FY93 REDUCTION-IN-FORCE BOARD
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AF RIF Class Action Lawsuit
Intro:

On December 30, 1998 a lawsuit was filed in the United States Court of Federal Claims on behalf of Ronald F. Berkley against the United States, alleging that the Air Force Fiscal Year 1993 Reduction in Force Board denied to the Air Force officers considered by that Board their constitutional right to equal opportunity for retention on active duty. [Complaint] The Equal Opportunity Instruction requiring the FY 93 RIF Board members to give special retention consideration to minorities and women and to provide a written numerical report to the Secretary of the Air Force and the Chief of Staff of the Air Force concerning their performance of this task is the basis for the lawsuit. [Instruction]

The case was filed as a class action lawsuit in order to protect the rights of all 1,595 officers selected for involuntary separation by the FY 93 Reduction in Force Board. Most of the officers selected by this Board separated from active duty on December 31, 1992. The Statute of Limitations to bring an action against the United States pertaining to this matter is six years from date of separation and that period of time effectively ran on December 31, 1998 for most of the officers affected. However, the effect of the class action filing and certification by the Court was to stop the Statute of Limitations from running for all officers who separated within six years of the date of the filing of the lawsuit. For those who separated more than six years before the lawsuit was filed, the Statute of Limitations may preclude their participation in the lawsuit unless there is a basis to toll the Statute from running. [10 U.S.C. § 2501]

Subsequent to the filing of the original complaint, twelve other officers who were selected by the FY 93 Reduction in Force Board joined in the lawsuit as named plaintiffs. As a result, there are presently 13 named plaintiffs. [Complaint] | [Opinion]

On November 5, 1999, after hearing oral argument from the United States on behalf of the Air Force and the plaintiffs, the Honorable Marian Blank Horn, the trial judge assigned to this matter in the United States Court of Federal Claims, granted plaintiffs' motion to certify the case as a class action and the thirteen named plaintiffs as representatives of the class and directed plaintiffs' counsel to notify members of the class of their ability to opt-into the litigation. [Court Order] The opt-in procedure requires that notice be provided to the potential members of the class and that those members have an option to elect voluntarily to join in the litigation. A failure to elect affirmatively to become a member of the class will result in that individual not being a member of the class.

In late November 1999 plaintiffs' counsel mailed to each of the officers selected by the FY 93 RIF Board a notice of the pending litigation and an election form with respect to becoming a participant in the litigation. The mailing addresses were provided by the United States Air Force from their records, which in some cases may not be accurate.

An individual who elects to join in the litigation will be represented by plaintiffs' counsel, who have been found by the court to be qualified to fairly and adequately protect the interests of the class. [ COL (Ret) Barry P. Steinberg, Washington, D.C., Attorney of Record for Plaintiffs and COL (Ret) William A. Aileo, Of Counsel] Individuals who do not elect to join the Berkley litigation should be aware of the fact that the Statute of Limitations in this matter for any officer who separated in 1992 as a result of the Reduction in Force Board has probably expired. Unless that individual can demonstrate adequate grounds for tolling the Statute of Limitations, future successful litigation against the United States pertaining to the FY 93 Reduction in Force Board is extremely unlikely. [See also Military Personnel Representation, for a description of Mr Steinberg's military personnel practice and experience.]

For those former officers who elect to opt into the class and to be represented in this litigation by plaintiffs' counsel, they will incur no responsibility for fees or costs in the litigation unless the plaintiffs are successful. In the event of success by plaintiffs, attorney fees and costs will be resolved by the Court and they will be paid from amounts that may be recovered from the United States.

The issue involving the affirmative action instruction given to the RIF Board has been raised in other courts. Each of the military services has given some form of this instruction since the early 1990's. It has been challenged several times and in each instance, the cases were settled before there was a final resolution of the constitutionality of the instruction. The leading case in this matter, Baker v. United States, resulted in a written opinion from the United States Court of Appeals for the Federal Circuit. [Baker]

If the plaintiffs are successful in this litigation, the Court has recognized in its order certifying the class that there may be a need to address potential differences among individual claimants' claims for reinstatement and/or entitlement to different sums of money. The Court further acknowledged that it is able to devise a mechanism which will handle those issues should plaintiffs prevail on the merits of the case.

It is anticipated that this litigation will take several years to resolve. Settlement in this case is unlikely, given the large number of plaintiffs whose interests are likely to be at issue. It is also anticipated that whichever side does not prevail at trial will likely take the matter up on appeal, which will further protract the final resolution of this matter.

This web site will be maintained with links to relevant information and new developments as they arise. It will also be a means to post pleadings and orders as they are submitted by counsel and issued by the trial judge. Given the large number of plaintiffs who are expected to participate in the Berkley litigation, this web site is designed to keep plaintiffs informed as the litigation progresses. The information posted will be accessible to the public and this web site is not encrypted or otherwise restricted. Therefore, members of the class should be aware that attorney-client privileged information cannot be protected on this site and no information which is privileged or confidential should be communicated through this web site.

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Updated: 6/22/05