The opinion of the court was delivered by: Royce C. Lamberth, U.S. District Judge
Lieutenant Colonel Raymond Saunders is a white male who served
in the Army from 1974 to 1997.*fn1 Although originally commissioned as
a Second Lieutenant in the Regular Army, he transferred to the Judge
Advocate General's Corps in 1981 after graduating from law school.
In 1992, he was promoted to the rank of Lieutenant Colonel and, in
1996 and 1997, he sought a promotion to Colonel. Both times, he was
denied a promotion.
Memorandum from Togo D. West to James N. Hatten, July 24, 1996, at
As its name suggests, the revote procedure occurs after the selection
board has "completed a review of [the officers'] personnel files and
initially ranked [them] in order of qualification for promotion." Brief
for Defendant, Mar. 31, 2000, at 2 (quoting Sirmans v. Caldera,
27 F. Supp.2d 248, 249 (D.D.C. 1998) (Lamberth, J.)). After this
ranking, and in accordance with the MOI, the selection board reviews the
results to determine whether promoting the leading candidates from the
first ranking would "produce a selection rate for minorities and women
that was comparable to the selection rate for all officers
considered for promotion." Brief for Defendant, Mar. 31, 2000, at 2. If
promotions made in accordance with the initial ranking would not produce
comparable promotion rates, the board was then obliged to reexamine the
records of all female and minority candidates who were qualified for
promotion yet unable to receive one on account of their ranking. The
reexamination was "to determine if any of the personnel files show[ed]
evidence of discrimination against the individual officer." Id. If a
majority of the selection board found "evidence of past discrimination,
that officer was `revoted' and assigned a new qualification ranking."
Id. This new ranking might be higher or lower than the candidate's first
ranking and might not result in the candidate being ranked high enough
for a promotion. In any event, the ranking ascribed to the female or
minority applicant was final after the revote took place.
Two selection boards, the 1996 Board and the 1997 Board, considered
Lieutenant Colonel Saunders's application for a promotion. Although both
selection boards followed the above "review and revote" procedure, the
specific circumstances of each case demanded different actions.
Specifically, the 1996 Selection Board determined that its initial ranking
failed to achieve the desired promotion rate for American Indians and
therefore conducted a review of the American Indian files for evidence of
past discrimination. Finding no such discrimination, the 1996 Board did
not revote on any candidate and recommended the promotion of the highest
In 1997, the Board determined that its initial ranking failed to
achieve the desired promotion rate for female applicants. The Board
therefore reviewed the files of female applicants for evidence of past
discrimination. Finding evidence of past discrimination in one case, the
Board revoted on that applicant.
Lieutenant Colonel Sanders alleges that Army's equal opportunity policy
"as set forth in writing and as actually interpreted and executed by the
. . . promotion boards," denied him his constitutional rights. Complaint
for Saunders, Oct. 25, 1999, at 7. He also makes the ancillary claim
that the Army Board for the correction of Military Records ("ABCMR") is
acting arbitrarily and capriciously by not correcting his military record
to reflect the position of Colonel. According to statute, such
corrections are permissible if they are "necessary to correct an error or
remove an injustice." 10 U.S.C. § 1552(a).
Because the plaintiff's well-pleaded complaint presents a federal
question, this Court properly has jurisdiction to consider the
defendant's motion. See 28 U.S.C. § 1331.
II. Standard of Review
If a plaintiff has failed "to state a claim upon which relief can be
granted," a court may grant a defendant's motion to dismiss.
Fed.R.Civ.P. 12(b)(6); see also Hishon v. King Spalding, 467 U.S. 69, 73
(1984); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.
Cir. 2000). In evaluating a motion to dismiss, a court must construe the
complaint in the light most favorable to the plaintiff and give the
plaintiff "the benefit of all inferences that can be derived from the
facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
1979); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "However,
legal conclusions, deductions or opinions couched as factual allegations
are not given a presumption of truthfulness." Wiggins v. Hitchens,
853 F. Supp. 505, 508 n. 1 (D.D.C. 1994) (citing 2A Moore's Federal
Practice, § 12.07, at 63 (2d ed. 1986)
(footnote omitted); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.
III. The Plaintiff's Claim Based on the Army's Equal Opportunity
The plaintiff alleges that he was denied a promotion in 1996 and 1997
as a result of the Army's equal opportunity policy, otherwise known as
the "review and revote" policy. This policy, he alleges, is
unconstitutional. The Court finds that his complaint states a claim for
which relief can be granted and therefore denies the defendant's motion
It is axiomatic in the era of notice pleading that a plaintiff need
only provide "a short, plain statement of the claim" such that "the
defendant [will have] fair notice of what the plaintiff's claim is and
the grounds upon which it rests." Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, (D.C. Cir. 2000) (quoting Fed. R. Civ. P. 8(a)); see also
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, a complaint "need not
plead law or match facts to every element of a legal theory." Krieger v.
Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (quoting Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998)); see also Caribbean Broad. Sys., Ltd.
v. Cable & Wireless P.L.C., 148 F.3d 1080, 1086 (D.C.Cir. 1998) ("[A]
plaintiff need not allege all the facts necessary to prove its claim.");
Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C.Cir. 1996)
("A complaint . . . need not allege all that a plaintiff must eventually
As Judge Easterbrook put it in the employment discrimination context:
Because racial discrimination in employment is `a
claim upon which relief can be granted,'. . . . `I was
turned down for a job because of my race' is all a
complaint has to say to survive a motion to dismiss
under Rule 12(b)(6).
Sparrow, 216 F.3d at 1114 (quoting Bennett, 153 F.3d at 518).
The Court finds that the plaintiff has met this minimal threshold.
Racial and gender discrimination in promotion are, of course, claims
"upon which relief can be granted," and the plaintiff's statement that
the defendant's racial and gender preferences denied him a promotion thus
squarely states a claim.*fn3
IV. The Plaintiff's Claim for an Injunction Enjoining the Army from
Practicing its "Review and Revote" Policy
Although the Court finds that the plaintiff properly states a claim,
the Court nonetheless finds that the plaintiff lacks standing to seek a
Accordingly, the claim for this relief must be dismissed.
To have standing, a plaintiff must show:
(1) injury in fact, by which we mean an invasion of a
legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) a causal relationship
between the injury and the challenged conduct, by
which we mean the injury fairly can be traced to the
challenged action of the defendant and has not
resulted from the independent action of some third
party not before the court; . . . and (3) a likelihood
that the injury will be redressed by a favorable
Northeastern Fla. Chapter of the Associated Gen. Contractors of Am.
v. City of Jacksonville, 508 U.S. 656, 663 (1993) (citations and
internal quotation marks omitted) (analyzing a plaintiff's standing
in an equal protection challenge to an affirmative action program);
see also Friends of the Earth, Inc. v. Laidlaw Environmental Servs.,
528 U.S. 167, 189 (2000).
The third factor, the likelihood of redress, takes on a slightly varied
form when a party is seeking prospective relief. As the Supreme Court has
stated, "[i]n a lawsuit brought to force compliance, it is the
plaintiff's burden to establish standing by demonstrating that, if
unchecked by the litigation, the defendant's allegedly wrongful behavior
will likely occur or continue, and that the `threatened injury is
certainly impending.'" Friends of the Earth, 528 U.S. at 190 (quoting
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Thus, in Los Angeles v.
Lyons, 461 U.S. 95, 105-110 (1983), the Supreme Court held that a
plaintiff lacked standing to seek an injunction against a policy
sanctioning police choke-holds because he could not "credibly allege that
he faced a realistic threat arising from the policy." Friends of the
Earth, 528 U.S. at 190 (summarizing the holding in Lyons).
Against this backdrop of precedent, it is clear that the plaintiff
lacks standing to pursue the prospective relief he has sought. The facts
are clear that the plaintiff retired from active duty on October 31,
1997. Because he is therefore no longer subject to the Army's promotion
policies, there is no possibility that a "threatened injury is certainly
impending." If the Army were to re-institute the disputed policy at some
point, the plaintiff would not be harmed in any way outside of his
"ideological interest," a harm that has long been recognized as
insufficient for standing. Albuquerque Indian Rights v.Lujan, 930 F.2d 49,
55 (D.C. Cir. 1991). Thus, the plaintiff's claim for forward-looking
relief must be dismissed under Federal Rule of Civil Procedure 12(b)(1)
because he lacks standing sufficient for this Court to have jurisdiction
over his claim.
To summarize today's holding, the Court finds that the plaintiff has
stated a claim upon which relief can be granted, except with regard to
his claim for prospective injunctive relief. As the parties have not
addressed the plaintiff's claim with respect to the ABCMR,*fn4 the Court
opinion on the claim. That claim therefore remains. An order consistent
with this Memorandum Opinion will issue this date.