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 alleges that, as a result of the Army's affirmative action policy, he was twice denied a promotion to the rank of colonel and will be denied 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 the defendant's motion.
Lieutenant Colonel Charles Juffer, a white male, is a commissioned officer in the United States Army Reserve. He has three times sought a promotion to the rank of Colonel, and has been denied the promotion each time. Due to his repeated non-selection, he was forced to retire from active duty on August 31, 2000. He alleges that the Army's policy of staffing its promotion selection boards with women and minorities, as well as its policy of giving extra review to women and minority promotion applicants have caused him not to be promoted.
On September 8, 2000, just eight days after he retired from active duty, LTC Juffer filed a petition with the Army Board for the Correction of Military Records ("ABCMR"). In this petition, he alleged that the Army's policies with respect to selection board membership and equal opportunity have caused an "error" or an "injustice" in that they have prevented him from receiving his promotion. As of this date, that petition is still pending with the ABCMR. 10 U.S.C. § 1552(a).
The defendant urges this Court to dismiss the plaintiff's suit until the ABCMR has ruled on his petition. Only then, he argues, will the plaintiff have exhausted all of his administrative remedies. In response, the plaintiff argues that his petition has been constructively denied or, in the alternative, that the exhaustion requirements do not apply to his case. The Court finds that the plaintiff has not exhausted his administrative remedies, and that this Court therefore does not have jurisdiction.
Congress has specifically addressed whether a federal district court has jurisdiction to hear non-promotion claims by military officers. Section 14502(g) of title 10 of the United States Code provides:
(g) Limitation of other jurisdiction.--No official or court of the United States shall have power or jurisdiction--
(1) over any claim based in any way on the failure of an officer or former officer of the armed forces to be selected for promotion by a selection board convened under chapter 1403 of this title until--
(A) the claim has been referred to a special selection board by the Secretary concerned and acted upon by that board; or
(B) the claim has been rejected by the Secretary without consideration by a special selection board; or
(2) to grant any relief on such a claim unless the officer or former officer has been selected for promotion by a special selection board convened under this ...