The opinion of the court was delivered by: Lamberth, District Judge.
This matter comes before the Court on the Secretary of the
Army's motion to dismiss. The Secretary argues that the
complaint should be dismissed because it was filed after the
statute of limitations had expired, because the plaintiff lacks
standing, and because the plaintiff has failed to state a claim
upon which relief can be granted. After a careful review of the
opposition and reply, the applicable law, and the record in this
case, the Court finds that the Secretary's motion to dismiss
should be GRANTED.
In 1990 Congress found it necessary to cut the number of
personnel in the armed forces by September 30, 1995. National
Defense Auth. Act for FY 1991 ("1991 Auth. Act"), Pub.L. No.
101-510, § 401, 104 Stat. 1543 (1990). To facilitate the
reduction, Congress authorized the secretaries of the different
branches of service to convene selection boards "to consider for
discharge [certain] regular officers on the active-duty list in
a grade of lieutenant colonel, or commander." 1991 Auth. Act §
521, 104 Stat. 1559 (codified as amended at
10 U.S.C. § 638a(b)(4)). On March 9, 1992, the Secretary convened the Board
by Memorandum of Instruction ("MOI"). Defendant's Motion to
Dismiss, Nov. 21, 2001, at 2. The mission of the Board was to
consider, "the involuntary separation from active duty certain
majors with dates of rank between July 2, 1989 and March 1,
1992, and to make appropriate recommendations for retention to
the Secretary." Id.
Major Ward Nihiser, a white male, was recommended to be
separated from active duty in the Army as part of the reduction
in force ("RIF"). Mr. Nihiser is suing the Secretary of the Army
("Secretary"), challenging the validity of the equal opportunity
instruction (the "1992 Instruction") that the Board used in
selecting him for involuntary separation. Defendant's Motion to
Dismiss, Nov. 21, 2001, at 1.
The 1992 Instruction was in two enclosures of the MOI:
Enclosure 1 ("Guidance") and Enclosure 2 ("Administrative
Instructions"). Defendant's Motion to Dismiss, Nov. 21, 2001, at
3. The instructions state that the Army was firmly committed to
providing equal opportunity for minority and female officers in
all facets of their career development, utilization, and
progression. Id., The "Guidance" advised the Board that its
goal was to achieve a percentage of minority and female officers
recommended for involuntary separation not greater than the rate
for all officers in the zone of consideration. Id. The
"Administrative Instructions" gave the Board and its members
certain instructions for deciding whom to recommend for
involuntary separation. Id. In adherence to the Army's
commitment to providing equal opportunity and after careful
deliberation, each member of the Board was directed to award
each officer a numerical score to assess his or her "relative
standing for retention." After this first phase, the officers
were to be arranged from highest to lowest to form an. "order of
merit list" ("OML"). Id.
During the second phase, the Board was directed to review the
OML to determine whether minorities or women were being
recommended for involuntary separation at a higher rate than all
officers, either overall or within a specific career field.
Defendant's Motion to Dismiss, Nov. 21, 2001, at 4. If this
answer was in the affirmative, the Board was directed to review
the "files of [those] minority and/or female officers"
tentatively recommended for involuntary separation to determine
whether any of them had been "disadvantaged" by "past personal
and institutional discrimination" as indicated by
"disproportionately lower evaluation reports, assignments of
lesser importance and responsibility, and lack of opportunity to
attend career building schools." Id. If evidence of
discrimination was found in any of these areas, a revote was
ordered and the officer's standing was adjusted accordingly.
Major Nihiser has been an Army officer since 1978 and obtained
his current rank in 1990. Pursuant to the RIF, 1,947 officers
were considered by the Board, including Major Nihiser. Finding
that "adverse deviations" existed in the "selection rates of
minority and female officers," the Board reviewed the files of
those minority and female officers tentatively recommended for
separation. Id. at 5. After completing a thorough review of
the records, the Board revoted on at least one officer to
achieve parity with the selection rate for all officers. A total
of 244 officers were recommended to be involuntarily separated.
Id. Major Nihiser was advised by letter on May 29, 1992 that
he would be involuntarily separated effective January 1, 1993.
Because the standard operating procedure of the Board was to
destroy or erase the OML within thirty days after the Board
forwarded its recommendation for approval, the position of Major
Nihiser or any other officer was not known either before or
after the revoting took place. Therefore, the total number of
officers, their race and gender that were revoted was not known.
On October 27, 1992, Major Nihiser requested the Army Board
for Correction of Military Records ("ABCMR") to reverse the
recommendation of the Board or, in the alternative, for certain
financial relief. Major Nihiser alleged among other things that
"[t]here may be an issue of racial/gender discrimination
associated with the [Board's] operations." Id. at 6. His
request was denied by memorandum of ABCMR dated March 10, 1993.
Major Nihiser was advised of the denial letter dated April 26,
1993, which he initialed on May 5,1993. Id.
After waiting more than six years, Major Nihiser asked the
ABCMR to reconsider its decision of March 10, 1993 by
application, dated September 12, 1999. It was sent to the ABCMR
on October 5, 1999. Relying on Adarand Constructors v. Pena,
515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) and
Sirmans v. Caldera, 27 F. Supp.2d 248 (D.C. Nov. 5, 1998),
Major Nihiser argued that the Board made an "unconstitutional
affirmative action instruction." On April 5, 2001, the ABCMR
denied the application.