1. Defendant’s Reliance upon Berkley v. United States is Misplaced

   On December 19, 2000 Judge Horn granted the United States summary judgment in a class action contesting the use of basically the same instruction as that used in the involuntary selective early retirement procedures at issue in this proceeding. Berkley v. United States, 48 Fed. Cl. 361, No 98-943C, slip op., (Dec 19, 2000), notice of appeal filed January 24, 2001 (slip opinion attached to Defendant’s Opposition as exhibit four) (“Berkley”). Defendant asserts that result was correct and that the Berkley analysis is applicable to this proceeding. Defendant’s Opposition at 1-3. Plaintiffs aver, however, that the Berkley decision is incorrect and its reasoning inapplicable because:

   • The Berkley analysis only evaluated the use of race and gender classifications from the perspective of a facial challenge. Berkley, slip op. at 9. This case expressly alleges the Air Force selective early retirement proceedings violated Constitutional Equal Protection requirements both on its face and as applied. Complaint at ¶¶ 20, 24.

   • The administrative record in Berkley included the mandatory report to the Secretary and Chief of Staff regarding the application of the race and gender sensitive procedures. The Defendant in this case has been unable to produce that portion of the record or explain its absence. See letter from Counsel for Defendant attached as exhibit 1 to this brief.

   • The Berkley opinion erroneously considered judicial deference to military authority applicable to the threshold legal determination whether strict and heightened scrutiny applies to judicial review of race and gender conscious written board instructions. Berkley, slip op. at 5. See Miller v. Johnson, 515 U.S. 900, 923 (1995); Holly v. United States, 124 F.3d 1462 (Fed. Cir. 1997); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992).

   • The Berkley opinion misapplied precedents involving the creation of testing instruments to the application of race and gender based procedures within a career terminating process. Compare Berkley, slip op. at 10-11 with Allen v. Alabama State Board of Education, 164 F.3d 1347, 1353 (11th Cir. 1999) and Hayden v. County of Nassau, 180 F.3d 42, 47 (2nd Cir. 1999). Berkley was adjudicated as a facial challenge. Neither Allen nor Hayden represent such a case. Both Allen and Hayden are cases involving the legacy of consent decrees. No such determination is applicable in Berkley or this case.

   • The Berkley opinion ignored 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 slip opinion at 13-14 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 instruction and board report, the Berkley opinion erroneously assumed that presumed historical discrimination was relevant to determining the threshold question whether the use of explicit race and gender procedures constituted a facial classification. ¹ Berkley slip opinion at 13, fn 4. Taken as a whole, the Berkley opinion rejects the applicability of Adarand by interjecting an exception to strict scrutiny derived from a misinterpretation of Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), Allen and Hayden. 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, slip op. at 10. Justice Powell’s footnote appears in part IV of his opinion. Not a single additional justice joined in part IV. 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 Berkley 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, slip op. at 11 (emphasis added). Plaintiffs 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 instruction amounts to addressing “established inaccuracies.” The defendant has requested this Court accept the trial court analyses in Berkley and Baker v. United States, 34 Fed. Cl. 645 (1995), vacated 127 F.3d 1081 (Fed. Cir. 1997), and reject the grave concerns about such treatment expressed in the decision vacating Baker because the Federal Circuit analysis was dicta as a result of the Air Force’s eleventh hour withdrawal of it’s evidence describing the board process. The defendant is correct that the analysis is dicta, but that it no way detracts from the compelling relevance of its reasoning:

   Respondent contends that we are not bound by LaGrand because in that case the habeas petitioner had waived his ineffective-assistance claim in the District Court, thereby rendering our procedural default discussion dicta, and because, in any event, per curiam opinions decided without the benefit of full briefing or oral argument are of little precedential value. Whether our procedural default analysis in LaGrand is properly characterized as dictum or as alternative holding, and whatever the precedential value of a per curiam opinion, the ease with which we so recently resolved this identical question reflects the degree to which the proper resolution flows irresistibly from our precedents.

   Edwards v. Carpenter, 529 U.S. 446, ___, 120 S. Ct. 1587, 1592 n.3 (2000). 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 discussion 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. ² Adarand, 515 U.S., at 236.

2. Plaintiffs Have Established Multiple Racial and Gender Classifications

   Defendant asserts that plaintiffs’ reference to multiple explicit race and gender conscious procedures does not constitute the identification of a classification. ³; Defendant’s Opposition at 3. The assertion that race and gender specific procedures are not classifications is absurd, as is the defendant’s attempt to portray race or gender based measures as not being synonymous with race or gender based classifications. As asserted in our opening brief, the explicit references to race and gender in the instruction to the Board read:

   • "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."

   MOI, Exhibit 1 to Defendant’s Motion for Summary Judgment at 2-3. Contrary to defendant’s assertion, these references do not constitute “mere mention of minorities and women.” 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 male non-minority officers.

   On January 16, 2001, the United States Court of Appeals for the District of Columbia Circuit rendered a decision in proceedings derived from Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), dealing 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, __ F. 3d. ___, No. 00-1094, 2001 U.S.App. LEXIS 570 (January 16, 2001) (attached as exhibit two to this brief). 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 v. FCC, __ F. 3d. ___, No. 00-1094, 2001 U.S.App. LEXIS 570, at *3. 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, 2001 U.S.App. LEXIS 570, at * 15. This is precisely the frame of reference adopted by the Air Force for this Selective Early Retirement Board. While purportedly concerned with equal opportunity for all, the instructions mandated that the board “clearly afford” minorities and women certain treatment, provided a procedure for “particular sensitivity” and coupled that procedure with the measurement of outputs through the mandatory report to the Secretary and Chief of Staff (which the Air Force cannot locate). This instruction is 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, 2001 U.S.App. LEXIS 570, at *20. Here the Air Force has designed an instruction 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 following race (and gender) selective application of such subjective standards does not mean that officers are really being treated equally - that is without regard to their race (or gender) - in the initial evaluations of their records. This instruction is therefore subject to strict (and heightened) scrutiny for compliance with the constitutional requirement that all citizens receive equal protection under the law.

3. The Cases Cited by Defendant Do Not Support Excluding Race and Gender Conscious Decision-Making from Strict Scrutiny

   Defendant asserts that the plaintiffs argue Allen and Hayden dealt with the evaluation of examinations, not the creation of examinations or their content. Defendant also asserts that the examinations in Hayden and Allen were race-conscious. Defendant’s Opposition at 11-12. This is incorrect. Defendant refuses to acknowledge that there is a difference between the process of creating testing instruments and administering them. In regard to Allen and Hayden plaintiffs asserted:

   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.

   Plaintiffs’ Brief at 11-12. Contrary to defendant’s statements neither Allen nor Hayden endorse race or gender conscious conduct of examinations:

   Here, unlike in the above cited cases, although Nassau County was necessarily conscious of race in redesigning its entrance exam, it treated all persons equally in the administration of the exam.

   Hayden, 180 F.3d at 49.

   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 1353.

   Defendant’s attempt to find support in Raso v. Lago, 135 F.3d 11(1st Cir. 1998) and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) is similarly misplaced. The analyses set forth in both of these cases compellingly support the application of strict and heightened scrutiny to the race and gender classifications imposed by the Air Force on this board terminating careers. Raso, 135 F.3d at 17; Monterey Mechanical Co., 125 F.3d at 711.

   Defendant asserts that the Army’s selection procedures in Christian v. United States, 46 Fed. Cl. 793 (2000) and Sirmans v. Caldera, 27 F. Supp. 2d 248 (D. D.C. 1998) “bear little resemblance” to the Air Force’s procedures. Defendant’s Opposition at 18. This is nonsense. The differences between these procedures are of degree not kind. Both procedures are clothed in the rubric of equal opportunity, but both procedures create specific processes applicable only to minorities and females and require reports to the service secretary on the results of the application of those procedures. While the Army procedures set forth explicit race and gender goals, the Air Force instruction more subtly imposed the “must clearly afford” language. Both the procedures clearly mandated race and gender conscious selection of officers. See Christian v. United States, 46 Fed. Cl. 793, 798 (2000) and Sirmans v. Caldera, 27 F. Supp. 2d 248, 249 (D. D.C. 1998). As cogently stated by former Chief Judge Smith:

   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.

   Christian, 46 Fed. Cl. at 805 (2000).

4. The Missing Report Precludes Summary Judgment for the Defendant

   In Baker v. United States essentially the same instruction as in dispute in this case was used by the 1992 Air Force Selective Early Retirement Board. ⁴ In regard to the application of that instruction the United States Court of Appeals for the Federal Circuit summarized:

   A report by the SERB concerning minority and female officer selections, as commanded by the charge, was delivered to the Secretary. Paragraph 5 of the report reads:

   With your guidance concerning minorities and women specifically in mind, the board thoroughly reviewed the records of all minority and woman officers eligible for selective early retirement. The retention rates for blacks and women were better than the overall board average. The retention rate for hispanic officers was below the board average. To ensure each minority and woman officer received fair and equitable consideration, the board president carefully reviewed their records and the scoring results. Where there was any doubt as to the competitiveness of an officer, he caused the record to be rescored to resolve the doubt. It is the judgment of the board president and the members of the board that those officers recommended for retention are the best qualified officers.

   Baker v. United States, 127 F.3d 1081, 1084 (Fed Cir. 1997).
   As noted in our opening brief, defendant for unexplained reasons has been unable or unwilling to submit to this Court the corresponding report which, assuming administrative regularity, must have been rendered to the Secretary and Chief of Staff by the FY94 SERB. Plaintiffs’ Brief at 28. By letter of November 13, 2000 Counsel for the defendant provided plaintiffs a one-page document captioned “FY 94 O6 SERB Demographics.” It is reproduced as Exhibit 1 to this brief. While this document is not the missing report, its contents are relevant. Whether analyzed by race or gender, white males consistently faired worse than minorities and females. The government cannot locate the mandatory report rendered to the Secretary and Chief of Staff describing how and why the board reached these results. By virtue of the adverse inference rule this defect in the record gives rise to a presumption that the report would confirm that the board complied with the Secretary’s mandatory instructions and “clearly” afforded minorities and females “equal” treatment by according them the retention consideration denied non-minority males, namely particular sensitivity to the possibility that circumstances and events not documented in their records disadvantaged these officers. This Court has described the adverse inference rule as follows:

   [W]hen a party has relevant evidence within its control and fails to produce such [or to explain such failure], that failure raises the presumption that if in fact produced, it would be unfavorable to its cause. Day & Zimmermann Services v. United States, 38 Fed. Cl. 591, 602 n.13 (1997) (citing International Union (UAW) v. NLRB, 148 U.S. App. D.C. 305, 459 F.2d 1329 (D.C. Cir. 1972)). See also Barnett v. United States, 6 Cl. Ct. 631, 671 (1984) (citing, inter alia, Culbertson v. The Steamer Southern Belle, 59 U.S. (18 How.) 584, 588, 15 L. Ed. 493 (1855)).

   Exxon Corp. v. United States, 45 Fed. Cl. 581, 624 n.70 (1999). Accordingly, summary judgment cannot appropriately be rendered on behalf of the defendant on the present record.

5. Plaintiffs are Entitled to Summary Judgment

   Defendant argues that Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) does not support plaintiffs’ request for summary judgment because:

   • there would be disputed facts as to defendant’s predicate for the classifications. Defendant’s Opposition at 20, and

   • defendant could not have obtained its objective without selecting senior officers for involuntary retirement and it could not recruit senior officers because such officers must be promoted from within the Air Force. Defendant’s Opposition at 20 n.6.

   Both these assertions are without merit. First, as Wygant makes clear, it is unnecessary to pursue those facts because no compelling interest could support involuntary career termination of innocents. Wygant, 467 U.S. at 283-84. Second, assuming, arguendo, that the Air Force had a compelling interest justifying changing the racial or gender composition of the force there is no reason why it could not cause such changes through its enlistment and commissioning programs as opposed to curtailing careers. Moreover, to the extent the Air Force faced end strength reductions requiring fewer senior officers, it was under no obligation to take actions involuntarily retiring officers with either race or gender conscious procedures. Finally, even further assuming the Air Force had some need to “recruit” additional active duty senior officers, it has a ready source of such personnel in the United States Air Force Reserve. Wygant is directly on point.

Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997) held “We conclude that there is no de minimis exception to the Equal Protection Clause. Race discrimination is never a ‘‘trifle.’’” When the United States Court of Appeals for the Ninth Circuit declined to consider that case en banc, Circuit Judge Kleinfeld rendered a concurring opinion that eloquently describes what cases like this and Monterey concern:

A fundamental principle underlies the decision: Americans are entitled to be treated equally by their government, regardless of their race, their skin color, their nationality, their religion, their sex. The seed of this principle was planted in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal." The fruit is the Fourteenth Amendment to the Constitution: "Nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment extends its guarantees to "any person," in the singular, regardless of that person's ethnicity or sex.

Courts apply law, and do not act as representative bodies. Judges adhering to their oaths vote based on their view of the law, not their view of their ethnic groups' interests. Many of us have ethnic characteristics that make past discrimination against our own groups quite unforgettable, but that cannot be a basis for deciding a case. The Constitution and precedent are the same whatever our ethnicity. Thought comes from the brain, not the blood. Monterey Mechanical Co., 138 F.3d, at 1272. For the vindication of that Constitutional principle as set forth above and in our motion, we respectfully request the Court grant plaintiffs summary judgment, and deny defendant’s motion for summary judgment.