STATEMENT OF THE ISSUE
Whether the United States Court of Federal Claims properly
granted judgment upon the administrative record in favor of
the United States based upon its rejection of appellants’
facial constitutional challenge to the Secretary of the Air
Force’s Memorandum of Instruction to the Fiscal Year
1993 Reduction-in-Force Board.
STATEMENT OF THE CASE
I. Nature of the Case
Appellants are former United States Air Force Reserve
officers who were selected for involuntary separation
by the Fiscal Year 1993 Reduction-in-Force Board
(“FY93 RIF Board” or “Board”). They allege that, on
its face, the Secretary’s Memorandum of Instruction to
the Board violates the Fifth Amendment’s guarantee
of equal protection.
II. Course Of Proceedings And Disposition Below
Appellants (the “separated officers”) initiated this suit by
filing a complaint and motion for class certification on
January 4, 1999, later deemed to have been filed on
December 30, 1998. JA 68-69. The trial court granted
the separated officers’ motion for class certification on
November 5, 1999, and granted judgment upon the
administrative record in favor of the United States on
December 19, 2000. This timely appeal followed.
STATEMENT OF FACTS
As the Cold War concluded, Congress required each of the Armed
Forces to drastically reduce its membership. In particular,
Congress required the United States Air Force to retire or separate
more than 100,000 people within four years.
See 10 U.S.C. § 115
(historical and statutory notes). To comply with Congress’ mandate,
the Air Force convened selective early retirement and
reduction-in-force boards to select service members for
involuntary retirement and separation, including the Fiscal
Year 1993 Reduction-In-Force Board, which selected 1,595
Reserve officers for involuntary separation. Eleven of these
Reserve officers initiated this suit in the Court of Federal Claims,
and another 612 Reserve officers opted-in after the trial court
certified the suit as a class action.
See JA 2, 17.
In their complaint, the separated officers allege
that the Secretary’s Memorandum of Instruction to the
FY93 RIF Board is unconstitutional on its face. JA 6, 25.
The separated officers assert no other challenge in this action.
The Secretary’s Memorandum focuses upon four primary themes:
(1) Board members are to determine the
officers best qualified for retention based
upon a review of the officers’ entire records
(the “whole person concept”), with job
performance being the most important factor;
(2) officers are to be judged only upon their records —
not upon any extraneous information or considerations;
(3) Board members must afford every officer equal
consideration and judge each officer fairly and equitably,
without prejudice or partiality of any kind; and
(4) Board members must exercise their independent
judgment and discretion in selecting the best qualified
officers who are fully qualified for retention.
In particular, the Memorandum contains the following
pertinent provisions:
You [the Board members] must act in the best
interest of the Air Force and not any particular
command, specialty or group.
* * *
Use the whole person concept to assess such factors
as job performance, professional qualities, leadership,
depth and breadth of experience, job responsibility,
academic and professional military education, and
specific achievements.
* * *
Your evaluation of minority and women officers
must clearly afford them fair and equitable consideration.
Equal opportunity for all officers is an essential element
of our selection system. In your evaluation of the records
of minority and women officers, you should be particularly
sensitive to the possibility that past individual and societal
attitudes, and in some instances utilization policies or
practices, may have placed these officers at a disadvantage
from a total career perspective. The board shall prepare
for review by the Secretary and the Chief of Staff, a report
of minority and female officer selections as compared to
the selection rates for all officers considered by the board.
You’re prohibited from considering an officer’s marital status
or the employment, educational, or volunteer service
activities of an officer’s spouse. If you see such information
in the records you review, you will disregard it.
* * *
Each of you . . . is responsible to maintain the integrity
and independence of this selection board, and to foster
the fair and equitable consideration, without prejudice or
partiality, of all officers.
* * *
You may not receive, initiate, or participate in communications
or discussions involving information that DoD Directive
1320.12 precludes from consideration by a selection board.
You are to base your recommendations on the material in each
officer’s military record, any information I have provided to the
board and any information communicated to you by individual
eligible officers under regulations I have issued.
* * *
If at any time you believe that you cannot in good conscience
perform your duties as members of the board without prejudice
or partiality, you have a duty to request relief by me from this
duty. I will honor any such request. If you believe that the
integrity of the Board’s proceedings has been affected by
improper influence of military or civilian authority, misconduct
by the Board president or a member, or any other reason,
you may request from me or the Secretary of Defense relief
from your obligation not to disclose board proceedings and,
upon receiving it, . . . report the basis for your belief.
Upon completion of board deliberations,
you will, as a minimum, certify in each of your
reports to me:
* * *
. . . That you were not subject to or aware of any censure,
reprimand, or admonishment about the recommendations
of the board or the exercise of any lawful function within the
authorized discretion of the board;
. . . That you were not subject to or aware of any attempt
to coerce or influence improperly any action in the formulation
of the Board’s recommendation;
* * *
. . . That the officers recommended for retention are,
in the opinion of the majority of the members of the board
fully qualified and best qualified to meet the needs of the Air
Force among those officers whose names were furnished
to the board.
JA 36-40; see also JA 6.
Beyond the instructions in the Secretary’s Memorandum,
members of the FY93 RIF Board, like members of all Air
Force selection boards, were told to consider the paper
records of each officer under consideration.
See Small v. United States, 158 F.3d 576 (Fed. Cir. 1998),
amended on reh’g, 180 F.3d 1343 (Fed. Cir.),
cert. denied, 528 U.S. 821 (1999). They were instructed
to review each record and assign to it a single, comprehensive,
numerical score, which represented their subjective evaluation
of the totality of the information in the officer’s record.
See id. Also, they were informed that officers would be
ranked according to their cumulative numerical scores.
See id.
In its opinion granting judgment in favor of the
United States, the trial court began by explaining that the
Secretary’s Memorandum is subject to rational basis review
unless the separated officers demonstrate that, on its face,
the Memorandum classifies officers by race or gender in
order to bestow a benefit or burden. JA 6-7. Upon
considering the text of the Memorandum, the trial court
concluded that, “[t]aken as a complete document, the
Secretary’s Memorandum of Instruction does not impose
either a racial or a gender classification bestowing benefits
or burdens.” JA 9. To the contrary, the court held that
the “Secretary’s Memorandum evidences two main goals
which are repeatedly articulated throughout the Memorandum”:
(1) “to create a process which will result in equal opportunity for
all officers”; and (2) “to ensure retention of the best qualified
officers in order to meet the needs of the Air Force.” JA 9.
Furthermore, “the Secretary’s Memorandum does not pressure
the RIF Board into making race or gender based retention
decisions. It does not give minority or women officers an
artificial benefit, nor burden white, male officers. The
Memorandum simply attempts to secure a neutral, equitable
process. . . .” JA 10. In other words, the trial court stated,
“[t]he plain meaning of the Secretary’s Memorandum of
Instruction is to guarantee equal treatment and opportunity to
all those subject to review by the FY93 RIF Board, including
white male, minority and women officers.” JA 15.
Based upon its conclusion that the Secretary’s
Memorandum constitutes neither a racial nor a gender
classification, the trial court applied rational basis review.
JA 13. The trial court then determined that the Memorandum
satisfied such review: “[T]he Secretary’s Memorandum was
rationally related to furthering the government’s interest in
controlling the size and composition of the Air Force. The
RIF Board process was, by the terms of the Secretary’s
Memorandum, designed to retain those officers who were
best qualified to meet the overall needs of the Air Force.”
JA 13.
SUMMARY OF THE ARGUMENT
In the Memorandum at issue here, the Secretary of the Air
Force orders Board members to give fair and equitable
consideration to all officers, without prejudice or partiality.
Additionally, the Secretary recognizes the possibility that
some women and minority officers’ records may reflect
past discrimination and lack of opportunity, and instructs
Board members that they must afford equal consideration
to women and minority officers. As the trial court properly
concluded, these instructions — whether considered in
context or in isolation — plainly “guarantee equal treatment
and opportunity to [everyone], including white male, minority
and women officers.” JA 15.
The separated officers argue that the Memorandum
is invalid because the Constitution forbids any governmental
reference to race or gender. That is not the law. The
guarantee of equal protection prohibits the Government
from discriminating against its citizens. It does not, as
the separated officers suggest, proscribe the Government
from considering or mentioning race and gender in order to
secure equal treatment of all citizens regardless of race or
gender.
See Allen v. Alabama State Bd. of Educ.,
164 F.3d 1347 (1999),
vacated by joint mot. of the parties, 216 F.3d 1263
(11th Cir. 2000)
1;
Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999);
Raso v. Lago, 135 F.3d 11 (1st Cir. 1998).
To succeed upon their facial challenge, the separated
officers must demonstrate there is no set of circumstances
under which the Memorandum can be applied without imposing
a suspect classification, i.e., without grouping officers by race
or gender to distribute a benefit or impose a burden.
See Adarand v. Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995);
United States v. Virginia, 518 U.S. 515, 533 (1996);
United States v. Salerno, 481 U.S. 739, 745 (1987).
The separated officers cannot satisfy their burden because,
as the trial court properly held, the Secretary’s Memorandum is
neutral on its face.
ARGUMENT
- Standard Of Review
As the separated officers correctly state, this Court reviews
de novo the trial court’s grant of judgment in favor
of the United States. In conducting such a review of an equal
protection challenge, a court must first determine which level
of scrutiny — strict, heightened, or rational basis — applies.
Unless the separated officers can establish that the
Secretary’s Memorandum imposes a suspect classification,
the Court will apply rational basis review.
See Heller v. Doe, 509 U.S. 312, 319-20 (1993); JA 6.
Pursuant to such review, the Memorandum is presumed to
be valid and it need only be rationally related to some
legitimate governmental interest.
See Heller, 509 U.S. at 320; JA 6.
Before the Court may subject the Memorandum to
a higher level of scrutiny, the separated officers must prove
that, on its face, there is no set of circumstances under which
the Memorandum could be applied without imposing a racial
or gender classification.
See United States v. Salerno, 481 U.S. 739, 745 (1987).
In other words, the separated officers must prove that, on its
face and in all circumstances, the Memorandum groups officers
by race or gender in order to distribute a benefit or impose a
burden.
See Adarand v. Constructors, Inc. v. Pena, 515 U.S. 200, 227
(1995);
United States v. Virginia, 518 U.S. 515, 533 (1996);
Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998); JA 7.
If the separated officers prove that the Memorandum
imposes a gender classification in all circumstances, the
Court applies heightened scrutiny.
Virginia, 518 U.S. at 532-33. The Memorandum would
satisfy heightened scrutiny if the Court determines that it serves
an important governmental interest and is substantially related to
that interest. Id. at 533; JA 6.
Should the separated officers prove that the
Memorandum imposes a racial classification in all
circumstances, the Court applies strict scrutiny, which the
Memorandum would satisfy if it is a narrowly tailored
measure that furthers a compelling governmental interest.
Adarand, 515 U.S. at 227; JA 6.
As we demonstrate below, the trial court correctly
concluded that the Memorandum does not group officers
by race or gender in order to distribute a benefit or impose
a burden, and, thus, is only subject to rational basis review.
Moreover, the trial court properly held that the Memorandum
satisfies rational basis review, and, therefore, rejected the
separated officers’ claim that they were unlawfully separated.
- The Trial Court Properly Held That Rational
Basis Review, Rather Than Strict Or Heightened Scrutiny,
Applies To The Secretary’s Memorandum
The trial court concluded that the Secretary’s Memorandum
does not impose a suspect classification because it “does
not confer a benefit to female or minority officers, nor does
it place a burden on white, male officers.” JA 12. Therefore,
the trial court held, the Memorandum is subject to (and satisfies)
rational basis review. JA 13. The trial court’s holding is correct.
As the trial court noted, the separated officers’ facial
challenge rests entirely upon three sentences that they have
extracted from the five-page Memorandum.
See JA 3; see also Officers Br. 8-9.
Taken by themselves,
these sentences are not subject to an attack on any level;
they do no more than order Board members to treat everyone
equally. The paragraph containing these three sentences,
the trial court explained, “begins by stating that the Board
must afford minority and women officers ‘fair and equitable
consideration.’ This paragraph continues by stating that ‘[e]qual
opportunity for all officers is an essential element of our
selection system.’” JA 10. The sentences do not impose a
racial or gender classification because they do not distribute a
benefit or impose a burden upon the basis of race or gender
— i.e., they do “not require or encourage a Board Member to
aid any officer by artificially boosting their scores.” JA 9.
To the contrary, they reference race and gender solely in order
to “secure a neutral, equitable process.” JA 10. This is entirely
permissible; “classifications may be used . . . to promote
equal employment opportunities . . . [and] to advance full
development of the talent and capacities of our Nation’s people.”
Virginia, 518 U.S. at 533 (internal quotation and alteration
omitted).
Although an examination of the separated officers’
selected sentences standing alone demonstrates that the
Memorandum neither distributes a benefit, nor imposes a
burden, based upon race or gender, the trial court properly
considered these sentences within their original context
based upon the Supreme Court’s instruction that a court
“must not be guided by a single sentence or member of
a sentence, but [must] look to the provisions of the whole
law, and to its object and policy.”
Kelly v. Robinson, 479 U.S. 36, 43 (1986) (quotation omitted),
quoted in JA 9. As Judge Learned Hand wrote:
“Words are not pebbles in alien juxtaposition;
they have only a communal existence; and not only
does the meaning of each interpenetrate the other,
but all in their aggregate take their purport from the
setting in which they are used. . . .”
2
NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941),
quoted in King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991),
and JA 9. The conclusion that the Secretary’s Memorandum
neither distributes a benefit nor imposes a burden based upon race
or gender is all the more compelling when the separated officers’
three selected sentences are returned to their original context.
Specifically, the Memorandum’s remaining instructions,
which the separated officers fail to discuss, are significant.
These instructions:
(1) forbid Board members from acting in
the interest of “any particular command, specialty or group,”
JA 36;
(2) mandate that, in evaluating officers’ records,
“[t]he overriding factor must be job performance,” JA 37;
(3) state that “[e]qual opportunity for all officers is an
essential element of our selection system,” JA 37
(emphasis added); and
(4) make each Board member personally
“responsible to maintain the integrity and independence
of this selection board, and to foster the fair and equitable
consideration,
without prejudice or partiality, of all eligible officers.”
JA 38 (emphasis added).
After reviewing the entire Memorandum —
including the separated officers’ selected sentences
and the language quoted above — the trial court properly found:
The Secretary’s commitment to equality for all officers
during the RIF process is evident throughout the
language of the Memorandum of Instruction,
reflecting a deliberate devotion to creating a
process which is fair and impartial. . . . The
language [quoted by the United States] reflects
the Secretary’s overriding, repeatedly articulated
concern that all officers are to be reviewed equally.
The fact that this concept is restated throughout
the text of the Memorandum in prominent positions
in the paragraphs underscores the Secretary’s approach.
The language of the Memorandum of Instruction also
evidences a focus on selecting those officers who
have the best ability to perform on the job and to
contribute to the overall mission of the Air Force. . . .
[T]he FY93 RIF Board is instructed to act in the
best interest of the Air Force. This direction also
is clear from the language which requires the Board
to use a “whole person concept” to assess a
number of factors. . . . In addition, the Memorandum
states that “[t]he overriding factor must be job
performance” and directs the Board to find “those
officers best qualified to meet the needs of the Air
Force. . . .” The Secretary’s emphasis on selecting
officers who best fit the needs of the Air Force does
not single out a particular group of officers for
retention or for separation.
JA 10. Given its language, the trial court correctly held
that the Memorandum does not impose a suspect
classification and, therefore, is subject to rational basis
review.
The trial court’s holding is entirely consistent with the
seminal equal protection case,
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). In
Adarand, the Supreme Court held that strict scrutiny
applied to certain Small Business Administration regulations
because they imposed a racial classification. The infirmity
found by the Supreme Court was that the regulations classified
a business as being either minority-controlled or not, and
distributed a benefit, Government contracts, to those businesses
classified as minority-controlled.
Adarand, 515 U.S. at 205-06. That infirmity is not present
here because the Secretary’s Memorandum refers to women
and minorities solely to ensure equal consideration of all officers.
See Monterey Mech. Co. v. Wilson, 125 F.3d 702, 711
(9th Cir. 1997). Therefore, the trial court properly rejected the
argument that
Adarand requires that strict scrutiny be applied to
the Secretary’s Memorandum.
- The Separated Officers Fail To Satisfy
Their Burden Of Proving That The Memorandum Is
Subject To Strict Or Heightened Scrutiny
The separated officers make three arguments in support of
their contention that the Memorandum is subject to strict and
heightened scrutiny. They argue that
(1) a court may apply strict or heightened scrutiny so long
as the challenger demonstrates that the Government’s action
was race or gender conscious;
(2) the trial court improperly relied upon
Allen, Hayden and Raso; and
(3) the trial court should have based its decision upon
other cases, which the separated officers maintain are
controlling in this matter. These arguments are all unavailing,
as we demonstrate below. Furthermore, the separated officers
fail to recognize either their burden to demonstrate that the
Secretary’s Memorandum cannot be applied without imposing
a suspect classification, or the special deference that a court
must give to the military when adjudicating matters involving
decisions upon composition.
-
In A Facial Challenge, Rational Basis
Review Applies Unless The Challenger Proves
That The Subject Of The Challenge Cannot Be
Applied
Without Imposing A Suspect Classification
The separated officers’ equal protection challenge
is a narrow one. As their counsel made clear to the trial
court, the separated officers allege only that, on its face,
the Secretary’s Memorandum violates their right to equal
protection. JA 72-79;
see also JA 12 n.6. Though the
separated officers fail to note it in their brief, their decision
to raise only a facial challenge means that they must satisfy
an especially heavy burden of proof. As set forth in
United States v. Salerno, 481 U.S. 739 (1987),
they “must establish that no set of circumstances exists
under which the [subject of the challenge] would be valid.”
Salerno, 481 U.S. at 745 (a facial challenge “is,
of course, the most difficult challenge to mount successfully”);
accord Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995);
Reno v. Flores, 507 U.S. 292, 301 (1993);
Rust v. Sullivan, 500 U.S. 173, 183 (1991). Moreover,
“[f]acial invalidation is manifestly strong medicine that has been
employed by the Court sparingly and only as a last resort.”
National Endowment for the Arts v. Finley, 524 U.S. 569, 580
(1998) (internal quotation omitted).
Salerno makes clear that, even if the separated officers
could demonstrate that the Memorandum “might operate
unconstitutionally under some conceivable set of circumstances”
— which they cannot —
that demonstration “is insufficient to render it wholly invalid.”
Salerno, 481 U.S. at 745;
see also Anderson, 514 U.S. at 155 n.6
(respondents “could not sustain their burden even if they
showed that a possible application of the rule
. . . violated federal law”). Instead, the Secretary’s
Memorandum is subject to rational basis review so long as
the Memorandum “can be construed in such a manner that
[it] can be applied to a set of individuals without infringing upon
constitutionally protected rights.”
Rust, 500 U.S. at 183.
As we informed the trial court, JA 110-12, a plurality decision
of the Supreme Court recently criticized the
Salerno “no set of circumstances” standard, though
it expressed approval of
Salerno so far as it makes one possible instance
of unconstitutionality insufficient to sustain a facial challenge.
Chicago v. Morales, 527 U.S. 41, 51-55 (1999)
(Stevens, J., joined by Souter and Ginsburg, JJ.).
Contra id. at 78-79 (Scalia, J., dissenting); id. at 111
(Thomas, J., joined by and Scalia, J., and Rehnquist, C.J.,
dissenting). The separated officers may wish to rely upon
Morales, but
Salerno remains the controlling authority concerning
facial challenges.
As the Fourth Circuit wrote,
It is not the province of the court of appeals to
predict how the Supreme Court will ultimately
rule on an issue. . . . At the moment, the most that
can be said is that three Justices have indicated a
desire to [overrule
Salerno.] Until the Supreme
Court specifically does so, though, this Court is
bound to apply the
Salerno standard. . . .
Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th Cir. 1997);
accord Causeway Med. Suite v. Ieyoub, 109 F.3d 1096,
1104 (5th Cir. 1997). Similarly, the Supreme Court has stated
that “[o]ur decisions remain binding precedent until we see fit
to reconsider them, regardless of whether subsequent cases
have raised doubts about their continuing vitality.”
Hohn v. United States, 524 U.S. 236, 253-53 (1998)
(citation omitted);
accord Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989). Accordingly,
Federal courts continue to apply
Salerno notwithstanding the
Morales plurality opinion,
3
3
and the separated officers must
prove that the Secretary’s Memorandum cannot be applied
constitutionally.
-
Courts Must Give Special Deference To The
Military When Adjudicating Matters
Involving Decisions Upon Composition, And
Constitutional Rights Must Be Viewed In
Light Of The Military’s
Special Circumstances And Needs
As the trial court here explained, “[a]lthough the personnel
decisions of the armed forces may be reviewable, the Supreme
Court has demonstrated sensitivity to the special expertise,
circumstances and needs of the armed forces when evaluating
allegations that the military violated the Constitution.” JA 4
(collecting cases).
Such judicial deference to the military has a
long and uninterrupted history.
See, e.g., Orloff v. Willoughby, 345 U.S. 83, 94 (1953)
(“Orderly government requires that the judiciary be as scrupulous
not to interfere with legitimate Army matters as the Army must be
scrupulous not to intervene in judicial matters.”);
Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981)
(“perhaps in no other area has the Court accorded Congress
greater deference”);
Chappell v. Wallace, 462 U.S. 296, 305 (1983)
(“courts are ill equipped to determine the impact upon
discipline that any particular intrusion upon military authority
might have”);
Goldman v. Weinberger, 475 U.S. 503, 508 (1986)
(“judicial deference is at its apogee” in a challenge to the rules
and regulations of the military);
Murphy v. United States, 993 F.2d 871, 872-73
(Fed. Cir. 1993)
(“Aside from the limited warrant of courts to invade the military
province, intrusion also raises a separation of powers issue.”);
Bunch v. United States, 33 Fed. Cl. 337, 339 (1995),
aff’d, 78 F.3d 605 (Fed. Cir. 1996) (table)
(“Because the Constitution delegates specific power over the
military to the political branches, the courts have generally
refrained from interfering in military decision making.”).
Yet, the separated officers argue that deference to the military
does not apply in this case because they raise a constitutional
claim. Officers Br. 19. As the Court’s precedent demonstrates,
the separated officers’ argument is without merit.
This Court, in
Woodward v. United States, 871 F.2d 1068
(Fed. Cir. 1989), properly gave deference to the military upon
reviewing the claim of an officer who alleged that the Navy
released him because of his sexual orientation in contravention
of, among other things, his constitutional right to equal protection.
Woodward, 871 F.2d at 1071. In so doing, the Court
stressed that “[s]pecial deference must be given by a court to
the military when adjudicating matters involving their decisions
on discipline, morale, composition and the like, and a court
should not substitute its views for the ‘considered professional
judgment of the military.’”
Id. at 1077 (citing cases). Furthermore, the Court stressed
that “constitutional rights must be viewed in the light of the special
circumstances and needs of the armed forces.”
Id. (quoting
Beller v. Middendorf, 632 F.2d 788, 810 (9th Cir. 1980));
see also Goldman, 475 U.S. at 508. Therefore, as the trial
court correctly held, deference to the military applies in this case.
-
Governmental Action Does Not Impose A
Suspect Classification By Being Conscious
Of Race Or Gender To Secure Equal Treatment
The separated officers argue that the trial court should
have applied strict and heightened scrutiny because the
Secretary’s Memorandum explicitly mentions race and
gender; in other words, it is race and gender conscious.
See Officers Br. 8-13, 15-16, 21. In effect, the
separated officers argue that all references to race or
gender, even those that have the purpose and effect of
ensuring equal opportunity for all, are unconstitutional.
The separated officers do not cite any case that supports
their position, and, they cannot. As the First Circuit noted,
“we [have not] been able to find any case where the
government has been required to show a compelling
interest, or narrow tailoring of remedies, for a condition
framed so as to secure equal treatment of applicants
regardless of race.” Id. at 16.
The guarantee of equal protection prohibits the
Government from discriminating against its citizens.
It does not, as the separated officers suggest, proscribe
the Government from mentioning race and gender to
secure equal treatment of all citizens regardless of race
or gender. The Supreme Court itself “has recognized that
a distinction may exist between state action that discriminates
on the basis of race and state action that addresses, in a neutral
fashion, race-related matters.”
Crawford v. Board of Educ., 458 U.S. 527, 538 (1982);
see also Bush v. Vera, 517 U.S. 952, 958 (1996)
(“Strict scrutiny does not apply merely because redistricting is
done with consciousness of race.”). Accordingly, the Federal
courts have rejected attempts to read
Adarand so broadly as to apply to “all race-based actions,
whether or not they lead to unequal treatment.”
Allen, 164 F.3d at 1352 n.2 (1999) (citations omitted);
accord Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487,
492 (D.C. Cir. 1998) (rejecting the suggestion “that all race
conscious measures adopted by the government must be
subjected to strict scrutiny”);
Monterey Mech. Co. v. Wilson, 125 F.3d 702, 711
(9th Cir. 1997)
(“Adarand applies only when the government subjects
a person to unequal treatment”) (internal quotation omitted); JA 7
(“Rulings issued by the federal courts evidence a recognition of
the difference between the mere mention of race or gender and
the improper use of a suspect classification.”).
The separated officers’ contention that a court may apply
strict or heightened scrutiny, despite the absence of a suspect
classification, rests entirely upon the Supreme Court’s use of
the terms “race-based measure” and “gender-based
government action” in
Adarand, Adarand Constructors, Inc. v. Slater, 528 U.S. 216
(2000)
(“Adarand II”),
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and
United States v. Virginia, 518 U.S. 515 (1996).
Officers Br. 10-12. Nothing in those cases, however, even suggests
that strict or heightened scrutiny applies absent a suspect class.
To the contrary, all four cases make clear that the challenger bears
the burden of proving that the Government’s action imposes a
suspect classification.
Adarand, 515 U.S. at 226;
Adarand II, 528 U.S. at 219;
Croson, 488 U.S. at 721-22;
Virginia, 518 U.S. at 532-33. Therefore, notwithstanding
the separated officers’ declaration to the contrary, the Court
should not apply strict or heightened scrutiny to the Secretary’s
Memorandum unless and until the separated officers prove that
it imposes a racial or gender classification. They cannot do so.
-
The Trial Court Properly Relied Upon
Allen, Hayden And Raso As Persuasive
Authority
The separated officers argue that the trial court erred by
relying upon
Allen v. Alabama State Bd. of Educ., 164 F.3d 1347 (1999),
vacated by joint mot. of the parties, 216 F.3d 1263
(11th Cir. 2000),
Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999), and
Raso v. Lago, 135 F.3d 11 (1st Cir. 1998). Officers Br. 41-46.
They are incorrect. The decisions are all persuasive in their
reasoning and each strongly supports the trial court’s application
of rational basis review to the Secretary’s Memorandum.
The facts in
Allen and
Hayden are analogous to the facts presented here.
In each case, the plaintiffs challenged a race-conscious
Government examination. The Government in
Allen created a teacher certification examination
pursuant to a consent decree requiring the use of “a
system designed to avoid an unjustifiable discriminatory
impact on African-American teacher candidates.”
Allen, 164 F.3d at 1349. Like the Secretary’s
Memorandum, the
Allen consent decree did not include
an explicit, parallel provision instructing the Government to
avoid any discriminatory impact upon white males. In
Hayden, the Government designed a police entrance
examination to minimize the adverse impact upon African-American
candidates, but not upon white candidates.
See Hayden, 180 F.3d at 46. Notably, in
Allen and
Hayden — as in this case — the Government did not impose
a different passing grade for minority applicants.
Allen, 164 F.3d at 1353;
Hayden, 180 F.3d at 48. Thus, the courts in
Allen and
Hayden were presented with the same issue
presented here: whether the Government is subjected to strict
scrutiny for being race conscious in an effort to limit discrimination.
The courts in
Allen and
Hayden each rejected the
argument that the separated officers assert here.
Namely, that it is unconstitutional to consider race for the
purpose of ensuring equal consideration. In
Allen, the Eleventh Circuit explained:
the decree does not require the [Government]
to act according to racial classifications, which
takes this case out of
Adarand. Instead, the [Government]
must be conscious of race in developing the
examination, choosing test items to minimize
any racially disparate impact within the
framework of designing a valid and comprehensive
teaching examination.
Allen, 164 F.3d 1352-53. Therefore, the court applied
rational basis review because “[n]othing in
Adarand requires the application of strict scrutiny
to this sort of race-consciousness.”
Id. at 1353. Likewise, the Second Circuit in
Hayden applied rational basis review because
“[e]very antidiscrimination statute aimed at racial
discrimination, and every enforcement measure taken
under such a statute, reflect[s] a concern with race.
That does not make such enactments or actions unlawful
or automatically ‘suspect’ under the Equal Protection Clause. . . .”
Hayden, 180 F.3d at 49 (quotation omitted);
accord Hornell Brewing Co. v. Brady, 819 F. Supp. 1227,
1241 n.11 (E.D.N.Y. 1993) (“equal protection proscribes race
based classifications, not all statutes whose purpose it is to
protect certain racial or ethnic groups”).
Allen and
Hayden, therefore, both strongly support the application
of rational basis review here because, as the trial court found,
“[t]he plain meaning of the Secretary’s Memorandum of Instruction
is to guarantee equal treatment and opportunity to all those
subject to review by the FY93 RIF Board.” JA 15.
In
Raso, the plaintiffs, like the separated officers,
alleged that the Government was subject to strict scrutiny
because its action was race conscious. The
Raso plaintiffs were white residents of the West
End of Boston, Massachusetts, part of which the State had
taken by eminent domain to effect urban renewal. The
plaintiffs alleged that the Department of Housing and Urban
Development (“HUD”) imposed a racial classification when
it curtailed an existing statute entitling them — as displaced
former residents — to a preference for tenancy of all new
residential units built upon the renewed land.
Raso, 135 F.3d at 12-13, 15-16. HUD admittedly
curtailed the statutory preference because it disparately affected
minorities —
i.e., the Government conceded that its action was race
conscious.
Id. at 13-14. Hence, as in this case, the court in
Raso was called upon to decide whether the
Government creates a racial classification by being race
conscious in order to limit discrimination.
As the trial court did in this case, the court in
Raso held that the Government did not create a racial
classification. Id. at 16. The First Circuit explained that,
[t]aken by itself, HUD’s action in this case is almost
the opposite of the racial preferences that the
[Supreme] Court viewed as questionable in
Adarand and the redistricting cases. Here,
[all the Government did was require] apartments —
which otherwise would have almost automatically
been occupied by whites — be made available to
all applicants on a race-blind basis.
Id. at 17.
Notwithstanding the First Circuit’s rejection of the plaintiff’s
argument, the separated officers argue that
Raso stands for the proposition that any race conscious
measure must be subjected to strict scrutiny. Officers Br. 45.
The court in
Raso, however, explicitly rejected the argument that
“any action in which race plays a role is constitutionally suspect.”
Raso, 135 F.3d at 16-17. To the contrary, the First Circuit
held that the Government does not trigger strict scrutiny by
considering race in order to combat racial discrimination and
ensure equal treatment for all people.
See id. at 16. Hence,
Raso bears directly upon this case and its analysis,
which is persuasive, establishes that the Secretary’s
Memorandum is subject to rational basis review.
The separated officers also assert that
Allen and
Hayden are distinguishable from this case because
concerned the “evaluation” of examinations, not the creation
of examinations or their content; and the examinations at issue
in those cases, though race conscious, did not “expressly”
mention race or gender. Contrary to the separated officers’
first assertion,
Allen and
Hayden each involved challenges to
both the creation and the content of an examination.
Allen, 164 F.3d at 1353;
Hayden, 180 F.3d at 49.
The separated officers’ second assertion is also incorrect.
In asserting that the mere mention of race constitutes a racial
classification, the separated officers appear to confuse, on the
one hand, a court’s factual inquiry into whether the Government’s
action was expressly race conscious, with the ultimate
determination of whether that action imposed a racial classification.
As the Second Circuit put it, the separated officers are “mistaken
in treating ‘racial motive’ as a synonym for a constitutional violation.”
Hayden, 180 F.3d at 49. The desire to “diminish the adverse
impact on black applicants,” the court of appeals further stated, “in
and of itself, . . . does not constitute a ‘racial classification.’”
Id. at 48.
According to the separated officers, the courts of appeals
in those cases held that the Government’s examinations were
facially neutral because they did not expressly mention race or
gender. Facial neutrality, however, does not rest upon whether
the Government uses racial or gender terms. If it did, the issue
of facial neutrality would be reduced to the search for a
shibboleth and deprived of all meaning. Neither
Allen nor
Hayden — nor any other case — articulated the
separated officers’ term-based test for facial neutrality. Instead,
Allen and
Hayden each analyzed whether the Government’s
examination distributed a benefit or imposed a burden based
upon race, not whether the examinations contained certain
talismanic words.
See Allen, 164 F.3d at 1352-53 & n.2;
Hayden, 180 F.3d at 48-49. Therefore, the trial court
correctly relied upon
Allen and
Hayden to conclude that rational basis review applies
to the Secretary’s Memorandum. JA 7-8.
-
The Other Authorities Upon Which The
Separated Officers Rely Do Not Support
Their Position
The separated officers further cite several cases in support
of their argument that the Secretary’s Memorandum is subject
to strict and heightened scrutiny. As we demonstrated above,
the Memorandum is subject to rational basis review, and, as
we demonstrate below, the separated officers’ citations do
not alter that conclusion.
-
The Procedures Considered In
Christian And Sirmans Differ
Materially From The Secretary’s
Memorandum
In their brief, the separated officers discuss
Christian v. United States, 46 Fed. Cl. 793 (2000), and
Sirmans v. Caldera, 27 F. Supp. 2d 248 (D.D.C. 1998),
which both address the constitutionality of the Army’s selection
procedures. Officers Br. 33-35. The Court should afford no
weight to either case because (1) the facts in
Christian and
Sirmans differ materially from the facts here, and (2)
neither case has been finally decided.
Although the separated officers characterize
Christian and
Sirmans as involving the “Army’s version” of the
Secretary of the Air Force’s Memorandum, the Army’s selection
procedures challenged in those cases bear little resemblance
to the Air Force’s selection procedures.
Compare Christian, 46 Fed. Cl. at 797-98,
and Sirmans, 27 F. Supp 2d at 249,
with Small v. United States, 158 F.3d 576, 578
(Fed. Cir. 1998) (discussion of Air Force selection process),
amended on reh’g, 180 F.3d 1343 (Fed. Cir.),
cert. denied, 528 U.S. 821 (1999).
As the trial court explained, the case here
is distinguishable from
Christian. First, the
Christian Memorandum, in and of itself,
directed the Army RIF Board to consider race
and gender as factors before completing the
selection process.
[Christian, 46 Fed. Cl.] at 803. In addition, the
Christian Memorandum of Instruction
created goals for the selection of minority and
female officers. . . . If the goals . . . were not
met, the
Christian Board was directed to perform a
reevaluation of minority and female officers.
Id. In the case currently before this court,
however, . . . [the Secretary’s Memorandum] does
not create any race or gender based goals. The
Air Force Memorandum . . . includes no
requirements to adjust the results of the selection
at any stage during the process.
JA 12-13 n.7. Moreover, the court in Christian itself distinguished the Secretary of the Air Force’s Memorandum from the Army’s selection procedures. Christian, 46 Fed. Cl. at 804.
Lastly, the decisions in Christian and Sirmans are not final. In each case, the court granted motions brought by the plaintiffs and scheduled further proceedings. Christian, 46 Fed. Cl. at 818; Sirmans, 27 F. Supp 2d at 251. In fact, the separated officers state that the Court’s decision in this case may directly affect the final resolution of Christian. Officers Br. at xvi. Therefore, the discussion and analysis of the Army’s selection procedures in Christian and Sirmans is irrelevant to the issue of whether the Secretary of the Air Force’s Memorandum here
is constitutional.
-
Though Its Decision Was Vacated Upon
Other Grounds, The Baker Trial Court
Correctly Concluded That The
Memorandum Does Not Impose A Suspect
Classification
The separated officers’ brief quotes a single sentence from
this Court’s opinion in
Baker v. United States, 127 F.3d 1081 (Fed. Cir. 1997),
which vacated the Court of Federal Claims’ opinion,
Baker v. United States, 34 Fed. Cl. 645 (1995),
and suggests that this sentence resolves their facial challenge.
Officers Br. 29.
Baker differs significantly from this case, however, because the
Baker service members raised an as-applied challenge in
addition to their facial challenge.
Baker, 127 F.3d at 1082.
The trial court in
Baker held that the Secretary’s Memorandum did not
impose a racial or gender classification because it did not
confer a benefit or levy a burden upon any group.
Baker, 34 Fed. Cl. at 656, 658;
see also Christian, 46 Fed. Cl. at 804 (the
Baker trial court found that the Memorandum’s instruction
“to be sensitive to the possibility of past discrimination was not
a racial classification in circumstances where there was no goal”).
In reaching this conclusion, the court noted that the Secretary’s
Memorandum did not include either race or gender among the
factors for board members to consider, and that the Memorandum
lacked other essential indicia — such as requirements, quotas,
goals, incentives — that transform the mere mention of race or
gender into a classification.
Baker, 34 Fed. Cl. at 656. Instead, the court determined
that the Memorandum’s references to race and gender constituted
“nothing more than a hortative comment, advice, or reminder.”
Id. The trial court also rejected the service members’
as-applied challenge based, in part, upon declarations submitted
by the Government to explain a passage from their board’s report.
Id. at 657.
On appeal to this Court, the
Baker service members argued that the trial court
committed reversible error by admitting into the record the
Government’s declarations.
Baker, 127 F.3d at 1087. Before the Court’s opinion
issued, however, the Government withdrew its reliance upon
one of its declarations.
Id. at 1088. Consequently, this Court vacated the trial
court’s judgment and remanded the case for further proceedings.
Id. at 1089.
In its decision, the Court explained that it was not the forum
to decide the service members’ constitutional challenges,
id., but it opined that the Memorandum “permitted, and
even encouraged, if not actually commanded, . . . leveling
through discounting.”
4
Id. at 1087. Although the separated officers rely
upon this sentence from
Baker, they fail to mention that the statement appears in
dicta. JA 11.
As the trial court in this case explained, “the appellate court in
Baker focused its attention on evidentiary matters,
not on reviewing the words of the Memorandum of Instruction. . . .
[G]iven the status of the case before it, and by its own description,
the Federal Circuit did not perform an equal protection analysis.”
JA 11. Because it constitutes
dicta, the statement upon which the separated officers rely —
like the trial court’s decision in
Baker — bears upon this case only to the extent that the
Court finds it persuasive. As this Court has stated, with regard to
its approach to dicta, “we are unwilling to give stare decisis effect
to a matter that we did not fully consider and that was not before
us in the prior case.”
Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549
(Fed. Cir. 1994);
accord Cohens v. Virginia,
19 U.S. (6 Wheat.) 264, 398-99 (1821). Likewise, the Second
Circuit has recognized “the time-honored tradition” of expressing
thoughts, which “do not bind the Circuit, or even the concurring
judges on the panel,” “to stimulate informed commentary, and, on
occasion, to provoke future consideration of emerging issues.”
United States v. Oshatz, 912 F.2d 534, 540 (2d Cir. 1990).
With respect to the issue of facial neutrality, the trial court’s
reasoning in
Baker is persuasive because it relies exclusively upon
words of the Memorandum and is consistent with subsequent court
of appeals decisions. As the trial court in this case explained, the
statement upon which the separated officers rely is inapposite to
this case because the separated officers here, unlike the service
members in
Baker, assert only a facial challenge:
in
Baker, the appellate court was reviewing
a trial decision in which the trial court had taken
into account:
(1) previous drafts of the Memorandum that
included goals for selecting minority and female officers;
(2) a Judge Advocate General (JAG) legal
review stating its opinion that the charge required
the Board to revise upward female and minority
officers’ scores if it believed there had been
discrimination;
(3) a report which followed the selection process
stating that the president of the [Board] reviewed
the records of female and minority officers selected
for retirement and caused an officer’s record to be
rescored if there was any doubt as to the “competitiveness”
of the officer; and
(4) two declarations from general officers, as well as a
declaration from a colonel describing how the [Board]
interpreted the alleged offensive language.
JA 11-12 (citing
Baker, 127 F.3d at 1083-87). Moreover, the trial
court in this case explained, “the Federal Circuit decision in
Baker was issued on October 15, 1997. Subsequently,
several important and instructive cases from Circuit Courts of
Appeals . . . further construed
Adarand. . . ,
and addressed the definition of a facial classification.” JA 12.
These cases include the previously discussed decisions in
Allen, Hayden, and
Raso.
-
The Regulations Considered In
Lutheran Church Imposed A Racial
Classification Because, Unlike The
Secretary’s Memorandum, They Included
Numerical Goals Based Upon Minority
Representation In The Community
The separated officers also quote extensively from two
opinions of the Court of Appeals for the District of Columbia
Circuit in
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344,
reh’g denied, 154 F.3d 487 (D.C. Cir. 1998), and, without
explanation, state that
Lutheran Church “provides compelling support” that the
Secretary’s Memorandum is subject to strict scrutiny.
Officers Br. 35-38. Notwithstanding the separated officers’
conclusory statement to the contrary,
Lutheran Church does not help their case.
The court of appeals in
Lutheran Church applied strict scrutiny to the Federal
Communication Commission’s equal employment opportunity
regulations based upon the Commission’s admission that its
regulations created an affirmative action program for minorities,
Lutheran Church, 141 F.3d at 351, and the court’s finding
that the regulations’ “entire scheme [was] built on the notion that
stations should aspire to a workforce that attains, or at least
approaches, proportional representation.”
Id. at 351-52 (footnote omitted). Upon considering and
rejecting the FCC’s petition for rehearing, the court further explained
its holding: “The imposition of numerical norms based on
proportional representation — which is the core element to what
are often referred to as affirmative action, set aside, or quota
programs — is the aspect of the Commission’s rule that makes
it impossible for us to apply any standard of review other than
strict scrutiny.”
Lutheran Church, 154 F.3d at 493
(footnote omitted).
The Secretary’s Memorandum here is easily distinguished
from the regulations in
Lutheran Church. As the Court of Federal Claims explained in
Baker, while the Memorandum “mentions race, it lacks
the other essential characteristics (requirements, quotas, goals,
incentives) which transform the mere mention of race into a racial
classification.”
Baker, 34 Fed. Cl. at 656. Furthermore, as stated by the
trial court in this case, the Secretary’s Memorandum “does not
pressure the RIF Board into making race or gender based retention
decisions.” JA 10. Therefore, unlike the regulations considered in
Lutheran Church, the Secretary’s Memorandum is subject to
rational basis review.
-
MD/DC/DE Broadcasters
Notwithstanding, The Trial Court
Correctly Concluded That The
Memorandum’s Instruction Concerning
Statistics Does Not Constitute A
Classification
The separated officers represent that the Court of Appeals for
the District of Columbia Circuit, in
MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13
(D.C. Cir. 2001), held that a Federal Communication Commission
rule adopted subsequent to
Lutheran Church constituted a racial classification
because it required licensees to report the race and sex of
each applicant. Officers Br. 26. Therefore, the separated
officers argue, the Secretary’s Memorandum constitutes a
racial classification because it too requires a report describing
racial and gender characteristics. Officers Br. 27-28. Whatever
the initial appeal of their argument, it ultimately fails because
MD/DC/DE Broadcasters does not stand for the
separated officers’ proposition.
In
MD/DC/DE Broadcasters, the court of appeals applied
strict scrutiny to the Commission’s rule, but its decision was
not based upon the fact that licensees had to provide statistics
concerning race and gender; the court, in fact, stressed that
“Adarand requires strict scrutiny only of governmental
actions that lead to people being treated unequally on the basis
of their race.”
MD/DC/DE Broadcasters, 236 F.3d at 20. Instead, the
court applied strict scrutiny because the rule required the
Commission investigate any licensee that reported few or no
applications from women or minorities.
Id. at 19. Thus, the linchpin of the court’s holding was its
finding that “[i]nvestigation by the licensing authority is a powerful
threat, almost guaranteed to induce the desired conduct.”
Id.
The reporting requirement of which the separated
officers complain stands in sharp contrast to that held
unconstitutional in
MD/DC/DE Broadcasters. As the trial court here explained,
the language of the Secretary’s Memorandum directs
the Board to compile a report regarding “all officers
considered by the Board.” The use of the past tense
“considered” in the Memorandum of Instruction indicates
that the report was to be prepared after the completion
of the review of all eligible officers’ records. There is no
instruction in the Secretary’s Memorandum to keep a
running tally of the race or gender of officers who were
selected. Moreover, the Memorandum did not instruct
the Board Members to make any adjustments to their
selections following the analysis and preparation of the
report. Therefore, the report had no effect on the
process of selecting officers to be separated.
JA 15.
Unlike the rule in
MD/DC/DE Broadcasters, the Secretary’s Memorandum
does not provide for any action based upon the Board’s results.
See JA 12-13 n.7. Moreover, the recommendations
of individual Board members are not disclosed to anyone,
including the Secretary; the Memorandum makes each Board
member responsible to maintain the independence of the
Board, JA 38; and the Memorandum requires Board members
to certify that they “were not subject to or aware of any censure,
reprimand, or admonishment” concerning their recommendations.
JA 40. Therefore, the Secretary’s Memorandum, in contrast to the
rule in
MD/DC/DE Broadcasters, lacks any threat, let alone
“a powerful threat, almost guaranteed to induce the desired
conduct.”
Notwithstanding the separated officers’ argument to the contrary,
“[c]ourts have not found requirements to collect data about the
racial and gender make-up of a workforce to violate the Constitution.”
Sussman v. Tanoue, 39 F. Supp. 2d 13, 25 (D.D.C. 1999)
(citing cases). As the First Circuit explained — in a case that the
separated officers fail to even cite — the “possible and purely
hypothetical misuse of date does not require the banning of
reasonable procedures to acquire such data. Statistical information
as such is a rather neutral entity which only becomes meaningful
when it is interpreted.”
United States v. New Hampshire, 539 F.2d 277, 280
(1st. Cir. 1976),
quoted in JA 15. Thus, courts have held that the collection
of statistical data concerning race or gender cannot by itself give
rise to a racial or gender classification.
See New Hampshire, 539 F.2d at 280;
Sussman, 39 F. Supp. 2d at 25. Only the unconstitutional
use of statistical data can give rise to a racial or gender
classification, and collecting statistical data “to ensure that no
person is denied equal employment opportunity [by an] agency”
is not an unconstitutional use.
Sussman, 39 F. Supp. 2d at 25;
accord Honadle v. University of Vermont, 56 F. Supp. 2d 419,
428 (D. Vt. 1999) (upholding a statistical reporting requirement
because “[t]hese activities do not impose burdens or benefits,
nor do they subject individuals to unequal treatment”). Simply put,
the mere fact that Board members are instructed to provide racial
and gender statistics after completing their evaluations does not
create a racial or gender classification.
-
The Separated Officers’ Remaining
Authorities - Walker, Monterey
Mechanical, and Wygant - Do Not
Remove Their Burden To Prove That the
Secretary’s Memorandum Imposes A
Suspect Classification
The separated officers quote extensively from
Walker v. City of Mesquite, 169 F.3d 973 (5th Cir. 1999),
for the proposition that racial and gender classifications
“are subject to the appropriate level of judicial scrutiny without
regard to perceptions regarding the burden or benefit they impose.”
Officers Br. at 26.
Walker, however, stands for the proposition that, once
a court holds that the Government imposed a suspect
classification, the Government may not avoid the consequences
of that holding by asserting its action had only a
de minimis effect.
Walker, 169 F.3d at 981. Consequently, the quotations
upon which the separated officers rely provide no guidance for
determining whether the Memorandum imposes classifications
in the first place.
The separated officers also criticize the trial court for citing to
Monterey Mechanical Co. v. Wilson, 125 F.3d 702
(9th Cir. 1997), and suggest that the case supports their position.
Officers Br. 46. In
Monterey Mechanical, the Government required
“general contractors to subcontract percentages of the work
to minority, women, and disabled veteran owned subcontractors,
or demonstrate good faith efforts to do so.”
Monterey Mech., 125 F.3d at 704. The Ninth Circuit held
that the Government created a racial classification because
it imposed a burden based upon race and gender
(“[o]nly those firms not minority or women owned must advertise
to those respective groups”), and distributed a benefit based
upon the same criteria (“only minority and women owned firms
are entitled to receive the bid solicitation”).
Id. at 711.
As the trial court demonstrated by its citations,
Monterey Mechanical further stands for the propositions
that
(1) not all race conscious governmental actions are subject
to strict scrutiny;
(2) strict scrutiny does not apply unless the
Government imposes a racial classification; and
(3) for there to be a racial classification, the Government
must distribute a benefit or impose a burden based upon race.
Consequently,
Monterey Mechanical does not suggest that the
Secretary’s Memorandum here imposes a suspect classification
because the Memorandum does not distribute a benefit or
impose a burden based upon race or gender; it is race and
gender conscious only to ensure equal consideration of all
officers.
The separated officers note that, in
Monterey Mechanical, the Ninth Circuit stated that it is
heuristically useful in considering whether a Government provision
imposes a classification to hypothesize the same provision
with white males substituted for women and minorities.
Id. at 711. In
Monterey Mechanical, the hypothesized provision
“required solicitation of subcontract bids only to white male-owned
firms, and did not require that white-male-owned firms make any
solicitation if they kept the work.”
Id. at 712. That hypothesized provision clearly distributed
a benefit (i.e., contract work) to business based upon race and
gender. By contrast, an hypothesized Memorandum would do
neither. Therefore, whether hypothesized or not, the Secretary
of the Air Force’s Memorandum does not impose a suspect
classification.
Plainly, the Secretary of the Air Force determined that it
was necessary to reference race and gender in order to
ensure equal consideration of all officers.
5
Because courts
have uniformly upheld the constitutionality of making such
references in order to limit discrimination, the separated officers,
in essence, argue that the Court should invalidate the Secretary’s
judgment that such references were necessary to accomplish
the Air Force’s goal of equal consideration for all officers.
However, “[s]pecial deference must be given by a court to the
military when adjudicating matters involving their decisions
on . . . composition,”
Woodward v. United States, 871 F.2d 1068, 1077
(Fed. Cir. 1989), and the separated officers have not presented
any basis for the Court to deny such deference to the Secretary’s
judgment.
Lastly, the separated officers argue that, pursuant to
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986),
the Court may skip over the application of judicial scrutiny and
award judgment in their favor if it holds that the Secretary’s
Memorandum imposes a suspect classification, it. Officers
Br. 49-51. Their argument is contrary to law and to their previous
representations.
The Supreme Court in
Wygant did not hold that a court can bypass the application
of judicial scrutiny. To the contrary, the Supreme Court applied strict
scrutiny and held that the Government’s action in that case was not
narrowly tailored because the Government could have obtained its
objective through hiring goals rather than layoffs.
Wygant, 476 U.S. at 283-84.
Notably, the separated officers discussed
Wygant during oral argument before the trial court,
JA 104-06, but never suggested the court could apply
heightened or strict scrutiny without permitting the United
States an opportunity to justify its actions. The separated
officers also stated at oral argument that “the only thing that
can be determined on the record that the government is proposing
is either they win, this is neutral, end of case, or we’ve got to have
more of a record now because [the court has] to apply strict
scrutiny. . . .” JA 101-02. Based in part upon the separated
officers’ representations, the trial court stated that it would provide
the United States with the opportunity to supplement the
administrative record before applying heightened or strict scrutiny.
JA 100, 102-03, 107.
Finally, in the parties’ joint stipulation of issues and facts filed with
the trial court, the separated officers listed several “additional
contentions of fact,” not agreed to by the United States, in response
to the trial court’s instruction “to separately identify, if necessary,
any statement of fact . . . which is not agreed upon by both parties,
but which one party believes to be at issue in the case in order
to assist . . . the court determine whether . . . there are material
facts in dispute which would preclude summary judgment.” JA 82.
Hence, the separated officers made clear that, before judgment
could be awarded in their favor, the trial court must first resolve
several genuine issues of material facts.
Therefore, even if the separated officers could prove that the
Secretary's Memorandum imposes a suspect classification in
ever conceivable set of circumstances, their previous
representations and Wygant and make clear that they still
may not be awarded judgment at this point in the proceedings.
-
The Trial Court Properly Held That The
Secretary’s Memorandum Satisfies Rational Basis
Review
As we demonstrated above, the separated officers cannot
satisfy their burden of proving that the Secretary’s Memorandum
imposes a racial or gender classification in any circumstance,
let alone in all conceivable circumstances. Consequently, the
Memorandum is subject to rational basis review.
See Heller v. Doe, 509 U.S. 312, 319-20 (1993).
Pursuant to such review, the Memorandum is presumed
constitutional and must be upheld “if there is a rational
relationship between the [purported] disparity of treatment
and some legitimate governmental purpose.”
Id. at 320 (citations omitted). Furthermore, to prevail
under rational basis review, the separated officers must
“negative every conceivable basis which might support
[the Memorandum], whether or not the basis has a foundation
in the record.” Id. (internal quotation omitted).
As the trial court properly held, the Memorandum satisfies
rational basis review: “[T]he Secretary’s Memorandum was
rationally related to furthering the government’s interest in
controlling the size and composition of the Air Force.
The RIF Board process was, by the terms of the Secretary’s
Memorandum, designed to retain those officers who were best
qualified to meet the overall needs of the Air Force.” JA 13.
The separated officers do not challenge this aspect of the trial
court’s decision.
CONCLUSION
To succeed upon their facial challenge, the separated
officers must prove that there are not set of circumstances
under which the Secretary’s Memorandum can applied
constitutionally. The separated officers cannot satisfy their
burden because, as the trial court held and we demonstrated
above, the Memorandum is neutral on its face. Moreover, the
Memorandum satisfies rational basis review.
Therefore, we respectfully request that the Court affirm the
judgment of the Court of Federal Claims.
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