The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This matter is before the Court on the parties' cross-motions for
summary judgment and on plaintiff Eddie A. Curtis' motion for class
certification. Both plaintiff and plaintiff-intervenor J. David Carroll
(collectively "plaintiffs") contend that the Air Force violated its
statutory directives when it used certain complex procedures to review
their candidacies for promotion from Major to Lieutenant Colonel. Because
plaintiffs were denied promotions in two consecutive years, they were
discharged under the Air Force's "up or out" policy. Plaintiffs ask to be
reinstated in the Air Force Reserves and have their promotions considered
once again using the proper procedures. The Court finds that the Air
Force's procedures were not arbitrary, capricious or contrary to law. It
therefore grants defendant's motion for summary judgment and denies
Plaintiff Eddie A. Curtis brought this lawsuit on April 7, 1998 to
contest the procedures by which the Air Force reviewed his candidacy for
promotion from Major to Lieutenant Colonel in the Air Force Reserves.
Specifically, Major Curtis was considered for promotion in June 1995 for
Fiscal Year 1996 and in June 1996 for Fiscal Year 1997. Major Curtis was
denied promotion each time. Because the Air Force's codified policy is
that Reserve officers who fail to be promoted after two consecutive
efforts must be discharged, Major Curtis was discharged on May 27, 1997.
See 10 U.S.C. § 14506, 14513.
Plaintiff-intervenor J. David Carroll also was considered for promotion
from Major to Lieutenant Colonel in Fiscal Years 1996 and 1997. He, too,
was denied promotion during the same two years and discharged under the
"up or out" policy. For some reason that is not clear from Major
Carroll's complaint, he was not discharged until June 25, 1999.
During Fiscal Years 1996 and 1997, promotion decisions were governed by
10 U.S.C. § 8362 and 8367.*fn1 In relevant part, Section 8362
(a) Under such regulations and in such number as he
may prescribe, the Secretary of the Air Force, or
such authority as he directs, shall from time to time
appoint and convene selection boards to consider
reserve commissioned officers for promotion under
this chapter. . . .
(e) A recommendation for promotion must be made by
the majority of the total membership of the board.
(f) An officer eligible for consideration for
promotion by a board under this chapter is entitled
to send a letter, through official channels, calling
attention to any matter of record in the armed forces
concerning himself that he considers important to his
case. . . . A letter sent under this subsection may
not be considered by a selection board unless it is
received by the time the board convenes.
10 U.S.C. § 8362(a), (e), (f) (repealed) (emphasis added). Section
(1) furnish to the board a list of officers to be
considered for promotion to the grade concerned; and
(2) direct the board to recommend the officers on
that list who it considers fully qualified for
10 U.S.C. § 8367(b) (repealed) (emphasis added).
On the basis of these statutory directives, the Air Force created a
complicated system to review candidates for promotion in the Air Force
Reserves. The process began with the appointment of a selection board of
25 members. The 25 members were then divided into five panels of five
members each. In the promotion reviews at issue in this case, three of
the panels were charged with reviewing "line" officers such as
plaintiffs, while the other two panels reviewed "non-line" officers.
After a practice session intended to adjust the variations in scoring
between panel members in order to ensure consistency, the file of each
candidate was randomly distributed to one of the five panels for its
review. Each panel received the files of about 300 candidates to review.
The five members of the panel to which a file was assigned then reviewed
each file and individually scored each candidate on a scale of 6 to 10.
The scores of the five members were added up to give each candidate a
total score. After completion of this initial round of scoring, the
candidates before each panel were ranked in order of their scores.
Each panel then began the second round of the selection process by
identifying the score category that would result in the percentage of
candidates getting promoted that was equal to the average percentage that
had been promoted in the past five years — what the Court will call
the "past select rate score." For example, if an average of 33 percent of
candidates had been promoted over the previous five years, then the panel
would begin the process by reviewing and voting on all candidates that
received a score equal to the candidate ranked number 100 out of the 300
applicants, i.e., behind 33 percent of the candidates. For each candidate
who received the "past select rate score," the panel voted by secret
ballot whether the candidate was "fully qualified" for promotion. The
panel members were instructed that they must find beyond a reasonable
doubt that a candidate was fully qualified before they could vote to
promote him or her. If the vote was 4-1 or 5-0 for or against promoting a
particular candidate, the majority decision was final. If the vote was 3-2
in either direction (a "split" vote), the records were opened for
discussion and then put to a second vote by panel members. The majority
position on whether to promote a candidate after the second vote was
binding; at that point a candidate receiving as few as three "yes" votes
was considered fully qualified for promotion.
The five panel members did not review the decisions of the other four
panels or the files presented to the other panels, but each of the 25
board members nevertheless signed a report certifying that (1) the board
had "carefully reviewed the record of each officer submitted to it for
consideration," (2) "[v]oting was done by secret ballot," and (3) "[i]n
the opinion of a majority of the voting members [of the board], the
officers recommended are fully qualified for ...