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December 17, 2004 Update:

Chart for Constructive Active Service

As we reported earlier, forty-six class members were selected for Retention by the Special Boards convened pursuant to the Settlement Agreement. All of these individuals will be considered for missed promotion opportunities by Special Selection Boards. As you can imagine, planning the conduct of all these required Boards is a complex matter. We have been informed that these Promotion Special Selections Boards will not begin until sometime after January.

That it takes time to properly proceed with these matters does not adversely affect class members. Any applicable entitlement to back active duty or retired pay continues to run through the Constructive Service period. The start date in each circumstance is the date of Involuntary Separation. It, however, is very important that successful Board Option plaintiffs understand the “Through” date for Constructive Service under the various results possible under the Settlement Agreement.

The following Chart is intended to summarize those periods and it is derived from the provisions of the Settlement Agreement. (The parentheses in the chart include references to the relevant paragraphs of the Settlement Agreement.)

In using the Chart it is also important to remember that individuals serving in any capacity in the Air Force, Air Force Reserve or the Air National Guard will have the Option to receive any Applicable Constructive Service credit and to have their military status otherwise unchanged by this Agreement.

October 31, 2004 Update:

American Jobs Creation Act of 2004

Many of you have enquired about the tax consequences to you as a result of the Settlement payment. I have advised that you should seek the advice of a tax advisor, inasmuch as that is not my area of expertise.

In consulting with such an advisor, I call to your attention recent legislation, the American Jobs Creation Act of 2004, Public Law 108-357, signed into law by the President on October 22, 2004. This legislation may provide a basis to exclude from your taxable income the $2,100 in Attorney Fees and Costs that were deducted from your Settlement payment. Relevant portions of that legislation are quoted below:

SEC. 703. CIVIL RIGHTS TAX RELIEF.

(a) DEDUCTION ALLOWED WHETHER OR NOT TAXPAYER ITEMIZES OTHER DEDUCTIONS- Subsection (a) of section 62 (defining adjusted gross income) is amended by inserting after paragraph (18) the following new item:

`(19) COSTS INVOLVING DISCRIMINATION SUITS, ETC- Any deduction allowable under this chapter for attorney fees and court costs paid by, or on behalf of, the taxpayer in connection with any action involving a claim of unlawful discrimination (as defined in subsection (e)) or a claim of a violation of subchapter III of chapter 37 of title 31, United States Code or a claim made under Section 1862(b)(3)(A) of the Social Security Act (42 U.S.C. 1395y(b)(3)(A)). The preceding sentence shall not apply to any deduction in excess of the amount includible in the taxpayer's gross income for the taxable year on account of a Judgment or Settlement (whether by suit or agreement and whether as lump sum or periodic payments) resulting from such claim.'

(b) UNLAWFUL DISCRIMINATION DEFINED- Section 62 is amended by adding at the end the following new subsection:

`(e) UNLAWFUL DISCRIMINATION DEFINED- For purposes of Subsection (a)(19), the term `unlawful discrimination' means an act that is unlawful under any of the following: ***

`(18) Any provision of Federal, State, or local law, or common law claims permitted under Federal, State, or local law--

`(i) providing for the enforcement of civil rights, or

`(ii) regulating any aspect of the employment relationship, including claims for wages, compensation, or benefits, or prohibiting the discharge of an employee, the discrimination against an employee, or any other form of retaliation or reprisal against an employee for asserting rights or taking other actions permitted by law.'.

(c) EFFECTIVE DATE- The amendments made by this section shall apply to fees and costs paid after the date of the enactment of this Act with respect to any Judgment or Settlement occurring after such date.

The Settlement funds that were distributed to you this past week were not received by me until AFTER the President signed this change into law. The lawsuit claims a violation of the Constitutional right to equal protection arising from race and gender based discrimination in the Secretary's instructions to the reduction in force board.

In a related note, there have been enquiries about tax withholding from the Settlement funds that were distributed to you. Because these funds are not "wages," there was no withholding. However, the funds are "income" and as such, are taxable. In that regard, you should consult with a tax advisor concerning whether you have an obligation to make any estimated tax payments due to this payment.

October 28, 2004 Update:

THE CHECK IS IN THE MAIL!

I am pleased to inform you that the Department of the Treasury transferred funds to the Kutak Rock LLP trust account yesterday for payment of the Settlement amount to those who elected the Payment Option or who defaulted to that Option by failing to make an election. Today, I mailed a check to each of you for whom I have a good address. Included in the mailing is a Form 1099 for the entire amount awarded to you. If you were one of the original named plaintiffs and elected the Payment Option, you will also receive a refund of the payment that you made to initiate this litigation.

There are several members of this group who have moved again and for whom I have no current address. If you are one of the 522 class members entitled to payment at this time and you do not receive the check by November 6, 2004, please contact me.

October 19, 2004 Update:

Special Board Results and Status of Payment Option

Board Option Class Members:

Eight-eight class members chose the Board Option under the Settlement Agreement. We have now been informed of the Special Board results: forty-six individuals were selected for retention. I have been able to reach eighty-four of these class members. I have left voice messages for the remaining four but have not yet heard from them.

If you are a Board Option selectee and have not discussed the results of the board with me, please call.

The forty-two class members who were not selected for retention will each eventually receive a payment of $2,900.00, but no earlier than two months after the Court enters the corresponding Judgment. It is extremely unlikely that these payments will be made in calendar year 2004.

For those selected for retention by the Special Board, obviously there will be lots of administrative issues to work through in the coming months. Right now, we are focused on Report Review, informing Board Option class members, and organizing the issues that will have to be addressed.

Payment Option Class Members:

We have verified that the Department of the Treasury has all the paperwork necessary and that they are now processing our Judgments for payment. We do not know when payment will be made, but it will not be sooner than October 26, 2004. We have put in place the process to make disbursements to you quickly when payment is made by Treasury.

If you have not updated your mailing address, please do so now so that payment to you is not delayed due to an erroneous address.

September 18, 2004 Update:

Special Board:

Request that Board Option Class Members who have submitted letters for consideration by the Special Board provide a copy of that letter to me for my files. Several have already done so.

The Special Board will convene this coming week. A frequent question concerns when the Special Board results will be known. I anticipate that it will be at least 60 days after the Special Board completes its work. The results will have to be compiled by the recorders at the Air Force Personnel Center. Those results will then be forwarded to the Secretary of the Air Force, who must personally act on the Special Board results.

Given that the Special Board is created as a component of litigation, I expect that the Board results will be carefully reviewed at each level to ensure compliance with the terms and conditions of the Settlement Agreement. Under these circumstances and considering the other responsibilities of the Secretary of the Air Force, action on the Special Board results is not a matter subject to deadlines. As soon as I have information concerning the conduct of the Special Board or the results, I will post an update on the web site.

August 31, 2004 Update:

Class Members Deemed to have Converted from Board to Payment Option:

On August 30, 2004, Judge Horn issued an order directing the Entry of Judgment for the sixteen plaintiffs who initially selected the Board Option, but who subsequently were deemed to have elected the Payment Option by virtue of the fact that the required information was not submitted to the Government.

In the same fashion as for individuals who initially selected the payment, the next step in regard to this latest Judgment is for the Department of Justice to request payment from the Department of the Treasury. Justice will not request payment by Treasury until at least sixty days after the Entry of Judgment.

I am prepared to issue the corresponding checks immediately after receipt of the funds; but, as noted earlier, the Treasury will not make such a transfer until more than sixty days after the Entry of Judgment.

August 26, 2004 Update:

Payment Option Selectees:

On August 25, 2004, as directed by Judge Horn, the Clerk of the Court of Federal Claims issued Judgment on the claims of the 522 plaintiffs who elected the Payment Option. The next step is for the Department of Justice to request payment from the Department of the Treasury. The Treasury will not make a payment until at least sixty days after the entry of a Judgment. I am prepared to issue the corresponding checks immediately after receipt of the funds; but, as noted earlier, the Treasury will not make such a transfer until more than sixty days after the entry of Judgment.

August 25, 2004 Update:

Pertaining to Two Subgroups

We are awaiting Judge Horn's Orders for two of the subgroups of the class. The first subgroup pertains to those who elected the Payment Option. The second subgroup pertains to those who elected the Board Option but failed to submit the Annex 2 information in time for submission to the Government. As soon as these orders are issued, I will post an update on the web site.

With respect to the Board Option class members, a number of questions have arisen concerning the records to be submitted to the board:

1. What does the PCN entry mean?
   A PCN is a print control number; it is the computer program code that creates all the OSRs. I am advised by the Government that it is identical for each file to be submitted to the Special Board, including the benchmark files (BF2520001A).

2. Why is the date of Preparation of the Record 31 July 1992, which is after the original Board adjourned?
   I am advised by the Government that the date is of no consequence because all of the records to be submitted to the Board, including benchmarks, will have the same date. And the Special Board will already know that the original Board was conducted over 12 years ago.

3. How are requests for corrections to records to be submitted?
   Several of you previously provided me with supporting information for requests for corrections to your records, and some of those corrections were made and are reflected on the records you now have. For others who have requested corrections or who intend to do so, please provide to me as soon as possible, but not later than 3 September 2004, the supporting documentation for the requested correction. A mere request is not sufficient -- you need to be able to demonstrate that the correction is valid.

   For those who are missing Awards, a copy of the Order and Citation should be provided. If you were awarded a graduate degree prior to the original Board, a transcript or other evidence that the degree was conferred will be required to make the change to your records. Remember that documents prepared that reflect events after the original Board cannot be added to the file. Issuance of the National Defense Service Medal and similar medals that merely reflect time or place of service are not included in the records to be submitted to the Special Board.

   Upon receipt of evidence supporting a correction, I will simultaneously make a Request for Correction relying upon the process established by Air Force Instruction 36-2501 and prepare a DD 149, Application to the Air Force Board for Correction of Military Records, to have the correction made and submit it to the Government. My deadline for submission to the Government is 10 September 2004 and I must have the documentation to support the change by 3 September 2004 in order to prepare the submission. If the personnel at Randolph will not make the requested change, then an application to the Correction Board will already have been submitted. After much discussion, the Air Force has agreed that I am authorized to sign the DD 149 as your counsel.

   A question has arisen with respect to the inclusion of AF Form 77 in the records to be submitted to the Special Board. Some of you want them included, others want them excluded. The Air Force policy is that they are not to be included in the records to be submitted to Selection Boards (including this Special Board). However, if the form is attached to a Letter to the Board, it will be considered. This gives each of you with such a report the opportunity to decide whether you want it considered. However, I remain cautious about submitting letters to the Board. In my judgment, unless the information on the Form 77 is significantly favorable and provides insight to your performance or potential not otherwise available to a Board member, a letter to the Special Board is of questionable value.

4. I was enrolled in graduate school when the original Board met, but no graduate degree has been awarded. Can that be reflected in my file?
   This can be added with a Letter to the Board. However, informing the Board that you were enrolled in a graduate program for which no degree has been awarded is, in my judgment, of questionable value; and would not usually justify a letter, if that were the only matter addressed in the letter.

August 19, 2004 Update:

Board Option Class Members:

On Monday, August 16, 2004, a copy of each Board Selectee class member's records assembled by the Air Force for submission to the Special Board was mailed to each Board Selectee at the most recent address provided to me, along with the AF notification letter. If you have not received your copy by this Saturday, August 21, 2004, contact my office by email message to Elizabeth.O'Brien@KutakRock.com or by telephone (202-828-2316) call so that we can promptly get a copy to you by electronic or other means.

It is critically important that you review these records now, because if you detect any error or omission in them that you want corrected, the matter must be promptly brought to the attention of the government. If corrections are necessary, our process for requesting them has two steps:

1. I will immediately request that the Air Force make the necessary changes pursuant to the procedures of Air Force Instruction 36-2501; and

2. If the corrections are not made, and good cause for correction exists, I am prepared to submit an application to the Air Force Board for the Correction of Military Records (AFBCMR) on your behalf. Such a submission, however, must be received by the government not later than September 10, 2004. Note that this deadline is later than that indicated in the Settlement Agreement and Class Members have approximately three weeks to request corrections, rather than the 15 days that would have otherwise been available.

Accordingly, it is essential that you bring any shortcoming in your records to my attention as soon as possible so that you have the full advantage of both correction processes when applicable. It is equally important that you provide the documentation or other evidence to support the requested correction. For example, if SOS was completed prior to July 1992 and it is not reflected on the Officer Selection Brief that was mailed to you, I will need an academic report or other documentation of completion to support the requested correction of records. Your statement will not be sufficient. In several instances, corrections that were previously submitted were not made. We have not been provided any explanation for this. Do not assume that previously submitted corrections or additions to your file were accepted. Review these latest records carefully.

If an application to the AFBCMR proves necessary, it is highly unlikely AFBCMR review would be conducted prior to September 21, 2004. The Settlement Agreement provides that in such circumstances the Special Board will not be delayed, but, if the Special Board result is unfavorable and AFBCMR review results in a relevant records correction, the AFBCMR has the authority to refer the case to another Special Board to be conducted with the corrected record. In addition, a change in the records could also have an impact on any Special Selection Board convened to consider missed promotion opportunities if you are selected by the Special Board for retention.

As in the conduct of other Air Force boards, the procedures applicable to the Special Boards permit an individual to submit a letter to the Board President. A letter to the Board President is a matter that should be approached cautiously. If you think you have circumstances that might warrant the submission of such a letter, please let me know and I will forward more detailed information on the submission of such letters, and I also recommend that you discuss the particulars with me at your earliest convenience.

Finally, remember that a letter to the Board and the correction of records cannot relate to events that were not in existence when the original Board convened. An award for performance in June 1992 that was not approved until August 1992 will not be added to your record for Special Board consideration. Similarly, a letter to the Board President that relates in any way to events later than July 1992 will be rejected.

August 14, 2004 Update:

Board Option Selectees:

The Air Force will conduct the Special Boards for Board Option class members on September 21, 2004; and, as required by the Settlement Agreement, has provided me a copy of each Board Selectee class member's records as they will be submitted to the Board.

We are mailing each Board Selectee a copy of his or her records along with a copy of the notification letter.

If there are any aspects of those records you wish to discuss with me, please do so well in advance of the September 21 Board convening date.

August 2, 2004 Update:

All Class Members:

Unless you are absolutely certain that you have provided us with your current address information, please send an email to Elizabeth.O'Brien@KutakRock.com with your current contact information (name, address, phone number, and email address).

Payment Option Class Members:

We are waiting for the judge to approve a clarification of the Payment Option Order, which is necessary before payment can be made by the government. The clarification will correctly identify all of the Payment Option class members. All parties are in agreement with this clarification. As soon as the judge issues the Order, I will post another update. Until that Order is issued, the minimum 60 day period which must run before Treasury will transfer any funds does not begin to run.

Board Option Class Members:

The government is obligated to convene the first Board not later than November 17^th. In addition, the government is obligated to provide 60 days' notice before a Board is conducted. They have not yet done so, and therefore the Boards are at least 60 days out. I have requested that the Air Force provide to me the files of all Board Option class members as they will be submitted to the Board. Those must be provided at least 45 days prior to the conduct of the Board. Upon receipt, I will dispatch them to the Board Option class member. This will provide an opportunity to review the record and ask for necessary corrections.

Deemed Conversion from Board to Payment Option:

Paragraph 4.p. of the settlement agreement required all plaintiffs who selected the Board Option under the agreement to timely submit the information described in Annex-2 to the agreement or to be deemed to have elected the Payment Option. There are sixteen plaintiffs who initially selected the Board Option, but who are now deemed to have elected the Payment Option by virtue of the fact that the required information was not submitted to the government. As required by the terms of the Settlement Agreement, a stipulation for entry of judgment as to these plaintiffs will be jointly filed on or before August 4^th.

June 9, 2004 Update:

Payment Option/Board Option Selectees

Payment Option Selectees:

On June 3, 2004, a Stipulation for Entry of Judgment for the 520 class members requesting the payment option was filed. The next step is for Judge Horn to enter judgment for those 520, after which the Department of Justice will request payment from the Department of the Treasury. Because there should be no controversy with respect to the entry of judgment, I do not foresee a lengthy period for such a decision, however, the Treasury will not make a payment until at least sixty days after the entry of a judgment. I still expect to be able to make disbursements to the payment option class members by the end of the summer.

Board Option Selectees:

For the board option class members, it is essential that you provide the information and documents required pursuant to Annex 2 of the Settlement Agreement:

ANNEX 2

Any plaintiff who elects the Board option must provide the following essential information for the calculation of offsets at the time of election of that option:

Copies of all available Internal Revenue Service (IRS) Forms 1040, US Individual Income Tax Return, filed with the IRS along with Form W-2, Wage and Tax Statements for taxable years from January 1, 1993 through December 31, 2002. If a plaintiff does not have a copy of any Form 1040 or W-2 required under this paragraph, he or she will immediately request a copy from the IRS and will provide a copy of that request, and will provide the Forms 1040 and W-2 as soon as he or she receives them from the IRS. In addition, if a plaintiff, at the time of electing the Board option, has not yet filed a form 1040 for taxable year 2002, he or she will provide a copy of that Form 1040 and associated Forms W-2 as soon as it is filed.

If plaintiff received payments from the Department of Veteran Affairs (VA), or has an outstanding debt to the VA, a statement indicating the period, type, and amount of payment or the nature and amount of the debt. Also include the address of the VA Regional Office from which it was paid.

If plaintiff performed any active duty tours, unit training assemblies, or additional flight training periods in either the reserve or National Guard, of any branch of service, for which any pay or allowances were received, a statement indicating the dates and amount of funds received.

The names and relationships of plaintiff's dependents for the period from January 1, 1993 through December 31, 2002. Please indicate if plaintiff's spouse is affiliated with any branch of the military service. If applicable, please provide the social security number and branch of service.

A completed Department of Treasury Form W-4, Employee's Withholding Allowance Certificate. This form will be used to determine plaintiff's deduction election and number of exemptions plaintiff claims for the reinstated period.

A completed DD From 2058, State of Legal Residency Certificate. The government is required to report to plaintiff's state, as income, the taxable portion of any payment to the state taxing authority. Plaintiff will be liable for any taxes imposed on the income by his or her state of legal residence. If a plaintiff's period of Constructive Service extends beyond December 31, 2002, the plaintiff will submit copies of all Forms 1040, US Individual Income Tax Return, and associated Forms W-2, for any such additional period of time, as soon as they are filed with the IRS. In addition, a plaintiff will provide, upon request, such additional information as the Air Force or the Defense Finance and Accounting Service may reasonably determine necessary to accurately compute offsets in a particular case."

Failure to provide this information to me by July 8, 2004 will result in my inability to review it and for you to provide missing information in time to meet the July 20, 2004 deadline for submission to the Government.

Such a failure will result in the conversion of your board option election to the payment option election, in which event a new judgment will have to be entered and the payment will not be until later in the year.

April 5, 2004 Update:

Supreme Court Order

Today the Supreme Court issued an Order denying the plaintiffs' request for a Writ of Certiorari in Christian v. United States. This means that there will be no further Appellate review of the Federal Circuit decision requiring remand of the claims in that case to the Secretary of the Army for harmless error analysis.

March 17, 2004 Update:

Board Option

UPDATE FOR THOSE SELECTING THE BOARD OPTION:

If you have read Judge Horn's March 12^th order you know that I am obligated to provide the government with the information required by Annex 2 to the Settlement Agreement not later than July 20, 2004. July 20^th is a Tuesday. In order to have time to review and assemble the submitted information, I must receive it not later than Friday July 15, 2004. The March 5 Update contains a complete copy of Annex 2. For your convenience, you can find a PDF version of the required W4 that you need to include at the following link:

http://www.irs.gov/pub/irs-pdf/fw4.pdf

If you have selected the Board option, now is the time to gather this information. If the required information is not included in what I submit to the government on or before July 20, 2004, you will be deemed to have selected the Payment option under the terms of Paragraph 4p of the approved Settlement Agreement.

March 16, 2004 Update:

MARCH 12 ORDER

As you know, Judge Horn has approved the Settlement Agreement and execution of its provisions begins soon. On March 12, 2004 she issued an order that describes the critical timelines applicable to execution of the settlement which is posted below.

I want to emphasize the first deadline: not later than May 21, 2004, I am required to formally submit to the Department of Justice two lists: A listing of those who selected the payment option and a listing of those who selected the board option. If any of you have questions about your earlier election of options it is important that they be resolved prior to May 21st because I must comply with that deadline.

On or before June 7, 2004 a joint stipulation will be filed with the Court regarding those who selected the payment option. That stipulation will be the basis for the Court to enter a judgment as to the claims of the payment options selectees and requiring the transfer of the payment option funds to my law firm's trust account for distribution. As in all cases of payments from the Judgment fund, the Department of the Treasury will not actually make that transfer until sixty days after the date on which the Court enters the judgment. Accordingly, the earliest time that we may be able to begin disbursements to payment option selectees would be late August.

Obviously, execution of the board option will take substantially longer. The first special board must be convened no later than November 17, 2004. I would guess, and it is a guess, that the earliest time frame in which I would begin to receive results of the special boards would be the first quarter of 2005.

---

THE TEXT OF JUDGE HORN'S MARCH 12, 2004, ORDER:

ORDER

The court held a status conference with counsel for both parties, following this court's February 20, 2004 opinion which approved the Settlement Agreement. The parties had previously proposed to the court dates by which they would perform certain functions outlined in the approved Settlement Agreement. The court, hereby, adopts the dates proposed by the parties, and ORDERS the parties to comply with those dates.

As noted at the hearing, the parties shall consider Wednesday, April 21, 2004 to be the "settlement approval date."

On or before Friday, May 21, 2004, class counsel shall provide to the government two lists: one list containing the names of plaintiffs who select the lump-sum payment option; one list containing the names of those plaintiffs selecting the Board option. On or before Monday, June 7, 2004, counsel for both parties shall file a joint stipulation for entry of judgment for plaintiffs selecting the lump-sum payment option.

Not less than 60 days prior to the date that is designated for the Selection Board to convene, class counsel shall provide notice of the date chosen to plaintiffs who choose the Selection Board option. Not less than 45 days prior to the convening of the Selection Board, those plaintiffs who pursue the Selection Board option, who request access to their records shall be given access to their records. Not less than 30 days prior to the convening of the Selection Board, plaintiffs shall be given an opportunity to request corrections to their records. Any plaintiff whose request for records correction is denied shall be given an opportunity to appeal the denial within 30 days of being notified of that denial.

On or before Wednesday, November 17, 2004, the Air Force shall convene the Special Board. If additional Special Boards are necessary, the Air Force shall convene such Special Boards within 90 days of convening the first Special Board. Within 7 days of the government notifying class counsel of the Special Board results, counsel for both parties shall file a joint stipulation for entry of judgment for those plaintiffs who are not selected for retention. Within 30 days [of] the government notifying class counsel of the results of the Special Board, plaintiffs who are selected for retention by the Special Board, but not entitled to SSB consideration, shall be given an opportunity to submit to class counsel requests for return to active duty. Within 30 days after notice to class counsel of SSB results, plaintiffs who are selected for retention by the Special Board, and are entitled to SSB consideration, shall have an opportunity to notify class counsel of requests to return to active duty. Class counsel shall notify the government of plaintiffs' requests to return to active duty within 10 days of receiving such requests.

On or before Tuesday, July 20, 2004, except as extended by Annex 2 to the Settlement Agreement, class counsel shall provide to the government all information necessary for the calculation of offsets for those plaintiffs who chose to pursue the Special Board option. On or before Wednesday, August 4, 2004, counsel for both parties shall file a joint stipulation for entry of judgment for those Special Board Option plaintiffs who are deemed to have selected the payment option for failure to provide the information required by Annex 2 to the Settlement Agreement. Within 30 days of all events necessary to fix liability for back pay, counsel for both parties shall file a joint stipulation for entry of judgment for those plaintiffs who are selected for retention by the Special Board.

IT IS SO ORDERED

---	MARIAN BLANK HORN Judge

March 5, 2004 Update:

Annex 2

Some who have elected the board option have enquired about the requirements of Annex 2 to the Settlement Agreement. Annex 2, set out below, requires that a class member who elects the board option provide evidence of earned income during the period that he or she may be awarded constructive credit, so that the government can calculate offsets against any back pay award.

For those who have already submitted the required information, please note the need for tax year 2003 data as well.

ANNEX 2

Any plaintiff who elects the Board option must provide the following essential information for the calculation of offsets at the time of election of that option:

1. Copies of all available Internal Revenue Service (IRS) Forms 1040, US Individual Income Tax Return, filed with the IRS along with Form W-2, Wage and Tax Statements for taxable years from January 1, 1993 through December 31, 2002. If a plaintiff does not have a copy of any Form 1040 or W-2 required under this paragraph, he or she will immediately request a copy from the IRS and will provide a copy of that request, and will provide the Forms 1040 and W-2 as soon as he or she receives them from the IRS. In addition, if a plaintiff, at the time of electing the Board option, has not yet filed a form 1040 for taxable year 2002, he or she will provide a copy of that Form 1040 and associated Forms W-2 as soon as it is filed.

2. If plaintiff received payments from the Department of Veteran Affairs (VA), or has an outstanding debt to the VA, a statement indicating the period, type, and amount of payment or the nature and amount of the debt. Also include the address of the VA Regional Office from which it was paid.

3. If plaintiff performed any active duty tours, unit training assemblies, or additional flight training periods in either the reserve or National Guard, of any branch of service, for which any pay or allowances were received, a statement indicating the dates and amount of funds received.

   The names and relationships of plaintiff’s dependents for the period from January 1, 1993 through December 31, 2002. Please indicate if plaintiff’s spouse is affiliated with any branch of the military service. If applicable, please provide the social security number and branch of service.

4. A completed Department of Treasury Form W-4, Employee's Withholding Allowance Certificate. This form will be used to determine plaintiff’s deduction election and number of exemptions plaintiff claims for the reinstated period.

5. A completed DD From 2058, State of Legal Residency Certificate. The government is required to report to plaintiff’s state, as income, the taxable portion of any payment to the state taxing authority. Plaintiff will be liable for any taxes imposed on the income by his or her state of legal residence.

If a plaintiff's period of Constructive Service extends beyond December 31, 2002, the plaintiff will submit copies of all Forms 1040, US Individual Income Tax Return, and associated Forms W-2, for any such additional period of time, as soon as they are filed with the IRS. In addition, a plaintiff will provide, upon request, such additional information as the Air Force or the Defense Finance and Accounting Service may reasonably determine necessary to accurately compute offsets in a particular case.

March 1, 2004 Update:

Most Common Questions

The most common question I have been receiving from class members following Judge Horn’s approval of the settlement of our case is: Do I need to do anything now?

If you never selected an option, now is the time to do so or you will be deemed to have selected the payment option. If you have changed your address or other contact information or do so in the future, please promptly inform me.

If you selected the board option and never requested a copy of your records, you should make that request through me now.

If you selected the board option and have not yet gathered the information that is required by Annex 2 to the settlement you should immediately get that process underway.

Feb. 23, 2004 Update:

Judge Horn's Opinion

Judge Horn has approved the Settlement Agreement. Her decision was issued in a 50 page opinion on 20 February 2004. We will be analyzing her decision over the next few days and will provide additional information pertaining to the timelines and future events.

The link to our copy of the decision is: HORN.Berkley.pdf

It can also be found at this government location on the web:

United States Court of Federal Claims Opinions for 2004:

2/20/2004       RONALD F. BERKLEY v. THE UNITED STATES
(98-943C)

The PDF file above requires Adobe Acrobat Reader^® fop viewing (free software).

Feb. 6, 2004 Update:

No Results Yet...

Many of you have contacted me in recent months asking whether we had the results of the Fairness Hearing conducted by the Court in July. For the benefit of the rest of the class, the answer is "No." Judge Horn has not yet rendered her decision on the proposed settlement of our litigation. Although there is no set time frame for Judge Horn to act, you can rest assured that she will eventually do so. To put the delay in context, it may be worthwhile to consider that Court of Federal Claims Senior Judge Loren Smith took approximately seven months after briefing was concluded before he rendered his decision on remedies in the Christian v. United States case. Immediately after the Court releases any such decision, an update will be posted on this site.

Nov. 17, 2003 Update:

Status

Many of you have enquired concerning when Judge Horn will issue an opinion with respect to the Settlement Agreement, since all briefings, hearings and argument were completed in July. As I have stated previously, we have no indication as to when Judge Horn will issue her decision. However, I note that on November 5, 2003, she issued an 85 page opinion in a case unrelated to ours. Considering the complexities of the Berkley Settlement Agreement, the numerous comments provided to the court by class members, and the judge's workload (as evidenced by the above referenced opinion), I anticipate a lengthy opinion which will take time to produce.

Some of you have financial obligations that you hoped you would be able to address with the settlement funds. Others of you wanted to know if the settlement funds would be available in this tax year or if there is a potential for a return to active duty this year. Given the process for disbursement and board consideration if the settlement is approved, I do not foresee any possibility of payments or board decisions this year.

As soon as Judge Horn rules in this matter, I will post her decision on the web page.

Oct. 27, 2003 Update:

Numerous Inquiries...

We have had numerous inquiries asking when we should expect Judge Horn to render her decision on the fairness of the proposed settlement. The short answer is that we do not know. There is no time schedule which federal judges have to meet in issuing decisions. We recognize that a number of class members who had selected the payment option were hopeful that the agreement would be approved and that payments could be made this year. It is highly unlikely that any payments could be accomplished this year, even if the decision were rendered very soon. Rest assured that the moment we become aware of the Court's decision we will post that information on this website.

Oct. 13, 2003 Update:

Appeal to the Supreme Court

The plaintiffs in the Christian litigation have announced their intention to request Supreme Court review of the adverse Federal Circuit decision on remedies by filing a "Petition for a Writ of Certiorari." They have 90 days from October 3^rd to submit their Petition. The Supreme Court will only review the decision if four or more of the nine Justices vote in favor of review.

This action has no impact on our case unless the settlement is rejected by Judge Horn.

Oct. 7, 2003 Update:

Update Regarding Christian Decision

On October 3, 2003, the U.S. Court of Appeals for the Federal Circuit denied the plaintiffs' request for en banc rehearing in Christian v. United States. The Christian plaintiffs will now have to decide whether or not to request Supreme Court review. Such a request would be made in a document called a "Petition for a Writ of Certiorari."

The Christian plaintiffs have ninety days in which to file such a petition. The Supreme Court's determination of whether or not to grant the petition and hear plaintiffs' appeal is completely discretionary with that court.

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Christian v. United States:

The Christian Decision of the Appellate Court can be found in HTML format at: http://www.ll.georgetown.edu/federal/judicial/fed/opinions/02opinions/02-5165.html

The Christian Decision in PDF Format:
Christian, et al. v. U.S., Docket No.02-5165
Filed 29 July 2003

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The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

Aug. 28, 2003 Update:

Frequently Asked Question:

Several of you have asked when Judge Horn will rule on the Settlement Agreement. The simple answer is that we do not know. The briefs filed by both sides addressed the concerns she raised during the 1 July hearing and in her subsequent order. As soon as we have any decision or comment from the court, we will post it on this site.

Aug. 8, 2003 Update:

Defendant's Status Report, in PDF Format

In response to an order of the court, DOJ has filed the following notice to the court concerning the Federal Circuit's decision in Christian:

* DEFENDANT'S STATUS REPORT
August 4, 2003

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

Aug. 5, 2003 Update:

Notice to Court in Christian, in PDF Format

In response to an order of the court, we have filed the following notice to the court concerning the Federal Circuit's decision in Christian.

* PLAINTIFFS’ NOTICE OF DECISION IN CHRISTIAN V. UNITED STATES
August 4, 2003

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

Aug. 3, 2003 Update:

Analysis of the Christian Decision's Impact on the Berkley Settlement:

As each of you know, the proposed settlement of our case was the subject of a Fairness Hearing on July 1^st, and Judge Horn is now considering whether or not to approve it. Some class members have asked me to outline all the potential consequences of events regarding our case, taking into account the possible impact of this week's decision by the United States Court of Appeals for the Federal Circuit in Christian v. U.S. I believe our settlement is clearly fair, reasonable and adequate. I also believe that when Judge Horn finishes her careful review, she will also reach that conclusion. If she does, it is likely Christian will have no impact on our case. Nevertheless, I want to be thorough in responding to the question of where we could theoretically go from here.

It is important to recognize that the Christian decision is not final. En banc review (review by all of the Circuit Judges as opposed to a three judge panel) is likely to be requested by the Christian plaintiffs and a petition for review by the Supreme Court is also possible. Unfortunately, the likelihood that the current opinion will become final is high. I will mention two reasons:

1. First, the likelihood of a request for en banc review being granted, and for the decision to be reversed if it is granted, are low. The Federal Circuit does not grant very many en banc requests. One reason for this is the rather unique way the Federal Circuit handles the decisions of its three judge panels. A draft decision of a three judge panel is circulated to the entire court before being finalized. Through this process, other judges have the opportunity to comment on the analysis.

   Accordingly, it is less likely in the Federal Circuit for a panel decision to be rendered that has not taken into account fundamental concerns perceived by other members of the court. One only gets en banc review if a majority of the twelve regular judges vote for such review. Two regular judges of the court have made their positions clear by joining in Senior Judge Friedman's Christian opinion.

2. Second, the Supreme Court grants very few petitions for review. One of the more common reasons it does grant a petition is when different circuit courts of appeal have reached conflicting conclusions on a question of law. Due to the fact that the Federal Circuit is the appellate court in all Tucker Act military pay cases, it is practically impossible to get review on that basis in cases such as Christian.

For these and other reasons, while there is certainly some possibility we will see Christian reversed, it is a remote possibility. Accordingly, the following discussion of scenarios assumes Christian is not reversed. The basic scenarios are set forth in bullet fashion below with a brief discussion following each:

• The settlement is approved and there is no appeal:
  If the settlement is approved and there is no appeal, the Christian decision has no impact. Everyone gets their choice of the options under the settlement.

• The settlement is disapproved:
  If the settlement is disapproved either by Judge Horn or as a result of an appeal by a class members who do not like the terms of the settlement, then we will face the consequences of Christian. This most likely means that the Air Force will be permitted to construct and apply its own harmless error test, what ever that may be, and we will be on the outside looking in, with relatively little ability to influence the structure or conduct. We can always raise issues with the court, but remember that she ruled against us originally.

  As a practical matter, the Christian decision capped the remedies process in that case by accepting the government's position that the adverse consequences of the use of race and gender classifications are limited to a number of class members not exceeding the total number of minority and female officers selected for retention. Those few who succeed in that process are the only individuals who recover anything.

  Were Christian held applicable to this case and the litigation continued, the potential for the government to assert numerical caps on relief on a year group by year group basis, based upon the number of females and minorities retained, cannot be ignored. There is also the potential that, in light of the Michigan Law School Supreme Court ruling, the government might seek to act contrary to its representations that it would not defend the merits of its use of race and gender classifications.

• The Judge approves the settlement, there is an appeal, and the appeal is unsuccessful:
  Everyone gets what the settlement provides, but probably a year or longer later than they otherwise would have. For those who think there is a benefit in appealing just to buy time, they have to consider the risk that the appeal would succeed in attacking the settlement, in which event everyone is left with all the consequences of the Christian decision. The government has no incentive to reach any other deal than the one we now have, so I have no expectation that there would be any opportunity to negotiate a new settlement if this one is thrown out. They would not agree to this one today, but it would dishonorable for them to attempt to back out at this point.

As noted earlier, I believe the settlement should be approved. I lay out these other possible outcomes solely for purposes of completeness. There is nothing for us to do at this time but wait patiently for Judge Horn's decision.

Barry

July 29, 2003 Update:

Federal Circuit Decides Christian

On 29 July 2003, the United States Court of Appeals for the Federal Circuit issued a unanimous decision in Christian v. United States which overturns the lower court decision pertaining to harmless error. The Appellate Court ruled that the Secretary of the Army will be permitted to determine which of the plaintiff officers would have been retired even had there been no impermissible instructions to the board.

The Decision of the Appellate Court can be found at: http://www.fedcir.gov/dailylog.html

Decision in MS Word Format:
Christian, et al. v. U.S.

July 17, 2003 Update:

Responses to Fairness Hearing Issues in PDF Format
Must use Acrobat 4.0 or later.

Following the Fairness Hearing, Judge Horn issued an order requiring the parties to submit memoranda on 14 Issues not later than July 15, 2003. A copy of our memorandum in PDF format has been posted:

* PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM
ON FAIRNESS HEARING ISSUES.PDF
July 13, 2003

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On July 15, 2003, the Department of Justice filed with the court its Supplemental Brief in Support of the Settlement.

* DEPARTMENT OF JUSTICE SUPPLEMENTAL FILING
IN SUPPORT OF SETTLEMENT FAIRNESS DETERMINATION.PDF
July 15, 2003

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* The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

July 3, 2003 Update:

Fairness Hearing

Judge Horn conducted the scheduled Fairness Hearing on 1 July 2003. In addition to comments from counsel for both sides, she heard from 17 class members , who voiced support for and opposition to the Settlement Agreement. The most frequent objections were those pertaining to the sufficiency of the payment option and the willingness and ability of the Air Force to conduct fair special boards. Other objections included concern over the production of and content of military records that would be considered by the special board and follow on special selection boards (to consider missed promotion opportunities for those successful at the special board), the timing and process for records' corrections, and changes in physical condition that would medically preclude reentry on active duty. The judge directed counsel for both sides to evaluate her concerns about these and related issues and report back to the court within the next few weeks.

Although Judge Horn has previously indicated that she supports the concept of settlement, she has not ruled in this matter, and the Settlement Agreement has not been approved by the court. It is clear that counsel for both sides will have to address her concerns, particularly those pertaining to the adequacy and accuracy of records, if we are to obtain her approval.

Many of you who selected the payment option have inquired about the timing of payment. I do not expect payments to be made until after court approval of the settlement (if it is approved) becomes final and is no longer subject to appeal. While I hope this can be accomplished before the end of 2003, the timing of these events are not within my control.

June 26, 2003 Update:

Timeline Chart in PDF Format

Several class members who requested the board option have expressed concern that the Air Force has not yet been able to produce their records. The settlement imposes a clear obligation on the Government to produce those Records. The Government has until not later than 45 days prior to the convening of the special board to actually produce the records. We are posting a Chart today which sets forth the various specific timelines established by the agreement. The Government has produced many records and I am contacting class members as they are being received. Moreover, it is our understanding that efforts are underway that should result in the production of additional files. If the Government ultimately does not meet its obligation to produce any individual's record, the issue will be promptly presented to the Court for enforcement under the terms of the agreement.

The following Chart details the specific time constraints established by the proposed Settlement Agreement in Berkley v. United States:

* Chart.PDF

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

June 24, 2003 Update:

DOJ Brief and Plaintiffs' Reply in PDF Format

GOVERNMENT’S BRIEF IN SUPPORT OF APPROVAL OF PROPOSED SETTLEMENT:

* Final DoJ Brief.PDF
June 16, 2003

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PLAINTIFFS’ REPLY TO THE GOVERNMENT’S BRIEF IN SUPPORT OF APPROVAL OF PROPOSED SETTLEMENT:

The posted copy does not include the attachments to the appendix. Many of these documents were hand written or in other formats that do not readily lend to posting. Their contents, however, are generally summarized in the listing of objections which is posted.

* Plaintiffs' Reply.PDF
June 20, 2003

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* The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

June 23, 2003 Update:

University of Michigan Opinions

In two important decisions, the Supreme Court today addressed the issue of affirmative action in educational settings. These decisions will have no impact on our case unless the Settlement Agreement is not approved.

In one case involving the Law School at the University of Michigan, the court found that the use of race as a factor in admissions decisions was permissible because it satisfied a compelling interest of diversity in the educational setting and was narrowly tailored to meet that compelling interest. In a second case involving the University of Michigan undergraduate admissions program, the court found that no such narrow tailoring existed.

The implications for the pending litigation against the Air Force instructions are not clear at this time. We believe that the Supreme Court decision upholding the use of race based on the compelling need for diversity is of no precedential value in any context other than an educational setting. The cases reinforce the applicability of strict scrutiny to any use of race, including military selection boards.

With respect to harmless error, neither opinion addresses that issue. Whether it will be raised by the University in subsequent proceedings in the undergraduate case will not be known for quite sometime. How and if the Federal Circuit will apply these cases in the pending appeal in Christian is similarly unknown. Because the issue on appeal in Christian is very narrow, it is conceivable that that case will be decided without reference to these two Supreme Court decisions.

June 16, 2003 Update:

When we filed our Motion and Brief seeking approval of the settlement, we redacted personal identifiers from our submission. On June 10^th Judge Horn directed that we include with our Reply Brief an appendix on which the names of objectors are visible.

June 13, 2003 Update:

Motion for Approval

The contents of our June 3, 2003, Motion for Approval of Settlement and Supporting Brief:

* Motion for Approval
June 3, 2003

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

June 5, 2003 Update:

Judge Horn's Order

On June 3, 2003, Judge Horn issued an order in which she determined that the Settlement Agreement appears to be subject to possible approval and that the court would proceed to review the agreement at a Full Fairness Hearing to be conducted at 10:30 a.m., Eastern Time on July 1, 2003. I have clarified with the court that the time is 10:30 a.m. local time. Statements in support or opposition to the Settlement Agreement are to be filed with the court on or before Friday, June 27, 2003, by those choosing to do so. A complete copy of Judge Horn's Order is included with this update.

A notice [letter] will be mailed by class counsel this week to each class member informing them of the procedural requirements for filing statements of support or objection. A copy of that letter is posted here.

* Judge Horn's Order.PDF June 3, 2003 The time on the order is listed as "Eastern Standard time." Please note that it should say "Easter Daylight Time." * Letter and Form * Form Only

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* The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

May 26, 2003 Update:

ORDER

On 14 May 2003, Judge Horn issued an Order which sets out a schedule of events that will affect the outcome of this litigation. She has required plaintiffs' counsel to file a brief on or before 4 June 2003 which will address the fairness of the settlement under consideration. In that brief, plaintiffs' counsel will identify and address any objections to the proposed settlement made by any class member. Judge Horn has further directed plaintiffs' counsel to update the court regarding any objections by class members submitted following the filing of the 4 June 2003 brief. If the court is able to arrive at a preliminary fairness determination, defendant United States shall file its brief in support of the settlement on or before 16 June 2003. If the court is able to arrive at a preliminary fairness determination, plaintiffs may file a reply brief to defendant's brief on or before 23 June 2003.

Finally, Judge Horn has set 1 July 2003 as the anticipated date for the court to hold the fairness hearing. A notice of that Fairness Hearing and the procedures for submitting objections and appearing personally to object to the settlement will be mailed to each class member during the week of 27 May 2003. Those who are deployed and would like the notice to be sent to them electronically should advise me immediately of their current e mail address.

Judge Horn ruled on two other matters in her 14 May 2003 Order. She determined that inasmuch as "...plaintiffs in this case affirmatively chose to join this class action, and to derive the benefits of the class action, and because no opt-out provisions are in the proposed settlement..." the opportunity to opt- out of the settlement is not available. Plaintiffs who previously elected to opt-out of the settlement have been contacted by certified mail in order to make an election of the payment option or the board option. Those class members, like all class members, will have the opportunity to submit objections to the settlement and to appear personally on 1 July 2003 and voice their objections. In response to a motion that Plaintiffs' counsel should be disqualified, Judge Horn ruled that the interests of the class members are reasonably and adequately protected by current class counsel and she denied the motion to disqualify and related motions. Any class member desiring a complete copy of Judge Horn's Order may contact me via e-mail or telephonically and I will provide you with a copy.

Telephone: 202-828-2316
E-mail: barry.steinberg@kutakrock.com

May 12, 2003 Update:

May 9 Status Conference

At the status conference held May 9, 2003, Judge Horn made a number of important determinations. In particular, she:

• Contrary to our expectations, began the session with a discussion on the nature of this case as an opt-in class action, and made the legal ruling that, contrary to earlier indications, there could be no election to opt out of the settlement if the agreement is approved.

• Reviewed the details of the Settlement Agreement.

• Established a schedule for counsel for both sides to submit briefs regarding the Settlement Agreement.

• Noted the continuing obligation on class counsel to submit any written objections to the settlement received from class members with personal identifiers removed.

• Set July 1, 2003, as the date for the Fairness Hearing.

Class members who earlier expressed the desire to opt out of the settlement will be immediately sent a new class member participation form asking them to elect between the payment and board options. Comments such class members may have submitted with their replies to the previous election form will be submitted and there is no need to submit them again.

All class members will soon be sent a letter explaining the documentation that they will need to submit if they wish to personally appear at the Fairness Hearing. A major purpose of the Fairness Hearing is to give class members who oppose the Settlement Agreement an opportunity to personally state those objections. The Court may impose time limitations on such statements. Those who support the agreement are certainly welcome to attend, but it would be very unusual for them to be called upon to speak. The result of the Fairness Hearing is either approval or disapproval of the settlement, not changes to the substantive provisions of the agreement. Class members are not required to attend the Fairness Hearing. If you plan to attend, we do not recommend the purchase of non-refundable tickets as there is always the possibility that unforeseen circumstances could result in the Court rescheduling the hearing. The judge was made aware of the need to pin down the date so as to avoid class members having to change travel arrangements. If we receive any notice of a change it will be immediately posted on the website.

May 5, 2003 Update:

Latest Order in PDF Format

The content of the Joint Status Report Filed May 2, 2003.

JOINT STATUS REPORT

The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

April 28, 2003 Update:

As posted last week, the Court has scheduled a status conference for May 9th. Based on the Judge's order, this status conference will not address the substance of settlement, but rather is intended to be a discussion of the procedural aspects of when and how to conduct a Fairness Hearing. We anticipate that Judge Horn will set a date for the Fairness Hearing during that conference. We do not expect that date to be any earlier than June, 2003.

In connection with the settlement Fairness Hearing that Judge Horn will conduct, I expect to provide the Court with the comments which were solicited for that purpose in my last mailing to Class Members in February. Some comments, however, include personal and sensitive information about the effect of the RIF on individual Class Members and their families. Whatever is filed with the Court will be a public record, available for access and review by anyone. For that reason, it is my intention to protect the privacy of the Class Members by omitting personal identifying information from what is submitted to the Court. The substance and content of comments, supportive of or opposed to the settlement, will be submitted, along with the option elected by the commenter. In the event that the Judge wants the personal information tied to comments, I will maintain a cross reference system so that that can be accomplished. I will ask that the Fairness Hearing be set far enough in advance to allow ample time for class members who wish to appear to make travel arrangements.

It is common in class actions for courts to establish procedural prerequisites for individual class members to present views at a Fairness Hearing, for example, through the submission in advance of a written notice. We will immediately inform you of any such requirements as soon as Judge Horn addresses these matters.

April 22, 2003 Update:

Latest Order in PDF Format

ORDER

Dated Version of ORDER (April 16, 2003)

On April 16, 2003, Judge Horn issued an order calling for a joint status report and a May 9, 2003, status conference at which she will hold a discussion to determine a schedule for the possible settlement of the case.

The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

April 10, 2003 Update:

PLAINTIFFS' SUPPLEMENTAL STATUS REPORT

(*PDF File)

The U.S. Court of Appeals for the Federal Circuit held oral argument in Christian v. United States on April 9th. As you will recall from earlier postings, this is an appeal of the Court of Federal Claims decision holding that the Constructive Service doctrine and not an after the fact harmless error proceeding is applicable to determining the relief to be accorded the officers challenging the conduct of the 1992 Army Lieutenant Colonel Selective Early Retirement Board. Both the Alvin and Christensen cases are expressly stayed pending the Federal Circuit's decision in Christian.

The parties were limited to fifteen minutes per side, the normal amount of time given in this court. It is usually extremely difficult to attempt to predict the likely results of an appeal based upon the questioning in oral argument, particularly such a brief session. That definitely was the case in this argument. You may recall that Judge Wiese, in the Alvin case, gave every indication in his statements from the bench that he would rule for the government. Notwithstanding those clear indicators, he granted summary judgment for the Alvin plaintiffs.

Some of the questioning indicated discomfort with the possibility that providing Constructive Service to all plaintiffs without regard to whether or not they were harmed by the instruction, and with the prospect of according relief to the class action plaintiffs when there were others who were also involuntarily retired but who were not class members. This issue was highlighted with questions from Judge Prost, who focused on the fact that only white males were class members. On the other hand, it appeared that the judges were concerned about the lack of any real definition of what it was the government intended to do in order to determine harmless error in the event they were successful on the appeal. Perhaps the most favorable indications from our perspective arose at different points when panel members appeared receptive to the position that a proceeding conducted in violation of Constitutional rights constituted conduct as fundamentally disturbing as the violation of statute dealt with in Court precedent that rejected application of harmless error.

The common practice following oral argument is for the judges to meet in private and vote and then to start the process of drafting a decision. In the best of times it is usually months, not weeks, before a decision is formally announced. It is at least theoretically possible that a decision will be delayed even further in Christian if the judges wish to delay until after the Supreme Court renders a decision in the University of Michigan Affirmative Action case in which arguments were conducted last week. Based upon a question asked in that argument by Justice O'Conner, who is widely regarded as the swing vote on the issue, it appears possible that that decision could discuss harmless error.

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

March 12, 2003 Update:

Board Option

    Sentence Added:

Those who selected the Board option should make an immediate request for copies of their records as they appeared before the board in 1992. If you detect errors in your records, immediate steps should be taken to correct those errors. You may request a copy by sending an email such as the following:

to: afpc.dpppobus@randolph.af.mil
cc: Barry.Steinberg@KutakRock.com

Subject: Berkley Class Action Records Request

My name is _______________. I am a plaintiff in the class action challenging the FY93 Reduction in Force Board. My social security number is _______________. I am requesting the Board option under the Settlement Agreement in that matter and hereby request a copy of my records as they will appear before the special board to be conducted pursuant to that agreement. If any additional information is necessary to process this request I may be contacted

• by phone at: _________________
• by regular mail at: __________
• and by email at: _____________

March 6, 2003 Update:

Status Report

Plaintiffs' Status Report
(*PDF File)

The above link is our Status Report to the Court detailing, as of March 5, 2003, the statistical breakdown of plaintiff elections between the three options described in my letter to each of you: not accepting the settlement, accepting the payment option, and accepting the board option.

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

February 11, 2003 Update:

Mailing

Today I am mailing each class member a package which includes the proposed Settlement Agreement, an explanation of options, a class member participation form, and a stamped, self-addressed return envelope. I must submit a status report to the Court no later than March 6, 2003, summarizing your views and your election of options; so it is important that your return of the Class Member Participation Form be postmarked by March 1, 2003. Please note that, in addition to the two options established by the Settlement Agreement, you may also elect not to participate in the settlement and instead, to have us continue with the litigation of your claim against the government.

In order to effectively respond to questions that may arise from the mailing about the settlement, our Frequently Asked Questions page [Settlement FAQs] on the website will be updated and utilized. If you have a question that is not answered, please contact me by email.

January 31, 2003 Update:

Settlement Agreement Approval by Department of Justice

On January 29, 2003, the Department of Justice provided notice to the Court that the United States had approved the Settlement Agreement that has been under negotiation for over six months. In addition, the Court has been requested to establish a schedule for its preliminary review of the agreement and the content of the formal notice to be sent to each class member which will include the final agreement and an explanation of its terms. Finally, the Court has also been asked to establish a schedule for class members to comment on the agreement and to make an election of the options laid out in the agreement.

Many of you provided me comments last year on the outline of the anticipated settlement. All members of the class will have another opportunity to submit comments now that we have the agreement. We will inform each of you of the manner in which to make such comments after the Court has determined how it wants the case to proceed. We anticipate that the Court will eventually hold a Fairness Hearing to determine whether the agreement is fair, reasonable, adequate and in the best interests of the class as a whole. We anticipate that your comments would be communicated to and considered by the Court as a part of that process. Such a Fairness Hearing is not an opportunity to renegotiate the agreement. The Court will either approve or disapprove what has been agreed to. As I have stated before, I believe that what has been negotiated is fair, reasonable and adequate, given the state of the law, the risks associated with continuing the litigation and the interests of the class as a whole.

As soon as the Judge determines the process and schedule, I will update this site.

January 22, 2003 Update:

Harmless Error

Several of you have inquired why we are posting the briefs concerning the interlocutory appeal to the United States Court of Appeals for the Federal Circuit in the Christian case. That appeal concerns the issue of whether the United States will be permitted to conduct a harmless error test. Such a test would determine who would have been selected for retirement without the offending instruction. If an officer is selected again for involuntary retirement, that officer would be deemed to have been unharmed by the unconstitutional instruction, and he would be entitled to nothing in relief.

If the Berkley case is not settled, the harmless error decision in Christian will determine the ability of the Air Force to conduct a harmless error test in Berkley.

January 16, 2003 Update:

Latest Briefs in PDF Format

The government has filed its reply brief in the United States Court of Appeals for the Federal Circuit in the interlocutory appeal in United States v. Christian. This appeal addresses whether the Army, in the 1992 Lieutenant Colonels' Selective Early Retirement Board challenge, will be permitted to employ a harmless error test in order to demonstrate that as to individual plaintiffs, the unconstitutional affirmative action instruction did not cause them to be involuntarily retired.

GOVERNMENT'S REPLY BRIEF - ROBERT F. CHRISTIAN, ET AL.
January 13, 2003

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The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

January 4, 2003 Update:

Latest Briefs in PDF¹ Format

On December 20, 2002, the plaintiffs-appellees in Christian v. United States (the Army SERB case) filed their appellate brief. This brief, filed in the United States Court of Appeals for the Federal Circuit, is a very well written opposition to the government's position on the application of harmless error analysis to fundamentally flawed military selection board proceedings. As most of you know, I am counsel for the plaintiffs in both Alvin v. United States and Christensen v. United States, which challenge the conduct of AF SERBs. Proceedings in both of those cases have been stayed by the Court of Federal Claims pending resolution of the Christian appeal. In light of those stays, we requested and obtained consent to file an amicus brief² on behalf of the Alvin and Christensen plaintiffs in the Christian appeal. It was filed December 26th and is posted here for your information.

PDF FILES:

BRIEF FOR APPELLEES - ROBERT F. CHRISTIAN, ET AL.
Dec. 20, 2002

BRIEF OF AMICI CURIAE IN ROBERT F. CHRISTIAN
Dec. 26, 2002
filed on behalf of plaintiffs in Alvin and Christensen

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¹ The PDF files above require Adobe Acrobat Reader^® for viewing (free software).

² An AMICUS BRIEF, or brief of amici curiae, is a written memorandum; also called a "friend of the court" brief. Any organization wishing to express its view on an important court case may seek permission to file an amicus brief with a court that is about to decide a case. The purpose of the amicus brief, or fried of the court brief, is to provide the court with additional information and perspectives on the potential impact of the decision.

December 3, 2002, Update:
Current Status:

I want to thank each of you who have taken the time to express your views on the potential settlement outlined in my recent letter. Of those responding and commenting, approximately eighty per cent expressed support for such a settlement. After months of negotiations and careful evaluation of all replies submitted by class members, we have reached a settlement in principle with the government. The agreement that we have reached is consistent with the information previously provided to class members. After the agreement has been approved by the appropriate senior Department of Justice officials, it will be posted on this site and the process for obtaining Court approval will be initiated. That process was described in last month's update but I will repeat the summary here. The procedural steps involved in obtaining Court approval are:

The agreement and a proposed notice to the class members are submitted to the Court. The Court reviews the proposed notice to ensure it properly informs the class members of the substance of the settlement. Usually the Court also then schedules a hearing at which to decide whether or not to approve the settlement and notice of the date of that hearing would be included in the notice to the class members. If the terms of the settlement include options (and this settlement includes the two options previously described) the notice would most likely include provision for the class members to make their option selections as well as the opportunity to express opposition to the settlement. The notice would also inform class members of the time for responses and how a failure to respond within the allotted time will be treated. After the Court approves the notice, the notice and a complete copy of the agreement are sent to each class member. Finally, the Court will hold the hearing on the settlement and decide whether or not it is fair, reasonable, and adequate. In making that determination, the Court will consider the views of class members on the settlement submitted in response to the notice letter. The Court's decision is basically a yes or no process. It is not an occasion for changes to an agreement.

BPS

November 21, 2002, Update:
Current Status:

On November 19, 2002 the government filed its appellate brief in Christian v. United States. This brief states the government's position on the application of harmless error analysis to military selection board proceedings. It is a fifty-four page document in PDF (Adobe Acrobat) format.

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* The PDF file above requires Adobe Acrobat Reader^® for viewing (free software).

November 20, 2002, Update:
Current Status:

Discussions continue with the government but no decision on settlement has yet been reached. Although I have received replies from the majority of class members to my letter outlining settlement possibilities, I am still awaiting replies from a number of you.

No settlement in a class action is final without court approval. If counsel reach agreement on a settlement the following is a brief summary of the procedural steps involved in obtaining Court approval:

The agreement and a proposed notice to the class members are submitted to the Court. The Court reviews the proposed notice to ensure it properly informs the class members of the substance of the settlement. Usually the Court also then schedules a hearing at which to decide whether or not to approve the settlement and notice of the date of that hearing would be included in the notice to the class members. If the terms of the settlement include options, the notice would most likely include provision for the class members to make their option selections as well as the opportunity to express opposition to the settlement. The notice would also inform class members of the time for responses and how a failure to respond within the allotted time will be treated. After the Court approves the notice, the notice and a complete copy of the agreement are sent to each class member. Finally, the Court will hold the hearing on the settlement and decide whether or not it is fair, reasonable, and adequate. In making that determination the Court will consider the views of class members on the settlement submitted in response to the notice letter. The Court’s decision is basically a yes or no process, it is not an occasion for changes to an agreement.

October 10, 2002, Update:
Current Status:

I have sent each of you a certified letter explaining in painful detail where we are in this litigation. In addition, I have solicited from each of you certain information and your views on the possible outcomes of the case. If you have not received a certified letter from me in the last few weeks, please contact me, so I can ensure that you receive a copy.

Some of the letters have been returned, undelivered, because we do not have your current address. Please contact me by e-mail and give us your current address, if you have not received your certified letter by now; or write to me at Kutak Rock Attorneys, 1101 Connecticut Ave., N.W., Washington, D.C. 20036-4374.

Many of you have contacted me directly with specific questions pertaining to your situation. Please understand that since there are hundreds of you, there may be delays in responding to your inquiries. The Public Message Board is not an appropriate place to discuss the letter that I sent to you.

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