The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Currently before the Court are (1) the defendants' Motion to Dismiss and for Summary Judgment ("Defs.' Mot.") and their Memorandum in Support of Defendants' Motion to Dismiss, and for Summary Judgment ("Defs.' Mem."); (2) the plaintiff's Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss the Amended Complaint ("Pl.'s Opp'n"); and (3) the defendants' Reply Memorandum in Support of Defendants' Motion to Dismiss and for Summary Judgment ("Defs.' Reply").*fn1 For the reasons set forth below, this Court grants the defendants' motion.
The facts in this case have been exhaustively discussed in this Court's prior Memorandum Opinions and thus will only be reviewed here to the extent necessary to resolve the pending motion. See Worth v. Jackson, Civ. Action No. 02-1576, slip op. at 1-4 (D.D.C. February 23, 2005) (hereinafter "Worth II"); Worth v. Jackson, Civ. Action No. 02-1576, slip op. at 2-6 (D.D.C. January 5, 2004) (hereinafter "Worth I"). The plaintiff, Dennis Worth, is a white male employed at the Department of Housing and Urban Development ("HUD") in St. Louis, Missouri. He brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), and the Fifth Amendment to the United States Constitution to challenge "affirmative employment plans ["AEPs"] that [allegedly] discriminate on the basis of race, ethnicity, and gender . . . ." Second Amended Complaint ("Compl.") ¶ 1. In addition, the plaintiff also challenges HUD's practice of "provid[ing] employment goals, target deadlines, managerial appraisals and incentives only for alleged 'underrepresented' racial minorities and women, and not for whites or males, even when whites or males are 'underrepresented' in a job category." Compl. ¶ 19.
Essentially, the plaintiff's challenges can be divided into two distinct categories. First, many of the allegations contained in the second amended complaint were based upon affirmative action plans that were implemented by HUD in accordance with the Equal Employment Opportunity Commissions's ("EEOC") Management Directive 714 ("MD-714").*fn2 See, e.g., Compl. ¶¶ 10-14. Second, the plaintiff challenges HUD's "general hiring and promotions practices." Worth II, slip op. at 9.
On October 1, 2003, MD-714 was superceded by the adoption of MD-715. Id. at 4. Accordingly, the defendants filed a motion to dismiss the plaintiff's first amended complaint, arguing that the case had become moot as a result of the adoption of MD-715. See Defendants' Supplemental Motion to Dismiss the First Amended Complaint. On January 5, 2004, this Court granted in part and denied in part the defendants' motion, concluding that the plaintiff had standing to challenge the defendants' alleged discriminatory policies because the plaintiff had allegedly suffered an injury as a result of the defendants' preferential treatment of minorities, Worth I, slip op. at 12, but that the plaintiff's claims that challenged MD-714 and HUD's AEP were indeed moot because MD-715 explicitly superceded those policies and thus those claims were dismissed.*fn3 Id. However, based upon the record before it, the Court was unable to determine if the plaintiff's allegations of discrimination based on HUD's general hiring, promotion, transfer and retention policies had also been rendered moot by the adoption of MD-715. Id. at 12-13. Thus, the Court permitted the parties to conduct limited discovery on the issue of whether the plaintiff's challenge to these other policies had also been rendered moot by the adoption of MD-715. Id. Following the completion of this discovery, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and for summary judgment pursuant to Rule 56(c). Worth II, slip. op at 4.
With respect to this second motion, on February 23, 2005, this Court granted the defendants' motion to dismiss those claims of discrimination predicated upon the Troy Memorandum*fn4 and those claims of discrimination pertaining to under-representation analyses, multi-year plans, AEP's and goals and targets to remedy underrepresented minorities and women to the extent that these practices had ended following the adoption of MD-715. See Worth II, slip op. at 9-15. At the same time, this Court denied the defendants' motion as to the plaintiff's remaining claims of discrimination because there was some evidence in the record indicating that some of HUD's hiring and promotion policies were not implemented pursuant to MD-714 and may in fact be predicated on independent grounds. Id. at 15-16. It is the merits of these claims that survived the defendants' mootness challenges that are the subject of this opinion.
Under Federal Rule of Civil Procedure 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). In reviewing such a motion, this Court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).
This Court will grant a motion for summary judgment under Rule 56(c) if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, this Court must view the evidence in the light most favorable to the non-moving party. Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Under Rule 56, "if a party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial," summary judgment is warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id. In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The defendants contend that each count of the plaintiff's complaint that remains alive are deficient, and thus they are entitled to judgment in their favor. The Court will address each of the plaintiff's three counts separately.
(A) The Plaintiff's Fifth Amendment Claim
In Count I of the second amended complaint, the plaintiff alleges that the defendants are violating the Due Process Clause of the Fifth Amendment by subjecting him to a system of preferential hiring and promotion. Compl. ¶ 35. The defendants posit that the plaintiff is precluded from brining a constitutional claim against them because Title VII is the exclusive vehicle for pursuing employment discrimination claims. See Def.'s Mem. at 5. Thus, the defendants opine that because the plaintiff has failed to state a claim upon which relief can be granted, Count I should be dismissed. Id. at 7. The defendants rely heavily on Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976), as support for their argument. Id. at 8-10. In opposition, the plaintiff contends that Brown is inapplicable to cases seeking prospective, as opposed to ...