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NIHISER v. WHITE

July 16, 2002

WARD S. NIHISER, PLAINTIFF,
V.
THOMAS E. WHITE, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

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.

BACKGROUND

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. Id.

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. Id.

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.

Major Nihiser commenced this action on August 27, 2001. He challenges the constitutionality of the 1992 Instruction under the equal protection clause of the Fifth Amendment by arguing that the instruction gave preferential treatment to minority and female officers. He also challenges the validity of the two decisions by the ABCMR under the arbitrary and capricious standard of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). Major Nihiser seeks relief in the form of nullification of his separation; that steps be taken to restore him to active duty; and that the Secretary be enjoined from using classifications based on race or gender in future RIF boards, except insofar as the classifications meet the requirements of equal protection.

ANALYSIS

I. Standard of ...


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