Defendant, the United States, respectfully requests that
the Court grant summary judgment in its favor pursuant to
Rule 56 of the Rules of the Court of Federal Claims
(“RCFC”) because there are no disputed issues of fact and
the United States is entitled to judgment as a matter of law.
In support of this motion, we rely upon plaintiffs’ complaint,
the following brief and accompanying exhibits, and our
contemporaneously - filed RCFC 56(d)(1) proposed findings of
uncontroverted fact (“DPFUF”).
DEFENDANT’S BRIEF
STATEMENT OF THE ISSUE
Whether the adoption and application of the Secretary of the
Air Force’s Memorandum of Instructions to the members of the
Fiscal Year 1994 Colonel Selective Early Retirement Board
constitutes a racial or gender classification.
STATEMENT OF THE FACTS
In May 1993, based upon congressionally - mandated reductions in the
manpower levels of the Armed Forces, the United States Air Force
convened the Fiscal Year 1994 Colonel (O-6) Selective Early Retirement
Board (“FY94 O-6 SERB” or “SERB”). DPFUF ¶ 1. The purpose of
the FY94 O-6 SERB was to select for mandatory early retirement
colonels in the 1966 and 1968 year groups — i.e.,
colonels who began serving on active duty as officers in either
1966 or 1968. DPFUF ¶ 2.
Members of the FY94 O-6 SERB, like members of all Air
Force selection boards, were told to consider the “paper”
records of each officer under consideration. See Small v. United States,
158 F.3d 576, 578 (Fed. Cir. 1998), amended by
180 F.3d 1343 (Fed. Cir.), cert. denied, 120 S. Ct. 64 (1999).
They were instructed to review each record and assign it a single,
comprehensive, numerical score, which represented their subjective
evaluation of the totality of the information in the officer’s record.
See id. SERB members were informed that officers would
be ranked according to their cumulative numerical scores. See id.
The Secretary of the Air Force issued a memorandum of instructions
(“MOI”) to the SERB members which provided guidance for the
selection process. DPFUF ¶ 3. As is plain from the MOI itself, these
instructions center around four primary themes: (1) officers are to be
judged upon their entire record, with primary emphasis upon job
performance (the “whole person concept”), to determine which officers
are best qualified; (2) officers are to be judged only upon their records
and not upon any extraneous information or considerations; (3) every
officer is to be given equal consideration and to be judged fairly and
equitably, without prejudice or partiality of any kind; and (4) SERB
members must exercise their independent judgment and discretion in
selecting the best qualified officers who are fully qualified for retention.
DPFUF ¶ 5. Accordingly, the MOI for the FY94 O-6 SERB stated,
in pertinent part:
You will use the best qualified method of selection. . . .
You [the SERB members] must act in the best interest of the
Air Force and not any particular command, specialty or group. . . .
You will use the whole person concept to assess each officer’s
relative potential to continue productive service on active duty.
This requires careful review to assess such factors as job
performance, professional qualities, leadership, depth and
breadth of experience, job responsibility, academic and
professional military education, and specific achievements. . . .
* * *
Your evaluation of minority and women officers must clearly
afford them fair and equitable consideration. Equal opportunity
for all officers is an essential element of our selection system.
In your evaluation of the records of minorities and women, you
should be particularly sensitive to the possibility that past
individual and societal attitudes, and in some instances
utilization policies or practices, may have placed these officers
at a disadvantage from a total career perspective. The board
shall prepare for review by the Secretary and the Chief of Staff,
a report of minority and female officer selections as compared
to the selection rates for all officers considered by the board.
* * *
Each of you . . . is responsible to maintain the integrity and
independence of this selection board, and to foster the careful
consideration, without prejudice or partiality, of all eligible officers. . . .
* * *
. . . You are to base your recommendations on the material in
each officer’s military record, any information I have provided to
the board . . . , and any information about his or her own record
communicated to you by individual eligible officers. . . .
* * *
If at any time you believe that you cannot in good conscience
perform your duties as members of the board without prejudice
or partiality, you have a duty to request relief by me from this duty.
I will honor any such request. . . .
DPFUF ¶ 4.
Plaintiffs are seven individuals who were selected for
early retirement by the FY94 O-6 SERB. Compl. ¶ 14. They allege
that they were denied “their Constitutional right to equal opportunity
for retention on activity duty through the adoption and application” of
the MOI to the SERB because the MOI gave “special retention
consideration” to minorities and women “including a requirement to
render a written numerical report to the Secretary and Chief of Staff
on their performance of this tasking.” Compl. ¶¶ 20, 24.
ARGUMENT
- Introduction
During the July 20, 2000 preliminary status conference,
the Court noted that, upon reading the MOI for the first time,
it did not find the MOI to be “in any sense discriminatory.”
Trans. at 12. The Court’s initial reaction to the MOI is fully
supported by the law. The MOI does not constitute a racial
or gender classification. It does not categorize officers by,
or provide a benefit or burden based upon, race or gender.
Nor does the MOI, in any way, require or encourage unequal
treatment of any officer or category of officers. To the contrary,
it absolutely requires that all officers be treated equally, without
prejudice or partiality of any kind. DPFUF ¶ 6.
To the extent the MOI makes any reference to race or gender, it
only requires SERB members to give minority and female officers
“fair and equitable” consideration and the same “equal opportunity”
given all officers, and, to that end, to be alert to any indication that
past practices or attitudes may have placed a minority or female
officer at a career disadvantage.
See DPFUF ¶ 4.
In challenging the MOI, plaintiffs are in effect arguing that
all references to race or gender, even those that have the
purpose and effect of ensuring equal opportunity for all, are illegal.
Fortunately, that is not the law. As we discuss more fully below,
not every reference to race or gender constitutes a racial or gender
classification; references to race or gender that require a neutral
selection of all candidates, including minorities and women, are
perfectly valid. Indeed, subjecting every such reference to strict
scrutiny analysis would imperil the entire framework of laws intended
to prohibit racial discrimination and ensure equal opportunity.
Before discussing the pertinent cases, it is helpful to recall that when
a claimant asserts a constitutional challenge to an employment action
by which the former military service member has been deprived of pay,
judicial review is available in this Court, but that review is not unfettered.
See, e.g., Woodward v. United States,
871 F.2d 1068, 1076 (Fed. Cir. 1989). Judicial deference to the military
has a long and uninterrupted history.
See, e.g., Orloff v. Willoughby,
345 U.S. 83, 94 (1953) (“Orderly government requires that the judiciary be
as scrupulous not to interfere with legitimate Army matters as the Army must
be scrupulous not to intervene in judicial matters.”);
Rostker v. Goldberg,
453 U.S. 57, 64-65 (1981) (stating that, with regard to national defense
and military affairs, “perhaps in no other area has the Court accorded
Congress greater deference”);
Chappell v. Wallace, 462 U.S. 296, 305 (1983)
(“courts are ill equipped to determine the impact upon discipline that
any particular intrusion upon military authority might have”);
Goldman v. Weinberger, 475 U.S. 503, 508 (1986) (“judicial
deference is at its apogee” in a challenge to the rules and regulations
of the military);
Murphy v. United States, 993 F.2d 871, 87273 (Fed. Cir. 1993)
(“Aside from the limited warrant of courts to invade the military province,
intrusion also raises a separation of powers issue.”);
Bunch v. United States, 33 Fed. Cl. 337, 339 (1995) (“Because
the Constitution delegates specific power over the military to the political
branches, the courts have generally refrained from interfering in military
decision making.”).
The judicial deference granted by courts to decisions by the military has
been explicitly applied in cases such as the one now before the Court. In
Woodward, the Federal Circuit reviewed the claim of a Navy officer
who claimed to have been released from active duty based upon his sexual
orientation in contravention of, among other provisions, the Equal Protection
Clause.
Woodward, 871 F.2d at 1071. The Federal Circuit stressed that
“[s]pecial deference must be given by a court to the military when
adjudicating matters involving their decisions on discipline, morale,
composition and the like, and a court should not substitute its views for
the ‘considered professional judgment of the military.’”
Id. at 1077 (citing cases). Furthermore, the court stressed,
“constitutional rights must be viewed in the light of the special
circumstances and needs of the armed forces.”
Id. (quoting
Beller v. Middendorf, 632 F.2d 788, 810 (9th Cir. 1980)).
-
The Memorandum Of Instructions Does Not
Constitute A Racial Classification
In Count One of their complaint, plaintiffs contend that the Air Force
violated the Equal Protection Clause by instructing members of the
FY94 O-6 SERB to give a racial preference. Compl. ¶ 20. Plaintiffs
bear the burden of proving that the MOI language created an impermissible
racial classification.
Theriot v. Parish of Jefferson, 185 F.3d 477, 484 (5th Cir. 1999);
see also Miller v. Johnson, 515 U.S. 900, 916 (1995);
Aiken v. City of Memphis, 37 F.3d 1155, 1162 (6th Cir. 1994).
To succeed upon their claim, plaintiffs must establish, consistent with the
Supreme Court’s decision in
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), that the
MOI imposed a racial classification and either distributed a benefit or
imposed a burden based upon that classification.
Id. at 222, 227 (citing
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)). Under
Adarand, a “racial classification” is “a government standard,
preferentially favorable to one race or another, for the distribution of
benefits.”
Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998) (citations omitted);
accord Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999);
Honadle v. University of Vermont, 56 F. Supp. 2d 419, 427-28
(D. Vt. 1999). Because plaintiffs cannot meet this standard, summary judgment
should be granted in favor of the United States.
In support of Count One, plaintiffs extract and rely exclusively upon four
sentences from the six-page MOI. Compl. ¶ 17. The MOI, however,
did not instruct SERB members to take any affirmative steps based
upon race. Instead, SERB members were merely advised, in reviewing
the records of minority officers, to be conscious of anything in those
records that might indicate an officer was disadvantaged in his or her
career by past practices or attitudes, and to consider such indications,
if found, as one factor among many in giving the officer “fair and
equitable” consideration.
See DPFUF ¶ 4. This does not constitute a racial classification.
Nothing in the four sentences directs the SERB members to give a
preference to minority or female officers in the selection process or to
impose a burden upon officers who were neither minorities nor women.
Id.
The MOI instructs SERB members to take numerous factors into account
when scoring records. These factors include officers’ job performance,
as well as their depth and breadth of experience in the Air Force.
DPFUF ¶ 4. Hence, a SERB member must evaluate officers who served
in a variety of positions, as well as officers who had a defined, but limited
career experience —
e.g., foreign service or procurement. In the course
of evaluating records, SERB members must rely upon their own
experience to decide the import of hundreds of matters contained within
officers’ records. For this reason, the Air Force limits selection board
membership to senior officers, whose broad range of experience over
several decades in the Air Force allows them to make informed evaluations.
This also helps to explain why courts afford great deference to military
decisions.
Cf. Porter v. United States, 163 F.3d 1304, 1316 (Fed. Cir. 1998)
(explaining that the judiciary is reluctant to review actions of selection
boards in part because of “the court’s incurable lack of knowledge of the
total grist which the boards sift”) (quoting
Brenner v. United States, 202 Ct. Cl. 678, 692-94 (1973)).
The conclusion that no preference is created or intended by the MOI
is all the more compelling when the four sentences are returned,
as they must be, to their original context.
See NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941)
(Hand, J.) ("[w]ords are not pebbles in alien juxtaposition; they have
only a communal existence"). The instructions that plaintiffs fail to quote
are significant. They prohibit SERB members from giving a preference
to any group by directing that: (1) SERB members must not act in the
interest of any particular group; (2) job performance must be the overriding
factor in evaluations; (3) equal opportunity for
all officers must be maintained; and (4) SERB members are
responsible for fostering the fair and equitable consideration of all officers
without prejudice or partiality. DPFUF ¶ 4.
The mere mention of minorities or women within the MOI, or a reminder
to be sensitive to past practices or attitudes, does not establish a racial
classification. As the United States Court of Appeals for the Eleventh
Circuit recently explained, courts have not accepted attempts to read
Adarand so broadly as apply to “all race-based actions,
whether or not they lead to unequal treatment.”
Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1352
(11th Cir. 1999) (citations omitted);
accord Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487,
492 (D.C. Cir. 1998) (rejecting the suggestion “that all race conscious
measures adopted by the government must be subjected to strict scrutiny”);
Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th Cir. 1997)
(“Adarand applies only when the government subjects a person to
unequal treatment”) (internal quotation omitted).
The instruction challenged in this case is even less burdensome than the
schemes held to be constitutional in
Allen and Hayden v. County of Nassau,
180 F.3d 42 (2nd Cir. 1999).
Allen involved a consent decree requiring the State Board of
Education to fashion future teacher certification examinations “using a
system designed to avoid an unjustifiable discriminatory impact on
African American teacher candidates,” and forbidding the Board from
using any teacher certification exam “that would have a discriminatory
impact on African-Americans.”
Allen, 164 F.3d at 1349. In evaluating the decree, the court
noted that it “does not require the Board to impose a different passing
grade for African American candidates or otherwise classify teachers
based upon race in grading the examinations.” Id. at 1352. Based upon
this fact, the court concluded,
the decree does not require the Board to act according to racial
classifications, which takes this case out of
Adarand. Instead, the Board must be
conscious of race in developing the examination,
choosing test items to minimize any racially disparate
impact within the framework of designing a valid and
comprehensive teaching examination.
Id. at 1352-53. In closing, the court held, “[n]othing in
Adarand requires the application of strict scrutiny to this sort of
race consciousness.”
Id. at 1353.
In Hayden, white and Latino applicants to a county police
department brought a class action suit against the county.
Hayden, 180 F.3d at 46. The applicants alleged that the
county had deliberately designed the police department entrance
exam to minimize the adverse impact upon black candidates,
and, that by doing so, the county created a racial classification
in violation of the Equal Protection Clause.
Id. at 47-48. The court of appeals disagreed. In granting
the county’s motion to dismiss for failure to state a claim upon which
relief could be granted, the court held that, although the county was
necessarily conscious of race in designing its entrance exam, that
consciousness did not implicate a racial classification.
Id. at 48-49. As the court explained:
Every antidiscrimination statute aimed at racial
discrimination, and every enforcement measure
taken under such a statute, reflect[s] a concern
with race. That does not make such enactments
or actions unlawful or automatically “suspect”
under the Equal Protection Clause. . . .
Id. at 49 (quoting
Raso, 135 F.3d at 16);
accord Hornell Brewing Co. v. Brady, 819 F.
Supp. 1227, 1241 n.11 (E.D.N.Y. 1993)
(“equal protection proscribes race based classifications, not all
statutes whose purpose it is to protect certain racial or ethnic groups”).
Again, the race-consciousness that exists in the FY94 O-6 SERB’s
MOI, is, if anything, less burdensome than those upheld by the courts in
Allen and Hayden. The defendants in
Allen and Hayden took affirmative action based upon race,
i.e., designing examinations to eliminate discriminatory impact.
Here, the MOI did not instruct SERB members to take any affirmative
steps based upon race. Instead, in reviewing the records of minority
officers, SERB members were advised merely to be conscious of
anything in those records that might indicate an officer was disadvantaged
in his or her career by past practices or attitudes, and to consider such
indications, if found, as one factor among many in giving the officer
“fair and equitable” consideration. The MOI did not require SERB
members to apply a different retention criterion for minority candidates
or otherwise classify officers based upon race in evaluating their records.
Indeed, it explicitly required that SERB members choose the best
qualified of those officers fully qualified to serve, regardless of race or
gender. DPFUF ¶ 4. It “d[id] not require the Board to act according to
racial classifications, which takes this case out of
Adarand.”
Allen, 164 F.3d at 1352-53;
accord Hayden, 180 F.3d at 49;
Raso, 135 F.3d at 16;
Monterey Mechanical, 125 F.3d at 711.
We note that this Court addressed the constitutionality of the same
MOI language in
Baker v. United States, 34 Fed. Cl. 645 (1995),
vacated on other grounds, 127 F.3d 1081 (Fed. Cir. 1997),
quoted with approval, Christian v. United States, 46 Fed. Cl. 793, 804 (2000).
Although this Court’s decision rested upon evidence that was later withdrawn,
its facial analysis of the MOI remains persuasive because it is consistent
with the decisions, discussed above, in
Adarand (plaintiffs must demonstrate both the existence of a
classification and the distribution of a benefit or burden), and in
Raso, Allen and
Hayden (mere mention of race, without requiring action based
upon a racial classification, does not implicate strict scrutiny). The court in
Baker concluded that the MOI is facially neutral because it does not
create a racial or gender classification, or confer a benefit or levy a burden
upon any group.
Baker, 34 Fed. Cl. at 656, 658;
see also Christian, 46 Fed. Cl. at 804 (“this court [in
Baker] found that a Charge to an Air Force SERB[, which
contained the same language as the FY94 O-6 SERB’s MOI,]
to be sensitive to the possibility of past discrimination was not a racial
classification in circumstances where there was no goal.”). In reaching
this conclusion, the court noted that the MOI did not include either race
or gender among the factors for board members to consider, and the
MOI lacked other essential indicia — such as requirements, quotas,
goals, incentives — that transform the mere mention of race or gender
into a classification.
Baker, 34 Fed. Cl. at 656. Instead, the Court determined that
the MOI language was “nothing more than a hortative comment,
advice, or reminder.”
Id.
The MOI language in this case also contrasts sharply with that
which was declared unconstitutional in
Adarand. That case involved a statute which required the
Federal Government to award at least five percent of Government
contracts to “small business concerns owned and controlled by socially
and economically disadvantaged individuals.”
Adarand, 515 U.S. at 205-06. In implementing the law, the
Small Business Administration adopted regulations which designated
several minority groups as presumptively “socially disadvantaged,” and
provided that individuals outside these groups required “clear and
convincing evidence” to be considered socially disadvantaged.
Id. at 207. The Government contended that the regulations were
not subject to strict scrutiny because its classifications were based upon
disadvantage, not race.
Id. at 212-13. The Supreme Court rejected the Government’s contention.
Id. at 227.
The statute construed in
Adarand classified a business as being either controlled by socially
disadvantaged persons (i.e., minorities) or not, and, based upon that
classification, the Government distributed a benefit (i.e., Government
contracts). Thus, the infirmity found by the Supreme Court in
Adarand was both the existence of a racial classification and a
resulting benefit or burden. Neither exists in this case. Simply instructing
SERB members to be cognizant of past discrimination against minorities
in reviewing their records, while instructing those same members that they
may not act with prejudice or partiality, is not “a government standard,
preferentially favorable to one race or another, for the distribution of benefits.”
Raso, 135 F.3d 16 (citations omitted). Furthermore, the MOI neither
set aside nor distributed a benefit to minorities. Again, the MOI told SERB
members that they could not give a preference. Unlike the regulations in
Adarand, the MOI did not cause a benefit to be distributed or burden
to be imposed based upon a classification. Therefore, the FY94 O-6
SERB’s MOI does not implicate the Equal Protection Clause or
Adarand. See Raso, 135 F.3d at 16;
Monterey Mechanical, 125 F.3d at 711.
- The Memorandum Of Instructions Does Not
Constitute A Gender Classification
In Count Two of their complaint, plaintiffs contend that the Air
Force violated the Equal Protection Clause by instructing
members of the FY94 O-6 SERB to give a preference based
upon gender. Compl. ¶ 24. To prove gender discrimination,
plaintiffs must demonstrate, first, that the MOI created an “
official classification based upon gender,” and, second, that
it set aside or distributed a benefit based upon gender.
See United States v. Virginia, 518 U.S. 515, 532-33 (1996).
As with Count One, plaintiffs rely solely upon four sentences of the
six page MOI to prove Count Two of their complaint. Compl. ¶ 22.
Neither those four sentences, nor the remainder of the MOI, created
an official classification based upon gender, much less distributed a
benefit based upon gender. Instructing SERB members to be
cognizant of past institutional practices, such as job assignments,
does not constitute an official classification based upon gender,
especially in light of the fact that the MOI also told SERB members
that they, themselves, could not give a preference or show partiality.
DPFUF ¶ 6.
The Federal courts have held that certain programs and statutes
constituted an official classification based upon gender. In the
leading case of
Virginia, for example, the Supreme Court held the single sex
admission policy of the Virginia Military Institute (“VMI”) to be such
a classification.
Virginia, 518 U.S. at 546. Likewise, in the leading gender
discrimination case before
Virginia, Craig v. Boren, 429 U.S. 190 (1976), the Court
determined that an Oklahoma statute, which established different age
limits for men and women to consume alcohol, created a gender
based classification.
Craig, 429 U.S. at 211. In
Kirchberg v. Feenstra, 450 U.S. 455 (1981), the Court found
such a classification was created by a Louisiana statute that gave a
husband the unilateral right to dispose of property jointly owned with
his wife even without his wife’s consent.
Id. at 459-60. Finally, in
Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998), the
court considered a zoning amendment with differential regulation of male
and female topless dancing. The court held that the amendment constituted
an official classification based upon gender, although it upheld the
amendment based upon the city’s justification.
Id. at 141-42.
The MOI at issue in this case, however, differs substantively from the
programs and statutes discussed above which courts have held to
constitute official classifications based upon gender. In the cases
discussed above, the policy or statute put men and women into different
categories in order to give the members of one category a substantive
benefit, such as potential admission to a school or the ability to drink
alcohol at an earlier age. The MOI in this case did not create categories,
nor did it provide any substantive benefit to a category’s members.
In summary, the MOI did not create an official classification based upon
gender any more than it created one based upon race.
-
Collecting Statistics Is Constitutional
Plaintiffs further argue that the MOI is unconstitutional because
it states: “The board shall prepare for review by the Secretary
and the Chief of Staff, a report of minority and female officer
selections as compared to the selection rates for all officers
considered by the board.” Compl. ¶¶ 20, 24. For sound
reasons, “[c]ourts have not found requirements to collect data
about the racial and gender make-up of a workforce to violate the
Constitution.”
Sussman v. Tanoue, 39 F. Supp. 2d 13, 25 (D.D.C. 1999)
(citing cases). Instead, they have recognized that “statistical
information as such is a rather neutral entity which only becomes
meaningful when it is interpreted.”
United States v. New Hampshire, 539 F.2d 277, 280 (1st. Cir. 1976).
Thus, courts have held that the collection of statistical data concerning race
or gender cannot by itself give rise to a racial or gender classification.
See New Hampshire, 539 F.2d at 280;
Sussman, 39 F. Supp. 2d at 25. Only the unconstitutional use of
statistical data can give rise to a racial or gender classification, and
collecting statistical data “to ensure that no person is denied equal
employment opportunity [by an] agency” is not an unconstitutional use.
Sussman, 39 F. Supp. 2d at 25;
accord Honadle v. University of Vermont, 56 F. Supp. 2d 419,
428 (D. Vt. 1999) (upholding a statistical reporting requirement because
“[t]hese activities do not impose burdens or benefits, nor do they subject
individuals to unequal treatment”).
As the Court stated during the preliminary status conference, the fact
that the SERB members were informed that the Secretary would be
receiving statistics is “not to say that this instruction is directing people
to give a preference to individuals who wouldn’t otherwise be entitled
to it on the basis of their record.” Trans. at 24-25. Plaintiffs attempted
to rebut the Court’s statement by citing to
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir.),
reh’g denied, 154 F.3d 487, 492 (D.C. Cir. 1998). Trans. at 26.
In that case, the court of appeals examined a reporting requirement,
but it did so in a different context, and it did not rule upon the
constitutionality of the requirement.
In Lutheran Church — unlike this case — the Government
conceded that the challenged regulation implicated
Adarand and the Equal Protection Clause.
Lutheran Church, 141 F.3d at 351-52. Hence, the only pertinent
issue before the court was whether the regulation passed strict scrutiny.
The Federal Communication Commission (“FCC”) regulation at issue,
47 C.F.R. § 73.2080 (1997), required radio stations to adopt an
affirmative action “equal employment opportunity (‘EEO’) program”
targeted to minorities and women.
Lutheran Church, 141 F.3d at 346. The regulation itself did not
contain a reporting requirement, although it did obligate radio stations
to evaluate their employment profile and job turnover against the
availability of minorities and women in their area.
Id. However, a reporting requirement was imposed upon
Lutheran Church’s two radio stations by an FCC administrative
law judge (“ALJ”), who determined that Lutheran Church had
violated the regulation’s EEO program requirements.
Id. at 348. Because the court of appeals held that the
FCC regulation failed strict scrutiny, it reversed the ALJ’s
determination that Lutheran Church had violated the regulation,
and thus never examined whether the reporting requirements
imposed by the ALJ were themselves constitutional.
See id. at 356-57.
-
The Memorandum Of Instructions
Was Constitutionally Applied
Lastly, plaintiffs argue that the members of the FY94 O-6 SERB
violated the Constitution through their application of the MOI. Compl. ¶¶ 20, 24.
Plaintiffs’ as-applied challenge to the MOI rests solely upon their argument that
the MOI, on its face, constitutes both a racial and gender classification. In other
words, plaintiffs argue that the SERB members adhered to a facially
unconstitutional MOI and, therefore, they must have applied the MOI in
an unconstitutional manner.
We agree with plaintiffs’ assertion that the SERB members
adhered to the MOI. As the Federal Circuit has explained, military
officers, like other public officials, are presumed to have discharged
their duties correctly.
Hoffman v. United States, 894 F.2d 380, 385 (Fed. Cir. 1990);
see also OPM v. Richmond, 496 U.S. 414, 433 (1990) ("we may
assume with confidence that Government agents attempt conscientious
performance of their duties"). Accordingly, the resolution of plaintiffs’
as-applied challenge depends upon the resolution of their facial challenge.
If the court determines that the MOI is facially unconstitutional, plaintiffs
might, upon further inquiry by the Court, succeed upon their as-applied
challenge because plaintiffs’ complaint, read in light of such a
determination, would allege that the SERB members adhered to an
unconstitutional instruction. On the other hand, plaintiffs cannot succeed
upon their as-applied challenge if the court holds that the MOI is facially
neutral. The only basis for plaintiffs’ as-applied challenge is their
allegation that the MOI is facially unconstitutional. Therefore, plaintiffs’
as-applied challenge must fail if the Court rejects the challenge’s sole
underlying allegation. As we established above, the MOI is facially
constitutional; it does not constitute either a racial or gender classification.
Consequently, plaintiffs’ as-applied challenge to the MOI cannot succeed.
- CONCLUSION
For these reasons, we respectfully request that the Court
grant summary judgment in favor of the United States.
|
