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April 24, 2000


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 plaintiffs' motions.


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 provides:

(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 8367 provides:

(b) When an officer in the reserve grade of first lieutenant, captain, or major must be considered under section 8366(a) of this title for promotion because of length of service, the Secretary may —
(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 promotion.

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.

After voting on the candidates with the "past select rate score," the panel repeated the voting process for candidates with scores that were incrementally higher and incrementally lower than the "past select rate score," beginning with the scores immediately above and immediately below the "past select rate score," until it determined a score at which it found that all of the candidates for promotion were fully qualified and a score at which it rejected all of the candidates for promotion as not fully qualified. These two scores were called the "select all" score and the "select none" score, and the area in between the two scores was called the "gray area." The panel then automatically recommended promotions without further discussion or vote for all of the candidates whose scores were equal to or higher than the "select all" score. It also recommended promotions for all of the candidates who the panel had already discussed and found to be fully qualified from within the "gray area." The panel did not recommend those candidates at or below the "select none" score and did not recommend those candidates who were expressly rejected within the "gray area." Each panel member reviewed the final list of candidates considered by the panel of which he or she was a member to ensure that the panel's decision on each candidate was transcribed correctly.

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 ...

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