Christensen v. United States

In Fiscal Year 1994 the Air Force conducted two selective early retirement boards that selected colonels for involuntary retirement. The first was identified as the "FY94 SERB" the second was labeled the "FY94B SERB." Both SERBs are subject to judicial challenges. The litigation challenging the FY94 SERB has the case name Alvin v. United States and United States Court of Federal Claims case number 99-1011C, it is not the subject of this website. [ALVIN] The litigation challenging the FY94B SERB has the case name Christensen v. United States and United States Court of Federal Claims case number 00-355C. Colonels selected for involuntary retirement by the FY94B SERB were retired on or about October 1, 1994.

The complaint challenging the FY94B SERB was filed on June 22, 2000, on behalf of Colonel (Ret) Michael Christensen and three other affected officers. It alleges that the FY94B SERB denied to the Air Force officers considered by that Board their constitutional right to equal opportunity for retention on active duty. The Equal Opportunity Instruction required the FY94B SERB members to give special retention consideration to minorities and women. The instruction required a written numerical report to the Secretary of the Air Force and the Chief of Staff of the Air Force concerning the performance of this task. The instruction and report are the bases for the lawsuit.

The case was filed as a class action lawsuit in order to protect the rights of all officers selected for involuntary retirement by the FY 94B SERB. Most of the officers selected by this Board separated from active duty on October 1, 1994. The Statute of Limitations to bring an action against the United States pertaining to this matter is six years from date of separation. However, the effect of the class action filing is to stop the Statute of Limitations from running for all officers who retired within six years of the date of the filing of the lawsuit. For those who retired more than six years before the lawsuit was filed, the Statute of Limitations may preclude their participation in the lawsuit unless there is a basis to toll the Statute from running. Plaintiffs' counsel, COL (Ret) Barry P. Steinberg, Washington, D.C., Attorney of Record for Plaintiffs and COL (Ret) William A. Aileo, Of Counsel, are counsel for the named plaintiffs.

The issue involving the affirmative action instruction given to the SERB Board has been raised in other courts. Each of the military services has given some form of this instruction since the early 1990's. It has been challenged several times and to the best of our knowledge in each instance, the cases were settled before there was a final resolution of the constitutionality of the instruction. The leading case in this matter, Baker v. United States, resulted in a written opinion from the United States Court of Appeals for the Federal Circuit. [BAKER] There is presently pending in the Court of Federal Claims a similar suit, Berkley v. United States, involving the Air Force FY 93 Reduction in Force Board. [BERKLEY]

The principal events in this litigation to date include:

• On April 9, 2001 the Court issued a published decision certifying the case as a class action.

• Pursuant to the Court's class action certification the Air Force provided us addresses and each individual involuntarily retired by the FY94B SERB was given the option to opt in as a plaintiff. One hundred individuals elected to opt-in and there are now a total of 104 plaintiffs.

• On April 17, 2002 the United States Court of Appeals for the Federal Circuit issued an opinion in the Berkley case reversing the Court of Federal Claims decision. In essence, the majority decision held that the race and gender measures imposed on the Berkley RIF board were race and gender classifications which must be reviewed pursuant to the strict and heightened scrutiny standards and not the deferential rational basis test applied by the Court of Federal Claims.

• In June, 2002, the Solicitor General of the United States determined that there would be no appeal of the April court of appeals decision in Berkley. Since the FY94B SERB was given the same race and gender conscious instructions as the Berkley RIF this meant that the AF would have to meet the strict and heightened standards in our case.

• In July the Department of Justice informed the Court that the Air Force would not seek to meet the judicial scrutiny standards applicable to the SERB's use of race and gender conscious procedures. We requested that the Court enter summary judgment on our behalf as to liability. On July 26, 2002, the Court ordered the entry of summary judgment for the plaintiffs as to liability. The Court also ordered that the case be stayed (delayed) pending resolution of the interlocutory appeal in the case Christian v. United States (Court of Federal Claims No. 97-165), a challenge to an Army SERB. The Christian case will determine whether retroactive "harmless error" tests may be used when a military selection board has been given constitutionally defective instructions. If the Government view on "harmless error" prevails, 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. 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. It may easily take a year for us to know the results of the Christian case.

This web site will be maintained with links to relevant information and new developments as they arise. It will also be a means to post pleadings and orders as they are submitted by counsel and issued by the trial judge. This web site is designed to keep plaintiffs informed as the litigation progresses. The information published here will be accessible to the general public, and this web site is not encrypted or otherwise restricted. Therefore, plaintiffs should be aware that attorney-client privileged information cannot be posted or discussed on these pages.

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