BOARDS FOR THE CORRECTION OF MILITARY RECORDS (BCMR) BLOG
The Air Force Fails To Shut-Down “Reverse Discrimination” Claims Arising From Unconstitutional Promotion Board Instructions
In Gilbert v. James, 2015 U.S. Dist. LEXIS 126174 (September 22, 2015), the U.S. District Court for the District of Columbia denied a motion by the defendant, the U.S. Air Force (USAF), to dismiss claims brought by 11 plaintiffs asserting that the Air Force Board for the Correction of Military Records (AFBCMR) unlawfully rejected the plaintiffs’ petitions as untimely under 10 U.S.C. Section 1552(b). While the outcome of the decision should be commended, the parties’ arguments and the decision in Gilbert are quite odd, as detailed below. Before addressing those oddities, a brief review of the facts is in order.
The plaintiffs had served as commissioned officers on active duty in the USAF. Each was considered for promotion between January 1990 and June 1998, during which period the USAF instructed promotion boards to consider the race and gender of promotion candidates, preferentially selecting female and minority candidates for promotion. The U.S. Court of Appeals for the Federal Circuit, in Berkley v. United States, 287 F.3d 1076, 1087 (Fed Cir. 2002), found similar USAF instructions to a “reduction in force” board to require strict scrutiny because they were gender and racial classifications.
Subsequent to Berkley, the AFBCMR acknowledged the unconstitutionality of the preferential promotion board instructions and in numerous cases granted appropriate relief to applicants, which typically involved promotion reconsideration by a special selection board pursuant to 10 U.S.C. Section 628. That is the relief each Gilbert plaintiff sought before the AFBCMR.
The AFBCMR denied the Gilbert plaintiffs’ applications as untimely because they purportedly were filed outside the three-year limitation period. The AFBCMR also denied the applications on the grounds that (1) there was no adequate remedy; (2) congressionally mandated case processing times permitted the board to deny claims as untimely; and (3) the plaintiff’s failed to exercise due diligence and discover the error years ago.
At first glance, Gilbert presented a straightforward APA claim of whether the plaintiffs filed their applications within three-years of discovering the error, as they claimed they did. Yet that is not how the court treated the matter, nor is it how the USAF framed and argued it. The USAF’s motion to dismiss argued that the plaintiffs sought “judicial review of the AFBCMR’s finding that the interests of justice do no dictate waiver of the three-year limitations period barring their claims.” The plaintiffs refuted that assertion, stating, “[t]his is not what Plaintiffs are seeking. They are seeking judicial review of the AFBCMR’s decision not to grant the SSB.”
The USAF’s mischaracterization of the plaintiffs’ argument, whether intentional or not, appears to have had its intended effect. The Court proceeded on the basis that the “plaintiffs do not dispute either that the three-year limitation period applies to their applications or that they failed to file their applications within the limitations period.” Yet that is not correct.
The plaintiffs made very clear in their complaint that “[i]n fact every Plaintiff here filed a DD Form 149 seeking relief within three years of actually discovering the wrong.” They also asserted in their “Claim for Relief” that the AFBCMR erred by “declaring that plaintiffs failed to engage in due diligence in discovering the constitutional injustice where no such proof exists and where multiple others similarly situated were not declared untimely due to a lack of due diligence.” And nowhere in their responsive brief did the plaintiffs admit that their applications were untimely.
The Court soundly and correctly rejected the USAF’s argument that judicial review of a waiver determination was unavailable under 10 U.S.C. Section 628, the special selection board statute. Section 628(g)(1)(A) states: “A court of the United States may review a determination by the Secretary of a military department under subsection (a)(1) or (b)(1) not to convene a special selection board in the case of any person.” The USAF’s argument was that section 628(g)(1)(A) did not authorize judicial review of AFBCMR refusals to waive its three-year limitations period. Rather, it authorized judicial review only of special selection board denials made on the merits.
Rejecting the USAF’s position, the Court concluded, “[t]hus, by authorizing judicial review of non-decisions by the Secretary, this section plainly contemplates judicial review beyond the limited scope urged by the defendant of only Secretarial decisions “on the merits” of whether the criteria for administrative error under § 628(a)(1) or for material unfairness under § 628(b)(1) are met.” The Court further noted that “the defendant has presented no authority from case law, legislative history or in express statutory text—and the Court can discern no such authority—to suggest that Congress intended a targeted exclusion from judicial review of waiver determinations when adopting § 628(g).”
The USAF thus had a clear tactical motive to mischaracterize the plaintiffs’ claim—drive the matter into the realm of section 628, which offered a slim chance of shutting the claims down altogether. Otherwise, the USAF would have faced a severely uphill battle to show that the AFBCMR decision was not arbitrary and capricious. As the plaintiffs astutely pointed out, the AFBCMR had granted relief “to a claimant (BS 2011-01859) whose [application] was filed after Plaintiff White (BC 2011-01943), whose request for relief was denied on the basis that his [application] was not timely filed.” The AFBCMR had simply determined that it had seen enough of the “reverse discrimination” applications, arbitrarily established a cut-off, and then advanced various specious arguments to justify its arbitrariness.
Perhaps the most poignant message of Gilbert to pro se plaintiffs and lawyers alike is: a defendant’s mischaracterization of the plaintiff’s claims must be singled-out and thoroughly dismantled. Otherwise, a plaintiff incurs the risk of a judicial decision based on a claim the plaintiff did not make.