The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
Now before the Court is the defendant's motion to dismiss the plaintiff's complaint. The plaintiff, an American Indian male, alleges that he was several times denied a promotion by the defendant's equal opportunities policies. These policies, he alleges, violate the Fifth Amendment. After a full consideration of the parties' memoranda and the applicable law, the Court GRANTS in part and DENIES in part the defendant's motion.
Allan Sirmans is a lieutenant colonel serving on active duty in the United State Army. For five consecutive years, he sought a promotion to the rank of colonel. In each case, the promotion selection board denied him a promotion.
In 1998, LTC Sirmans came before this Court challenging two instances of his non-promotion. He alleged that the Army's policy and practice of giving preference to minorities and women in promotion decisions caused him not to be promoted in 1997 and 1997 (August). That claim was settled out of Court. The plaintiff now comes before this Court alleging that he was denied a promotion in various years due to (1) the Army's policies and practices with respect to selection board membership, and (2) the Army's equal opportunity policy with respect to promotion.
He also alleges that he was denied a promotion in 1996, 1999, and 2000 as a result of the Army's policy and practice of giving preferences to minorities and women in promotion. See Complaint for Sirmans, July 21, 2000, at ¶ 29.
A. The Army's Selection Board Membership Policies
The Army has an official policy of composing its promotion selection boards with "at least one minority and one female." See Brief for Defendant, Nov. 15, 2000, at 5 (citing to Defendant's Exhibit A-3). LTC Sirmans alleges in his complaint that the policy and practice of requiring "one or more females and one or more members of racial groups other than Caucasian [to be on the selection board]", and the lack of a policy requiring "one or more males and one or more members of the Caucasian racial group [to be on the selection board]" caused him to be repeatedly passed over for promotions. Complaint for Sirmans, July 21, 2000, at ¶ 29.
B. The Army's Equal Opportunity Policies with Respect to Promotion
In addition to his board membership claim, LTC Sirmans also alleges that he was denied a promotion in 1996, 1999, and 2000 as a result of the Army's policy and practice of giving preferences to minorities and women in promotion. See Complaint for Sirmans, July 21, 2000, at ¶ 29. Although the policy has changed several times during the years in question, its consistent use of a "revote" policy is a core dispute in this case. *fn1
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, Nov 15, 2000, at 4 (quoting Sirmans v. Caldera, 27 F. Supp. 2d 248, 249 (D.D.C. 1998) (Lamberth, J.)). After this ranking, and in accordance with official instructions, 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, Nov. 15, 2000, at 4. If promotions made in accordance with the initial ranking would not produce comparable promotion rates, the board was then obliged to re-examine 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.
In sum, LTC Sirmans claims that his promotion was repeatedly thwarted by the Army's selection board membership policy and its equal opportunity policy with respect to promotion. The Court now considers these and other pertinent issues.
Because the plaintiff's well-pleaded complaint presents a federal question, this Court properly has jurisdiction under 28 U.S.C. § 1331.
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, ...