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. He also alleges a violation of the Administrative Procedure Act. 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.
Major Timothy Ward is a white male and member of the Army Acquisition Corps. For three consecutive years, 1997, 1998, and 1999, he sought a promotion to the rank of Lieutenant Colonel. In each case, he was passed over. He now comes before this Court alleging that his lack of promotion was due to (1) the Army's failure to obey 10 U.S.C. § 1731(b), a statute addressing Acquisition Corps personnel management, and (2) the Army's affirmative action policies.
I. The Acquisition Corps and 10 U.S.C. § 1731(b)
The Army Acquisition Corps is a relatively new division of the Army and, as its name suggests, it is responsible for acquiring the multitude of supplies needed by the Army. The Corps was formed in 1990 in the wake of such embarrassing mistakes as the expenditure of $999 for a pair of pliers, $1,868 for a toilet seat, and $688,000 for a fax machine. See Remarks of Rep. Mavroules, 136 Cong. Rec. 23,795, 23,880 (Sept. 11, 1990). Finding that "many personnel assigned to key acquisition positions" were "seriously unprepared for their jobs," Congress sought to create a "highly qualified cadre" of specialists dedicated to procurement tasks. Id. This was accomplished by the passage of the Defense Acquisition Workforce Improvement Act of 1990. See 10 U.S.C. §§ 1701-1764 (the "Acquisition Act" or "Act").
The Acquisition Act not only created the Acquisition Corps, it imposed various duties on the Secretary of Defense to ensure that the Corps, being a new and non-traditional work assignment, would nonetheless attract and retain many of the military's top officers. To this end, the Act requires that each officer in the Corps rank at least as Major and have certain educational and experience qualifications. See 10 U.S.C. § 1732(b)(1)(B), 1732(b)(2)-(3). As well, the Act obliges the Secretary not only to select the "best qualified" officers of the applicant pool, but to select officers qualified to the degree that they are expected, as a group, to be promoted at a rate not less than the rate for all line (or the equivalent) officers of the same armed force . . . in the same grade. 10 U.S.C. § 1731(b).
Beyond these requirements, however, Congress left it to the discretion of the Secretary to establish the particular "criteria and procedures" for "membership in an Acquisition Corps." 10 U.S.C. § 1732(a); 10 U.S.C. § 1732(b)(4).
Major Ward argues that 10 U.S.C. § 1731(b), the provision referencing the promotion rates of Corps and non-Corps officers, obliges the Secretary of Defense to promote a minimum number of Corps officers each year. Based on this reading of the statute, Major Ward alleges that the Army's failure to meet the required quota in 1998 and 1999 proximately caused him to be passed over for a promotion in those years.
II. The Army's Promotion Selection Boards
The Army promotes officers to the rank of lieutenant colonel through the use of a lieutenant colonel "selection board." See 10 U.S.C. § 611(a). Each year, this board reviews the experience and qualifications of several hundred officers seeking a promotion, including those serving in the Acquisition Corps. They select the top candidates from the applicant pool and recommend them to the Secretary of the Army and ultimately the President for promotion to the positions available. See 10 U.S.C. § 612(a), 618. 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.
Although the exact parameters of its membership policy are somewhat unclear to the Court, *fn1 it is clear that the Army generally seeks to staff its 18-member lieutenant colonel 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, formal guidelines control the "minimum numbers of minorities and women that are to serve on various selection boards, if available." See Declaration of John Miller, June 9, 2000, ¶ 4. In Major Ward's case, the selection boards considering his application did indeed contain officers of different races and sexes. The board considering his 1997 application contained two women and four minorities; the 1998 board contained three women and five minorities; and the 1999 board contained two women and six minorities.
Ward 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 1997, 1998, and 1999. Complaint for Ward, Apr. 6, 2000, at 2-3. This, he argues, violates his Fifth Amendment right to equal protection.
III. 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, the Army appears to have used as many as three different selection processes during the years that Major Ward challenges, 1997, 1998, and 1999. Despite individual differences, the policies all amount to a "revote" policy, which is what the plaintiff essentially takes issue with.
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 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, 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 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 summary, Major Ward's claims of unlawful conduct on the part of the Army fall into three categories. First, he alleges that he was denied a promotion in 1998 and 1999 because the Army failed to comply with 10 U.S.C. § 1731(b), a statute addressing the personnel management of the Army Acquisition Corps. Second, he alleges that he was denied a promotion in 1997, 1998, and 1999 because, in each of those years, the Army had an official policy requiring selection boards to contain a minimum number of women and minorities. Third, Major Ward alleges that he was denied a promotion in 1997, 1998, and 1999 because, in each of those years, the Army had an official policy requiring selection boards to give preferential treatment to women and minorities.