The opinion of the court was delivered by: GREEN
Plaintiff Dr. Emerson Emory, a black captain in the United States Naval Reserve Medical Corps (Retired), brought this action pro se against the Secretary of the Navy, claiming violations of the fifth and fourteenth amendments to the United States Constitution and violations of the Civil Rights Acts. Plaintiff seeks declaratory and injunctive relief for alleged discrimination that resulted in his nonselection for promotion to the rank of rear admiral in the United States Naval Reserve.
This Court initially dismissed plaintiff's claim as nonjusticiable. The United States Court of Appeals for the District of Columbia Circuit reversed and remanded. Emory v. Secretary of Navy, 260 U.S. App. D.C. 331, 819 F.2d 291 (D.C. Cir. 1987). A trial to the Court was held upon remand to determine whether or not plaintiff's constitutional rights had been violated. For the reasons stated below, the Court finds in favor of the defendant.
Plaintiff was commissioned as an ensign in the Medical Corps of the United States Naval Reserve in 1949. He continued as a Reserve officer from that time until his voluntary retirement effective December 1, 1979. In the interim, he was promoted in the normal sequence to the rank of captain, obtaining that status in 1972. Thereafter, he was considered, but not selected, for promotion to the rank of rear admiral by selection boards meeting in January of 1977,
1978, 1979, as well as October 1979. Prior to the next rear admiral promotion selection board, plaintiff requested to be transferred to the Retired Reserve List.
From 1977-1979, plaintiff was eligible for promotion to the rank of rear admiral. During this time, active duty Reserve officer promotion zones were inextricably bound to the promotion zones of the unrestricted line active duty officer of the Navy. This connection is based on the concept of "running mates." While the number of unrestricted line active duty officers promoted was determined by the statistical or historical analyses of the prospective needs of the Navy, Reserve officers did not come into the eligibility zone for promotion until their particular "running mate" in the active duty Navy came into the zone. An officer's "running mate" could change identity from time to time as a result of attrition in either the regular Navy or the Reserve.
During the 1977-79 time period, the Navy divided the total "eligibility zone" into three divisions: (1) the primary promotion zone; (2) above the zone; and (3) below the zone.
The "primary promotion zone" consisted of those officers ripe for promotion. This zone could not contain anyone who had been considered but not selected for promotion while a member of the primary zone in any previous year. The names in any current year's primary zone would start at the end of the previous year's primary zone on the lineal list of those eligible for promotion in the Navy.
Those officers previously considered but not selected for promotion, while in the primary zone, were considered to be "above the zone." An officer who was considered but not selected by a promotion selection board while he or she was either above the zone or in the primary zone was considered to have "failed of selection." Any officer who twice failed of selection would be required to leave the naval service or, if eligible, retire.
The third zone, "below the zone," consisted of those junior officers who were deemed especially well qualified. This gave these officers an opportunity for early advancement before they were in the primary promotion zone. An officer not selected for promotion while below the zone is not considered to have "failed of selection."
These three zones constitute the entire "eligibility zone." An officer not in any of these zones would not be eligible for promotion and could not be chosen by a selection board.
Each selection board receives a lineal list of the officers eligible for promotion. The first name on the list is the most senior officer.
The greater the number, the more junior the officer. In January of 1978, the selection board recommended that Park W. Willis, III and John Robert Senior be promoted to the grade of rear admiral. See Defendant's Trial Exhibit D at 5. There were 116 officers eligible for promotion. Captain Willis was above the zone at number 12 on the lineal list and Captain Senior was below the zone at number 62. Id. at 13, 15. Plaintiff was also below the zone at number 90. Id. at 16. The primary zone consisted of numbers 23-31.
In January of 1979, the selection board recommended that Henry Turner Edmondson, Jr. be promoted to the grade of rear admiral. See Defendant's Trial Exhibit E at 4. There were 119 officers eligible for promotion. Captain Edmondson was below the zone at number 55, while plaintiff was also below the zone at number 69. Id. at 14. The primary zone consisted of numbers 21-38.
In October of 1979, the selection board recommended that Joseph Hardy Miller be promoted to the grade of rear admiral. See Defendant's Trial Exhibit F at 9. There were 151 officers eligible for promotion. Captain Miller was below the zone at number 49, while plaintiff was also below the zone at number 55. Id. at 19. The primary zone consisted of numbers 31-48.
None of these promotion boards contained any black rear admirals. In fact, there were no black rear admirals in the Medical Corps at that time. No junior officer was promoted over plaintiff since all of the officers promoted were a lesser number on the lineal list for selection than plaintiff.
Each selection board consisted entirely of Medical Corps officers and had adequate representation of Reserve officers. The January 1978 board had three Reserve rear admirals (one retired), two Regular rear admirals (one retired), a recorder, and an assistant recorder. The January 1979 board had four Reserve rear admirals (one retired), one Regular rear admiral, a recorder, and two assistant recorders (one of whom was black). The October 1979 board had three Reserve rear admirals, two Regular rear admirals (one retired), a recorder, and an assistant recorder. Voting members of the selection board must be of a higher rank than those who are to be selected.
On June 8, 1982, more than two and one-half years after he retired, plaintiff petitioned the Board of Correction of Naval Records (BCNR) to promote him to the rank of rear admiral. See Defendant's Trial Exhibit G. He listed a variety of activities that he performed in support of the Navy and stated that he "[felt] that these activities surpassed any of the officers selected during those years and that [he] should have been selected for promotion." Id. Plaintiff did not mention any discrimination claims and did not request that any actual records be corrected. BCNR replied by letter of June 25, 1982, advising plaintiff that it lacked the power to promote him to rear admiral. See Defendant's Trial Exhibit H. On July 14, 1982, plaintiff wrote BCNR again and for the first time claimed that his failure to be selected for promotion was due to the racial bias that resulted from no black sitting on the selection board. See Defendant's Trial Exhibit I. BCNR replied immediately on July 20, 1982, reiterating that the Board could not correct plaintiff's record to show that he was promoted to rear admiral.
On August 24, 1983, plaintiff filed with this Court, seeking retroactive appointment to the grade of rear admiral, but waiving any back pay which would be due. Plaintiff seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 that defendant's acts violated plaintiff's rights under the fifth and fourteenth amendments to the Constitution and under the Civil Rights Acts.
A. Composition of Selection Boards
Plaintiff alleges that the selection boards that considered him for promotion were improperly composed because they had no blacks on them. Defendant claims that plaintiff has failed to proffer any evidence that the boards that considered him were composed in violation of any statute or regulation. Defendant also claims that plaintiff has failed to point to any congressional or naval mandate that requires selection boards to have minority representation in order to be validly composed.
The only policy in place during the time that plaintiff was considered for promotion was an internal Chief of Naval Personnel memorandum to the Assistant Chief of Naval Personnel for the Naval Reserve, dated July 3, 1975, along with an attachment of additional policies. See Defendant's Trial Exhibit B. In the attachment, subdivision 3 entitled "Minority Officers" provides:
a. Minority representation, preferably as a voting member, should be on the ...