Christian v. U.S.

• Decision Date: 29 July 2003
• Docket Number: No. 02-5165.,02-5165.
• Citation: 337 F.3d 1338
• Parties: Robert F. CHRISTIAN, II, et al., Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1338

337 F.3d 1338

Robert F. CHRISTIAN, II, et al., Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.

No. 02-5165.

United States Court of Appeals, Federal Circuit.

July 29, 2003.

John K. Larkins, Jr., Chilivis, Cochran, Larkins & Bever LLP, of Atlanta, Georgia, argued for plaintiffs-appellees.

Robert M. Loeb, Attorney, Appellate Staff, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Robert D. McCallum, Jr., Associate Attorney General; and Marleigh Dover, Attorney.

Barry P. Steinberg, Kutak Rock, of Washington, DC, for amici curiae Ronald Alvin, et al., and Michael Christensen, et. al. Of counsel on the brief was William A. Aileo, Attorney at Law, of Springville, Pennsylvania.

Before LINN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The Court of Federal Claims held that the proceedings by which an Army Board recommended the involuntary retirement of certain Army officers were constitutionally invalid because of instructions by the Secretary of the Army that the Board give minority and female officers preferential treatment. The court further held that the harmless error concept was inapplicable in this case. The result of the latter ruling was that many non-retained white male officers who would not have been retained even if the Board had not given preferential treatment to minority and female officers, nevertheless would be reinstated as of the date of their involuntary retirement and receive back pay to that date. The government here challenges only the court's harmless error ruling. We reverse that ruling.

I

A. The facts forming the background of this suit, as found by the Court of Federal Claims, Christian v. United States, 46 Fed. Cl. 793, 798-99 (2000), and as supplemented by the record, are undisputed.

In 1992, the Secretary of the Army ("Secretary") convened a Selective Early Retirement Board ("Retirement Board"), pursuant to 10 U.S.C. §§ 611, 638, to recommend Army lieutenant colonels for involuntary early retirement. The Secretary issued lengthy detailed instructions to the Board, which was told to select for early retirement a "minimum" of 1210 officers and an "optimum" of 1452. (The Board reported that it recommended 1169 officers for early retirement.) "[B]ased on the guidance" in the instructions, the Retirement Board was directed to "determine which officers to recommend for selective early retirement by first determining an order of merit list of the officers considered."

One section of the instructions, captioned "Minority and Female Officers," included the following provisions:

a. The Army is firmly committed to providing equal opportunity for minority and female officers in all facets of their career development, utilization, and progression. The goal for this board is to achieve a percent of minority and female officers recommended for early retirement not greater than the rate for all officers in the zone of consideration. This goal is important because, to the extent that each board achieves it, the Army at large will have a clear perception of equal opportunity and the officers not recommended for early retirement will enjoy the opportunity for continued career progression to the benefit of the Army. This goal is not intended as guidance for you to meet any "quota."

b. In evaluating the records of minority and female officers, the board should consider that past personal and institutional discrimination may have disadvantaged minority and female officers. Such discrimination may include, but certainly is not limited to, disproportionately lower evaluation reports, assignments of lesser importance or responsibility, and lack of opportunity to attend career-building military schools. Take these factors into consideration in evaluating these officers' potential to make continued significant contributions to the Army.

c. Prior to recess, the board (in the report of officers recommended for early retirement) must review and report the extent to which minority and female officers were recommended at a rate greater than males and non-minority officers.

The instructions specified four "phases of deliberation" through which the Retirement Board should proceed. For phase two, in which it was to "Evaluate minority and female goal attainment," the following directive was included:

(2) If there are adverse deviations in the minority or female selection rates overall or within a specific career field, the board will reevaluate and may revote the files of the minority and female officers keeping in mind the factors contained in paragraph 4 of Enclosure 1. After revoting an officer's record, the relative standing will be adjusted.

The Retirement Board's proceedings for early retirement involved 4522 lieutenant colonels. In making its recommendations, the Retirement Board followed the four-phase procedure, only the first two steps of which are relevant here.

In phase one, the Retirement Board reviewed and evaluated the officers' records and based thereon established the comprehensive "order of merit," as directed by the Secretary's instructions. In phase two, the Retirement Board determined the "optimum number" of officers to be recommended for early retirement and then applied that number to determine the dividing line on the "order of merit" list between those to be retained and those to be retired.

At the conclusion of the phase two determinations, the percentage of minority officers to be retired was greater than the overall retirement rate for all officers. The Retirement Board then reevaluated the records of the minority officers, and selected a number of them for retention. It recommended 1052 white male lieutenant colonels for early retirement, with 3067 retained; and 131 minority and female officers for early retirement, with 341 retained. (There may be some overlap within these categories.)

In its "After-Action Report," the Retirement Board stated that in its initial determinations in phase one:

The Board did not meet its minority selection goal. Minority officers were selected for early retirement at a rate of 29 percent in comparison to the overall selection rate of 25.8 percent. Upon completion of the Board's initial deliberations, it reevaluated minority officer files. The Board identified some minority officers whose records warranted reconsideration to ensure they had not been disadvantaged by past personal or institutional bias. A revote was conducted resulting in a number of minority officers being selected for retention on active duty.

B. The appellee Christian, a white lieutenant colonel who was involuntarily retired as a result of the Retirement Board's proceedings, filed in the Court of Federal Claims a class action complaint, seeking retroactive reinstatement and back pay. Count IV of his first amended complaint alleged that, "by imposing unlawful gender and racially classified retention goals ... and selection consideration factors, and unlawful, gender and racially classified remedies for the possible disadvantages of societal discrimination," the Secretary and the Retirement Board "violated plaintiff's constitutional right to equal protection guaranteed under the Due Process Clause of the Fifth Amendment of the United States Constitution."

In its first opinion, the Court of Federal Claims granted summary judgment for Christian on his constitutional due process claim in Count IV. Christian, 46 Fed. Cl. at 815. The court held that the Secretary's instruction to the Retirement Board "created a race and gender-based goal and that it required consideration of different factors in evaluating minority and female officers than when evaluating white male officers," and that it therefore was subject to "strict scrutiny," "must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Id. at 803 (citation omitted). The court concluded that the instructions did not meet those requirements, and that the "Army's affirmative action program for the 1992 [Retirement Board] ... violates the Due Process Clause of the Fifth Amendment." Id. at 814.

The court also certified as the class for the action "the male nonminority officers selected by the [Retirement Board] for retirement." Id. at 816-17.

After further proceedings, the court issued a second opinion dealing with the remedy. Christian v. United States, 49 Fed. Cl. 720 (2001). It ruled that all members of the class were entitled to reinstatement as of the date of their initial illegal discharge and back pay and other remedies from that date to the date of their proper discharge. Id. at 722, 728. The court rejected the government's proposed "harmless error" analysis, under which the government proposed to establish a new selection board to determine which retired officers were harmed by the instructions, i.e., who would have been retained had the instructions not been given. Id. at 721. Instead, the court applied the "constructive service" doctrine, under which members of the military who have been improperly discharged are treated as having continued to serve until they are properly discharged; they are therefore entitled to back pay and allowances for that period of constructive service. Id. at 721-22. See, e.g., Tippett v. United States, 185 F.3d 1250, 1255 (Fed.Cir.1999). The court held that Christian's retirement was both "involuntary" and "also legally improper, because the revote and the evaluation criteria in the [instructions] violated the equal protection component of the Fifth Amendment's Due Process Clause." 49 Fed. Cl. at 722.

The court certified the case for interlocutory appeal under 28 U.S.C. § 1292(d)(2) and this court authorized the government's appeal.

II

A. The doctrine of "harmless error" is a well-established settled principle of federal law. In the recent case of Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467...