The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
Now before the Court is a motion by the defendant 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. After a full consideration of the parties' pleadings, the applicable law, and for the following reasons, the Court GRANTS in part and DENIES in part the defendant's motion.
Owen McNiff is a white male and commissioned as a Chief Warrant Officer Three ("CW3") is the Regular Army. For three consecutive years, 1995, 1996, and 1997, he sought a promotion to the rank of Chief Warrant Officer Four ("CW4"). In each case, he was passed over. He now comes before this Court alleging that his lack of promotion was due to various affirmative action policies.
I. The Army's Promotion Selection Boards
The Army promotes officers to the rank of Chief Warrant Officer Four through the use of "selection boards." See 10 U.S.C. § 573. Each year, this board reviews the experience and qualifications of several hundred officers seeking a promotion. The board selects the top candidates from the applicant pool and recommends them to the Secretary of the Army and ultimately the President for promotion to the positions available. See 10 U.S.C. § 571(b), 575. Although the President and the Secretary of the Army have the ultimate control over promotion decisions, it is understood by all involved that most, if not all, of the evaluative decisions are made by the selection board.
The Army generally seeks to staff its selection boards with a diverse array of officers. According to John Miller, Chief of the Management Support Division in the United States Total Army Personnel Command, the Army had a policy during 1995, 1996, and 1997 of "including, if available, at least two minorities and one woman on each selection board that considered candidates for promotion to the rank of CW4" Declaration of John Miller, May 15, 2000, at ¶ 8. In Officer McNiff's case, the 10-member selection boards considering his application did indeed contain officers of different races and sexes.
The board considering his 1995 application contained two minorities and one woman; the 1996 board contained four minorities and one woman; and the 1997 board contained two minorities and one woman.
McNiff alleges the policy 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 passed over for a promotion in 1995, 1996, and 1997. Complaint for McNiff, Mar. 14, 2000, at ¶ 7. This, he argues, violates his Fifth Amendment right to equal protection.
II. The Army's Promotion Selection Process
The process used by the selection boards to choose candidates for promotion has changed several times in the past years. Indeed, it is unclear from the parties' pleadings what the exact terms of the process were during the years 1995, 1996, and 1997. Although the parties are not in complete agreement over the all aspects of equal opportunity policy at issue, the parties are in essential agreement that the policy, whatever its specific terms, amounted to a "revote" policy.
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." *fn1 Brief for Defendant, May 17, 2000, at 2 (quoting Sirmans v. Caldera, 27 F. Supp. 2d 248, 249 (D.D.C. 1998) (Lamberth, J.)).
After this ranking, 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, May 17, 2000, at 2. 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. Selection Board members were to detect discrimination by Such indicators may include disproportionately lower evaluation reports; assignments of lesser importance and responsibility; or lack of opportunity to attend career-building military schools. DA Memorandum 600-2, Nov. 26, 1993, at 13.
If a majority of the selection board found "evidence of past discrimination, that officer was 'revoted' and assigned a new ranking." Brief for Defendant, May 17, 2000, at 2. This new ranking may be higher or lower than the candidate's first ranking and may not result in the candidate being ranked high enough for a promotion. In any event, the ranking ascribed to the female or minority applicant is final after the revote takes place.
Based on the content of the Army's equal opportunity policy as well as the behavior of the selection boards, Officer McNiff alleges that the "review and revote" policy, in its requirement that minorities and women be granted an "adjust[ment] [in their] relative standing," caused him not to be promoted in 1995, 1996, and 1997. The ...