AF S.E.R.B. Colonels Class Action

FY94 SELECTIVE EARLY RETIREMENT BOARD
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Updates

AF SERB Class Action Lawsuit

December 16, 2004 Update:
Judge Wiese's Order:

The Fairness Hearing on the proposed Settlement of our case was conducted yesterday afternoon. No Class member requested disapproval of the Agreement. Judge Wiese asked both Class Counsel and Counsel for the Government to summarize the circumstances of the Litigation and the Settlement. The judge then gave final approval to the Settlement Agreement.

As required by the Settlement Agreement, within fifteen days the parties will file a Stipulation for Entry of Judgment. Following that filing, the Court will issue an order directing Entry of Judgment. The Department of Treasury does not transfer Judgment funds until at least sixty days after the entry of a Judgment. As soon as the funds are deposited in my Trust account, the checks will be promptly mailed to each class member. My present estimate of the earliest time that the Trust account would receive the funds is early March.

October 9, 2004 Update:
Mailing:

The court approved Notice of Proposed Settlement of Class Action which includes the Settlement Agreement, the Settlement Participation Form and other relevant information was mailed to all Class Members this afternoon.

If you do not receive these documents by October 15, 2004, please contact me by e-mail: barry.steinberg@kutakrock.com

October 1, 2004 Update:
Judge Wiese's Order:

Judge Wiese has promptly acted on our Joint Motion requesting approval of the proposed Settlement. He has issued an Order that:

I will be mailing each of you the Notice of Proposed Settlement of Class Action which includes the Settlement Agreement, the Settlement Participation Form and other relevant information in the next fifteen days.

If your address has changed since your last contact with me, please advise me by e-mail to: barry.steinberg@kutakrock.com.

September 15, 2004 Update:
Agreement to Settle:

I am very pleased to inform you that an Agreement to Settle our case has been successfully negotiated with the Government. In essence, the Agreement reached provides each and every plaintiff the sum of $65,100.00 in exchange for the Dismissal with Prejudice of all claims regarding the conduct of the Selective Early Retirement Board.

Settlement of a Class Action lawsuit, however, is a complex matter, even when the proposed Settlement is relatively simple. Because this case is a Class Action, any Settlement requires approval by the Court. The standard the Court applies is whether the Settlement is fair, reasonable and adequate.

Before the Court makes such a determination, it must ensure that a proper Notice of the proposed Settlement has been sent to each class member and that the class members are given an opportunity to present their views on Settlement. A Court usually makes the final determination on a Class Action Settlement after conducting a Hearing, often called the Fairness Hearing.

A Joint Motion was filed with the Court today submitting the Settlement Agreement and requesting that the Court:

If this Motion is granted, each of you will be sent the proposed notice and detailed information about how to express your views on the settlement.

Even if everything goes very smoothly, there will be a period of months before the Settlement process can be completed. Moreover, after the approval process is completed and a Judgment is entered, the United States Treasury does not pay such judgments until at least sixty days after the date the judgment is entered..

May 22, 2004 Update:
Harmless Error Board Notice

On May 17, 2004, the Air Force Personnel Center began sending a letter to all class members announcing that a Special Board would be convened on June 22, 2004, to review class members' records as they appeared at the original Selective Early Retirement Board. The letter is conspicuously silent with respect to the exact procedures to be used by the Board and sheds no light on the actual harmless error process that the Secretary is using. It does appear that in reconstructing the records for the Board, not all files contain what was supposed to be included in the files to be submitted to the Board. Some Class Members will receive a letter asking them to provide missing documents.

I am sending a letter to the Department of Justice attorney who is handling this case objecting to the approach being taken to address incomplete files and requesting information that would inform Class Members of the process being followed. Specifically, I am requesting information that would indicate what standard or scoring process will be applied to determine whether there was harmless error as to an individual Class Member in the conduct of the original Board. When I receive a response, I will update this web site.

April 5, 2004 Update:
Supreme Court Order

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

February 27, 2004 Update:
Posted March 8, 2004

On February 20, 2004, Judge Wiese issued the expected order remanding the case to the Secretary of the Air Force. The substantive portions of the order provide as follows:
  1. The Secretary of the Air Force shall ascertain the particular plaintiffs from among those listed in the parties February 13, 2004, status report [all 103 of the individuals who opted in as plaintiffs], if any, as to whom it can be shown by a preponderance of the evidence that they would have been involuntarily retired by the original Fiscal Year 1994 Selective Early Retirement Board operating under instructions that did not include unconstitutional racial and gender classifications.

  2. On or before August 20, 2004, defendant shall file the report of the Secretary of the Air Force which shall explain the results of the Secretary’s review. The review shall include a statement as to whether the Secretary concluded that a process that would identify by a preponderance of the evidence those individuals who would have been involuntarily retired by the original Fiscal Year 1994 Selective Early Retirement Board operating under instructions that did not include unconstitutional racial and gender classifications was possible, and, if so, both a description of the process identified and the administrative record of that process.

  3. During this period of remand, all proceedings in this action shall remain suspended.
In light of the above, we don’t expect to be informed of any developments in regard to the case until late August.

Oct. 13, 2003 Update:
Remand to Secretary of the Air Force

At a status conference held in October 9, 2003, Judge Wiese denied our request for a briefing schedule on the remedial phase of this litigation. However, the judge also stated he would promptly certify the case as a class action. Finally, he noted that after the completion of the process of notifying class members of their right to opt-in as plaintiffs, he would remand the proceedings to the Secretary of the Air Force for initial determination of the plaintiffs who were harmed by the race and gender classifications imposed upon the Selective Early Retirement Board, as permitted in the Federal Circuit decision in Christian v. United States. We expect Judge Wiese's certification order to be issued shortly. The remand is unlikely to take place until early next year.

Meanwhile, the plaintiffs in the Christian litigation have announced their intention to request Supreme Court review of the adverse Federal Circuit decision on remedies by filing a "Petition for a Writ of Certiorari." They have 90 days from October 3rd to submit their Petition. The Supreme Court will only review the decision if four or more of the nine Justices vote in favor of review. This action has no impact upon our case unless the Supreme Court grants the petition and reverses the Federal Circuit decision.

Oct. 7, 2003 Update:
Update Regarding Christian Decision

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

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

Sept. 29, 2003 Update:
Impact of Christian Decision

As previously posted, on 29 July 2003, the United States Court of Appeals for the Federal Circuit in Christian v. United States overturned the lower court decision pertaining to harmless error in that challenge to an Army selective early retirement board. The Appellate Court ruled that the Secretary of the Army will be permitted to determine which of the plaintiff officers would have been retired even had there been no impermissible instructions to the board. The Department of Justice has asked the Judge in our case, based on the Christian ruling, to remand the proceedings in this case to the Secretary of the Air Force for his creation and application of a harmless error process to determine which, if any, plaintiffs may be entitled to relief. We have asserted that remand is inappropriate at this time for two reasons:
  1. The government waived the presentation of a harmless error defense by failing to raise the defense prior to the entry of summary judgment as to liability; and

  2. Even if remand were found to be appropriate, the Court should instruct the Secretary of the Air Force on what the minimum requirements are for a harmless error analysis addressing the violation constitutionally protected equal protection rights.

In a telephone conference call the Judge indicated he would probably summarily remand the case to the Secretary of the Air Force for action consistent with Christian. However, he is according the parties the opportunity to present oral argument on this issue the week of October 10th.

July 29, 2003 Update:
Federal Circuit Decides Christian

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

Christian v. United States: Updated

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

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

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

June 23, 2003 Update:
University of Michigan Opinions

In two important decisions, the Supreme Court today addressed the issue of affirmative action in educational settings.

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

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

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

January 16, 2003 Update:
University of Michigan Opinions

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

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

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

January 4, 2003 Update:
Latest Briefs in PDF1 Format

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

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

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

November 21, 2002, Update:
Current Status:

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

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

September 9, 2002:
Update:

A status conference was held September 5, 2002 at which Judge Wiese listened to descriptions of both our position and that of the Government on what a "harmless error" test would consist of, assuming such a test were to be applied in our case. The government asserts that a new board with corrected instructions would be sufficient. If such a board were to select the same individual for early retirement as was selected by the original board, that officer would be deemed not to have been harmed by the defective instruction and would receive no relief or other remedy from the lawsuit. It is our position that a "harmless error" test is only adequate if it establishes to a certainty what the original board would have determined if it had not been given the constitutionally defective instructions. Judge Wiese decided not to render a decision on the issue at this time, but rather to await the resolution of an interlocutory appeal now before the United States Court of Appeals for the Federal Circuit (Christian v. United States) in which the sole issue is the application of harmless error analysis to military selection boards. Accordingly, he is staying our case until resolution of the Christian case. In light of the importance of that appeal to our case, we are requesting to participate in it on your behalf as an amicus curiae.

The time line for this appeal is uncertain. Briefing schedules have not been set. It is unlikely that the Federal Circuit will rule on this matter in less than six months, and whichever side is unsuccessful is likely to appeal the matter further.

August 9, 2002:
Update:

After a long wait, some significant events have happened in regard to our case in recent weeks. As most of you know, last August Judge Wiese rendered a decision in which he agreed with our assertion that the instructions given the selective early retirement board constituted race and gender classifications which must be subjected to special judicial scrutiny. Judge Wiese stayed (i.e. delayed) our case, however, pending appellate court action in a related case. That case, Berkley v. United States, challenged the use of the same race and gender conscious board instructions in the Fiscal Year 1993 Reduction-In-Force Board. The trial court in Berkley had determined the instructions were race and gender neutral and that decision had been appealed. That decision was reversed on April 17, 2002 by the United States Court of Appeals for the Federal Circuit.

That good news was followed in early June, 2002, by word that the Solicitor General determined that the United States would not appeal or request rehearing of the United States Court of Appeals for the Federal Circuit decision in Berkley. As a result, the determination by the appellate court that the affirmative action instruction to the Reduction in Force Board constitutes a racial and gender classification is the law within the jurisdiction of the Federal Circuit. Since the exact same language is at issue in our case that decision is now binding on our court, which had already reached the same conclusion. Both the appellate decision and Judge Wiese's earlier ruling contemplated giving the Government the opportunity to show that there were constitutionally adequate reasons for the introduction of race and gender based procedures. The Government, however, has now informed Judge Wiese that it will not seek to defend its use of the classifications. Based upon that action we asked Judge Wiese to enter summary judgment for the plaintiffs. Judge Wiese granted that request July 26, 2002. The case will now focus on how to determine the appropriate relief. Judge Wiese has directed the Government submit a memorandum addressing that issue.

What relief would be appropriate in this case will be a highly contested matter. The Government takes the position that a "harmless error" analysis is required. If the Government view is accepted by the Court, some form of process would be developed to ascertain who would have been selected for separation without the unconstitutional instructions. These plaintiffs would receive nothing on the theory that the error was "harmless" as to them. We adamantly oppose this approach and a Court of Federal Claims Judge in a similar suit challenging an Army board has rendered a decision that supports out view. However, trial court judges are not required to treat each other's decisions as binding precedent. Binding precedent is created by appellate courts. In our view the unconstitutional instructions compromised the fundamental integrity of the board process rendering the entire process void and entitling all plaintiffs to constructive retroactive active duty credit for all purposes including back pay and missed promotion opportunities. In addition, as a practical matter we believe it will be impossible for the government to propose any "harmless error" process that isn't defective because the ranking of all files, including the retained benchmark files was affected by the unconstitutional instructions. Meanwhile, the Army case on "harmless error" is pending interlocutory appeal before the United States Court of Appeals for the Federal Circuit. It is likely to take many months for that appeal to be resolved.

We anticipate our case will now initially focus on whether, assuming a "harmless error" analysis theoretically is applicable, there is any way the Air Force could actually conduct such an analysis that would identify with certainty those individuals who would still have been selected for involuntary early retirement. We do not believe this is possible.

April, 2001:

Our entire site is moving to this new domain. The AF SERB pages begin on http://www.bpsrss.net/afserb_intro.html

Some of the individual pages (files) have also been renamed, so please update your bookmarks when you visit each page.

January 29, 2001 Update:
Regarding Brief filed by Plaintiffs

PLAINTIFFS' REPLY TO DEFENDANT'S OPPOSITION
TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
(Plaintiffs' Reply Brief)

December 20, 2000 Update:
Regarding Brief filed by Defendant

DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND RESPONSE
IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
(Defendant's Reply Brief)

October 17, 2000 Update:
Regarding Brief filed by Defendant

DEFENDANT’S PROPOSED FINDINGS OF UNCONTROVERTED FACT

October 17, 2000 Update:
Regarding Brief filed by Defendant

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

June 13, 2000, Update:

In the course of a lawsuit most matters which require Court action are procedurally handled through motions. Whenever a motion is filed the party filing the motion must include a supporting memorandum. The other party then has the right to express its views on the motion by filing an opposition. Finally, the party that initiated the motion may respond to the opposition with a reply brief.

On May 25, 2000 the Department of Justice (DOJ) filed its opposition to our motion for class certification [Motion to Certify...] and also requested the Court stay (delay) acting upon the class certification motion until after the Court rules on a dispositive motion DOJ plans to file. [Motion to Stay and Opposition to Class Certification]

On June 7, 2000 we filed a brief containing our opposition to the DOJ stay request and our reply to their opposition to the class certification motion. [Plaintiffs' Reply to Defendant's Opposition...] Pursuant to the Court’s general scheduling order, dispositive motions may not be filed until after counsel appear before Judge Wiese for a status conference. That conference is scheduled for July 20, 2000. The only likely development between then and now is that the DOJ will file its reply to our opposition to the stay request.

At the status conference we are likely to learn how the Court will proceed in regard to the two pending motions (for example, the Judge may schedule oral argument or he could simply render decisions based upon the briefs) and how he wishes to schedule briefing on dispositive motions.

Often in military personnel law cases in the Court of Federal Claims both parties file motions for judgment upon the administrative record. Basically, each party requests that the Court render judgment in its favor based upon the information contained in the official records of the challenged action. That is very likely in this case.

April 3, 2000, Update:

The Department of Justice has requested an additional period of delay before responding to the complaint. The basis of the request pertains to other cases pending, not this case. Given that they have had far more than the 60 days allowed by the Federal Rules to reply, we have indicated our opposition to any such request. I expect DoJ to file a request to the Court this week (3 April 2000) and we will respond quickly and in opposition.

February 29, 2000, Update:

The United States, represented by the Department of Justice, has a deadline of 18 April 2000 to respond to the allegations in the complaint, or otherwise file its answer.

Under construction

AF S.E.R.B. Feedback Form temporarily not working.

Links:

Updates Intro Page Complaint --- ---
Instructions Motion to Certify Motion to Stay 6/7/00 Reply 10/17/00 Motion
Def's Uncon. Fact 12/20/00 Reply 1/29/01 Reply Memorandum ---

AF COLS SERB Intro --- Updated: 6/22/05

Contact:
COL (Ret) Barry P. Steinberg
barry.steinberg@kutakrock.com
or, bps@bpsrss.net 		COL (Ret) William A. Aileo
aileo@epix.net