DEFENDANT.

( --------- )

COMPLAINT

Plaintiffs, by and through their attorney, Barry P. Steinberg, Esq., bring this action on behalf of themselves and all others similarly situated, and allege the following upon personal knowledge as to themselves, and on information and belief as to all other matters, based on investigation conducted by counsel. That investigation included the thorough review and analysis of documents released by the defendant. Plaintiffs aver as follows:

NATURE OF THE ACTION

1. This is a class action on behalf of all officers of the United States Air Force who were considered by and selected for involuntary retirement by the Fiscal Year 1994 Colonel Selective Early Retirement Board (hereinafter "FY94SERB"). As more fully set forth below, the FY94SERB was conducted in violation of each officer's Constitutional right to equal opportunity for retention on active duty.

   THE PARTIES

2. Plaintiffs are citizens of the United States. Each was a Colonel on active duty considered by and selected for involuntary retirement from the United States Air Force by the FY94SERB.

3. The Defendant United States is responsible for the activities of the United States Air Force.

   JURISDICTION

4. Jurisdiction in this case is conferred by Section 1491, Title 28, United States Code, and other applicable federal statutes including Section 642, Title 10, United States Code; Chapter 71, Title 10, United States Code; Section 1552, Title 10, United States Code; Section 277, Title 10, United States Code and Section 8301(a), Title 5, United States Code.

   CLASS ACTION ALLEGATIONS

5. Plaintiffs bring this class action under Rule 23 RCFC, on behalf of the class of persons (or their successors in interest) consisting of all Colonels in the United States Air Force who were considered by and selected for involuntary retirement from the United States Air Force by the FY94 SERB ("the Class").

6. The members of the class constitute a large but manageable class. Defendant can readily identify all members of the class from its records. There are no apparent factual distinctions that would interfere with resolution of the issues raised by this complaint.

7. There is a question of law common to the whole class. The common question of law in this case is whether the FY94SERB was conducted in violation of the Constitutionally protected Equal Protection rights of plaintiff and the class members. This core legal question raises the following issues common to all class members:
   1. Did the Defendant have a compelling governmental interest justifying the adoption of procedures authorizing the consideration of race or ethnicity by the FY94SERB?

   2. Did the Defendant narrowly tailor its guidance to the FY94SERB authorizing the consideration of race or ethnic characteristics?

   3. Does the Defendant's introduction of the consideration of gender by the FY94SERB satisfy the applicable intermediate scrutiny standard?

8. A common legal issue overrides separate factual issues affecting individual members.

9. Claims of the party plaintiff are typical of claims of the class. The rights of citizens under our Constitution are uniform and individual, the Constitutional claims of the plaintiff are identical to those of all class members.

10. The Defendant acted on grounds generally applicable to the whole class.

11. The claims of many claimants must be so small that it is doubtful they would be otherwise pursued. The statute of limitations is about to expire in regard to the conduct of the FY94SERB. There is no better alternative to the resolution of the interests of class members than the efficiency of a class action.

12. The plaintiff will adequately and fairly protect the interests of the class without conflicts of interest. Plaintiff has retained competent counsel experienced in military personnel litigation to ensure such protection, and intends to prosecute this action vigorously.

13. The interests of justice are served by certifying this matter as a class action.

    FACTUAL BACKGROUND

14. The plaintiff, and all members of the class, were career members of the United States Air Force serving on active duty as a Colonel until they were selected for involuntary early retirement by the FY94SERB.

15. The statutory authority for a SERB is contained in Sections 638 and 638a, Title 10, United States Code. The selective early retirement process was created by Congress as one tool to be used for the orderly and equitable downsizing of the armed forces. It is used to prematurely terminate careers that have otherwise been successful.

16. On May 17, 1993 the Secretary of the Air Force issued a Memorandum of Instructions for the FY94SERB which included, inter alia, the following requirements:

    Your evaluation of minority and women officers must clearly afford them fair and equitable consideration. Equal opportunity for all officers is an essential element of our selection system. In your evaluation of the records of minority officers and women officers, you should be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed these officers at a disadvantage from a total career perspective. The board shall prepare for review by the Secretary and Chief of Staff, a report of minority and female officer selections as compared to the selection rates for all officers considered by the board.

17. The language of the instruction was not based upon any reported findings of institutional discrimination within the Department of the Air Force or the Department of Defense.

18. The Armed Forces of the United States have for many years conducted outreach programs whereby females and members of minority groups were granted commissions, scholarships and entry into military education programs on other than a race and gender neutral merit selection process.

    COUNT ONE

19. The allegations contained in paragraphs 1 through 8 are incorporated herein by reference.

20. The Department of the Air Force denied plaintiffs their Constitutional right to equal opportunity for retention on active duty through the adoption and application of an equal opportunity instruction requiring the FY94SERB to give special retention consideration to minorities including a requirement to render a written numerical report to the Secretary and Chief of Staff on their performance of this tasking.

21. The Defendant had no compelling governmental interest justifying special racial or ethnic consideration and failed to narrowly tailor its discriminatory procedures. The equal opportunity instruction was not based upon any reported institutional discrimination within the Department of the Air Force or the Department of Defense. The instruction was apparently issued because of reports of occasional statistical variations in the promotion selection rates for certain minority groups when compared to the promotion selection rates for all officers. This action was taken although the Air Force had determined that its selection boards selected officers with similar characteristics at similar rates regardless of race.

22. This career ending process denied plaintiffs and all the class members their rights guaranteed by the Fifth Amendment to the United States Constitution.

    COUNT TWO

23. The allegations contained in paragraphs 1 through 12 are incorporated herein by reference.

24. The Department of the Air Force denied plaintiffs and all members of the class their Constitutional right to equal opportunity for retention on active duty through the adoption and application of an equal opportunity instruction requiring the FY94SERB to give special retention consideration to women including a requirement to render a written numerical report to the Secretary and Chief of Staff on their performance of this tasking.

25. The defendant's introduction of gender considerations did not serve an important governmental objective and the discriminatory procedures adopted by the defendant did not substantially relate to the achievement of any important governmental objective. The equal opportunity instruction was not based upon any reported institutional discrimination within the Department of the Air Force or the Department of Defense. The instruction was apparently issued because of reports of occasional statistical variations in the promotion selection rates for women when compared to the promotion selection rates for all officers. This action was taken although the Air Force had determined that its selection boards selected officers with similar characteristics at similar rates regardless of group characteristics.

26. This career ending process denied plaintiffs and all the class members their rights guaranteed by the Fifth Amendment to the United States Constitution.

1. Declaring this action to be a class action pursuant to Rule 23 RCFC on behalf of the Class defined herein.

2. Declaring the FY94SERB unjust and in violation of law, the selection of plaintiffs and all members of the class for involuntary retirement by that board invalid, and the resulting involuntary retirements illegal and of no legal consequence.

3. Awarding plaintiff and all members of the class active duty pay as a Colonel through the date of judgment by this Court, and further order their return to active duty in the rank of Colonel with all rights, benefits and privileges as if their service had not been interrupted.

4. Directing the Secretary of the Air Force to correct any and all records and/or system(s) of records and/or information of the Department of the Air Force including but not limited too, the official military records of the plaintiffs and all members of the class, to show: correction of said records and/or system(s) of records and/or information to reflect nonselection by the FY94SERB and continued active duty as set forth above.

5. Awarding plaintiffs and the class attorney fees and other expenses pursuant to the Equal Access to Justice Act, Section 2412, Title 28, United States Code.

6. Ordering the Secretary of the Air Force to correct any and all official military records in order to accord plaintiffs and all members of the class full and complete relief including, but not limited to, the payment of any pay and allowances due to plaintiffs and all members of the class as a result of the correction of their military records.

7. Granting plaintiffs and all members of the class such other and further relief as may be deemed just and proper.

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

Attorney for Plaintiffs