The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
LIFTING THE PENDING STAY; GRANTING THE DEFENDANT'S MOTION FOR LEAVE TO SUPPLEMENT THE RECORD; STRIKING THE DEFENDANT'S MOTION TO DISMISS; AND ALLOWING RE-BRIEFING OF THE DEFENDANT'S MOTION TO DISMISS
This case presents a challenge to the Navy's alleged affirmative-action policies and comes before the court on the Secretary of the Navy's ("the defendant") motion to dismiss Curtis Marsh's ("the plaintiff") complaint for want of subject-matter jurisdiction and motion for leave to supplement the record with additional declarations. The plaintiff notes that the court stayed all proceedings at bar and thereby opposes the defendant's motions on the ground that the defendant prematurely filed them in violation of the pending stay. After consideration of the parties' submissions, the relevant law and the record, the court lifts the pending stay, grants the defendant leave to supplement the record, strikes the defendant's motion to dismiss and allows re-briefing on the defendant's motion to dismiss.
The plaintiff, a white male, is a retired military officer who served on active duty in the United States Marine Corps Reserve. Compl. ¶ 3. In November 1999, after being passed over for a promotion to the rank of colonel, the plaintiff challenged his non-promotion by filing an application with the Board for Correction of Naval Records ("BCNR"). Id. ¶¶ 19, 22; Pl.'s Resp. to Def.'s Mot. to Supplement ("Pl.'s Resp.") at 1. On May 4, 2000, the BCNR issued a final agency decision refusing to reconsider the plaintiff's non-promotion. Compl. ¶¶ 23-24. Shortly thereafter, the plaintiff retired from active military duty. Id. ¶ 18.
On September 7, 2000, the plaintiff filed his complaint with this court against the defendant in the defendant's official capacity as the head officer of the Navy. Id. ¶ 4. The plaintiff alleges that the selection boards*fn2 wrongfully prevented the plaintiff from receiving a promotion to the rank of colonel for four consecutive years by employing"policies of racial and sexual classifications" in violation of the Administrative Procedure Act and the plaintiff's Fifth Amendment rights to equal protection and due process. Id. ¶¶ 7-17. Specifically, the plaintiff believes that the selection boards did not promote him because of the Navy's equal-opportunity policies that allegedly dictate preference for members of certain racial and gender classifications of which the plaintiff is not a member. Id. ¶¶ 16-17.
On February 1, 2001, the defendant approved the plaintiff's request to convene a special selection board to reconsider the plaintiff's non-promotion.*fn3 Def.'s Notice of Selection at 1. On May 15, 2001, the court granted the parties' joint motion to stay all further proceedings on that proffered basis. Order dated May 15, 2001; Pl.'s Resp. at 2. After a favorable recommendation for promotion by the special selection board, approval by the Secretary, nomination by the President and confirmation by the Senate, the plaintiff received his promotion to the rank of colonel. Pl.'s Resp. at 2-3.
In a memorandum dated August 21, 2002, the BCNR determined that pursuant to 10 U.S.C. §§ 14502(e)(3) and 1552, the plaintiff's record should reflect his promotion effective as of November 1, 1997. Def.'s Mot. to Dismiss ("Def.'s Mot.") Attach. A at 2-3. The BCNR further decided to correct his record"to show he has not failed of selection for promotion to colonel" and declared that the defendant should be awarded payment of any money to which he is entitled. Id. Consequently, on September 12, 2002, the defendant filed the pending motion to dismiss, asserting first that the plaintiff's promotion and the relief granted by the BCNR rendered the plaintiff's claims moot and second that the plaintiff lacks standing to challenge the Navy's promotion policies. Id. at 1-2; Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. ("Def.'s Reply") at 8-9.
On April 1, 2003, the defendant filed its motion for leave to file two additional declarations to supplement an earlier filed declaration ("motion to supplement"). Def.'s Mot. to Supplement at 1-2. The defendant's objective in supplementing the record is to demonstrate that the plaintiff's claims are rendered moot now that the plaintiff has received his back-pay and allowances coincident to his promotion. Id.
A. The Court Lifts the Pending Stay
As a threshold matter, the court must determine whether it should lift the stay imposed on May 15, 2001 so that it may resolve the pending motions filed by the defendant. Given the plaintiff's promotion and relief granted by the BCNR, the parties agree that the circumstances previously requiring the stay have now changed. The plaintiff asserts, however, that the defendant's motions are procedurally improper because the court's stay order is in ...