy required for minority officers. The standard of
review for gender-based classifications is intermediate scrutiny.
See Mississippi University for Women v. Hogan, 458 U.S. 718,
724 (1982). "[C]lassifications by gender must serve important
governmental objectives and must be substantially related to achievement
of those objectives." Craig v. Boren, 429 U.S. 190,
However, in a recent decision on gender-based classifications,
United States v. Virginia, 116 S. Ct. 2264 (1996), the Supreme
Court emphasized that "[p]arties who seek to defend gender-based
government action must demonstrate an exceedingly persuasive
justification for that action." Id. at 2274 (citations
omitted). The Court did not indicate it was overruling its precedent
of intermediate scrutiny, and cited cases which applied the intermediate
scrutiny standard in support of its opinion. Previously, the Supreme
Court has cautioned lower courts that "[i]f a precedent of
this Court has direct application in a case, yet appears to rest
on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving
to this Court the prerogative of overruling its own decision."
Rodriguez de Quijas v. Shearson/American Express, Inc., 490
U.S. 477, 484 (1989). For precisely this reason, the Eleventh Circuit
has applied the Virginia case as a continuation of the intermediate
scrutiny standard for gender-based classifications. See Engineering
Contractors Assoc. of South Florida, Inc. v. Metropolitan Dade County,
122 F.3d 895 (11th Cir. 1997) (holding that remedy for societal
discrimination is permitted under intermediate scrutiny).
Without delving further into this issue, the court believes its
holding with respect to the unconstitutional racial classification
is sufficient to grant summary judgment to plaintiffs on Count IV.
"When a case presents two constitutional questions, one of
which disposes of the entire case and the other of which does not,
resolution of the case-dispositive question should suffice."
American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 62
(1999) (Ginsburg, J., concurring in part and in judgment). In this
case, the conclusions that the racial classification contained in
the Armys MOI was not narrowly tailored to meet any compelling
government interest and that no compelling interest was present
renders unnecessary any decision on the gender-based classification
contained therein. Any nonminority male was potentially harmed by
the constitutional infirmity of the race-based selection standards
mandated by the Army, since any such officer could theoretically
have received a closer and more deferential evaluation or a revote
if it had such a benefit, at Phase I or at Phase II. The harm would
be identical whether or not the gender-based program is constitutional,
since the standards applied by the SERB were the same for both minority
and female officers. The court hereby GRANTS plaintiffs Motion
for Summary Judgment on Count IV.
VI. CLASS CERTIFICATION AND MOTION TO INTERVENE
The Court of Federal Claims possesses broad discretion in determining
whether a class certification is appropriate. See RCFC 23
("The court shall determine in each case whether class action
may be maintained and under what terms and conditions."); cf.
Fed. R. Civ. P. 23 (setting forth mandatory criteria for determining
propriety of class actions). In Quinalt Allotee Assn v.
United States, 197 Ct. Cl. 134 (1972), several factors were
suggested to consider when deciding a motion for class certification.
The court should consider whether: 1) there is a large but manageable
class; 2) a common question of law; 3) a common legal question that
predominates; 4) plaintiffs claim is typical; 5) the challenged
government action is generally applicable; 6) claims of the purported
class are too small to be pursued individually; and 7) plaintiff
will adequately represent the interests of the purported class.
The court also considers whether certifying the class would serve
the overall interests of justice by addressing possible statute
of limitations problems or other concerns. See Berkley
v. United States, 45 Fed. Cl. 224, 234 (1999).
None of the above factors, together or separately, represent a
hard-and-fast rule. See id. at 229. Rather, in light of this
courts jurisdiction over non-tort claims for money damages
against the United States, the propriety of class certification
is evaluated in light of the type of the substantive claim pending
before the court and the facts out of which it has arisen. This
case requires the court to evaluate the propriety of class actions
in federal employment compensation cases.
In his Motion for Class Certification, as amended, plaintiff proposed
two classes for the courts consideration. The first, or original,
class consists of four alternative classes. The first alternative
encompasses all Army Lieutenant Colonels retired by the SERB. The
second and the third such alternatives include all Lieutenant Colonels
in several specified categories who were retired by the SERB. The
fourth alternative is limited to retired Lieutenant Colonels in
plaintiffs field, Air Defense Artillery. The second, or amended,
class consists of all male non-minority Lieutenant Colonels retired
by the SERB. The proposed classes are tailored to substantive claims
in plaintiffs Counts, with the four alternatives in the original
class related to the first three Counts and the amended class related
to Count IV.
With respect to Counts I through III, plaintiffs harm stems
from the fact that he was a member of an undesired career field
or skill and that he was mandatorily retired - an individual claim.
In applying the Quinalt factors, the court determines, among
other things, that there is not a question of law common to the
whole class and that the plaintiffs claim is not typical of
the whole class. Plaintiffs claim turns on his particular
circumstances - his career field, skill, and, notably, his military
record. This hinders his ability to protect class members
interests as well, since all the LTCs mandatorily retired by the
SERB were in different career fields or skills, and, if the action
by the SERB were illegal, it would affect the LTCs who were retained
as well. In light of the courts finding of broad Secretarial
discretion to use the SERB process to address the personnel needs
of the Army, potential factual differences between the military
record of the plaintiff and other class members are even more significant.
Finally, it appears that plaintiffs allegation of arbitrary
and capricious review by the ABCMR rests on that Boards failures
to get an advisory opinion or to provide its opinion to plaintiff
-- actions which are peculiar to plaintiffs claim. For these
reasons, plaintiffs Motion for Class Certification as to the
first three counts is DENIED for the entire original class.
Count IV, however, raises an entirely different set of issues.
All male non-minority LTCs selected for retirement by the 1992 SERB,
i.e. all members of the amended class, were excluded from the benefits
of the Armys Phase I and Phase II minority racial or gender
factors and goals; likewise, all such individuals were excluded
from the benefits of the revote procedure. The analysis for Count
IV parallels the application of Quinolt factors in Berkley
v. United States, 45 Fed. Cl. 224 (1999), another recent case
involing racial and gender discrimination in separation of military
officers from service. Taylor v. United States, 41 Fed. Cl.
440 (1998), is instructive as well.
Accordingly, the court finds that the male nonminority officers
selected by the SERB for retirement would comprise a large but manageable
class. While the record before the court contains data by separate
race and gender categories, it does not show the exact number of
male nonminority Lieutenant Colonels retired by the SERB at issue.
The unavailability of the precise number of potential plaintiffs
is a function peculiar to the secrecy with which SERBs operate to
protect the privacy of individual officers and the integrity of
their internal decision-making. However, at oral argument, the parties
did not dispute existence of a large, but manageable class as to
Count IV. Were the issue contested, the parties could have petitioned
for the courts assistance to craft discovery measures adequate
in scope and subject to appropriate protections. As in Berkley
and Taylor, the potential class members are connected
with, and easily identifiable through, the Army records. They are
presumably receiving regular communications from defendant related
to their retirement. As every other Rule, RCFC 23 "shall be
construed to secure the just, speedy, and inexpensive determination
of every action." RCFC 1(a)(2). Finding that the first Quinault
prerequisite is satisfied advances this principle.
The court also notes that the issue of constitutionality of the
MOI in light of the equal protection commands of the Due Process
Clause is common to amended class members selected, and that the
nature of this legal issue renders factual differences among class
members practically irrelevant. The second and third Quinault
factors are satisfied where the legal claim asserted by all
potential class members has a defense which is also applicable to
all, and where a common legal determination as to liability is possible
regardless of the potentially varying determinations as to remedies.
See Berkley, 45 Fed. Cl. at 232 (relying on Taylor,
41 Fed. Cl. at 446). The liability for subjecting the amended class
members to unconstitutional racial classifications and discriminatory
procedures is but a single question of law. Any and all of the governments
defenses, if sustained, would have justified the harm commonly suffered
by all class members because of their gender and race. The defenses,
even the so-called remedial justifications, were not based on factual
distinctions between the amended class members. Further, plaintiff
clarified the amended class definition to exclude certain officers
based on a finding of unsatisfactory performance by the Army Grade
Determination Board. Any other factual differences among the potential
class members are relevant only in the context of determining damages
and other relief, such as correction of records.
Plaintiff, a white male, certainly presents a case typical to others
in the amended class in light of allegations in Count IV. The MOIs
"one . . . unconstitutional mandate [that] was the cause of
plaintiff[s] loss of equal protection" satisfies Quinaults
requirement of general applicability of government action. Berkley,
45 Fed. Cl. at 232 (citations omitted). Coupled with lack of conflicts
of interest, plaintiffs persistent pursuit of the case through
administrative, congressional, and judicial channels demonstrates
that he would adequately represent the class interests. Coincidentally,
this record of persistence also establishes that assertion of individual
claims is likely to be incredibly time-consuming and cost-prohibitive
"for some, if not many." Berkley, 45 Fed. Cl. at
Finally, the circumstances involving the application to intervene
pursuant to RCFC 24 by Lt. Col. Billy Nix likewise support granting
certification on Count IV. "Prior decisions have suggested
that an expiring statute of limitations is a legitimate concern
when deciding whether or not to certify a class, and one which weighs
in plaintiffs favor," Berkley v. United States, 45
Fed. Cl. at 234 (1999) (citing Moore v. United States, 41
Fed. Cl. at 400, and Armitage v. United States, 18 Cl. Ct.
at 315), although this factor is not outcome-determinative if outweighed
by the other factors, see id. In his pro se Motion,
Lt. Col. Nix admitted filing past the statute of limitations, but
claimed that the statute was tolled by commencement of plaintiffs
class action under the rule of Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345 (1983).
Lt. Col. Nix requested intervention as of right to protect his
interests in the event that the court declines to certify the class,
or if the action is settled or voluntarily dismissed. Alternatively,
he requested permissive intervention because of commonality of factual
and legal issues with the plaintiffs case. Like Lt. Col. Christian,
Lt. Col. Nix is a white male officer retired by the 1992 LTC ACC
SERB. However, Lt. Col. Nix served in the Aviation Corps, while
plaintiff served in the Air Defense Artillery. Given these facts,
Lt. Col. Nix would be would be included into the first, second,
and third alternative definitions of the original class as well
as the amended class. He would be excluded from the fourth alternative.
Although Lt. Col. Nixs Motion mirrors plaintiffs claims
and remedies sought, it does not make any claims related to plaintiffs
Count III, the ABCMR review.
We held in Barbieri v. United States, 15 Cl. Ct. 747 (1988),
that filing of a class action under Rule 23 of the Court of Federal
Claims tolls the statute of limitations just as it does under the
Federal Rule of Civil Procedure 23. Otherwise, the court reasoned,
"potential class members . . . would be induced to file
protective motions to intervene or to join in the event that the
class was later found unsuitable . . . [and] the utility of
the class action device would be largely undermined." Barbieri,
15 Cl. Ct. at 751 (citing American Pipe and Construction Co.
v. Utah, 414 U.S. 538, 553 (1974). Precisely such protective
concerns were asserted by Lt. Col. Nix.
Related considerations inform the courts decision whether
to certify a class at all. Were the certification refused here,
many retired officers, a number of them pro se, would be
forced to file intervention motions or initiate their own suits
to avoid the statute of limitations. Because the operative events
of this controversy took place approximately five years prior to
the filing of the Complaint in this case, the access of other similarly
situated officers to the court would be significantly constrained.
Timely suits, on the other hand, would likely burden the court through
a backlog of similar cases and the likely need for extensive travel
to accommodate all the plaintiffs. These problems will be avoided
through the use of a class action device.
Weighing the applicable Quinalt factors, the Court finds
class certification of the amended class (with plaintiffs
clarification for AGDB determinations as discussed above), to be
appropriate. The court also finds a traditional opt-in procedure
to determine the ultimate composition of the class to be appropriate
in this case. See, e.g. Berkley, 45 Fed.Cl. at 235 (certifying
an opt-in class). It makes good sense, then, for the court to DENY
intervention and to TREAT this Motion to Intervene as an affirmative
request to join the class.
Plaintiffs Amended Motion for Class Certification is GRANTED
as to liability on Count IV and Lt. Col. Nix is INCLUDED in the
Plaintiffs Christian and Nix seek reinstatement to active duty
at the rank of Lieutenant Colonel with accrual of time-in-grade,
time-in-service, and ordinary leave from the dates of their selection
for retirement; pay, allowances, emoluments, and other pecuniary
benefits from the date of their retirement to the day of reinstatement;
correction of their military records to remove evidence of their
retirements; consideration for schools and promotion opportunities
lost due to the retirement; and, attorneys fees and costs,
The court requires further proceedings on the question of remedies,
especially in light of the class certification on liability. The
parties are DIRECTED to submit within thirty (30) days a proposed
date for a status conference on the issue.
For the foregoing reasons, the governments Motion to Dismiss
and for Judgment upon the Administrative Record is GRANTED with
respect to Counts I, II, and III, but DENIED with respect to Count
IV. Plaintiffs Cross-Motion for Judgment on the Administrative
Record is GRANTED with respect to Count IV, but DENIED as to Counts
I, II, and III. Plaintiffs Motion for Class Certification
is GRANTED as amended on liability with respect to Count IV, and
DENIED with respect to Counts I, II, and III. Applicants Motion
to Intervene is DENIED, but Applicant-Intervenor is INCLUDED in
the plaintiff class with respect to Count IV.
It is so ORDERED.
LOREN A. SMITH