United States District Court for the District of Columbia
November 15, 2004.
G. ALLAN SIRMANS, Plaintiff,
LES BROWNLEE, Acting Secretary of the Army Defendant.
The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
This case concerns the defendant, the Acting Secretary of the
Army ("Army"), and alleged discrimination in the Army's officer
promotion practices. Before the Court are Plaintiff's Motion 
for Summary Judgment and Defendant's Further Renewed Motion 
to Dismiss, or for Judgment on the Pleadings, or for Summary
Judgment. Additionally before the Court is Plaintiff's Motion
 to Amend the First Amended Complaint to Correct
Typographical Error. For the reasons stated herein, plaintiff's
motion to amend is granted and the parties' dispositive motions
are granted in part and denied in part.
At times relevant to this case, plaintiff G. Allan Sirmans, a
Native American male, was a Lieutenant Colonel of the U.S. Army
Judge Advocate General Corps serving on active duty. Plaintiff's performance was superlative, at least according to
his supervisor and superior, Major General Roger G. Thompson, Jr.
Major General Thompson's performance review glows:
An absolute must selection for promotion to O6
[Colonel]. I'm personally convinced that LTC Sirmans
will make a superlative JAG Colonel and potential
general officer. Ready for a leadership position
within the Judge Advocate General's Corps now. An
absolutely superb JAG officer and among the top 1
percent of all with whom I've served. LTC Sirmans'
management and leadership skills are absolutely
outstanding and usually found only in officers much
his senior. A must selection for senior service
school. Assign as a major installation Staff Judge
Advocate, Corps Staff Judge Advocate or division
chief in the Office of the Judge Advocate General."
Supp. AR 52.
The Colonel, Judge Advocate General's Corps, Promotion
Selection Boards for 1996, 1997, 1997 (August), 1998, and 1999
each considered plaintiff for promotion to Colonel. While each
board found plaintiff, and all others under consideration, fully
qualified for promotion, none of the boards selected plaintiff
for promotion. Each of these boards was composed, pursuant to
Deputy Chief of Staff for Personnel instructions, of at least one
female and at least one minority. The boards operated under
similar equal opportunity instructions as set forth in Department
of the Army Memo. 600-2, issued in November 1993 [hereinafter DA
Memo.]. These instructions called on the boards to "achieve a
selection rate" for minorities and for women "not less than the
selection rate for all officers in the promotion zone (first time
considered)." DA Memo. § A-2. Board members are to be alert to
these goals during the initial review, DA Memo. § 10(a), and
during a review and revote procedure should the board fail to
achieve a selection rate for women or a particular minority,
id. § A-10(c)(3)(a). See generally Saunders v. White,
191 F. Supp. 2d 95, 124, 137 (D.D.C. 2002) (discussing the policy at
length). In 2001, the Court dismissed plaintiff's facial challenge to
the boards' composition, but held open the possibility that an
as-applied challenge could be brought with respect to any of the
boards. Sirmans v. Caldera, 138 F. Supp. 2d 14 (D.D.C. 2001).
The Court refused to dismiss plaintiff's challenge based on the
Army's equal opportunity instructions for the 1996, 1998, and
1999 boards.*fn1 Id.
I. Plaintiff's Motion to Amend the Complaint
The pleadings and other filings in this case have routinely
mislabeled promotion boards with the wrong year. Plaintiff has
moved to amend his complaint to, at long last, reflect the true
identity of the boards whose composition and promotion practices
he wishes to challenge. He wishes to put into play the 1998 and
1999 boards, not the 1999 and 2000 boards. The Army protests that
the amendment comes too late and that, in adding some years and
removing others, the amendment is substantive. Given that the
parties have conducted discovery with respect to each of these
boards and made arguments concerning each, that the Court is able
to rule on the challenges brought against each of these boards,
and that the Court believes no prejudice will result, the Court
grants plaintiff's motion to amend.
II. Army's Arguments for Dismissal
A. The Settlement Agreement In 1998, plaintiff filed in this Court Civil Action 98-278, a
related suit against the Army alleging discrimination by the 1997
and 1997 (August) promotion boards. Plaintiff and the Army chose
to settle the claims by an out-of-court Settlement Agreement and
Release ("Agreement") dated June 15, 1999. The agreement required
the Army to provide plaintiff reconsideration by up to three
Special Selection Boards ("SSB"s), each using non-discriminatory,
agreed-upon instructions. The first SSB would act as the 1997
board. If it non-selected plaintiff, a second board, acting as
the 1997 (August) board, would consider plaintiff. If it also
non-selected plaintiff, a third board, acting as the
1998*fn2 board would consider plaintiff. Agreement ¶¶ 2-3.
The Agreement then provided benefits to plaintiff regardless of
whether a board eventually selected him or not. Agreement ¶¶ 5-6,
7. In turn, the Agreement required plaintiff to
warrant and represent that no other action or suit
with respect to the claims alleged in his complaint
in this case are pending or will be filed in, or
submitted to, any court, administrative body, or
legislative body. . . .
Agreement ¶ 10.
In an earlier Memorandum Opinion issued in this case,
Sirmans, 138 F. Supp. 2d at 20-21, this Court construed the
Agreement to permit as-applied challenges to the composition of
the Army's selection boards for 1996, 1997 and 1997 (August).
Now, the issue is to what extent the Agreement precludes
challenges based on the Army's equal opportunity instructions.
According to the Army, the Agreement precludes challenges based
on the instructions given to the 1996-1998 boards. In determining
the scope of this Agreement, the Court previously determined that the Agreement was wholly extra-judicial and that it must
therefore be interpreted according to familiar principles of
contract law. See id. at 20.
The Agreement has some inconsistency. While it purports to
settle only instruction claims alleged in the complaint only
claims related to the instructions given to the 1997 and 1997
(August) boards the Agreement provided relief related to not
just these two boards, but also the 1998 board. It seems
inconceivable that the parties would agree on relief related to
three boards but only intend to settle claims related to two of
them. In support of this conclusion, the plaintiff's First
Amended Complaint excludes claims based on instructions for three
boards: 1997, 1997 (August), and 1998.*fn3 And in an earlier
motion to dismiss, the plaintiff concedes that the Agreement
covers challenges based on instructions given to these three
boards. (Pl. Opp. to Def. Mot. to Dismiss, Jan. 9, 2001 at 4 n.
4.). Based on the contents of the Agreement, the behavior of the
parties, and the concession of the plaintiff, the Court concludes
that the agreement covers the 1997, 1997 (August), and 1998
boards and prevents plaintiff's challenges based on instructions
to these boards. These challenges must be dismissed.
The 1996 board is another matter. This board is neither
mentioned in the settled complaint nor mentioned or provided for
in the Agreement: there is simply "[n]o provision in the written
settlement agreement." Hatcher v. Office of Comptroller of
Currency, 631 F.2d 985, 987 (D.C. Cir. 1980); see Sirmans,
138 F. Supp. 2d at 20. There is no indication that the parties
ever contemplated the merits of the 1996 claims or intended to
resolve them in the Agreement. The 1996 claims, unlike the others in that case and this case,
involves the issue of plaintiff being "under the zone" for
promotion, which gives these claims a distinctive character. The
Agreement, therefore, does not preclude challenges related to the
Next, the Army urges that plaintiff, a Native American male,
lacks standing to complain about the selection boards' adherence
to Army alleged discrimination against Caucasians and males. The
Army points out that Native Americans, as one category of racial
minority, actually benefitted from the Army's equal opportunity
instructions. Plaintiff asserts standing based both on his status
as a male and on a theory of third-party standing that is, on a
theory that plaintiff can make claims of discrimination on behalf
of Caucasians even though he is Native American.
Plaintiff's assertion of third-party standing on behalf of
Caucasians is untenable. Courts permit plaintiffs to assert the
rights of third parties in the limited situations where the
plaintiff himself has suffered an injury in fact, where the
plaintiff has a close relation to the third party, and where
there exists a hindrance to the third party acting to protect his
own interests. Powers v. Ohio, 499 U.S. 400, 411 (1991). There
is clearly no hindrance to Caucasians suing on their own behalf.
This Court has had several cases in which Caucasians challenged
the promotion practices of various Army selection boards. See,
e.g., Saunders, 191 F. Supp. 2d passim. While it is true that "any person, of whatever race, has the right to
demand that any government actor subject to the Constitution
justify any racial classification subjecting that person to
unequal treatment, Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 224 (1995), that person still must first meet the
constitutional and prudential standing requirements of the
Plaintiff's assertion of standing based on his status as a
male, however, does have merit. The Army's equal opportunity
policy separately promoted both minorities and women while
separately injuring both Caucasians and men. To illustrate why a
Native American male, a minority, has standing to assert the
rights of men, consider the simplistic case where a selection
board must consider a Native American male and a Native American
woman. The Army policy would lead a selection board to treat a
Native American male and an Native American women differently.
Selecting a Native American male would help the Army reach one
numerical goal, the goal for promotions of Native Americans.
Selecting a Native American female would help the Army reach two
numerical goals, the goal for promotion of Native Americans and
the goal for promotion of women. Even if the woman were
Caucasian, a somewhat more complex scenario, the Native American
male would still be injured if, at the time, the Army policy and
promotion statistics showed that promoting a woman would be more
helpful to reaching the Army's goals than promoting a Native
American, perhaps because other Native Americans under
consideration had been promoted first. Based on this analysis,
the Court concludes that plaintiff, as a male, has been
sufficiently injured to permit standing.
C. Plaintiff's Due Process Claim
Plaintiff alleges that the Army violated his Fifth Amendment
constitutional right to both due process of the law and equal
protection of the law. The Fifth Amendment guarantees that no person shall be "deprived of life, liberty, or property, without
due process of law." U.S. Const. Amend. V. The Fifth
Amendment's Due Process Clause makes the Fourteenth Amendment's
guarantee of equal protection applicable to federal entities, not
just the state entities mentioned explicitly in the Fourteenth
Amendment's text. See Adarand, 515 U.S. at 204; Bolling v.
Sharpe, 347 U.S. 497 (1954).
Insofar as plaintiff's equal protection challenge depends on
the Fifth Amendment's Due Process Clause, plaintiff's challenge
cannot be dismissed. However, the Court holds that plaintiff
cannot maintain a so-called "procedural" due process claim
challenging the absence or level of process given to plaintiff
during consideration of his promotion. First, it does not appear
from the Complaint that plaintiff makes such a challenge.
Moreover, our Circuit Court makes it "clear that military
promotion decisions simpliciter are not susceptible to due
process challenges, inasmuch as there exists no property or
liberty interest in a military promotion through the selection
boards." Blevins v. Orr, 721 F.2d 1419, 1421-21 (D.C. Cir.
III. The Army's Argument for Summary Judgment as to
Plaintiff's As-Applied Challenges
As already noted, the Court, back in 2001, dismissed
plaintiff's facial challenge to the boards' composition, but held
open the possibility that an as-applied challenge could be
brought with respect to any of the boards. Sirmans,
138 F. Supp. 2d at 20-21. The Court might consider selection board
membership in the context of such things as promotion rates and
individual intent. Now, after the accumulation of evidence and a
period of three years, the Army moves for summary judgment on the
as-applied challenges. First, the Army cites promotion rates from
1996-1999 that show that, on the whole, far more Caucasians and
males were selected than their minority and female counterparts. Next, the Army argues that
there is no evidence showing any kind of wrongful persuasion by
board members. It does cite the certification of results that
board members sign. This certification affirms that "to the best
of their knowledge, the board [was] . . . not subject to or aware
of any censure, reprimand, or admonishment about the
recommendations of the board." See, e.g., AR 75. Plaintiff
offers no reply. Accordingly, based on the record in the case and
plaintiff's non-opposition, the Army is entitled to summary
judgment and the plaintiff's as-applied challenges to board
composition must fail.
IV. Plaintiff's Motion for Summary Judgment on the Equal
Plaintiff moves for partial summary judgment and asks this
Court to declare unconstitutional the Army's equal opportunity
instructions given to the 1996, 1998, and 1999 boards. As just
determined, plaintiff may only challenge the practices of the
1996 and the 1999 boards and he must challenge these practices as
a male, not as a minority.
Plaintiff easily makes out his prima facie case that the equal
opportunity instructions to both the 1996 and 1999 boards violate
the constitution. In Saunders, this Court held that materially
identical equal opportunity instructions were facially
unconstitutional. The instructions, which set numerical goals for
promotion of women, violated the Fifth Amendment right to equal
protection because they favored women during both the initial
consideration and the review procedure without connection to an
important government interest as required by intermediate
scrutiny. Saunders, 191 F. Supp. 2d at 124; see also
United States v. Virginia, 518 U.S. 515, 532-33 (1996). The
Army's sole argument in the face of Saunders is that Saunders
involved a Caucasian, not a minority like plaintiff. This
argument rehashes the Army's standing argument and fails to comprehend that plaintiff, as a male, can
claim the benefit of Saunders regardless of his race.
Even when the government imperishably discriminates, as the
Army did here, it may "avoid liability by proving that it would
have made the same decision without the impermissible motive."
Texas v. Lesage, 528 U.S. 18, 21 (1999).*fn5 The proof
must be by a preponderance of the evidence. Mt. Healthy City Bd.
of Ed. v. Doyle, 429 U.S. 274, 287 (1977), cited by Lesage,
528 U.S. at 21. The Army does not raise this defense with respect
to the 1999 board, and therefore, for that board, plaintiff must
be granted summary judgment. However, the Army seems to raise the
defense with respect to the 1996 Board. In 1996, plaintiff was
"below the zone." This means that plaintiff had not yet served
the three years required, absent a waiver, for consideration for
a promotion. That year, the Army notes, the board did not select
a single one of the 31 below-the-zone candidates for promotion.
Nor did the board review or revote any officer's file. Among the
31 below-the-zone candidates, three were labeled Black and two
were labeled female. AR 69. In this limited circumstance where
plaintiff was considered before his candidacy for promotion
became ripe and where the board passed over every single
below-thezone candidate, including minorities and women the
Army's defense prevails. It has shown by a preponderance of the
evidence that plaintiff's non-selection would have occurred
absent the equal opportunity instructions. V. Conclusion and Remedy
Based on the foregoing, all of plaintiff's claims related to
board composition are dismissed with prejudice; plaintiff's
claims related to the instructions given to the 1996, 1997, 1997
(August), and 1998 boards are dismissed with prejudice; but
plaintiff's claim related to the instructions given to the 1999
board succeeds and plaintiff is entitled to summary judgment on
that claim. Plaintiff has requested that, for each illegal
promotion board, the Army administer a Special Selection Board to
reconsider plaintiff without the equal opportunity instructions.
The Court deems this relief proper and will order such a board to
act in place of the 1999 board. An order consistent with this
Memorandum Opinion shall issue this date. ORDER
After considering the record in the case in connection with
Plaintiff's Motion  for Summary Judgment; Defendant's Further
Renewed Motion  to Dismiss, or for Judgment on the Pleadings,
or for Summary Judgment; and Plaintiff's Motion  to Amend the
First Amended Complaint to Correct Typographical Error, it is,
consistent with a Memorandum Opinion issued in this case on this
ORDERED that Plaintiff's Motion  to Amend the First Amended
Complaint to Correct Typographical Error is GRANTED.
ORDERED that Plaintiff's Motion  for Summary Judgment and
Defendant's Further Renewed Motion  to Dismiss, or for
Judgment on the Pleadings, or for Summary Judgment are both
GRANTED IN PART and DENIED IN PART.
ORDERED that defendant administer a Special Selection Board to
stand in the place of The Colonel, Judge Advocate General's
Corps, Promotion Selection Boards for 1999 and that this Special Selection Board use non-discriminatory, neutral
instructions in place of the unlawful equal opportunity
instructions used in 1999.
ORDERED that if the court-ordered Special Selection Board
selects plaintiff for promotion, defendant shall change
plaintiff's records to reflect promotion by the original 1999
ORDERED that plaintiff be denied relief with respect to his
other claims and that this case be DISMISSED WITH PREJUDICE.