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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 [46] for Summary Judgment and Defendant's Further Renewed Motion [50] to Dismiss, or for Judgment on the Pleadings, or for Summary Judgment. Additionally before the Court is Plaintiff's Motion [59] 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.

I. Background

  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" ...

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