pleadings, the defendant's motion to supplement rests entirely on the court's discretion because the defendant seeks only to update an earlier declaration. Compare id. with FED. R. CIV. P. 15(d).
As the D.C. Circuit has explained, in resolving a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court is not limited to the allegations contained in the complaint but may consider materials outside the pleadings. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987); Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). Accordingly, in resolving the defendant's motion to dismiss for lack of subject-matter jurisdiction, the court may look beyond the pleadings and consider the two declarations at issue. Id. Therefore, the court exercises its discretion to grant the defendant leave to file the supplemental declarations.*fn6 Dial A Car, Inc., 1994 U.S. Dist. LEXIS 20928, at *2-3; Abbott, 2001 U.S. Dist. LEXIS 6214, at *72; Vogrin, 2001 U.S. Dist. LEXIS 9825, at *26.
C. The Court Strikes the Defendant's Motion to Dismiss and Allows Further Briefing
In addressing the defendant's motion to dismiss, the court recognizes two possible avenues by which it could proceed to resolve the motion: the court could either provide a substantive ruling on the motion by piecing together the jurisdictional arguments presented in various submissions,*fn7 or strike the motion to allow the parties to fully brief the new issues presented in the defendant's supplemental declarations and in the defendant's reply brief. The court chooses the latter course. The chosen course allows the plaintiff to respond to the defendant's arguments raised for the first time in the defendant's reply. Def.'s Reply to Pl.'s Resp. As it now stands, the plaintiff has not had a full opportunity to respond to the arguments raised in the defendant's reply. Although the court could provide the plaintiff with the opportunity to file a sur-reply to address those new arguments, the plaintiff has not made such a request. The better approach is for the parties to incorporate their arguments in one chain of briefing, rather than in the piecemeal briefing that has resulted. Sani-Top, Inc. v. N. Am. Aviation, Inc., 261 F.2d 342, 343 (9th Cir. 1958) (stressing the importance of courts having "a full record" before proceeding with rulings rather than being "supplied [facts] by affidavits . . . and piecemeal snatches of the record"); Divane v. Krull Elec. Co., Inc., 2002 U.S. Dist. LEXIS 24333, at *3 (N.D.Ill. Dec. 18, 2002) (disapproving of piecemeal fashion of briefing a motion); Waters v. Port Auth. of N.Y. & N.J., 158 F. Supp.2d 415, 437 (D.N.J. 2001). Indeed, instead of the court addressing the parties' various claims presented in a piecemeal fashion, it seems best to afford the parties a period in which to brief the factual underpinnings of and legal issues presented in the defendant's newly submitted affidavits. Am. Directory Serv. Agency, Inc. v. Beam, 1988 U.S. Dist. LEXIS 18520, at *2-3 (D.D.C. June 20, 1998) (Pratt, J.); Gowdish v. Eaton Corp., 1981 U.S. Dist. LEXIS 11470, at *5-6 (M.D.N.C. Mar. 2, 1981) (noting that "[p]iecemeal supplementation of affidavits is not a practice that the Court desires to encourage").
For these reasons, the court does not reach the merits of the defendant's motion to dismiss, but rather strikes the defendant's motion and allows the parties to re-brief their arguments related to dismissal. Am. Directory Serv. Agency, Inc., 1988 U.S. Dist. LEXIS 18520, at *2-3. If the defendant renews his request for dismissal by filing a comprehensive motion to dismiss, the plaintiff may file an opposing brief, and the court will then be in a position to address the motion in an intelligent fashion. Id.
For the foregoing reasons, the court lifts the stay previously imposed by its May 15, 2001 order, grants the defendant's motion to supplement, strikes the defendant's motion to dismiss, and allows re-briefing of the defendant's motion to dismiss. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 20th day of May 2003.
*fn2 10 U.S.C. § 14101(a) provides in pertinent part that
[w]henever the needs of the Army, Navy, Air Force, or
Marine Corps require, the Secretary concerned shall
convene a selection board to recommend for promotion
to the next higher grade . . . officers on the reserve
active-status list of that armed force in a permanent
grade from first lieutenant through brigadier general
or, in the case of the Naval Reserve, lieutenant
(junior grade) through rear admiral (lower half).
10 U.S.C. § 14101(a).
*fn3 In convening a special selection board to reconsider the plaintiff's non-promotion, the defendant does not admit that the equal-opportunity precepts at issue created impermissible race and gender classifications in violation of the plaintiff's constitutional rights to equal protection and due process as alleged in the plaintiff's complaint.
*fn4 Judicial economy also favors lifting the stay. Airline Pilots Ass'n, 523 U.S. at 879 n. 6. Indeed, consider what would happen if the court were to subscribe to the plaintiff's line of reasoning: the court would strike the defendant's filed motions for the defendant's failure to formally move the court to lift the stay, at which point the defendant most likely would move the court to lift the stay and re-file his motions, thereby necessitating, in turn, the plaintiff to re-file his responses to those motions. Such an arduous and time-consuming process is unnecessary.
*fn5 Federal Rule of Civil Procedure 7(a) lists the types of pleadings that parties may file in federal court: a complaint; an answer; a reply to a counterclaim, if the counterclaim is so denominated; an answer to any cross-claim; a third-party complaint; and a third-party answer. FED. R. CIV. P. 7(a). Accordingly, a defendant may not supplement a motion to dismiss or affidavit under Rule 15 because these submissions do not fit Rule 7(a)'s definition of a "pleading." Maldonado v. Dominguez, 137 F.3d 1, 11 n. 8 (1st Cir. 1998); Mellon Bank, N.A. v. Ternisky, 999 F.2d 791, 795 (4th Cir. 1993); United States v. Snider, 779 F.2d 1151, 1155 (6th Cir. 1985); Int'l Longshoremen's Ass'n, S.S. Clerks Local 1624 v. Va. Int'l Terminals, Inc., 904 F. Supp. 500, 504 (E.D.Va. 1995).
*fn6 The plaintiff is not prejudiced by the court's decision granting the defendant's motion to supplement because the court will provide the plaintiff a full opportunity to respond to the defendant's supplemental declarations and related arguments in a manner described later in this opinion and in the accompanying order.
*fn7 The parties' arguments relating to dismissal are found in the defendant's motion to dismiss and attached declaration, the plaintiff's opposition thereto, the defendant's reply, the defendant's motion to supplement and attached declarations, the plaintiff's response thereto, and the defendant's reply.