TABLE OF CONTENTS

In accordance with the Court's January 27, 2000 order, defendant, the United States, submits its reply to plaintiffs' opposition to our motion for judgment upon the administrative record and our opposition to plaintiffs' motion for judgment upon the administrative record. As we observed in our motion ("principal brief"), the sole issue presently before the Court is whether, on its face, the Secretary of the Air Force's Memorandum of Instructions ("MOI") to the members of the Fiscal Year 1993 Reduction in Force Board ("FY93 RIF Board") constitutes a racial or gender classification. 1 In light of that motion's comprehensive discussion of the issue, this brief is limited to the pertinent infirmities, not sufficiently addressed in our principal brief, of plaintiffs' motion for judgment upon the administrative record and opposition to our motion. I. Plaintiffs Fail To Identify A Racial Or Gender Classification Plaintiffs extract three sentences from the five-page MOI, quote them, and then simply conclude that they have proven the MOI imposed both a racial and a gender classification. Plf. Br. at 8-9. Beyond informing the Court that the three sentences refer to minorities and women, and quoting from the FY93 RIF Board report (the "Board Report"), plaintiffs offer no analysis or case law to support their conclusion. In fact, notwithstanding plaintiffs' assertion, the mere mention of minorities and women within these three sentences does not establish a racial or gender classification. 2 See Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1352 (11th Cir. 1999); Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 492 (D.C. Cir. 1998); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th Cir. 1997). Plaintiffs take the three sentences out of context. In asserting that the sentences create a classification based upon race and gender, plaintiffs not only make an assertion without legal support, they also ignore the MOI itself, the full text of which, standing alone, defeats their argument. Ultimately, of course, the issue is whether the words in their original context are facially neutral. As Judge Learned Hand wrote, "[w]ords are not pebbles in alien juxtaposition; they have only a communal existence." NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941). Plaintiffs isolate the following language from the MOI: "Your evaluation of minority and women officers must clearly afford them fair and equitable consideration." While race and gender conscious, this language requires no more -- or different -- action by the Board than is required for all officers, including males and non-minorities. As stated elsewhere in the MOI, the Board members: must foster fair and equitable consideration, without prejudice or partiality, of all officers, [and] if [Board members] cannot . . . perform [their] duties . . . without prejudice or partiality, [they] have a duty to request relief. . . . (Emphasis added and text order changed for composite clarity). Unequivocally, taken as a whole, the MOI standards and expectations are identical for all officers. Plaintiffs also suggest that the following language creates a classification: 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 career perspective. While race and gender conscious, this language again requires no more -- or different -- action by the Board than is required for males or any other perceived majority. The MOI itself provides: Each [Board member] is responsible to maintain the integrity and independence of this board . . . without prejudice or partiality. . . . 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. . . . Equal opportunity for all officers is an essential element of our selection system. . . . 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. (Emphasis added and text order changed for composite clarity). Clearly, the MOI requires the Board to limit its consideration to the evidence properly before the Board, to be fair to everyone, and to consider all individuals using the "whole person" concept. Lastly, plaintiffs erroneously suggest that the following language also creates a classification: 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 rate for all officers considered by the board. (Emphasis added). It is apparent from the plain language of the MOI that the only requirement was to report facts and that these facts could reflect any outcome, including results that showed minorities and women faring better -- or worse -- than the Board average. 3 The only requirement was to report facts following completion of the selection process. The MOI also required the Board members - senior, experienced officers - to be able to certify in the same report, upon their oath, that the officers recommended for retention were both fully qualified and best qualified in the opinion of the Board members, AR 5, who were directed to act "without prejudice or partially." AR 3. There is no basis for inferring that the reporting requirement was anything more than it appears to be -- a mechanism for providing demographic information to the Air Force's senior leadership. Plaintiffs' suggestion that the reporting requirement might influence the Board members to give an unfair advantage to minorities and women is without support in the record and appears to reflect the plaintiffs' fallacious view that the MOI amounts to a coercive direction to the Board members, rather than guidance in the exercise of their discretion, which it in fact is. As discussed in greater detail in our principal brief, it is not unconstitutional to collect statistical data "to ensure that no person is denied equal employment opportunity." Sussman v. Tanoue, 39 F. Supp 2d 13, 25 (D.D.C. 1999); see also United States v. New Hampshire, 539 F.2d 277 (1st Cir. 1976). In short, it is apparent that the MOI requires all officers before the Board to be considered upon the basis of evidence properly before the Board; and that they be treated fairly and impartially, that they not be disadvantaged by prejudice or partiality, and, if they are fully qualified and best qualified, that they be recommended for retention. As we explained in our principal brief, the sentences upon which plaintiffs rely -- both standing alone and in their original context -- do not direct Board members to give a preference to anyone. Def. Br. at 10-11. Rather, both the sentences and the MOI as a whole instruct Board members to treat everyone equally. Def. Br. at 10-12. We reiterate: the MOI directs 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. Although we provided these Secretarial instructions in our principal brief, plaintiffs chose not to address them. II. Plaintiffs Must Prove The MOI Imposed Either A Racial Or Gender Classification Before The Court May Apply Strict or Heightened Judicial Scrutiny Adarand and its progeny hold that the Government implicates the Equal Protection Clause -- and is thus subjected to strict scrutiny -- only upon proof that it imposed a racial classification, and that plaintiffs bear the burden of demonstrating the imposition of a racial classification. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222, 227 (1995); Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998). Similarly, the Government is subjected to heightened scrutiny only upon proof that it imposed a gender classification. United States v. Virginia, 518 U.S. 515, 532-33 (1996). In reliance upon a case decided six years before Adarand, Richmond v. J.A. Croson Company, 488 U.S. 469 (1989), plaintiffs declare that this Court may apply strict scrutiny even if they only demonstrate the MOI constituted a race-based measure. Plf. Br. at 78 & n.2. That is not the law. The term "race-based measure" appears only once in the entire 76-page Adarand opinion -- in a quotation from Croson, upon which the Supreme Court relied to conclude that a post-Croson case was wrongly decided, and that "strict scrutiny of all governmental racial classifications is important." Adarand, 515 U.S. at 226 (emphasis added). Furthermore, the Supreme Court in Adarand did not adopt the Croson "race-based measure" standard. Instead, the Supreme Court relied upon Croson to establish several "general propositions with respect to governmental racial classifications." Adarand, 515 U.S. at 223. Notwithstanding plaintiffs' declaration to the contrary, the Court is not to apply strict scrutiny to the MOI unless and until plaintiffs prove the MOI imposed a racial classification, i.e., "a government standard, preferentially favorable to one race or another, for the distribution of benefits" or burdens. Raso, 135 F.3d at 16. Plaintiffs' additional suggestion that they need only demonstrate that the MOI is a gender-based measure in order to invoke heightened scrutiny is also an incorrect statement of the law. In support of their suggestion, plaintiffs quote the following from Virginia: "Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification for that action.'" 518 U.S. at 531. The quotation, however, pertains to the evidence necessary to justify Government action after it has been proven that the Government's action constituted a gender classification, not to the proof required to initially implicate the Equal Protection Clause. Moreover, the quoted text appears at the end of a paragraph, comprised of a single sentence, summarizing the Supreme Court's holdings in two earlier cases. Neither the quotation nor the remainder of the Virginia opinion contain the term "gender-based measure." In short, Virginia makes clear that plaintiffs must prove the MOI imposed a gender classification before the Court applies heightened scrutiny. 4 III. The Board Report Does Not Bear Upon Whether The MOI Imposed A Racial Or Gender Classification In their brief, Plaintiffs forcefully contest an argument we have not made. That is to say, they put forth an argument upon our behalf that an excerpt from the Board Report demonstrates the MOI was facially neutral. 5 Plf. Br. at 9-11. We did not make that argument. The only issue before the Court is whether, on its face, the MOI constitutes a racial or gender classification. See Berkley v. United States, 45 Fed. Cl. 224, 235 (1999) (plaintiffs' complaint raises the issue of "whether the Memorandum of Instruction issued by the Secretary was facially defective or not"). By definition, a facial challenge to a written instruction is limited to the four corners of the document, i.e., its face. Therefore, any materials beyond the MOI are irrelevant, and any argument based upon such materials is improper. 6 Plaintiffs also rely upon the Board Report for an argument on their own behalf. Plaintiffs note the Board members reported to the Secretary that they kept the MOI's guidance concerning women and minorities specifically in mind during the Board's proceedings. Plf. Br. at 9. Based upon this, plaintiffs argue there is "no doubt" the Board members understood the MOI required them to give a preference to minorities and women. 7 Just as it would be improper for us to rely upon the Board Report to argue for the MOI's facial neutrality, it is improper for plaintiffs to rely upon the Board Report to argue the MOI is facially defective. Whether the Board members kept each and every line of the MOI in mind during their deliberations is not the issue. The issue is whether those lines themselves establish a racial or gender classification, and the Board Report is not relevant to that issue. IV. Plaintiffs Are Unavailing In Their Attempts To Distinguish Every Case Raised In Support Of Our Motion Although plaintiffs introduce no case law to support their argument that the MOI's three quoted sentence constitute a classification, they do attempt to distinguish the cases we cited in support of the MOI's facial neutrality. Plaintiffs argue that Allen and Hayden v. County of Nassau, 180 F. 3d 42 (2d Cir. 1999), are irrelevant to this case for two reasons. First, plaintiffs assert those cases dealt with the "evaluation" of examinations, not the creation of examinations or their content. Plf. Br. at 15. Second, the examinations at issue in those cases, though race-conscious, did not mention race or gender, as opposed to the MOI, which plaintiffs allege is facially defective because of its explicit references to both race and gender. Plf. Br. at 15-16. Plaintiffs are mistaken as to their first point, and their second point does not distinguish this case from Allen and Hayden. Contrary to the assertion raised in plaintiffs' first point, 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. In making their second point, plaintiffs appear to suggest the examinations in Allen and Hayden were facially neutral because they did not expressly refer to race or gender. This reduces the issue of facial neutrality to the search for a shibboleth and deprives it of all meaning. Whether an examination (or an instruction to a RIF board, or any governmental action) expressly mentions race or gender does not answer the question of whether that action creates a race or gender classification. A court may hold to be facially neutral an action that expressly refers to race or gender. Likewise, a court may hold to be facially defective an action that mentions neither race nor gender. What matters is whether the language of the MOI distributes a benefit or burden upon the basis of race or gender, not whether it contains certain talismanic words. Allen is directly applicable to this case. The Allen defendants were race conscious in developing their examination, just as the MOI's language demonstrates the Air Force was race and gender conscious in developing its MOI. But, as we explained above and in our principal brief, the Air Force was race and gender conscious in order to afford equal consideration to all officers. Hence, the Air Force's race and gender consciousness does not constitute a racial or gender classification. 164 F. 3d at 1353 ("[E]very antidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under a statute, reflects a concern with race. That does not make such enactments or actions automatically 'suspect' under the Equal Protection Clause."). Likewise, the court in Hayden noted that its plaintiffs (like plaintiffs in this case) were "mistaken in treating 'racial motive' as a synonym for a constitutional violation." 180 F. 3d at 49. The desire to "diminish the adverse impact on black applicants," the court held, "in and of itself, . . . does not constitute a 'racial classification.'" Id. at 48. Hayden, like Allen, thus bears directly upon the issue of whether the MOI is facially neutral. Plaintiffs next discuss Raso v. Lago, 135 F.3d 11 (1st Cir. 1998), and again appear to confuse the factual inquiry into whether Government action is expressly race conscious with the ultimate determination of whether that action constitutes a racial classification. Plf. Br. at 17-18. Raso involved the West End of Boston, Massachusetts, which was an area populated mostly by white residents. The State took parts of the West End by eminent domain to effect urban renewal. The Raso plaintiffs, who were former West End residents, brought suit alleging the Department of Housing and Urban Development ("HUD") imposed a racial classification by curtailing an existing Massachusetts statute entitling them -- as displaced former residents -- to a preference for tenancy of all new residential units built upon the renewed land. 135 F.3d 12-13, 15-16. HUD admittedly curtailed the statutory preference because it disparately impacted minorities. Id. at 13-14. Nevertheless, the court held that, "[d]espite the use of the 'racial classification' label, the [plaintiffs'] complaint alleges no facts that would bring that label into play." Id. at 16 (citation omitted). As it explained, [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. Therefore, like Allen and Hayden, Raso teaches that the Government does not impose a racial classification by being race conscious in order to ensure equal opportunity. Raso, 135 F.3d at 16-17. Our principal brief cites Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), for three propositions: (1) not all race conscious Government 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 a burden based upon race. Def. Br. at 12, 15, 20. Plaintiffs do not contest that Monterey Mechanical stands for any of these propositions. 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." 125 F.3d at 704. The court properly held that the Government imposed 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 also distributed a benefit based upon the same criteria ("only minority and women owned firms are entitled to receive the bid solicitation"). Id. at 711. Monterey Mechanical does not suggest that the MOI in this case imposes a racial or gender classification, however, because the MOI did not require the distribution of a benefit or burden upon the basis of race or gender. The MOI is race conscious only to aid equal consideration for all officers. Raso, 135 F.3d at 16 ("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.") Plaintiffs also criticize our discussion of Baker v. United States, 34 Fed. Cl. 645 (1995), vacated, 127 F.3d 1081 (Fed. Cir. 1997), and inform the Court of our reliance upon a vacated decision. Plf. Br. at 19-20. Our principal brief, however, explicitly states the trial court's decision in Baker was vacated. What our brief does argue is that the Baker trial court's analysis of the MOI's facial neutrality is persuasive because it is consistent with Adarand, Allen, Hayden, Raso, and Virginia. Def. Br. at 15-16. Baker involved both a facial and an "as applied" challenge to the MOI. Def. Br. at 15 n.11. Plaintiffs' discussion of Baker fails to distinguish between the two different challenges, and thus argues matters not relevant to this case, which involves only a facial challenge. Furthermore, Baker was remanded by the Court of Appeals for the Federal Circuit, and ultimately settled, after the Government withdrew a declaration that had been tendered for the purposes of the "as applied" challenge. Accordingly, the issue of the MOI's facial neutrality is a matter of first impression for this Court to decide. The Baker opinions matter only to the extent this Court finds them persuasive, and only to the extent that the facts relied upon by the Baker courts are the same as those in this case; that is, to the extent the opinions limit themselves to the facial content of the MOI. We suggest that the trial court's reasoning in Baker is persuasive with respect to the issue of facial neutrality because it relies exclusively upon words of the MOI and the application of controlling precedent to them. Beyond that, the Baker opinions have no application. Finally, plaintiffs discuss Sirmans v. Caldera, 27 F. Supp. 2d 248 (D.D.C. 1998), which they describe as involving the United States Army's "version" of the Air Force's MOI. They quote from Sirmans that the "promotion procedure utilizes race and gender classifications that must be subjected to strict and intermediate scrutiny, respectively." Plf. Br. at 23. As the discussion in Sirmans reveals, however, the Army's selection process challenged in Sirmans bears little resemblance to the Air Force's selection process. Compare 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 by 180 F.3d 1343 (Fed. Cir.), cert. denied, 68 U.S.L.W. 3023 (Oct. 4, 1999). Therefore, any discussion or analysis of the Army's MOI is irrelevant to the issue of whether the Air Force's MOI is facially neutral. V. Plaintiffs Are Not Entitled To Judgment Upon The Administrative Record In order to receive judgment upon the administrative record, plaintiffs must demonstrate there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247 (1986) (summary judgment standard); ITT Federal Svcs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) ("Motions for judgment upon the administrative record are treated in accordance with the rules governing motions for summary judgment.") (citations omitted). Furthermore, plaintiffs, in moving for judgment upon the administrative record, bear the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Plaintiffs cannot carry that burden for two reasons. First, in the parties' joint stipulation of issues and facts filed on March 27, 2000, plaintiffs listed several "Additional Contentions of Fact," not agreed to by the United States, in response to the 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. Therefore, plaintiffs have already made clear their view that, before granting them judgment, the Court must first resolve several genuine issues of material facts. 8 Second, the issues in this case are such that while judgment upon the administrative record in favor of the defendant completely resolves the case, it cannot do so in favor of the plaintiffs. If the Court finds that the MOI does not constitute a racial or gender classification, there are no remaining issues; that finding alone supports a final judgment for the defendant. If, however, the Court were to find that the MOI does constitute a racial or gender classification, it would remain for the Court to examine, under the appropriate standard of judicial scrutiny, the Government's justifications for the MOI and its tailoring of the MOI to those justifications. On these matters, if they were to be reached, there will assuredly be genuine issues of material fact. Plaintiffs acknowledge this state of affairs in their brief, Plf. Br. at 27, but nevertheless argue that the Court can skip that examination and hold that the United States fails strict and heightened scrutiny as a matter of law. This argument is contrary to plaintiffs' previous statements. In their January 24, 2000 motion for leave to amend the scheduling order as to the administrative record, plaintiffs sought an order requiring the United States to include within the administrative record all documents "relevant to judicial application of the strict and heightened scrutiny standards to the instruction issued [to] the reduction in force board." Plf. Mot. at 5 (draft order). Plaintiffs argued that, "[i]n the absence of the production of such a complete administrative record, . . . briefing will become an unnecessarily complicated and extended process." Plf. Mot. at 3. During argument upon their motion, plaintiffs stated, "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. . . . There is no ability to get to the third step without the supplemental record if there's going to be one." Tr. at 19-20. Now, contrary to their previous position, plaintiffs argue that the Court may apply judicial scrutiny without reviewing any materials relevant to that inquiry. They are mistaken. Plaintiffs cite Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), for the proposition that the United States can never pass judicial scrutiny when its challenged action involves the termination of employment. Wygant, however, never made such a bold proclamation. Rather, the Wygant Court applied strict scrutiny analysis and held that the Government's action in that case was not narrowly tailored because it could have obtained its objective through hiring goals rather than layoffs. 9 Wygant, 476 U.S. at 283-84. The necessity in this case of applying judicial scrutiny to facts that are not yet in the record and to facts that, if reached at all, will undoubtedly be disputed, means that the Court may not award plaintiffs judgment upon the administrative record at this point in the proceedings. CONCLUSION For these reasons, we respectfully request the Court grant judgment upon the administrative record in favor of the United States, and deny plaintiffs' motion for judgment upon the administrative record.

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