MAJOR JENNIFER GRIMM
Office of the Judge Advocate General
United States Air Force

LEE J. FREEDMAN
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
1100 L Street, N.W.
Washington, D.C. 20530
Tele: (202) 305-7562
Fax: (202) 305-7643

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4. Berkley v. United States, No. 98-943C, slip opinion (December 19, 2000) (Horn, J.)

Defendant.

In accordance with the Court's July 21, 2000 order, defendant, the United States, submits its reply to plaintiffs' opposition to our motion for summary judgment and our response in opposition to plaintiffs' motion for summary judgment. We continue to maintain that the Secretary's instruction passes constitutional muster. Nothing in plaintiffs' brief establishes anything to the contrary. For the reasons set forth in our moving brief, the Court should grant our motion for summary judgment. Additionally, in a decision issued only yesterday, another judge on this Court held that a virtually identical instruction was constitutional. Berkley v. United States, C Fed. Cl. C, No. 98-943C, slip op. (Dec. 19, 2000) (attached as exhibit four to this brief). As we explain below, that decision, while not binding upon this Court, is persuasive.

1. This Court Has Considered And Rejected An
   Equal Protection Challenge To An Instruction
   Virtually Identical To The One Now Before It

   In all pertinent aspects, the MOI considered by this Court in Berkley is indistinguishable from the MOI at issue here. Compare Berkley, slip op. at 2-5, with Defendant's Proposed Findings of Uncontroverted Fact ("DPFUF") & 4. Like plaintiffs in this case, the Berkley plaintiffs base their complaint upon the following excerpt from their board's MOI, which they allege directed their board "to improperly consider the racial and gender characteristics of each commissioned officer when selecting candidates for separation":

   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 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 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.

   Berkley, slip op. at 4.

   This Court disagreed. Instead, it determined that

   The Secretary's commitment to equality for all officers during the RIF process is evident throughout the language of the Memorandum of Instruction, reflecting a deliberate devotion to creating a process which is fair and impartial. . . . * * * . . . The plain language of the Memorandum does not direct Board Members to take any specific action toward female or minority officers, such as lowering or raising scores. It only reminds Board Members to be sensitive to the obstacles that may have been placed in the way of female and minority officers when reviewing their records from a total career perspective.

   . . . [T]he Secretary's Memorandum does not pressure the RIF Board into making race or gender based retention decisions. It does not give minority or women officers an artificial benefit, or burden white, male officers. The Memorandum simply attempts to secure a neutral, equitable process, and to identify for retention those officers who can best meet the needs of the Air Force.

   Id. at 14-15. Accordingly, the Court held that the Secretary's instruction was subject to rational basis review, not heightened or strict scrutiny, and that the instruction satisfied such review. Id. at 19, 22-23. As we demonstrate below, the Court in Berkley reached the correct conclusion.

2. Plaintiffs Fail To Identify A
   Racial Or Gender Classification

   Like the plaintiffs in Berkley, plaintiffs here extract three sentences from the Secretary of the Air Force's six-page memorandum of instructions ("MOI"), quote them out of context, and declare that these sentences constitute both a racial and a gender classification because they explicitly mention race and gender. ¹ Plf. Br. at 9-10. Notwithstanding plaintiffs' contrary assertion, the mere mention of minorities and women within these three sentences does not establish a racial or gender classification. See Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1352 n.2 (11th Cir. 1999) (collecting cases) ²; 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") ³; cf. Bush v. Vera, 517 U.S. 952, 958 (1996) (O'Connor, J.) ("Strict scrutiny does not apply merely because redistricting is performed with consciousness of race."). As this Court stated in Berkley, "to violate the Constitution, a directive, such as the Secretary's Memorandum of Instruction, must include more than a mere mention of race or gender. The government action must bestow a benefit or burden, based on a suspect classification. . . . Only then is heightened scrutiny required." Berkley, slip op. at 9-10.

   In asserting that these sentences create a classification based upon race and gender, plaintiffs not only make an assertion without legal support, they also ignore the MOI itself, the full text of which, standing alone, defeats their argument. Ultimately, of course, the issue is whether the words in their original context are facially neutral. As Judge Learned Hand wrote, "[w]ords are not pebbles in alien juxtaposition; they have only a communal existence." NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941); see also Berkley, slip op. at 13 ("when reviewing the Secretary's Memorandum of Instruction, the court should construe each portion of the Memorandum in connection with each of the other portions, so as to produce a harmonious whole").

   Plaintiffs isolate the following language from the MOI: "Your evaluation of minority and women officers must clearly afford them fair and equitable consideration." While race and gender conscious, this language requires no more C or different C action by the SERB than is required for all officers, including males and non-minorities. As stated elsewhere in the MOI, the SERB members must "foster the careful consideration, without prejudice or partiality, of all eligible officers[, and] if [SERB members] cannot in good conscience perform [their] duties . . . without prejudice or partiality, [they] have a duty to request relief . . . from this duty." DPFUF & 4 (emphasis added). Unequivocally, taken as a whole, the MOI standards and expectations are identical for all officers.

   Plaintiffs suggest that the following language also creates a classification: AIn 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. While race and gender conscious, this language again requires no more C or different C action by the SERB than is required for males or any other perceived majority. The MOI itself provides:

   Each [SERB member] is responsible to maintain the integrity and independence of this selection board . . . without prejudice or partiality. . . . 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. . . . Equal opportunity for all officers is an essential element of our selection system. . . . Use the whole person concept 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. . . .

   DPFUF & 4 (emphasis added and text order changed for composite clarity). Clearly, the MOI requires the SERB to limit its consideration to the evidence properly before the SERB, to be fair to everyone, and to consider all individuals using the whole person concept.

   As this Court held in Berkley,

   Taken as a complete document, the Secretary's Memorandum of Instruction does not impose either a racial or a gender classification. . . . This is evident when the plain language of those portions of the Memorandum which specifically mention female and minority officers is considered within the context of the whole text. The Secretary's Memorandum evidences two main goals which are repeatedly articulated throughout the Memorandum. The first goal is to create a process which will result in "equal opportunity for all officers" and, therefore, secure a fair and equal RIF process for all. The second goal is to ensure retention of the best qualified officers in order to meet the needs of the Air Force. . . . The Secretary's Memorandum does not require or encourage a Board Member to aid any officers by artificially boosting their scores.

   Berkley, slip op. at 13-4.

   Lastly, plaintiffs erroneously suggest that the following language creates a classification: "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." It is apparent from the plain language of the MOI that the only requirement was to report facts and that these facts could reflect any outcome, including results that showed minorities and women faring better B or worse B than the SERB average. The only requirement was to report facts following completion of the selection process. The MOI also required the SERB members C senior, experienced officers C to be able to certify in the same report, upon their oath, that the officers recommended for retention were the best qualified in the opinion of the SERB members who were directed to act "without prejudice or partially." DPFUF & 4. There is no basis for inferring that the reporting requirement was anything more than it appears to be C a mechanism for providing demographic information to the Air Force's senior leadership.

   Plaintiffs' suggestion that the reporting requirement might influence the SERB members to give an unfair advantage to minorities and women is without support in the record. It is not unconstitutional to collect statistical data "to ensure that no person is denied equal employment opportunity." Sussman v. Tanoue, 39 F. Supp 2d 13, 25 (D.D.C. 1999); see also United States v. New Hampshire, 539 F.2d 277 (1st Cir. 1976). As this Court held in Berkley,

   The simple collection of data does not place a burden or benefit on a single class of persons and, therefore cannot be considered a suspect classification. See Hondale v. Univ. of Vermont, 56 F. Supp. 2d 419, 428 (1999).

   In addition, the language of the Secretary's Memorandum directs the Board to compile a report regarding "all officers considered by the Board." The use of the past tense "considered" in the Memorandum of Instruction indicates that the report was to be prepared after the completion of the review of all eligible officers' records. There is no instruction in the Secretary's Memorandum to keep a running tally of the race or gender of officers who were selected. Moreover, the memorandum did not instruct the Board members to make any adjustments to their selections following the analysis and preparation of the report. Therefore, the report had no effect on the process of selecting officers to be separated. Because the order to compile a report only required the gathering of information and did not affect the RIF process, it did not bestow a benefit or burden based on a suspect class. . . .

   Berkley, slip op. at 22. Likewise, during the July 20, 2000 preliminary status conference in this case, the Court suggested,

   if I were the Secretary of the Air Force, . . . I would want to know if the makeup of my force corresponded to the makeup of our society from which that force was drawn. . . . So therefore I do need statistics. But that's 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. They are told instead, "I want the best person possible."

   Tr. at 24-25.

   In short, it is apparent that the MOI requires all officers considered by the SERB to be considered upon the basis of evidence properly before the SERB; and that they be treated fairly and impartially, that they not be disadvantaged by prejudice or partiality, and, if they are best qualified, that they be recommended for retention. As we explained in our opening brief, the sentences upon which plaintiffs rely C both standing alone and in their original context C do not direct SERB members to give a preference to anyone. Rather, both the sentences and the MOI as a whole instruct SERB members to treat everyone equally. We reiterate: the MOI directs 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; see also Berkley, slip op. at 14. Although our opening brief discussed these instructions, which constitute orders given to military officers, plaintiffs chose not to address them.

3. Plaintiffs Must Prove That The MOI Imposed Either A
   Racial Or Gender Classification Before The Court
   May Apply Strict Or Heightened Judicial Scrutiny

   Adarand and its progeny hold that the Government implicates the Equal Protection Clause C and is thus subjected to strict scrutiny C only upon proof that it imposed a racial classification and that plaintiffs bear the burden of demonstrating the imposition of a racial classification. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222, 227 (1995); Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998). Similarly, the Government is subjected to heightened scrutiny only upon proof that it imposed a gender classification. United States v. Virginia, 518 U.S. 515, 532-33 (1996).

   Notwithstanding the overwhelming case law to the contrary, plaintiffs declare that the Court may apply strict scrutiny even if they fail to prove that the MOI imposed a racial classification. Plf. Br. at pp.5-8. In short, plaintiffs state that the Supreme Court twice referred to racial classifications as "race-based measures" and they rely upon this to conclude that any race-conscious measure must be subjected to strict scrutiny, regardless of whether it constitutes a racial classification.

   Plaintiffs first cite Richmond v. J.A. Croson Company, 488 U.S. 469 (1989), a case that the Supreme Court decided six years before Adarand. Plf. Br. at 8 n.1. In Croson, the Court explained that Governmental racial classifications, once identified, must be subjected to strict scrutiny because,

   Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are >benign= or >remedial= and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. . . .

   Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.

   Croson, 488 U.S. at 493 (emphasis added) (citation omitted).

   Next, plaintiffs cite Adarand Constructors, Inc., v. Slater ("Adarand II"), 528 U.S. 216, 120 S. Ct. 722 (2000), in which the Supreme Court revisited the facts underlying its original Adarand decision. As plaintiffs quote in their brief, the Court summarized its original holding as follows: "Because [the Department of Transportation's] use of race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard." Adarand II, 120 S. Ct. at 724; Plf. Br. at 7. Plaintiffs, however, omit the preceding sentence: "The Tenth Circuit, applying the so-called intermediate scrutiny approved in some of our cases involving classifications on a basis other than race . . . upheld the use of the clause. . . ." Id. (emphasis added) (citations omitted).

   Notably, the term "race-based measure" appears only once in the entire 76-page original Adarand opinion C in a quotation from Croson, upon which the Supreme Court relied to conclude that a post-Croson case was wrongly decided and that "strict scrutiny of all governmental racial classifications is essential." Adarand, 515 U.S. at 226 (emphasis added). Furthermore, the Supreme Court in Adarand did not adopt an alternative race-based measure standard based upon Croson. Instead, the Supreme Court relied upon Croson to establish several "general propositions with respect to governmental racial classifications." Adarand, 515 U.S. at 223 (emphasis added). Notwithstanding plaintiffs' declaration to the contrary, the Court is not to apply strict scrutiny to the MOI unless and until plaintiffs prove the MOI imposed a racial classification, i.e., "a government standard, preferentially favorable to one race or another, for the distribution of benefits." Raso, 135 F.3d at 16, quoted in Berkley, slip op. at 9.

   Plaintiffs' additional suggestion that they need only demonstrate that the MOI is a gender-based measure in order to invoke heightened scrutiny is also an incorrect statement of the law. In support of their suggestion, plaintiffs quote the following from Virginia: "Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification for that action.'" Virginia, 518 U.S. at 531. The quotation, however, pertains to the evidence necessary to justify Government action after it has been proven that the Government's action constituted a gender classification, not to the proof required to initially implicate the Equal Protection Clause. Moreover, the quoted text appears at the end of a paragraph, comprised of a single sentence, summarizing the Supreme Court's holdings in two earlier cases. Neither the quotation nor the remainder of the Virginia opinion contain the term "gender-based measure." In short, Virginia makes clear that plaintiffs must prove that the MOI imposed a gender classification before the Court applies heightened scrutiny. See Berkley, slip op. at 9.

4. Plaintiffs Have Failed To Distinguish
   
   The Cases Raised In Support Of Our Motion
   1. Allen And Hayden
      Plaintiffs argue that Allen and Hayden v. County of Nassau, 180 F. 3d 42 (2d Cir. 1999), are irrelevant to this case for two reasons. First, plaintiffs assert that those cases dealt with the "evaluation" of examinations, not the creation of examinations or their content. Second, the examinations at issue in those cases, though race-conscious, did not mention race or gender, as opposed to the MOI, which plaintiffs allege is facially defective because of its explicit references to both race and gender. Plaintiffs are mistaken as to their first assertion, and their second does not distinguish this case from Allen and Hayden.

      Contrary to plaintiffs' first assertion, Allen and Hayden each involved challenges to both the creation and the content of an examination. Allen, 164 F.3d at 1353; Hayden, 180 F.3d at 49. In making their second assertion, plaintiffs appear to suggest the examinations in Allen and Hayden were facially neutral because they did not expressly refer to race or gender. This reduces the issue of facial neutrality to the search for a shibboleth and deprives it of all meaning. Whether an examination (or an instruction to a SERB, or any governmental action) expressly mentions race or gender does not answer the question of whether that action creates a race or gender classification. A court may hold to be facially neutral an action that expressly refers to race or gender. Likewise, a court may hold to be facially defective an action that mentions neither race nor gender. What matters is whether the language of the MOI distributes a benefit, or imposes a burden, upon the basis of race or gender, not whether it contains certain talismanic words.

      Allen is directly applicable to this case. The Allen defendants were race conscious in developing their examination, just as the MOI's language demonstrates the Air Force was race and gender conscious in developing its MOI. But, as we explained above and in our opening brief, the Air Force was race and gender conscious to ensure equal consideration to all officers. Hence, the Air Force's race and gender consciousness does not constitute a racial or gender classification. Allen, 164 F. 3d at 1353 ("[E]very antidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under a statute, reflects a concern with race. That does not make such enactments or actions automatically 'suspect' under the Equal Protection Clause."). Likewise, the court in Hayden noted that its plaintiffs (like plaintiffs in this case) were "mistaken in treating 'racial motive' as a synonym for a constitutional violation." Hayden, 180 F. 3d at 49. The desire to "diminish the adverse impact on black applicants," the court held, "in and of itself, . . . does not constitute a 'racial classification.'" Id. at 48. Hayden, like Allen, thus bears directly upon the issue of whether the MOI is facially neutral. See Berkley, slip op. at 10-11 (discussing the relevance of Allen and Hayden).

   2. Raso And Monterey Mechanical
      Plaintiffs next discuss Raso v. Lago, 135 F.3d 11 (1st Cir. 1998), and again appear to confuse the factual inquiry into whether Government action is expressly race conscious with the ultimate determination of whether that action constitutes a racial classification. Raso involved the West End of Boston, Massachusetts, which was an area populated mostly by white residents. The State took parts of the West End by eminent domain to effect urban renewal. The Raso plaintiffs, who were former West End residents, brought suit alleging that the Department of Housing and Urban Development ("HUD") imposed a racial classification by curtailing an existing Massachusetts statute entitling them C as displaced former residents C to a preference for tenancy of all new residential units built upon the renewed land. Raso, 135 F.3d 12-13, 15-16. HUD admittedly curtailed the statutory preference because it disparately impacted minorities. Id. at 13-14. Nevertheless, the court held that, "[d]espite the use of the 'racial classification' label, the [plaintiffs'] complaint alleges no facts that would bring that label into play." Id. at 16 (citation omitted). As it explained,

      [t]aken by itself, HUD's action in this case is almost the opposite of the racial preferences that the [Supreme] Court viewed as questionable in Adarand and the redistricting cases. Here, [all the Government did was require] apartments C which otherwise would have almost automatically been occupied by whites C be made available to all applicants on a race-blind basis.

      Id. at 17. Therefore, like Allen and Hayden, Raso teaches that the Government does not impose a racial classification by being race conscious in order to ensure equal opportunity. Raso, 135 F.3d at 16-17. Our principal brief cites Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), for three propositions: (1) not all race conscious Government actions are subject to strict scrutiny; (2) strict scrutiny does not apply unless the Government imposes a racial classification; and (3) for there to be a racial classification, the Government must distribute a benefit or impose a burden based upon race. Plaintiffs do not contest that Monterey Mechanical stands for any of these propositions.

      In Monterey Mechanical, the Government required "general contractors to subcontract percentages of the work to minority, women, and disabled veteran owned subcontractors, or demonstrate good faith efforts to do so." Monterey Mechanical, 125 F.3d at 704. The court properly held that the Government imposed a racial classification because it imposed a burden based upon race and gender ("[o]nly those firms not minority or women owned must advertise to those respective groups"), and also distributed a benefit based upon the same criteria ("only minority and women owned firms are entitled to receive the bid solicitation"). Id. at 711. Monterey Mechanical does not suggest that the MOI in this case imposes a racial or gender classification, however, because the MOI did not require the distribution of a benefit or the imposition of a burden upon the basis of race or gender. The MOI is race conscious only to aid equal consideration for all officers. Raso, 135 F.3d at 16 ("we [have not] been able to find any case where the government has been required to show a compelling interest, or narrow tailoring of remedies, for a condition framed so as to secure equal treatment of applicants regardless of race.")

   3. Baker
      In our opening brief, we discussed this Court's opinion 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). As we explained, this Court's analysis of the MOI's facial neutrality in Baker, though vacated, remains persuasive because it is consistent with Adarand, Allen, Hayden, Raso, and Virginia. Def. Br. at 11-12. Plaintiffs do not address the substance of this Court's analysis in Baker or provide a basis upon which the Court could hold that is inconsistent with existing case law.

      After this Court rendered its decision in Baker, the Government withdrew a declaration that it submitted as evidence before the Court of Federal Claims. Baker, 127 F.3d at 1088. For this reason, the Federal Circuit vacated the Court of Federal Claims' decision and remanded the case. Id. Within dicta, the Federal Circuit stated that the MOI "on its face permitted, and even encouraged, if not actually commanded, . . . leveling through discounting." ⁴ Without identifying this statement as dictum or offering a basis to accept it as persuasive authority, plaintiffs ask the Court to rely upon it to hold that the MOI constitutes both a racial and a gender classification. Plf. Br. at 20-23.

      "A dictum is a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding C that, being peripheral, may not have received the full and careful consideration of the court that uttered it." Sarnoff v. American Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986) (Posner, C.J.). The Federal Circuit's opinion in Baker is divided into seven sections, each prefaced by a roman numeral. The first five sections discuss the facts of the case and the trial court's decision. The sixth section discusses the oral argument before the Federal Circuit and contains the quotation upon which plaintiffs rely. The seventh, and last section, contains the court's holding; namely, the summary judgment granted in favor of the government by the trial court cannot stand given the withdrawal of one of its factual foundations. Baker, 127 F.3d 1088-89. The Federal Circuit's discussion of the MOI in the sixth section of Baker, therefore, is dicta because it could have been deleted without at all impairing the analytical foundations of the court's holding. See Berkley, slip op. at 16-17 ("the appellate court in Baker focused its attention on evidentiary matters, not on reviewing the words of the Memorandum of Instruction").

      Because the Federal Circuit's comments constitute dicta, they should not form the basis of this Court's ruling upon the MOI. As Chief Justice Marshall explained,

      [i]t is a maxim, not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in the subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.

      Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 398-99 (1821) (emphasis added), quoted in, United States v. Zuskar, 237 F.2d 528, 532 (7th Cir. 1956), and Valmonte v. INS, 136 F.3d 914, 920 (2d Cir. 1998). Similarly, the Second Circuit stated:

      We acknowledge that not every observation contained in an opinion of this Court deserves to be regarded as the law of this Circuit. Opinion authors frequently express thoughts peripheral to the holding of a case, and these thoughts do not bind the Circuit, or even the concurring judges on the panel. If every phrase in an opinion were accorded binding effect, there would be a tendency either to refine language with such meticulous care as to imperil the prompt disposition of the Court's work or to reduce opinions to bare pronouncements of holdings. The latter course might be welcomed by some members of the bench and bar, but it would be inconsistent with the time-honored tradition of crafting opinions that seek not only to pronounce results but also to explain reasoning, to stimulate informed commentary, and, on occasion, to provoke future consideration of emerging issues.

      United States v. Oshatz, 912 F.2d 534, 540 (2d Cir. 1990) (emphasis added); accord Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed. Cir. 1994) ("we are unwilling to give stare decisis effect to a matter that we did not fully consider and that was not before us in the prior case").

      In summary, the issue of the MOI's constitutionality is a matter of first impression for this Court to decide. The Baker opinions matter only to the extent the Court finds them persuasive. We respectfully suggest that this Court's reasoning in Baker is persuasive with respect to the issue of facial neutrality because it relies exclusively upon words of the MOI and the application of controlling precedent to them. Cf. Berkley, slip op. at 17 ("[g]iven the status of the case before it, and by its own description, the Federal Circuit [in Baker] did not perform an equal protection analysis"). ⁵ Beyond that, the Baker opinions have no application.

   4. Christian And Sirmans
      

   Finally, plaintiffs discuss two cases in which this Court and the United States District Court for the District of Columbia considered the United States' Army's selection procedures. Christian v. United States, 46 Fed. Cl. 793 (2000); Sirmans v. Caldera, 27 F. Supp. 2d 248 (D.D.C. 1998). Plaintiffs stress that Christian and Sirmans each held that the Army's selection procedures implicated the Equal Protection Clause. Plf. Br. at 23-24. But plaintiffs fail to mention that the Army's selection procedures challenged in those cases bear little resemblance to the Air Force's selection procedures. Compare Christian, 46 Fed. Cl. at 797-98, and Sirmans, 27 F. Supp 2d at 249, with Small v. United States, 158 F.3d 576, 578 (Fed. Cir. 1998) (discussion of Air Force selection process), amended on reh=g, 180 F.3d 1343 (Fed. Cir.), cert. denied, 120 S. Ct. 64 (1999). In fact, the Court in Christian itself distinguished the Air Force's MOI from the Army's selection procedures. Christian, 46 Fed. Cl. at 804; see also Berkley, slip op. at 18 n.7 (distinguishing Christian). Therefore, any discussion or analysis of the Army's selection procedures is irrelevant to the issue of whether the Air Force's MOI is constitutional.

5. Plaintiffs Are Not Entitled To Summary Judgment

   In order to receive summary judgment, plaintiffs must demonstrate there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Furthermore, plaintiffs, in moving for summary judgment, bear the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Plaintiffs cannot carry that burden.

   The issues in this case are such that while summary judgment in favor of the United States completely resolves the case, it cannot do so in favor of plaintiffs. If the Court finds that the MOI does not constitute a racial or gender classification, there are no remaining issues; that finding alone supports a final judgment for the United States. If, however, the Court were to conclude that the MOI constitutes a racial or gender classification, it would remain for the Court to examine, under the appropriate standard of judicial scrutiny, the Government's justifications for the MOI and its tailoring of the MOI to those justifications. On these matters, were they to be reached, there would assuredly be genuine issues of material fact.

   Plaintiffs cite Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), for the proposition that the United States can never pass judicial scrutiny when its challenged action involves the termination of employment. Plf. Br. at 29-31. Wygant, however, never made such a bold proclamation. Rather, the Wygant Court applied strict scrutiny analysis and held that the Government's action in that case was not narrowly tailored because it could have obtained its objective through hiring goals rather than layoffs. ⁶ Wygant, 476 U.S. at 283-84. The necessity in this case of applying judicial scrutiny to facts that are not yet in the record and to facts that, if reached at all, will undoubtedly be disputed, means that the Court may not award plaintiffs summary judgment.

   CONCLUSION

   For these reasons, we respectfully request the Court grant summary judgment in favor of the United States and deny plaintiffs' motion for summary judgment.

MAJOR JENNIFER GRIMM
Office of the Judge Advocate General
United States Air Force

DAVID M. COHEN
Director



JAMES M. KINSELLA
Deputy Director



LEE J. FREEDMAN
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
1100 L Street, N.W.
Washington, D.C. 20530
Tele: (202) 305-7562
Fax: (202) 305-7643
Attorneys for Defendant

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