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SAUNDERS v. CALDERA

March 19, 2001

LIEUTENANT COLONEL RAYMOND SAUNDERS, PLAINTIFF,
v.
LOUIS CALDERA, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, U.S. District Judge

MEMORANDUM OPINION

Now before the Court is the defendant's motion to dismiss the plaintiff's complaint. The plaintiff, a white male, alleges that he was several times denied a promotion by the defendant's affirmative action policies. He also alleges that he is prevented from seeking a correction of his military records with the Army Board for the Correction of Military Records. After a full consideration of the plaintiff's claims, the parties' memoranda, the applicable law, and for the following reasons, the Court GRANTS in part and DENIES in part the defendant's motion.

BACKGROUND

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.

The selection board's evaluation process is controlled by a memorandum of instruction ("MOI"). This document, which is issued by the Secretary of the Army, provides mandatory guidance to the selection board on issues such as the number of promotions and equal opportunity goals. In LTC Saunders' case, the MOI issued to the selection boards considering his promotion contained the following instructions:
Goals. Equal Opportunity. Your goal is to achieve a selection rate in each minority or gender group (minority groups: Black, Hispanic, Asian/Pacific Islander, American Indian, and Other/Unknown; gender group: Female) that is not less than the selection rate for all officers in the primary zone of consideration. You are required to conduct a review of files for the effects of past discrimination in any case in which the selection rate for a minority or gender group is less than the selection rate for all first time considered officers. This review is required even if the selection of one individual in a minority or gender group would result in a selection rate equal to or greater than the equal opportunity goal for the minority gender group. For the purposes of this board, the foregoing guidance as to when an equal opportunity review is required takes precedence over the general guidance contained in DA Memorandum 600-2, para A-10c(3), first sentence. You will refer to the remainder of DA Memorandum 600-2, para A-10c (3), for a description of the procedures to use for this review, as well as instructions concerning required revoting procedures where past discrimination is discovered. My commitment is to build a diverse Judge Advocate General's Corp that is consistent with the diverse structure of the rest of the Army.

Memorandum from Togo D. West to James N. Hatten, July 24, 1996, at 2-3.

Although the MOI is clear in certain respects, its reference to the "revoting procedures" is not clear on its face and the plaintiff has not elucidated its meaning in his complaint. Nonetheless, as the revote procedure is a central issue in this case, and the government has conceded the existence of the process during the applicable times, the Court adopts, and describes below, the process as explained by the defendant. *fn2

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 ranking applicants.
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, ...

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