for the purpose of affording the School Board the opportunity to prove that plaintiff therein would not have been re-hired, even in the absence of the protected First Amendment conduct. 97 S. Ct. at 576.
Having discovered a procedural irregularity in the 1975 promotion selection process, the ABCMR, with Secretarial approval, took reasonable and appropriate steps to determine whether any officers had been prejudiced by that error, and awarded appropriate full relief in those cases in which prejudice was found to exist.
Plaintiffs herein have shown no prejudice by reason of the composition error, and it is not so obvious that the composition defect necessarily led to the non-promotion decision that the ABCMR should be reversed. Knehans v. Callaway, supra. Courts have long expressed the concern that decisions of agencies should not be reversed for error that is not prejudicial. Braniff Airways, Inc. v. Civil Aeronautics Board, 126 U.S. App. D.C. 399, 379 F.2d 453 (1967).
Accordingly, the Court concludes that the decision of the ABCMR, and the Secretary's approval thereof, to deny plaintiffs' relief on the grounds the original 1975 Selection Boards were improperly constituted after reconstituting the 1975 Selection Boards for the purpose of determining the existence of prejudice, was not arbitrary, capricious or contrary to law.
Plaintiffs further contend that with respect to both the original and the Reconstituted 1975 Selection Boards, there was an improper reservation of 15 percent of the number of promotion vacancies for members of the secondary zone, and that with respect to the Fontaine plaintiffs, Civil Action No. 77-0008, and the Powell plaintiffs, Civil Action No. 77-0143, neither of these Boards made the proper factual findings. Plaintiffs also assert that the Secretary's failure to void the original 1975 non-selections resulted in a material error being present in plaintiffs' records before the 1976 Selection Boards. The record indicates that the ABCMR fully considered each of these allegations and declined to grant relief thereon. The Court has likewise considered those allegations, and upon review of the record herein, concludes that the ABCMR's decision, and the action of the Secretary thereon, were not arbitrary, capricious, unsupported by substantial evidence or contrary to law and regulation. Nolen v. Rumsfeld, supra.
Plaintiffs' final contention, that the action of defendants in not requiring a showing of harm by others similarly situated upon the same issues deprives them of equal protection under the Fifth Amendment, grows out of the settlement of the case of Mary M. Sliman v. United States, 553 F.2d 104 (Ct.Cl. 1976). This Court believes that plaintiffs' attempts to manufacture an equal protection claim are without merit inasmuch as the compromise of a disputed claim by acceptance or offering of money payment is not a concession of the legal merits of the case. See Autera v. Robinson, 136 U.S. App. D.C. 216, 419 F.2d 1197 (1969). Moreover, the Sliman action was a separate and factually distinct case, the only common issue being whether Reserve Officers should have been included as members of the respective promotion boards.
Wherefore, upon consideration of the foregoing, and it appearing to the Court that there is no genuine issue as to any material fact, defendants' motion for summary judgment filed in these four consolidated cases will be granted, and plaintiffs' cross-motion will be denied in each case.
Joseph C. Waddy United States District Judge
Upon consideration of defendants' motion for summary judgment filed in these four consolidated cases and plaintiffs' cross-motion thereto, the memoranda of points and authorities in support of and in opposition to said motions, the pleadings, the exhibits, including the Administrative Record of proceedings before the Army Board for the Correction of Military Records (ABCMR), the affidavits and the entire record herein, and it appearing to the Court that there is no genuine issue as to any material fact and that defendants in each of these consolidated cases are entitled to judgment as a matter of law for the reasons set forth in the accompanying Memorandum Opinion filed herein this same date, it is by the Court this 26th day of July, 1977,
ORDERED and ADJUDGED, that defendants' motion for summary judgment filed in these consolidated cases be, and the same hereby is granted; and that plaintiffs' cross-motion for summary judgment be, and the same hereby is, denied; and that judgment herein be entered in favor of defendants and against plaintiffs in each case.
Joseph C. Waddy United States District Judge