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" ...