OF COUNSEL:
WILLIAM A. AILEO
RR 1, Box 22C
Springville, PA 18844
(570) 278-9703

1. The full name of every party or amicus represented by me is:

3. The parent companies, subsidiaries (except wholly-owned subsidiaries) and affiliates that have issued shares to the public, the party or amicus curiae represented by me are: None

4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this Court are: Barry P. Steinberg and William A. Aileo.

Attorney for Appellants

Nature of the Case

Course of Proceedings

Statement of Facts

A. Standard of Review

B. Air Force Imposition of Explicit Race and Gender Conscious Measures on a Reduction-In-Force Board is Subject to the Strict and Heightened Standards of Judicial Review

1. Any Race or Gender Based Measures Used in the Course of Distributing a Government Benefit or Burden Constitute a Classification Subject to the Strict or Heightened Judicial Scrutiny

2. The Secretary of the Air Force's Instructions Required at Least Three Race and Three Gender Based Measures by the FY93 RIF Board

3. In a Challenge to Explicit Race and Gender Measures Intent Is Irrelevant to the Determination of Judicial Standards of Review

4. Deference to Military Authorities Has No Relevance to Determining the Standards of Judicial Review

5. The Race and Gender Based Measures Imposed on the FY93 RIF Board Members Are Suspect Classifications

Appellants' complaint filed in the United States Court of Federal Claims contests the legality of the involuntary termination of their status as active duty commissioned United States Air Force officers, invoking jurisdiction pursuant to 28 U.S.C. ' 1491 and other statutes. On December 19, 2000, the United States Court of Federal Claims entered final judgment granting appellee judgment upon the administrative record and dismissing the complaint. The appellants filed a timely notice of appeal on January 24, 2001, invoking this Court's jurisdiction pursuant to 28 U.S.C. ' 1295(a)(3).

Whether the Secretary of the Air Force's imposition of mandatory written instructions expressly establishing specific criteria applicable only to the evaluation of the records of minority and female officers for the conduct of a Selective Early Retirement Board constitutes a racial or gender classification for purposes of determining the standard of judicial review applicable to a complaint alleging violation of the equal protection guarantees of the Fifth Amendment to the United States Constitution.

This is military pay case. The appellants are all individuals whose careers as active duty officers in the United States Air Force were involuntarily terminated pursuant to a reduction in force board conducted in 1993 ("FY93 RIF Board") in violation of Constitutional equal protection guarantees.

On December 30, 1998, pursuant to RCFC 23, appellants filed their complaint and a motion for class certification in the United States Court of Federal Claims. On November 5, 1999, the Court of Federal Claims certified a class in the case, ordered the parties to file the administrative record and established a briefing schedule for dispositive motions on the issue of liability. Berkley v. United States, 45 Fed. Cl. 224 (1999); A17. The parties could not agree on the contents of the administrative record and appellants requested that the Court of Federal Claims require that the administrative record in this matter include any agency documents relevant to judicial application of the strict and heightened scrutiny standards to the instructions issued the FY93 RIF Board. The Court of Federal Claims denied that motion and limited the scope of the administrative record to the Secretary's formal instructions and the report required by the instructions. A16. Defendant-appellee filed the limited administrative record and cross motions for judgment upon the administrative record were submitted to the Court of Federal Claims. On December 19, 2000, the Court of Federal Claims denied appellants' motion and granted appellee judgment upon the administrative record pursuant to RCFC 56 and 56.1. Berkley v. United States, 48 Fed. Cl. 361 (2000), A2. The judgment dismissing the complaint was filed on December 19, 2000. A1. This appeal followed.

1. In July, 1992, the Air Force conducted a reduction-in-force board to select commissioned officers for involuntary separation in fiscal year 1993 (the FY93 RIF Board), which was convened by the Secretary of the Air Force pursuant to 10 U.S.C. '' 266 and 681a.¹ A61.

2. The Secretary of the Air Force issued the FY93 RIF Board a Memorandum of Instructions (MOI) establishing mandatory guidance for the conduct of the reduction-in-force board process. The MOI for the FY93 RIF Board included the following directions to each Board member
   * * *

   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 minorities and women, 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.

   A62.

3. Each of the appellants is a member of a certified "opt-in" class consisting of United States Air Force Reserve Officers involuntarily released from active commissioned service as a result of the FY93 RIF Board. A61.

Arguably the most significant advances of American society have occurred through the gradual incorporation of the moral concepts of the Declaration of Independence into legal mandates embodied in the United States Constitution. In the context of equal protection guarantees, that process culminated in the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (hereafter "Adarand"). That decision established one standard for equal protection analysis whether founded upon the Fifth or the Fourteenth Amendment and confirmed that equal protection rights are individual, not group rights. It is now beyond cavil that the Fifth Amendment protects all United States citizens in the same manner without regard to their race or gender. Accordingly, Federal agencies, including the military departments, have no authority to adopt personnel practices favoring groups of individuals based upon racial characteristics unless such practices are narrowly tailored measures that further a compelling governmental interest. Federal agencies, including military departments, also have no authority to adopt personnel practices favoring groups of individuals based upon gender unless such classification serves important governmental objectives and the consideration of gender is substantially related to achieving those objectives. Appellants contend that formal instructions by a Service Secretary to a military selection board that:

• Required the board members to clearly afford female and minority officers fair and equitable consideration but did not require the board members to clearly afford male non-minority officers fair and equitable consideration; and,

• Required the members of the board to be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed female and minority officers at a disadvantage from a total career perspective, but contained no provision for any such sensitivity to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed non-minority male officers at a disadvantage from a total career perspective; and,

• Further required the board members to render a written report for review by the Secretary and the Chief of Staff of the Air Force comparing the selection rates for all officers considered by the board with the selection rates for minority and female officers, but did not require the written report to compare the selection rates for all officers considered by the board with the selection rates for male non-minority officers;

  represents racial and gender classifications for purposes of determining the standards of judicial review. Appellants further assert that the use of racial and gender classifications in the career ending involuntary process at issue in this case cannot as a matter of law satisfy the applicable standards of judicial scrutiny.

  Accordingly, the appellants contend that the Court of Federal Claims erred in concluding that the use of explicit race and gender keyed criteria, procedures and reporting requirements by a secretly conducted military selection board did involve the use of race and gender classifications.

  ARGUMENT

  1. Standard of Review

     This Court reviews judgments of the Court of Federal Claims to determine whether they are premised on clearly erroneous factual determinations or otherwise incorrect as a matter of law. Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed. Cir. 1992). As a matter of law, the grant of summary judgment by the Court of Federal Claims receives de novo review by this Court. Confederated Tribes of Colville Reservation v. United States, 964 F.2d 1102, 1107 (Fed. Cir. 1992).

  2. Air Force Imposition of Explicit Race and Gender Conscious Measures on a Reduction-In-Force Board is Subject to the Strict and Heightened Standards of Judicial Review

     The record establishes that the voting members of the reduction-in-force board which terminated the active duty commissioned status of each of the appellants was given formal instructions that included the following language:

     • "Your evaluation of minority and women officers must clearly afford them fair and equitable consideration."

     • "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." and

     • "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."

     A62. No instruction was issued which required or permitted the board members to afford non-minority males such consideration. Notwithstanding the clear holding of Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) and this Court's discussion of these race and gender conscious measures in Baker v. United States, 127 F.3d 1081 (Fed. Cir. 1997), the Court of Federal Claims concluded that the instructions contained no suspect classifications. Berkley v. United States, 48 Fed. Cl. 361, 376 (2000), A12. This conclusion is based upon erroneous interpretations of precedent and the record in this case.

     1. Any Race or Gender Based Measures Used in the Course of Distributing a Government Benefit or Burden Constitute a Classification Subject to the Strict or Heightened Judicial Scrutiny

        Through the Adarand decision the Supreme Court eliminated any caveat on the applicability of strict scrutiny to the use of racial classifications in governmental decision making concerning the distribution of governmental burdens or benefits. In the course of setting forth the reasons for reversing Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547 (1990), the Adarand decision summarized three general propositions established by the Court with respect to judicial review of any government action based upon race: "skepticism," "consistency," and "congruence." Adarand, 515 U.S. at 223-224. After describing how Metro Broadcasting deviated from these propositions, the Court emphatically reasserted their application to all Equal Protection analyses:

        The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race -- a group classification long recognized as "in most circumstances irrelevant and therefore prohibited," Hirabayashi, supra, at 100 -- should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection, and holding "benign" state and federal racial classifications to different standards does not square with them. "[A] free people whose institutions are founded upon the doctrine of equality," ibid., should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold today that all racial classifications, imposed by whatever federal, state or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.

        Adarand, 515 U.S. at 227 (emphasis added). Thus strict scrutiny applies to "... all governmental action based on race...." Subsequent proceedings in Adarand characterized the nature of its holding as follows:

        Because DOT's [the Department of Transportation's] use of race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237-239, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995) (Adarand I).

        Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 219 (2000)(per curiam) (emphasis added). Accordingly, as to race, the question now before the Court is whether the Secretary of the Air Force's instructions required any race based measures² by the FY93 RIF Board.

        A similar equal protection analysis produced the Supreme Court's determination of what triggers heightened judicial scrutiny regarding gender classifications:

        We note, once again, the core instruction of this Court's pathmarking decisions in J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 136-137, 128 L. Ed. 2d 89, 114 S. Ct. 1419, and n. 6 (1994), and Mississippi Univ. for Women, 458 U.S. at 724 (internal quotation marks omitted): Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.

        United States v. Virginia, 518 U.S. 515, 531 (1996) (emphasis added). Therefore, as to gender, the issue is whether the Secretary of the Air Force's instructions required any gender based measures by the FY93 RIF Board.

        Thus, while the ultimate standards of judicial scrutiny differ depending upon whether a race or gender classification is at issue, the threshold determination of whether either such classification is present is essentially the same, i.e., Did the Secretary of the Air Force's instructions to the FY93 RIF Board require any race or gender based measures by the members of that board?

     2. The Secretary of the Air Force's Instructions Required at Least Three Race and Three Gender Based Measures by the FY93 RIF Board

        As noted earlier, the record establishes that the formal instructions to the board members provided, inter alia:

        • "Your evaluation of minority and women officers must clearly afford them fair and equitable consideration."

        • "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." and

        • "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."
        A62.

        Each of these three sentences establishes a measure to be executed by a board of military officers selecting officers for involuntary retirement. Each of those measures is race and gender based. These three measures are: "must clearly afford," "... be particular sensitive to the possibility...." and "....prepare for review by the Secretary and the Chief of Staff a report of minority and female officer selections ...." The Secretary neither imposed nor authorized corresponding measures in regard to the evaluation of those officers the board members considered belonging to non-minority male groups.

     3. In a Challenge to Explicit Race and Gender Measures Intent Is Irrelevant to the Determination of Judicial Standards of Review.

        After describing cases pertaining to suspect classifications, the Court of Federal Claims summarized the law as being:

        Thus, to violate the Constitution, a directive, such as the Secretary's Memorandum of Instruction, must include more than a mere mention of race or gender. The government action must bestow a benefit or burden, based on a suspect classification, to taint the action with the stigma of invidious discriminatory intent. Only then is heightened scrutiny required.

        Berkley v. United States, 48 Fed. Cl. 361, 370-71(2000), A7-8. Plaintiffs respectfully assert that such consideration of intent is incorrect in ascertaining the standards of judicial review. When race or gender based action is explicitly solicited on the face of mandatory military selection board instructions, no examination of intent is warranted:

        The district court held that the Homeowners failed to prove an equal protection violation because there is no intent to treat whites worse than similarly situated blacks. Once again, the district court is incorrect. An explicit racial classification does not require any inquiry into "intent" in order to allege an equal protection violation. See Shaw, 509 U.S. at 642, 113 S. Ct. at 2824 ("No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute.").

        Walker v. Mesquite, 169 F.3d 973, 981 (5th Cir.1999)(emphasis added). Even of intent were relevant (and it is not), the Court of Federal Claims precluded the creation of a record which would have reflected it.

        Moreover, appellants further contend that the Court of Federal Claims compounded its error in considering intent in regard to the racial and gender conscious provisions of the instructions by applying selectively rules of statutory interpretation to the instructions, after precluding the inclusion in the administrative record of the materials that would have made such an analysis possible. The Court of Federal Claims denied appellants' motion for a comprehensive administrative record and ordered it limited to the Secretary's formal instructions and the report required by the instructions. A16. Several aspects of the steps taken by the Court of Federal Claims to ascertain the "meaning" of the instructions are troubling. In addition to the partial and inappropriate consideration of rules of statutory interpretation, the Court concluded, from the unrelated 1975 decision Schlesinger v. Ballard, 419 U.S. 498 (1975), that "past discrimination and lack of opportunity in the military with respect to minorities and women are historical facts" (Berkley, 48 Fed Cl. at 373 n.4, A9), while ignoring both the very relevant implications of this Court's discussion of the history and meaning of these instructions in Baker v. United States, 127 F.3d 1081 (Fed. Cir. 1997), and the historical fact that the victims of discrimination are not limited to minorities and women.

        The rules of statutory construction do not logically apply at this point in this proceeding. Any simple common sense reading of the instructions clearly demonstrates that the Secretary of the Air Force ordered the board members to perform analyses in regard to the records of minorities and women that he did not order or even authorize them to do in regard to the records of non-minority males. As set forth in more detail in succeeding sections of this brief, these are suspect classifications. The intent behind those instructions can only be determined by, and only becomes relevant when, the appropriate heightened level of judicial scrutiny is applied. At that point, on an adequate record, is it logical and legally justifiable to turn to rules of statutory construction.

     4. Deference to Military Authorities Has No Relevance to Determining the Standards of Judicial Review

        As noted in the previous section the record in this case is extremely limited. It is devoid of any expressions of possible military expertise or corresponding motivations that may have played a part in the crafting of race and gender conscious board instructions. Nevertheless, the Court of Federal Claims partially accepted the Air Force proposition that the judiciary owed it deference in determining the standards of judicial review applicable to the instructions issued the members of the FY93 RIF Board. The Court concluded:

        ...Therefore, although the personnel decisions of the armed forces may be reviewable, the Supreme Court has demonstrated sensitivity to the deference to be accorded to the special expertise, circumstances and needs of the armed forces when evaluating allegations that the military violated the Constitution. See Woodward v. United States, 871 F.2d at 1076 (quoting Beller v. Middendorf, 632 F.2d 788, 810 (9th Cir. 1980), cert. denied sub nom., Beller v. Lehman, 452 U.S. 905, 69 L. Ed. 2d 405, 101 S. Ct. 3030 (1981)); see also Weiss v. United States, 510 U.S. at 176-177 (rejecting a procedural due process claim); Goldman v. Weinberger, 475 U.S. 503, 507, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986) (denying a First Amendment claim); Rostker v. Goldberg, 453 U.S. at 65-72 (rejecting an equal protection claim).

        Berkley v. United States, 48 Fed. Cl. 361, 366 (2000)(emphasis added).

        Appellants respectfully assert it is error to consider any deference to military authority applicable to the narrow issue of determining the standards of judicial review applicable to military use of race and gender conscious criteria in the procedures used to terminate careers.

        This Court has described when some deference to military officials may be appropriate:

        The government again argues that this issue is not subject to review in the Court of Federal Claims, now stressing the special deference that is given to decisions of military officials in managing the armed forces. In Goldman v. Weinberger, 475 U.S. 503, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986), the Supreme Court discussed the basis of deferential constitutional review of discretionary acts of military officials, observing that "the military must insist upon a respect for duty and discipline without counterpart in civilian life." Id. at 507 (quoting Schlesinger v. Councilman, 420 U.S. 738, 757, 43 L. Ed. 2d 591, 95 S. Ct. 1300 (1975)).

        Our concern, however, is not for the correctness of the Army's decision to separate Mr. Holley based on his infractions; our concern is solely whether the decision to do so without a full hearing before a board of inquiry violated any statute, regulation, or the fundamental due process that the Constitution provides to all persons. The issue of discharge procedure is not one of achieving legitimate military ends, Goldman, 475 U.S. at 506, but a matter of compliance with law. Review of compliance with statute, regulation, and the Constitution is the judicial responsibility. Cf. Padula v. Webster, 822 F.2d at 101 (discretionary act of agency in employment action is subject to constitutional review). Indeed, when a constitutional challenge is raised to the implementation of statute or regulation, denial of judicial review of the challenged provisions would itself raise a "serious constitutional question." Salfi, 422 U.S. at 762.

        Holley v. United States, 124 F.3d 1462, 1467-68 (Fed. Cir. 1997)(emphasis added). See also, Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992) ("However, while in this case this court does not undertake to interfere in military affairs nor to unduly intervene in a military personnel matter, it does presume to correct an error of law"). Moreover, even when Congress has granted powers to a federal agency pursuant to the fifth section of the Fourteenth Amendment, no deference is accorded that agency on questions of Constitutional law:

        For the same reasons, we think it inappropriate for a court engaged in constitutional scrutiny to accord deference to the Justice Department's interpretation of the Act. Although we have deferred to the Department's interpretation in certain statutory cases, see, e.g., Presley v. Etowah County Comm'n, 502 U.S. 491, 508-509, 117 L. Ed. 2d 51, 112 S. Ct. 820 (1992) and cases cited therein, we have rejected agency interpretations to which we would otherwise defer where they raise serious constitutional questions. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 574-575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988). When the Justice Department's interpretation of the Act compels race-based districting, it by definition raises a serious constitutional question, see, e.g., Bakke, 438 U.S. at 291 (opinion of Powell, J.) ("Racial and ethnic distinctions of any sort are inherently suspect" under the Equal Protection Clause), and should not receive deference.

        Miller v. Johnson, 515 U.S. 900, 923 (1995) (emphasis added).

        Accordingly, deference to military authority becomes relevant to a judicial proceeding when three conditions are present:

        (1) The issue is not limited to the interpretation of a question of law,

        (2) The case concerns some form of military expertise, and,

        (3) The reviewing Court has a record of the military's application of its expertise to which it might logically defer. ³

        None of these conditions is present in this case. The issue before the Court of Federal Claims had been limited by that Court to the legal question of the standards of judicial review applicable to the introduction of explicit use of race and gender conscious measures in a career ending reduction-in-force board. The record contains no basis for the challenged race and gender based procedures. The concept of deference to military authority cannot appropriately be based upon the multiple presumptions implicit in this case. What is the nature of the Air Force expertise or interest that might justify the introduction of race and gender conscious measures into this reduction-in-force board? What is the Air Force judgment regarding special consideration for minorities and women to which a reviewing court might defer? The record is totally and intentionally devoid of any such information which would make it possible to answer these fundamental questions. There is nothing to which to defer to in these circumstances.

        The strict scrutiny standard made applicable to all federal entities by Adarand is essential to preclude judicial complicity in any future trampling of equal protection rights in response to pleas of military necessity or other forms of "deference." See the discussions of Korematsu v. United States, 323 U.S. 214 (1944) in Adarand, 515 U.S. at 214-215, 236. That judicial shield from unjustified actions is illusory if discriminatory procedures can be kept from review by simply inserting them within documents containing self serving statements calling for equal treatment.⁴ Accordingly, the Court of Federal Claims erred in considering deference legitimately applicable to determining the standards of judicial review applicable to the evaluation of the Air Force instructions that terminated each of the appellants' active duty commissioned service.

     5. The Race and Gender Based Measures Imposed on the FY93 RIF Board Members Are Suspect Classifications.

        Just as our Armed Forces, of all races, have ensured our freedom with the blood of thousands and thousands of our best and brightest, they are now attempting to ensure a military that is focused on merit, but blind to color. That task, however, cannot be achieved by unjust and unconstitutional means, no matter how worthy its goal. ... Race is a constitutionally suspect classification. Government cannot hire, fire, promote, retire, reward, award, evaluate, or choose on the basis of race. There is no such thing as "separate but equal."

        Christian v. United States, 46 Fed. Cl. 793, 797 (2000).

        In Walker v. Mesquite, 169 F.3d 973 (5th Cir.1999), the United States Court of Appeals for the Fifth Circuit responded to a challenge to certain aspects of a district court remedial order regarding housing discrimination in Dallas, Texas. The Court of Appeals described the issue on appeal as: "... the constitutionality of the provision of the district court's most recent remedial order that directs newly constructed units of public housing to be located in 'predominantly white' Dallas neighborhoods." Walker, 169 F.3d at 975. The district court held that a facial challenge to the express requirement for newly constructed units to be in "predominantly white" neighborhoods did not allege an equal protection violation. Walker, 169 F.3d at 981. Circuit Judge Edith Jones' description of the district court's errors is compelling:

        The district court, citing Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991), found that the Homeowners failed to show an equal protection violation because they did not identify a similarly situated set of black persons who have been treated better. See id. at 941 n.31. This requirement, however, applies only to equal protection claims involving facially neutral government actions, where it is necessary to establish that the government is distinguishing or classifying persons on the basis of race. See id. at 941. Explicit racial classifications, in contrast, establish unequal treatment by their very nature. See Shaw, 509 U.S. at 642, 113 S. Ct. at 2824 ("Laws that explicitly distinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause's] prohibition."). Because the Homeowners challenge an explicit racial classification within the district court's remedial order, they have properly alleged an equal protection violation.

        The district court also suggested that the Homeowners failed to demonstrate an equal protection violation because "the impact [of the new construction], if any, on the Homeowners will be considerably less than [the] impact of the existing DHA public housing projects on the property owners in the black neighborhoods with existing projects." The district court's reasoning is incorrect: racial classifications are not acceptable simply because they are perceived to have little impact. Any explicit racial classification, regardless of the burdens or benefits it imposes, is suspect and subject to strict scrutiny. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995) ("All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny."); Powers v. Ohio, 499 U.S. 400, 410, 111 S. Ct. 1364, 1370, 113 L. Ed. 2d 411 (1991) ("It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree.").

        The district court held that the Homeowners failed to prove an equal protection violation because there is no intent to treat whites worse than similarly situated blacks. Once again, the district court is incorrect. An explicit racial classification does not require any inquiry into "intent" in order to allege an equal protection violation. See Shaw, 509 U.S. at 642, 113 S. Ct. at 2824 ("No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute."). "Express racial classifications are immediately suspect because, 'absent searching judicial inquiry . . ., there is simply no way of determining whether classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.'" Id. at 642-43, 113 S. Ct. at 2824 (quoting Croson, 488 U.S. at 493, 109 S. Ct. at 721).

        The district court's skepticism of the Homeowners' right to pursue an equal protection claim was unfounded, so we proceed to address the merits of their claim.

        Walker, 169 F.3d at 981 (emphasis added)(headings omitted). Any explicit classifications are subject to the appropriate level of judicial scrutiny without regard to perceptions regarding the burden or benefit they impose.

        In proceedings derived from Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), the United States Court of Appeals for the District of Columbia Circuit recently was required to deal with what constitutes a racial classification for purposes of judicial scrutiny in the context of a Federal Communications Commission ("FCC") rule. MD/DC/DE Broadcasters Assn v. FCC, 236 F.3d. 13, reh'g denied, 154 F.3d 487 (D.C. Cir. 2001). The government argued the rule at issue did not constitute a classification. The rule dealt with FCC required licensee hiring outreach programs. In particular, the rule authorized a licensee to satisfy the FCC requirement for a "broad outreach" effort by designing its own program if the licensee reported to the FCC the race and sex of each applicant. The Court held

        ... that the rule does put official pressure upon broadcasters to recruit minority candidates, thus creating a race-based classification that is not narrowly tailored to support a compelling governmental interest and is therefore unconstitutional.

        MD/DC/DE Broadcasters Association, 236 F.3d. at 15. In the course of reaching this conclusion the court provides compelling analysis clearly applicable to this proceeding. The FCC rule was purportedly intended to ensure that hiring efforts included broad outreach to all individuals, but the rule sought measurement of race and gender of the resulting applicants rather than any measurement of the actual outreach effort:

        Measuring outputs to determine whether readily measurable inputs were used is more than self-evidently illogical; it is evidence that the agency with life and death power over the licensee is interested in results, not process, and is determined to get them.

        MD/DC/DE Broadcasters Assn, 236 F.3d at 19. This is precisely the frame of reference adopted by the Air Force for this FY93 RIF Board. While purportedly concerned with equal opportunity for all, the instructions mandated that the board members "clearly afford" minorities and women certain treatment, provided a procedure for "particular sensitivity" and coupled that procedure with the measurement of outputs through mandatory reports to the Secretary and Chief of Staff (which the Air Force has failed to include in the minimalist administrative record). These instructionsis also "self-evidently illogical".

        Further analysis in MD/DC/DE Broadcasters Association reveals the Constitutional infirmity of the Air Force instruction:

        The Commission has designed a rule under which non-minorities are less likely to receive notification of job openings solely because of their race; that the most qualified applicant from among those recruited will presumably get the job does not mean that people are being treated equally--that is, without regard to their race--in the qualifying round. The new rule is therefore subject to strict scrutiny for compliance with the constitutional requirement that all citizens receive equal protection under the law.

        MD/DC/DE Broadcasters Association, 236 F.3d at 21. Here the Air Force has designed instructions under which non-minority males will not have their records reviewed subject to a Secretary of the Air Force imposed obligation to be "particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices may have impeded their careers." A determination of best qualified officers while adhering to race and gender selective application of such subjective standards does not mean that officers are really being treated equally B that is without regard to their race or gender B in the initial evaluations of their records. By virtue of these instructions some officers are provided a competitive advantage by virtue of race and gender. These instructions are therefore subject to strict (and heightened) scrutiny for compliance with the constitutional requirement that all citizens receive equal protection under the law.

        The Secretary could have established race and gender neutral action requirements but, for reasons not now before this Court, elected instead to expressly incorporate race and gender measures. The consequences of that decision are strict and heightened judicial scrutiny. This Court has observed as to the race and gender conscious language now before this Court:

        [This] charge on its face permitted, and even encouraged, if not actually commanded, ... leveling through discounting.

        Baker v. United States, 127 F.3d 1081, 1087 (1997). Appellants assert that analysis remains accurate. The Court of Federal Claims, however, concluded otherwise and misapplied precedents involving the creation of testing instruments to the application of race and gender based procedures within a career terminating process.

        The Court of Federal Claims acted contrary to the fundamental conclusion of Adarand that strict scrutiny applies to the analysis of any use of race based measures, including supposedly "benign" classifications. Compare Berkley, 48 Fed. Cl. at 370-71 (A7-8) with Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 225-26 (1995). Moreover, despite an administrative record limited by court order to nothing more than the instructions and board report, the Court erroneously assumed that presumed historical discrimination was relevant to determining the threshold question of whether the use of explicit race and gender procedures constituted a facial classification. Berkley, 48 Fed. Cl. at 372, fn 4, A9. Taken as a whole, the Court of Federal Claims decision effectively rejects the applicability of Adarand through a misinterpretation of one Justice's pre-Adarand commentary in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), and the decisions in Allen v. Alabama State Board of Education, 164 F.3d 1347 (11th Cir. 1999), vacated by joint mot. of the parties, 216 F.3d 1263 (11th Cir. 2000), and Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999). The Berkley opinion includes the following summary of a footnote in Bakke:

        This court also notes that in his decision in Bakke, Justice Powell, while finding the admissions system at issue unconstitutional based on racial quotas, recognized that the records of candidates may contain inaccuracies due to past or current discrimination and that government action to review a candidate's record with this recognition in mind may not result in a preference or improper classification. Regents of Univ. of California v. Bakke, 438 U.S. at 306 n.43. In the context of admissions to medical schools, Justice Powell wrote, "to the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no 'preference' at all." Id. Such considerations may be employed without using a classification in order to achieve "fair appraisal of each individual's academic promise in light of some cultural bias in grading or testing procedures." Id.

        Berkley, 48 Fed. Cl. at 370, A7. Justice Powell's footnote appears in part IV of his opinion. Not a single additional justice joined in part IV.⁵ Moreover, Justice Powell's discussion is really an aside about a thought not raised by the parties. He begins that discussion stating

        Racial classifications in admissions conceivably could serve a fifth purpose, one which petitioner does not articulate: fair appraisal of each individual's academic promise in the light of some cultural bias in grading or testing procedures.

        Regents of Univ. of California v. Bakke, 438 U.S. at 306 n.43. The Court of Federal Claims opinion extracts from that footnote and the processes for creating neutral testing instruments in Allen and Hayden the following:

        Apparent in Justice Powell's comments in Bakke, the Eleventh Circuit's opinion in Allen and the Second Circuit's opinion in Hayden is the concept that when the government evaluates candidates for a position, certain qualified individuals may be improperly eliminated because the procedures or the effect of historical discrimination falsely reflect an inadequacy in the candidate's qualifications. Thus, it is not improper for the government to promote equal treatment by securing a fair appraisal of a candidate's value so that the overall best qualified and suitable candidates may be selected. The government may act in this fashion without using racial or gender classifications. The Secretary's Memorandum of Instruction to the FY93 RIF Board in the instant case operated in such a manner. As discussed below, the Secretary's Memorandum aimed to provide equal treatment to all officers and to urge the FY93 RIF Board to select the best qualified officers for retention in the Air Force. The specific mention in the Secretary's Memorandum of Instruction of minority and female officers simply acted to remind Board Members, who might in fact have been sensitive based on their own past experiences, that due to possible past discrimination, the records of women and minority officers may not reflect their actual abilities from a total career perspective.

        Berkley, 48 Fed. Cl. at 371, A8 (emphasis added). Appellants respectfully suggest that even if Justice Powell's footnote were precedent, it is a non-sequitor to suggest that the speculation solicited by the Air Force instructions amounts to addressing "established inaccuracies." If the issue addressed pertains to assuring fair consideration of an officer's record, why are the instructions so precisely limited to racial minorities and women, perhaps the development of a complete record below would have shed light on this matter. But the court below denied appellants' the fundamental right to develop that record and then proceeded to speculate about the impact of the instructions and the intent of the Secretary in reaching its conclusion that the instructions were not classifications. Contrary to that conclusion, the failure to address all officers in the same manner clearly and unequivocally establishes racial and gender classifications

        The United States District Court for the District of Columbia in a promotion board case involving the Army's version of the "equal opportunity" instructions concluded as follows when the government asserted that the Court of Federal Claims decision in Baker continues to support an argument that such instructions are not a classification:

        At the hearing on plaintiffs' motion, the government also argued that discovery is unnecessary in this case because, as a matter of law, the selection procedures challenged by the plaintiffs are not racial and gender classifications that implicate the equal protection component of the Fifth Amendment. Based on the current record, and in light of the skeptical attitude traditionally taken by the courts when considering classifications of this nature, the government's argument is unpersuasive. Cf. Baker v. United States, 127 F.3d 1081 (Fed. Cir. 1997) (vacating summary judgment for the government in case involving similar procedures by Air Force retirement board). The promotion procedure utilizes race and gender classifications that must be subjected to strict and intermediate scrutiny, respectively, and discovery is necessary to facilitate a full and careful review under those exacting standards.

        Sirmans v. Caldera, 27 F. Supp. 2d 248, 251 footnote 2 (D. D.C. 1998). In Christian v. United States, 46 Fed. Cl. 793 (2000), former Chief Judge Smith also addressed the Army's "equal opportunity" instruction. Judge Smith found the explicit "goal" aspects of the Army's instructions troubling but his decision can hardly be read as an approval of Judge Miller's Baker analysis. In particular, for example, Judge Smith stated:

        Even if there were no numerical goal or preordained outcome, the mere existence of special procedures and invocation of special factors for evaluating minorities confirms a suspect racial classification. See Hopwood v. Texas, 78 F.3d 932, 937 (5th Cir. 1996) ("In addition to maintaining separate presumptive TI levels for minorities and whites, the law school ran a segregated application evaluation process.") When the SERB "granted preferential treatment to [minority officers] in its layoff decisions, plaintiff received discriminatory rather than equal treatment." Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431, 441 (10th Cir. 1990). The SERB was clearly instructed to apply one standard to one racial group and a different standard to another racial group. See Lutheran Church, 141 F.3d at 351 ("The crucial point is not ... whether they require hiring in accordance with fixed quotas; rather, it is whether they oblige stations to grant some degree of preference to minorities in hiring."). When special procedures have been invoked in the past on the basis of racial classification, minorities generally have been the victims. While in this instance the avowed purpose may be benign, the effects of government policies are no less invidious. Shielding these procedures from judicial review is no less dangerous to minorities, for "by transforming equality into a subjective standard, the concept is reduced to a spoils system, and ... support for equality will depend on whose ox is gored." Clint Bolick, Unfinished Business: A Civil Rights Strategy for America's Third Century 35-36 (Pacific Research Institute for Public Policy 1990).

        Christian v. United States, 46 Fed. Cl. 793, 805 (2000)(emphasis added).

        Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, reh'g denied, 154 F.3d 487 (D.C. Cir. 1998), provides further compelling support for the conclusion that the instructions include race and gender based actions requiring judicial scrutiny. Both the Department of Justice and the Federal Communications Commission unsuccessfully argued that the strict scrutiny standard applied in Adarand was inapplicable to FCC equal opportunity requirements:

        Neither the Commission nor the Justice Department have claimed that the Fifth Amendment is wholly inapplicable to this case. If the regulations merely required stations to implement racially neutral recruiting and hiring programs, the equal protection guarantee would not be implicated. But as the Commission itself has said, "Our broadcast EEO rules require that broadcast licensees ... establish and maintain an affirmative action program for qualified minorities and women." Proceeding within the equal protection framework, the Commission and DOJ argue that we should review the EEO program under rational basis rather than the more demanding strict scrutiny standard which has tested race-based government classifications since Korematsu v. United States, 323 U.S. 214, 216, 89 L. Ed. 194, 65 S. Ct. 193 (1944). Though the Supreme Court did not initially apply strict scrutiny to federal Aaffirmative action" programs, see Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990), it recently reversed itself to hold that strict scrutiny applies whether or not the government's motivation to aid minorities can be thought "benign." Adarand, 515 U.S. at 227. The Commission and DOJ, however, argue that Adarand does not go so far as it appears. The Commission insists that Adarand reaches only race-conscious "hiring decisions." Taking a slightly different approach, the Justice Department urges that it only applies to race-conscious "decision-making." But both say that because the EEO regulations stop short of establishing preferences, quotas, or set-a-sides, rational basis is the appropriate standard. *** The crucial point is not, as the Commission and DOJ argue, whether [FCC regulations] require hiring in accordance with fixed quotas; rather, it is whether they oblige stations to grant some degree of preference to minorities in hiring. We think the regulations do just that. The entire scheme is built on the notion that stations should aspire to a workforce that attains, or at least approaches, proportional representation.

        141 F.3d at 350-352 (footnotes omitted) (emphasis added). The Department of Justice and FCC sought reconsideration of the Lutheran Church decision. The resulting opinion denying that request contains a very relevant discussion on classifications:

        ... 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).

        The Supreme Court has required application of strict scrutiny to classifications far less exclusive than that introduced in the instructionsto this Board. For example, although the Small Business Administration program addressed in Adarand automatically defined minority-owned enterprises as economically disadvantaged and thus subject to certain inferences, the program also included provision for non-minority-owned enterprises to establish themselves as disadvantaged and to enjoy the benefits of the program. Adarand, 515 U.S. at 206-208. Before the FY93 RIF Board, however, non-minority male officers had absolutely no opportunity to become eligible for the favorable, subjective, speculative evaluation of their records to address perceived circumstances of past discrimination or to have reports rendered to the Secretary of the Air Force about how their group selection rate was in comparison to others. The prejudice of the Secretary's order includes that it tasks record evaluators with the creation and presentation of such data only as to individuals possessing favored characteristics, i.e., females and minorities. The issue is not that the data for white males could not be divined. Rather, it is that the Secretary did not express any concern about data pertaining to white males in the context of his order to apply what amount to unconstitutional affirmative action measures in the Board's deliberative process. Finally, in the course of evaluating the nature of the race and gender based measures in this matter, it is important to note the roles of the respective participants. Sussman v. Tanoue, 39 F. Supp. 2d 13 (D.D.C. 1999) can be cited for the proposition that collection of statistical data does not necessarily invoke strict scrutiny. Sussman, however, carefully caveats the circumstances in which such data collection might not invoke that scrutiny. It dealt with the collection of such data by the Federal Deposit Insurance Corporation's Affirmative Employment and Counseling Section, not by anyone having the authority to either affect those making personnel decisions or to directly make personnel decisions:

        ...The FDIC's Affirmative Employment and Counseling Section has no authority comparable to the threat of extended government audit, license denial, and forfeiture which the Court of Appeals [in Lutheran Church] found would inevitably convert a potential concern about under-representation on the part of the FCC and the licensee into a hiring preference. The FDIC's Affirmative Employment and Counseling Section has absolutely no authority over hiring -- its role is only to identify potential problems. Thus, the inference that the affirmative action program leads to racial preferences in hiring decisions simply is not present in this action.

        Sussman, 39 F. Supp. 2d at 27. The instructions here came from the Secretary of the Air Force directly to subordinate military officers. The Secretary of the Air Force unquestionably has disciplinary authority over these officers. And these officers unquestionably were making personnel evaluations leading to the termination of careers. Charging these officers in this situation with race and gender based statistic gathering and comparison is a classification which must be subjected to judicial scrutiny. Put more precisely, these officers were not simply gathering statistics. They were creating and reporting on their own actions, including the mandate that they "must clearly afford" something to minorities and women.

        The instructions presume only minorities and females are the victims of discrimination placing them at a disadvantage and thus does not advance truly generic equal opportunity protection. Moreover, the instructions create a process whereby subjective evaluations of imaginary instances of discrimination become the basis for displacing merit based selections. The instructions charge those making career ending recommendations with the generation of selective race and gender statistics and report rendering in regard to their own selections. Whatever the value of the instruction, its benefits cannot constitutionally be denied to those belonging to unfavored groups. As noted earlier, Adarand requires scrutiny for "... all governmental action based on race...." Logically, cases applying Adarand have not considered the evaluation of testing instruments, as opposed to the actual use of such instruments, as constituting governmental measures for purposes of the Adarand analysis. The Court of Federal Claims, however, disregarded that distinction and relied upon the inapposite circumstances addressed in Allen v. Alabama State Board of Education, 164 F.3d 1347 (11th Cir. 1999), vacated by joint mot. of the parties, 216 F.3d 1263 (11th Cir. 2000), and Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999). Hayden and Allen do not involve express race or gender based measures used in the course of the allocation of government benefits or burdens. Both cases concern the viability of consent decree provisions which required professional, technical evaluation of the adequacy of testing instruments. The tests themselves and their grading were conducted without any regard to race, i.e., the concerned governmental entities applied no express race or gender based measures in the course of selecting persons for benefits or burdens. These cases endorse race and gender neutral evaluations, not evaluations incorporating race and gender based measures. In particular, the Allen court determined:

        In this case, under the consent decree, the Board may develop a new test to be used in making teacher certification decisions for African-American and white candidates alike. The decree does not require the Board to impose a different passing grade for African-American candidates or otherwise classify teachers based on race in grading the examinations. In this respect, 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. Nothing in Adarand requires the application of strict scrutiny to this sort of race-consciousness.

        Allen, 164 F.3d at 1352-53. Thus, in Allen the Board allowed race consciousness only for the process of validating a test instrument to be used in selecting new teachers. No race or gender measures were incorporated into the testing process itself which was expressly neutral. Similarly in Hayden:

        In fact, the only manner in which race was implicated is that Nassau County set out to design an entrance exam which would diminish the adverse impact on black applicants. This desire, in and of itself, however, does not constitute a "racial classification." Since the exam was administered in a race-neutral fashion which did not expressly distinguish between applicants on the basis of race, Nassau County's intent, without anything more, does not implicate an express, racial classification. Rather,

        the plaintiffs are mistaken in treating 'racial motive' as a synonym for a constitutional violation. 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 . . . . The term [racial classification] normally refers to a governmental standard, preferentially favorable to one race or another, for the distribution of benefits.

        Raso v. Lago, 135 F.3d 11, 16 (1st Cir.), cert. denied, U.S., 119 S. Ct. 44, 142 L. Ed. 2d 34 (1998)

        Hayden, 180 F.3d at 49. Again, in Hayden the governmental entity allowed race consciousness only in the process of validating a test instrument. No race or gender based measures were incorporated into the testing or grading process itself which was expressly neutral. The FY93 RIF Board, however, was required to apply three express race and three express gender processes applicable only to the evaluation of minority and female officers and they are undertaken by the very same board members who would identify those officers who would involuntarily have their active commissioned service terminated, i.e., those distributing the relevant government benefit are here also charged with simultaneous execution of race and gender based actions. Allen and Hayden offer no support to the contention that strict scrutiny would not apply to these circumstances or that this Court's analysis in Baker is defective.

        Raso v. Lago, 135 F.3d 11 (1st Cir. 1998), a case cited in Hayden, is also referenced by the Court of Federal Claims as supporting its contentions. Raso did not involve an express race or gender based governmental measure. On the contrary, it concerned federal Department of Housing and Urban Development policies requiring unbiased access to housing. It too, clearly supports appellants' contention that any express race or gender measures in the allocation of government benefits or burdens mandates particular judicial scrutiny:

        It is one thing for HUD to insist that the apartments it subsidizes must effectively be open to all races; it would be quite another if HUD planned to impose this requirement only where the beneficiaries of the statutory preference were white. That, we think, would be government action based on a "racial classification" and would need to be narrowly tailored to serve a compelling government interest.

        Raso v. Lago, 135 F.3d 11, 17 (1st Cir. 1998). The Air Force's MOI is precisely and explicitly structured to impose race and gender measures only in regard to minority and female officer evaluations in the course of selecting officers for career termination. These measures are classifications. The Court of Federal Claims also cites Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th Cir. 1997) as supporting its propositions. In Monterey Mechanical, however, the Court of Appeals found a state affirmative action contracting program, somewhat similar to the federal program addressed in Adarand, unconstitutional and, in the course of so doing, provided a compelling description why that program was a classification:

        ... the question we are considering in this section of our opinion is whether the statute classifies, that is, whether it treats people differently by ethnicity or sex, not whether the purpose of the classification is attractive. The statute treats contractors differently according to their ethnicity and sex.... *** We are not faced with a non-discriminatory outreach program, requiring that advertisements for bids be distributed in such a manner as to assure that all persons, including women-owned and minority-owned firms, have a fair opportunity to bid. The Equal Protection Clause as construed in Adarand applies only when the government subjects a "person to unequal treatment." There might be a non-discriminatory outreach program which did not subject anyone to unequal treatment. But this statute is not of that type. *** More important, we can find no authority, and appellees have cited none, for a de minimis exception to the Equal Protection Clause. The Supreme Court has held that, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny." Adarand, 115 S. Ct. at 2111 (emphasis added). We conclude that there is no de minimis exception to the Equal Protection Clause. Race discrimination is never a "trifle."

        Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711-12 (9th Cir. 1997). Monterey Mechanical offers the suggestion that "it is heuristically useful" when considering whether government measures constitute classifications "to hypothesize" the same provisions in favor of non minority males to ascertain whether discrimination is present. Monterey Mechanical Co., 125 F.3d, at 711. Applying that suggestion to this case results in the following hypothetical:

        Would equal opportunity instructions that imposed the following three requirements and neither directed or authorized corresponding action in regard to non-minority or female officers be considered nondiscriminatory:

        1. "Your evaluation of white male officers must clearly afford them fair and equitable consideration."

        2. "In your evaluation of the records of white male 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." and

        3. "The board shall prepare for review by the Secretary and the Chief of Staff, a report of white male officer selections as compared to the selection rate for all officers considered by the board."

        Appellants submit that the answer is obvious. A thorough and careful analysis of the rationale for employing race and gender based measures is far too important a Constitutional requirement to be relegated to cursory review. The searching inquiries implicit in the strict and heightened scrutiny standards are the hallmarks of appropriate judicial review in these circumstances.

In most settings, the determination that governmental distribution or denial of a benefit was based in whole or part on consideration of race or gender would immediately lead to detailed judicial review of the governmental actions in question to determine compliance with the applicable standard. There is, however, a class of governmental undertakings for which such further review is unnecessary because no compelling governmental interest can justify the action taken.

The FY93 RIF Board was not conducting evaluations for scholarships or other career initiating actions. It was ending careers. Because the FY93 RIF Board was a process used to involuntarily terminate officer careers, no compelling governmental interest could support the use of racial considerations in its selection process. In Wygant v. Jackson Board of Education the Supreme Court addressed

. . . the question whether a school board, consistent with the Equal Protection Clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin.

This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.

Wygant, 467 U.S. at 274. Thus, prior discrimination by the governmental unit involved is a compelling governmental interest that may support the limited use of racial classifications. In Wygant, the case reached the Supreme Court without there ever having been a determination that the school board had discriminated against minority teachers. The Wygant plurality, however, curtailed its effort to define compelling interests in the context of race based preferential protection against layoffs because no compelling interest, including prior governmental discrimination, could justify that remedy:

Many of our cases involve union seniority plans with employees who are typically heavily dependent on wages for their day-to-day living. Even a temporary layoff may have adverse financial as well as psychological effects. A worker may invest many productive years in one job and one city with the expectation of earning the stability and security of seniority. AAt that point, the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker 'owns,' worth even more than the current equity in his home Fallon & Weiler, Conflicting Models of Racial Justice, 1984 S. Ct. Rev. 1, 58. Layoffs disrupt these settled expectations in a way that general hiring goals do not. While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board's layoff plan is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes -- such as the adoption of hiring goals -- are available. For these reasons, the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause.

Wygant, 467 U.S. at 283-84. The career interests of Air Force officers are no less subject to protection than the teachers victimized by racial preferences in Wygant. Even assuming prior organizational discrimination, the classification undertaken here, race based preferential treatment in the course of selecting officers for involuntary early retirement, cannot be supported.

Accordingly, appellants respectfully request that the judgment of the Court of Federal Claims should be reversed and judgment entered for the appellants.

OF COUNSEL:
WILLIAM A. AILEO:
RR 1, Box 22C:
Springville, PA 18844:
(570) 278-9703

Attorney for Plaintiffs-Appellants