DEFENDANT.

(Judge Horn)

	Plaintiffs have filed a motion requesting the Court amend 

the scheduling order to require the defendant to include in the 

administrative record "... any agency documents which are relevant 

to judicial application of the strict and heightened scrutiny 

standards to the instruction issued the reduction in force board."   

Defendant has opposed this request and requested a status conference.  

Plaintiffs concur in defendant's request for a status conference.

						
	In its response defendant references plaintiffs' citation to 

Baker v. United States, 34 Fed C. 645 (1995) vacated 127 F.3d 1081 

(Fed. Cir. 1997) and asserts that the ...case is inapposite, however, 

because the Baker plaintiffs challenged the application of their 

boards' MOI, as well as its facial neutrality. The Baker plaintiffs raised 

an "as applied" challenge by first filing their complaint pursuant to 

Rule 27(a) of the RCFC along with a request for discovery, and then, based 

upon discovery, amending their complaint to include the challenge.


Footnote 2, page 2, Defendant's Response (emphasis in original).

 
This assertion is inaccurate.  In its discussion of the background to its 

decision in Baker the Federal Circuit noted that a preliminary 

complaint had been filed which raised the constitutional challenge 

and that following discovery,1 an amended complaint was filed 

"...renewing their constitutional challenge to the SERB and adding several 

counts which alleged that the SERB, by favoring women and minority officers, 

had violated various statutes and regulations."  Baker, 127 F.3d at 1084-85 

(emphasis added).  The nature of the constitutional claim in Baker never 

changed.  In fact, the wording of the equal protection count remained identical 

throughout the proceedings.2


	In further responding to plaintiffs' motion, defendant cites Lutheran 

Church-Missouri Synod v. FCC, 154 F.3d 487, 492 (D.C. Cir. 1998) as "rejecting 

the suggestion >that all race conscious measures adopted by the government must 

be subjected to strict scrutiny.'" Defendant's Response at 3-4.  That court's 

only specific example of a race conscious measure that might not trigger strict 

scrutiny was "...outreach to, as opposed to the actual hiring of,..." 

individuals based upon race.  Id.  Selecting individuals for career 

termination, the purpose of the reduction in force board, is no outreach program.  

The analysis in Lutheran Church-Missouri Synod, however, is very relevant to 

plaintiffs' request that the whole administrative record be filed for the 

application of judicial scrutiny.   That court's discussion on classifications 

includes:


... the degree to which the regulations require, oblige, 
pressure, induce, or even encourage the hiring of 
particular races is not the logical determinant of 
whether the regulation calls for a racial classification. 
In Adarand, the challenged regulations did not require or 
obligate would-be contractors to grant a preference to 
minority subcontractors. Adarand Constructors, Inc. v. Pena, 
515 U.S. 200, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995). 
Rather, the regulations provided a financial incentive to 
bidding contractors to grant such a preference -- an incentive 
that contractors were free (at their economic peril) to 
disregard.  Id. at 205-08. Nonetheless, the Supreme Court 
treated the regulations as a racial classification, and did 
not even pause to consider the suggestion that the absence 
of a compelled racial preference makes strict scrutiny 
inapposite. Because the FCC's regulations at issue here 
indisputably pressure -- even if they do not explicitly 
direct or require -- stations to make race-based hiring 
decisions, under the logic of Adarand, they too must be 
subjected to strict scrutiny. See also Monterey  Mechanical 
Co. v. Wilson, 125 F.3d 702, 710 (9th Cir. 1997). 
Judge Tatel contends that the regulations do not provide 
"incentives" to stations to engage in race-based personnel 
decisions, but as we explained in our initial decision, 
Lutheran Church-Missouri Synod, 141 F.3d at 351-52, 
we think that assertion blinks reality.


   By insisting on an "obligation or requirement" test, Judge Edwards 

would make the analytical definition of a classification depend on the 

degree of government pressure. Yet if the regulations "suggested" an 80% 

white male workforce, would there be any doubt as to the applicable 

standard of review? See Monterey Mechanical Co., 125 F.3d at 711. 

Although an analysis of the degree of government pressure to grant a 

racial preference would no doubt be significant in evaluating whether a 

regulation survives strict scrutiny, it is the fact of encouragement -- 

a fact that no one denies--that makes this regulation a racial 

classification. 

Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 491-92 

(D.C. Cir. 1998) (footnotes omitted).  
	

	When a service secretary issues formal instructions (paragraph 15 

of defendant's answer) that a selection board:


 "must clearly afford" only certain groups of officers fair 
and equitable consideration, and,
	
 "should be particularly sensitive to the possibility that past 
individual and societal attitudes, and in some instances utilization 
policies or practices" adversely affected only persons belonging to 
such groups, and,
	
 render "a report of minority and female officer selections as 
compared to the selection rates for all officers" 


the Lutheran Church-Missouri Synod analysis of Adarand dictates application 

of the strict scrutiny standard to those instructions.


	Additionally, the Lutheran Church decision cited by defendant was a 

denial of a joint petition by the Federal Communication Commission and the 

government for rehearing of Lutheran Church-Missouri Synod v. FCC, 

141 F.3d 344 (D.C. Cir. 1998).  That case noted, inter alia,:


   We rather doubt that restricting Adarand to race-based 
"decision-making" -- as DOJ would have us do -- would save these 
regulations from strict scrutiny. They affect all kinds of 
employment decisions. For example, when deciding how to fill 
job vacancies, the regulations require a station to choose 
minority-specific referral sources. 47 C.F.R. ' 73.2080(c)(2). 
Likewise, an employer must conduct a formal analysis of its 
success in recruiting women and minorities and make decisions 
about its selection techniques and tests accordingly. 
47 C.F.R. ' 73.2080(c)(5). The Justice Department surely cannot 
be taking the position that these are not decisions, but must 
be joining the Commission in claiming that these sorts of 
decisions are just too insignificant to count.  Under Title VII, 
courts have distinguished between "preliminary" and "ultimate" 
employment decisions. See, e.g., Page v. Bolger, 645 F.2d 227, 
233 (4th Cir. 1981) (en banc) (holding that section 717, which 
forbids the government from discriminating in "personnel actions," 
does not apply to decisions with no immediate effect on employment.) 
Even if we thought that some of the requirements of '73.2080(c) -- 
those which could be described as outreach efforts -- had no real 
or immediate effect on employment, we are not sure that we would 
accept the government's premise. While there is a textual basis 
under Title VII for drawing such a line, the Equal Protection 
Clause would not seem to admit a de minimis exception.     


Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351 (D.C. Cir. 1998)

Similarly, the defendant's reference to Allen v. Alabama State Bd. of Educ., 

164 F.3d 1347 (11th Cir. 1999) (Defendant's Response at 3) which continued 

a consent decree requiring teacher certification tests that did not "impose 

an unjustified racially discriminatory impact on African-American teacher 

candidates" does not support defendant's position.  Moreover, that court had 

a substantial record before it and noted "There is nothing in the record to 

support the Board's claim that the district court abused its discretion in 

concluding that it was premature to find that the Board would not return to 

its former use of discriminatory certification examinations."  

Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1351 (11th Cir. 1999).


	Defendant's response emphasizes the discussion of the nature of the 

complaint which took place during the August 1999 hearing on class certification.  

In particular, defendant focuses on the references to the complaint being a 

facial attack on the conduct of the board.  Defendant's discussion fails to 

contemplate the fact that if defendant's argument that the instruction is 

neutral fails, the instruction must be subjected to judicial application of the 

strict and heightened scrutiny standards.  This is as true of a "facial" attack 

as it is of an "as applied" challenge.  It is undisputed that the formal 

instruction to the reduction in force board explicitly introduced considerations 

of race and gender.  The documents which plaintiffs assert should be added to the 

record proposed by defendant are documents recording the process that led to the 

adoption of that instruction, not documents concerning its application.   Even 

before the Adarand decision Supreme Court precedent emphasized the presumptive 

invalidity of racial classifications:


A racial classification, regardless of purported 
motivation, is presumptively invalid and can be 
upheld only upon an extraordinary justification.  
Brown v. Board of Education, 347 U.S. 483, 98 L. 
Ed. 873, 74 S. Ct. 686; McLaughlin v. Florida, 
379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283.  
This rule applies as well to a classification 
that is ostensibly neutral but is an obvious 
pretext for racial discrimination. 
Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 
6 S. Ct. 1064; Guinn v. United States, 
238 U.S. 347, 59 L. Ed. 1340, 35 S. Ct. 926; 
cf. Lane v. Wilson, 307 U.S. 268, 83 L. Ed. 1281, 
59 S. Ct. 872; Gomillion v. Lightfoot, 364 U.S. 339, 
5 L. Ed.2d 110, 81 S. Ct. 125.


	Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 272 

(1979)(emphasis added). In seeking to negotiate the contents of the 

administrative record plaintiffs have simply sought the inclusion of 

the whole record which defendant has or may assert provides the 

government's justification for introducing race and gender based 

processes into the board's deliberations.   Moreover, that whole 

record should include all documents the agency considered in 

adopting the instruction and not only those on which the agency 

relied as well as all documents considered by agency officials 

whose input reached the decision-maker.  See, e.g., Olenhouse v. 

Commodity Credit Corporation, 42 F.3d 1560 (10th Cir. 1994).
	

	Plaintiffs respectfully suggest that the just, speedy, and inexpensive 

determination of this action warrants requiring the defendant to file a 

record adequate for application of the relevant judicial scrutiny standards.

	As noted earlier, plaintiffs join in defendant's request for a status 

conference to discuss his issue.  Defendant's counsel has noted he is 

unavailable until after February 8, 2000.  Plaintiffs counsel respectfully 

requests that the Court schedule the conference on February 9, 14 or 15, 

or after February 28, 2000 due to travel commitments.		
							

 				Respectfully submitted,


February 4, 2000

Of Counsel

WILLIAM A. AILEO
RR 1, Box 22C
Springville, PA 18844
570-278-9703


BARRY P. STEINBERG
1101 Connecticut Avenue, NW
Suite 1000
Washington, DC 20036-4374
202-828-2400
	
				Attorney for Plaintiffs		





CERTIFICATE OF SERVICE

I certify under penalty of perjury that on this 4th day 
of February, 2000, I caused to be placed in the United States 
Mail (first class mail postage prepaid), copies of plaintiffs' 
reply to defendant's response to plaintiffs' motion for leave 
to amend the scheduling order as to the administrative record 
and plaintiffs' response to defendant's request for a status 
conference addressed to defendant as follows:

			Lee J. Freedman
			Trial Attorney
			Commercial Litigation Branch
			Civil Division
			United States Department of Justice
			1100 L Street, N.W.
			Attn: Classification Unit
			Room 8012
			Washington, D.C. 20530




				____________________
				William A. Aileo