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Christensen v. United States
May 24, 2005 Update:
Court Approves Settlement: Judge Lettow has issued an Opinion and Order giving final approval to the Settlement Agreement in our case. 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 August.
MICHAEL CHRISTENSEN, ET AL., v. THE UNITED STATES
You can also go to United States Court of Federal Claims and read the Opinion at that web site.
(00-355C)
Settlement of a class action; final approval; RCFC 23(e)
February 8, 2005 Update:
Fairness Hearing: The Fairness Hearing on the proposed Settlement of our case was conducted February 7th. Judge Lettow expressed favorable views of the Settlement, but indicated he had other cases to address before he renders his formal Decision in our case.We anticipate the Court will approve the Settlement. When that happens, 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.
December 17, 2004 Update:
Settlement Documents Mailed: The Court approved Notice of Proposed Settlement of Class Action which includes the Settlement Agreement, the Settlement Participation Form, and other relevant information has been mailed to all Class Members; and the majority of you have already replied.If you have not received these documents, please contact me by e-mail: barry.steinberg@kutakrock.com at your earliest convenience. The Settlement Participation Forms must be received by January 3, 2005, to be included in the Report to be filed with the Court.
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.
- preliminarily approve the Settlement;
- approve a proposed Notice of the Settlement to be sent to all class members; and,
- schedule a Hearing at which the Court would determine whether the Settlement is fair, reasonable and adequate.
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..
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.
March 29, 2004, Update:
Opinion and Order On 23 March 2004, Judge Lettow ruled that the Secretary of the Air Force, on remand, will have an opportunity to conduct a harmless error test. He has established a standard which will be applied by the Court to determine if the Secretary's individual determinations of harmless error are supported by substantial evidence showing that the error was truly harmless. In this regard, Judge Lettow has determined that the Secretary's obligations on remand may not be delegated to a special selection board that would make a fresh analysis.We have not been apprised of what procedure the Air Force intends to use to satisfy the terms of the remand. The opinion of the Court can be found at: http://www.uscfc.uscourts.gov/2004.htm.
Our copy of the Opinion and Order is below:
LETTOW.Christiansen.pdf
The PDF files above require Adobe Acrobat Reader® for viewing (free software).
March 21, 2004, Update:
Awaiting Decision Judge Lettow heard oral argument on our Motion for Summary Judgment as to Remedies on January 21, 2004. We have argued that notwithstanding the determination by the United States Court of Appeals for the Federal Circuit in Christian v. United States, it is not possible for the Secretary of the Air Force to satisfy his burden in performing a harmless error test. He listened carefully to both sides and at the end of the hearing, he indicated he intended to do a substantial amount of reading of the authorities referenced in the briefs before rendering his decision. As soon as Judge Lettow issues his decision we will post it here.Meanwhile, as expected, in the Army litigation, Christian v. United States, the plaintiffs filed a Petition for a Writ of Certiorari and the government filed an opposition. The Supreme Court is scheduled to decide whether or not to grant the Writ (i.e., hear the appeal) early in April.
Oct. 14, 2003 Update:
Motion for Summary Judgment..., and Plaintiffs' Proposed Findings... in PDF format You may download the following here:PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS TO REMEDIES
(in Christensen)PLAINTIFFS’ PROPOSED FINDINGS OF UNCONTROVERTED FACT
(Supporting Proposed Findings)
The PDF files above require Adobe Acrobat Reader® for viewing (free software).
Oct. 13, 2003 Update:
Motion for Summary Judgment as to Remedies We have filed a Motion for Summary Judgment as to Remedies. A copy of the motion and supporting brief will be posted shortly. Briefing on this motion and the government response to it will not be completed until January, 2004.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:
- 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
- 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.
Our case is now assigned to Judge Littow. He has entered an order providing the following schedule for briefing on these issues:
- We submit ourr Motion and brief on or before 10/15/2003;
- The government submits its response and any Cross Motion on or before 11/14/2003;
- We submit or reply, if any, on or before 12/15/2003; and
- The government submits its reply, if any, on or before 1/7/2004.
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:
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.
April 10, 2003 Update:
PLAINTIFFS'SUPPLEMENTAL STATUS REPORT The U.S. Court of Appeals for the Federal Circuit held oral argument in Christian v. United States on April 9th. As you will recall from earlier postings, this is an appeal of the Court of Federal Claims decision holding that the constructive service doctrine and not an after the fact harmless error proceeding is applicable to determining the relief to be accorded the officers challenging the conduct of the 1992 Army Lieutenant Colonel Selective Early Retirement Board. Both the Alvin and Christensen cases are expressly stayed pending the Federal Circuit's decision in Christian.The parties were limited to fifteen minutes per side, the normal amount of time given in this court. It is usually extremely difficult to attempt to predict the likely results of an appeal based upon the questioning in oral argument, particularly such a brief session. That definitely was the case in this argument. You may recall that Judge Wiese, in the Alvin case, gave every indication in his statements from the bench that he would rule for the government. Notwithstanding those clear indicators, he granted summary judgment for the Alvin plaintiffs.
Some of the questioning indicated discomfort with the possibility that providing constructive service to all plaintiffs without regard to whether or not they were harmed by the instruction, and with the prospect of according relief to the class action plaintiffs when there were others who were also involuntarily retired but who were not class members. This issue was highlighted with questions from Judge Prost, who focused on the fact that only white males were class members. On the other hand, it appeared that the judges were concerned about the lack of any real definition of what it was the government intended to do in order to determine harmless error in the event they were successful on the appeal. Perhaps the most favorable indications from our perspective arose at different points when panel members appeared receptive to the position that a proceeding conducted in violation of Constitutional rights constituted conduct as fundamentally disturbing as the violation of statute dealt with in Court precedent that rejected application of harmless error.
The common practice following oral argument is for the judges to meet in private and vote and then to start the process of drafting a decision. In the best of times it is usually months, not weeks, before a decision is formally announced. It is at least theoretically possible that a decision will be delayed even further in Christian if the judges wish to delay until after the Supreme Court renders a decision in the University of Michigan Affirmative Action case in which arguments were conducted last week. Based upon a question asked in that argument by Justice O'Conner, who is widely regarded as the swing vote on the issue, it appears possible that that decision could discuss harmless error.
* The PDF file above requires Adobe Acrobat Reader® for viewing (free software).
January 16, 2003 Update:
Latest Briefs in PDF Format 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, 2002BRIEF 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).
Press Reload/Refresh for updates. --- Updated: 6/22/05
Contact:
COL (Ret) Barry P. Steinberg
barry.steinberg@kutakrock.com
or, bps@bpsrss.netCOL (Ret) William A. Aileo
aileo@epix.net
