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DEFENDANT'S MOTION FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD
During the August 31, 1999 oral argument of plaintiffs' motion for class
certification, the Court remarked (Tr. at 41) and counsel agreed (Tr. at 52)
that this case, as alleged by plaintiffs in their complaint, presented
nothing more than a facial challenge to the language of the Memorandum of
Instruction ("MOI") given to the Air Force's Fiscal Year 1993 Reduction
in Force Board, which resulted in plaintiffs' involuntary separation from
the Air Force. Having obtained that stipulation from counsel, the Court
invited defendant, the United States, to move for summary judgment upon the
issue of whether the MOI, on its face, constitutes a racial or gender
classification. Accordingly, pursuant to Rule 56.1 of the Rules of the
United States Court of Federal Claims ("RCFC"), the United States
respectfully requests that the Court grant judgment upon the administrative
record in its favor because there are no disputed issues of fact and
defendant is entitled to judgment as a matter of law. In support of this
motion, the United States relies upon the joint statement of facts,1 the
administrative record, and the following brief.2
DEFENDANT'S BRIEF
STATEMENT OF THE ISSUE
Whether, on its face, the Secretary of the Air Force's Memorandum of
Instructions to the members of the Fiscal Year 1993 Reduction-in-Force Board
constitutes a racial or gender classification.
STATEMENT OF THE FACTS
In July 1992, due to congressionally-mandated reductions in the manpower
levels of the Armed Forces, the Air Force found it necessary to select
commissioned officers for involuntary separation in fiscal year 1993 using a
reduction-in-force board (the "FY93 RIF Board"), which the Secretary of the
Air Force convened pursuant to 10 U.S.C. §§ 266 and 681a.,3 Compl. ¶ 14.
With respect to the Air Force, end strength for active duty personnel was
limited, effective September 30, 1991, to 510,000, of whom not more than
95,027 could be officers.,4 The drawdown was paced to limit the Air Force
to 486,800, effective September 30, 1992, of whom not more than 92,020 could
be officers.5 As of September 30, 1993, Air Force end strength was capped
at 449,900, with the maximum number of officers set at 84,970.6 Thus, by
September 30, 1995, only four years after the beginning of the drawdown, the
Air Force was required to downsize by over one-fifth of its total force -
from 510,000 personnel to 400,015.7 Furthermore, in the two-year period
from 1991 to 1993, the Air Force was required to reduce the number of active
duty officers by more than 10,000.
Plaintiffs are members of a certified "opt-in" class consisting of former
United States Air Force Reserve Officers involuntary separated following the
results of the FY93 RIF Board. Compl. ¶ 5.
As plaintiffs' counsel stipulated on August 31, 1999 (Tr. at 41, 52),
plaintiffs' sole challenge to their separation is the contention that the
Secretary of the Air Force's instructions to the members of the FY93 RIF
Board, contained in the MOI, denied them their "Constitutional right to
equal opportunity for retention on active duty through the equal opportunity
instruction" by purportedly giving "special retention consideration to"
minority and women officers. Compl. ¶¶ 18, 22. Plaintiffs challenge nothing
else in this action.
Plaintiffs seek, among other things, active duty pay from the time of
their involuntary separation through the date of judgment by this Court;
return to active duty with all rights, benefits, and privileges as if their
service had not been interrupted; correction of their military records to
show that they were not selected for involuntary separation by the FY93 RIF
Board; and attorneys fees and expenses.
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. They were instructed to review each record and assign it a
single, comprehensive, numerical score, which represented their subjective
evaluation of the totality of the information in the officer's record.
Board members were informed that officers would be ranked according to
their cumulative numerical scores.
The MOI is the Secretary of the Air Force's direction to the Board
members, and it provides guidance for this process.8 As is plain from the
MOI itself, these instructions center around four primary themes:
(1) officers are to be judged on their entire record (the "whole person
concept") - with job performance being the most important factor - to
determine which are best qualified; (2) officers are to be judged only on
their records, and not on any extraneous information or considerations;
(3) every officer is to be given equal consideration and to be judged
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. Accordingly, the MOI for the FY93 RIF board stated, in
pertinent part:
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.
* * *
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 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.
AR 1-5.
It is the constitutionality of this language that plaintiffs challenge
in this lawsuit.
ARGUMENT
The MOI quoted above does not constitute a racial or gender classification.
It does not categorize officers by, or provide a benefit or burden based upon,
race or gender. Nor does the MOI, in any way, require or encourage unequal
treatment of any officer or category of officers. To the contrary, it
absolutely requires that all officers be treated equally, without prejudice or
partiality of any kind. To the extent the MOI makes any reference to race or
gender, it only requires Board members to give minority and female officers
"fair and equitable" consideration and the same "equal opportunity" given all
officers, and, to that end, to be alert to any indication that past practices
or attitudes may have placed a minority or female officer at a career
disadvantage.
In challenging this MOI, plaintiffs are in effect arguing that all
references to race or gender, even those that have the purpose and effect
of ensuring equal opportunity for all, are illegal. Fortunately, that is
not the law. As discussed more fully below, not every reference to race or
gender constitutes a racial or gender classification. Even post-Adarand
cases continue to make it clear that references to race - which, in context,
require a neutral selection of all candidates, including minorities - are
perfectly valid. Indeed, subjecting every such reference to strict scrutiny
analysis would imperil the entire framework of laws intended to prohibit
racial discrimination and ensure equal opportunity.
Before discussing those cases, it is helpful to recall that when a
claimant asserts a constitutional challenge to an employment action by
which the former military service member has been deprived of pay, judicial
review is available in this Court, but that review is not unfettered. See,
e.g., Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).
This Court, its predecessors, the Court of Appeals for the Federal Circuit,
and the United States Supreme Court have all recognized the constitutional
deference owed to those who manage the Armed Forces. Bunch v. United States,
33 Cl. Ct. 337, 339 (1995) ("Because the Constitution delegates specific
power over the military to the political branches,9 the courts have
generally refrained from interfering in military decision making"),
aff'd, 78 F.3d 605 (Fed. Cir. 1996)(table); Murphy v. United States,
993 F.2d 871, 872-73 (Fed. Cir. 1993); Orloff v. Willoughby,
345 U.S. 83, 93-94 (1953) ("judges are not given the task of running
the Army"); Gilligan v. Morgan, 413 U.S. 1, 10-11 (1973) (courts lack the
constitutional authority or competence to judge the day-to-day management
of the National Guard). The judicial deference granted by courts to
decisions by the military has been explicitly applied in cases such as the
one now before the Court. In Woodward, the Federal Circuit reviewed the
claim of a Navy officer who claimed to have been released from active duty
based upon his sexual orientation in contravention of, among other
provisions, the Equal Protection Clause. Woodward, 871 F.2d at 1071. The
Federal Circuit 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) (emphasis added). Furthermore, the
court stressed, "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)).
- Plaintiffs Fail To Identify A Racial Classification
In Count One of their complaint, plaintiffs contend that the Air Force
violated the Equal Protection Clause by instructing members of the FY93 RIF
Board to give a racial preference. Compl. ¶ 18. Plaintiffs bear the burden
of proving that the MOI language constituted an impermissible racial
classification. Theriot v. Parish of Jefferson, 185 F.3d 477, 484 (5th Cir.
1999); see also Miller v. Johnson, 515 U.S. 900, 916 (1995); Aiken v. City
of Memphis, 37 F.3d 1155, 1162 (6th Cir. 1994). To succeed upon their
claim, plaintiffs must establish that, consistent with the Supreme Court's
decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the MOI
imposed a racial classification and distributed either a benefit or burden
based upon that classification. Id. at 222, 227 (citing City of Richmond v.
J.A. Croson Co., 488 U.S. 469 (1989)). Under Adarand, a "racial
classification" is "a government standard, preferentially favorable to one
race or another, for the distribution of benefits." Raso v. Lago, 135 F.3d
11, 16 (1st Cir. 1998) (citations omitted); accord Hayden v. County of
Nassau, 180 F.3d 42, 48 (2nd Cir. 1999); Honadle v. University of Vermont,
56 F. Supp. 2d 419, 427-28 (D. Vt. 1999). Because plaintiffs cannot meet
this standard, judgment upon the administrative record should be granted in
favor of the United States.
In support of Count One, plaintiffs rely solely upon four sentences of
the five-page MOI, which they reproduce inaccurately and out of context in
their complaint. Compl. ¶ 15, 18. In summary, the sentences found in the
MOI do no more than tell Board members to treat everyone equally. In so
doing, members who find evidence in an individual record that past practices
or attitudes worked to a particular officer's career disadvantage are
instructed to consider that evidence, along with the hundreds of other
matters present in that officer's record, as one factor among many to
determine the best qualified officers. This does not constitute a racial
classification. Nothing in the four sentences direct the Board members to
give a preference to minority or female officers in the selection process or
to impose a burden on officers who were neither members of a minority group
nor female.
The MOI instructs Board members to take numerous factors into account when
scoring records. These factors include officers' job performance, as well
as their depth and breadth of experience in the Air Force. AR 2. Hence, a
Board member must evaluate both officers who served in a variety of
positions, and officers who had a defined, but limited career experience -
e.g., foreign service or procurement. In the course of evaluating records,
Board members must rely upon their own experience to decide the import of
hundreds of matters contained within officers' records. For this reason,
the Air Force limits selection board membership to senior officers, whose
broad range of experience over several decades in the Air Force allows them
to make informed evaluations. This also helps to explain why courts afford
great deference to military decisions, even when those decisions are subject
to a constitutional challenge.10 See, e.g., Woodward, 871 F.2d at 1071.
The conclusion that no preference is created or intended by the MOI is all
the more compelling when the four sentences are returned to their context.
The remaining instructions affirmatively prohibit Board members from giving
a preference to one group by directing that: (1) Board members must not act
in the interest of any particular group; (2) job performance must be the
overriding factor in evaluations; (3) equal opportunity for all officers
must be maintained; and (4) Board members are responsible for fostering the
fair and equitable consideration of all officers without prejudice or
partiality. AR 2-3.
The mere mention of minorities or women within the MOI, or a reminder to
be sensitive to past practices or attitudes, does not establish a racial
classification. As the United States Court of Appeals for the Eleventh
Circuit recently explained, courts have not accepted attempts to read
Adarand so broadly as apply to "all race-based actions, whether or not they
lead to unequal treatment." Allen v. Alabama State Bd. of Educ., 164 F.3d
1347, 1352 (11th Cir. 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 Mechanical 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).
Rather, the scheme challenged in this case is akin to those at issue in
Allen v. Alabama State Board of Education, 164 F.3d 1347 (11th Cir. 1999),
and Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999). Allen involved
a consent decree requiring the State Board of Education to fashion future
teacher certification examinations "using a system designed to avoid an
unjustifiable discriminatory impact on African-American teacher candidates,"
and forbidding the Board from using any teacher certification exam "that
would have a discriminatory impact on African-Americans." Allen, 164 F.3d at
1349. In evaluating the decree, the court noted that it "does not require
the Board to impose a different passing grade for African-American
candidates or otherwise classify teachers based upon race in grading the
examinations." Id. at 1352. Based upon this fact, the court concluded,
the decree does not require the Board to act according to racial
classifications, which takes this case out of Adarand. Instead,
the Board 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.
Id. at 1352-53. In closing, the court held,
"[n]othing in Adarand requires
the application of strict scrutiny to this sort of race-consciousness."
Id.
at 1353.
In Hayden, White and Latino applicants to a county police department
brought a class action suit against the county. Hayden, 180 F.3d at 46.
The applicants alleged that the county had deliberately designed the police
department entrance exam to minimize the adverse impact upon black
candidates, and, that by doing so, the county created a racial
classification in violation of the Equal Protection Clause. Id. at 47-48.
The court of appeals disagreed. In granting the county's motion to dismiss
for failure to state a claim upon which relief could be granted, the court
held that, although the county was necessarily conscious of race in
designing its entrance exam, that consciousness did not implicate a racial
classification. Id. at 48-49. As the court explained:
Every antidiscrimination statute aimed at racial discrimination,
and every enforcement measure taken under such a statute,
reflect a concern with race. That does not make such enactments
or actions unlawful or automatically "suspect" under the Equal
Protection Clause. . . .
Id. at 49 (quoting Raso, 135 F.3d at 16); 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").
The race-consciousness that exists in the FY93 Board's MOI, is,
if anything, less taxing than those upheld by the courts in Allen
and Hayden. Furthermore, the Court in this case - unlike the courts
in Allen and Hayden - must analyze plaintiffs' constitutional
challenge "in the light of the special circumstances and needs of the
armed forces." Woodward, 871 F.2d at 1077.
The defendants in Allen and Hayden took affirmative action based upon
race, i.e., designing examinations to eliminate discriminatory impact.
Here, the MOI did not instruct Board members to take any affirmative steps
based upon race. Instead, in reviewing the records of minority officers,
Board members were advised merely to be conscious of anything in those
records that might indicate an officer was disadvantaged in his or her
career by past practices or attitudes, and to consider such indications,
if found, as one factor among many in giving the officer "fair and
equitable" consideration. The MOI did not require Board members to impose
a different retention criterion for minority candidates or otherwise
classify officers based upon race in evaluating their records. Indeed, it
explicitly required that Board members choose the best qualified of those
officers fully qualified to serve, regardless of race or gender. It "d[id]
not require the Board to act according to racial classifications, which
takes this case out of Adarand." Allen, 164 F.3d at 1352-53; accord Hayden,
180 F.3d at 49; Raso, 135 F.3d at 16; Monterey Mechanical, 125 F.3d at 711.
We note that this Court addressed the constitutionality of the same MOI
language in Baker v. United States, 34 Fed. Cl. 645 (1995), vacated, 127
F.3d 1081 (Fed. Cir. 1997).11 Although this Court's decision rested in part
upon evidence - later withdrawn - relating to the MOI's application, its
analysis of the MOI's facial neutrality remains persuasive because it is
consistent with the decisions, discussed above, in Adarand (plaintiffs must
demonstrate both the existence of a classification and the distribution of a
benefit or burden), and in Raso, Allen and Hayden (mere mention of race,
without requiring action based upon a racial classification, does not
implicate strict scrutiny). The trial court concluded that the MOI is
facially neutral because it did does create a racial or gender
classification, or confer a benefit or levy a burden upon any group. Baker,
34 Fed. Cl. at 656, 658. In reaching this conclusion, the trial court noted
that the MOI did not include race or gender in the factors that Board
members were to consider, and it lacked other essential indicia - such as
requirements, quotas, goals, incentives - that transform the mere mention of
race or gender into a classification. Id. at 656. Instead, the Court
determined that the MOI language was "nothing more than a hortative comment,
advice, or reminder." Id.
Finally, the Baker trial court examined the requirement that the Board
report the selection rates for women and minority officers, and concluded
that, because there was no requirement that female or minority status be
taken into account in rating officers, or that their discharge rates be
consistent with that of the overall Board discharge rates, the Board report
requirement neither created a classification nor distributed a benefit or
burden based upon that classification. Id. at 656-57.
The trial court reached the correct conclusion. For sound reasons,
"[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 courts
have recognized, "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). Thus, 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 such data
can give rise to such a classification, and it is not unconstitutional to
collect statistical data "to ensure that no person is denied equal
employment opportunity [by an] agency." 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").
The court of appeals in Lutheran Church also examined a reporting
requirement, although it did so in a different context, and it did not rule
upon the constitutionality of the requirement. In that case - unlike the
one at bar - the Government conceded that the challenged regulation
implicated Adarand and the Equal Protection Clause. Lutheran Church, 141
F.3d at 351-52. Thus, the only issue before the court was whether the
regulation passed strict scrutiny.12 The Federal Communication Commission
("FCC") regulation at issue, 47 C.F.R. § 73.2080 (1997), required radio
stations to adopt an affirmative action "equal employment opportunity
("EEO") program" targeted to minorities and women. Lutheran Church, 141
F.3d at 346. The regulation itself did not contain a reporting requirement,
although it did obligate radio stations to evaluate their employment profile
and job turnover against the availability of minorities and women in their
area. Id. A reporting requirement was imposed upon Lutheran Church's two
radio stations, however, by an FCC administrative law judge ("ALJ"), who
determined that Lutheran Church had violated the regulation's EEO program
requirements.13 Id. at 348. Because the court of appeals held that the FCC
regulation failed strict scrutiny, it reversed the ALJ's determination that
Lutheran Church had violated the regulation, and thus never examined whether
the reporting requirements imposed by the ALJ were themselves
constitutional. See id. at 356-57.
The MOI language in this case also contrasts sharply with that which was
declared unconstitutional in Adarand. That case involved a statute which
required the Federal Government to award at least five percent of Government
contracts to "small business concerns owned and controlled by socially and
economically disadvantaged individuals." Adarand, 515 U.S. at 205-06. In
implementing the law, the Small Business Administration adopted regulations,
which designated several minority groups as presumptively "socially
disadvantaged," and provided that individuals outside these groups required
"clear and convincing evidence" to be considered socially disadvantaged.
Id. at 207. The Government contended that the statute was not subject to
strict scrutiny because its classifications were based upon disadvantage,
not race. Id. at 212-13. The Supreme Court rejected the Government's
contention. Id. at 227.
The statute construed in Adarand classified a business as being either
controlled by socially disadvantaged persons (i.e., minorities) or not, and,
based upon that classification, the Government distributed a benefit (i.e.,
Government contracts). Thus, the infirmity found by the Supreme Court in
Adarand was both the existence of a racial classification and a resulting
benefit or burden. Neither exists in this case.
Simply instructing Board members to be cognizant of past discrimination
against minorities in reviewing their records, while instructing Board
members that they may not act with prejudice or partiality, is not "a
government standard, preferentially favorable to one race or another, for
the distribution of benefits." Raso, 135 F.3d 16 (citations omitted).
Furthermore, the MOI neither set aside, nor distributed, a benefit to
minorities. Again, the MOI told Board members that they could not give a
preference. Unlike the Act in Adarand, the MOI did not cause a benefit or
burden to be distributed based upon a classification. Therefore, the FY93
RIF Board's MOI does not implicate the Equal Protection Clause or Adarand.
See Raso, 135 F.3d at 16; Monterey Mechanical, 125 F.3d at 711.
- Plaintiffs Fail to Identify a Gender Classification
In Count Two of their complaint, plaintiffs contend that the Air Force
violated the Equal Protection Clause by instructing members of the FY93 RIF
Board to give a preference based upon gender. Compl. ¶ 22. To prove gender
discrimination, plaintiffs must demonstrate, first, that the MOI created an
"official classification based upon gender," and, second, that it set aside
or distributed a benefit based upon gender. See United States v. Virginia,
518 U.S. 515, 532-33 (1996). As with Count One, plaintiffs rely solely upon
four sentences of the five-page MOI to demonstrate purported gender
discrimination. Compl. ¶ 22. Neither those four sentences, nor the
remainder of the MOI, created an official classification based upon gender,
much less distributed a benefit based upon gender. Instructing Board
members to be cognizant of past institutional practices, such as job
assignments, does not constitute an official classification based upon
gender, especially in light of that fact that the MOI also told Board
members that they, themselves, could not give a preference or show
partiality.
Case law is replete with examples of programs and statutes that did
constitute official classifications based upon gender. In Virginia, the
Supreme Court held the single-sex admission policy of the Virginia Military
Institute ("VMI") to be such a classification. Virginia, 518 U.S. at 546.
Likewise, in the leading gender discrimination case before Virginia, Craig
v. Boren, 429 U.S. 190 (1976), the Court determined that an Oklahoma
statute, which established different age limits for men and women to consume
alcohol, created a gender-based classification. Craig, 429 U.S. at 211.
In Kirchberg v. Feenstra, 450 U.S. 455 (1981), the Court found such a
classification was created by a Louisiana statute that gave a husband the
unilateral right to dispose of property jointly owned with his wife even
without his wife's consent. 450 U.S. at 459-60. Finally, in Buzzetti v.
City of New York, 140 F.3d 134 (2d Cir. 1998), the court considered a
zoning amendment with differential regulation of male and female topless
dancing. The court held that the amendment constituted an official
classification based upon gender, although it upheld the amendment based
upon the city's justification. Id. at 141-42.
The MOI at issue in this case differs substantively from the programs
and statutes courts have held to constitute official classifications based
upon gender. In the cases discussed above, the policy or statute put men
and women into different categories in order to give the members of one
category a substantive benefit, such as potential admission to a school or
the ability to drink alcohol at an earlier age. The MOI in this case did
not create categories, nor did it provide any substantive benefit to one
category's members. In summary, the MOI did not create an official
classification based upon gender, any more than it created one based upon
race.
CONCLUSION
For the reasons stated, we respectfully request that the Court grant
judgment upon the administrative record in favor of the United States.
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