The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING THE DEFENDANT'S MOTION TO DISMISS;DENYING WITHOUT PREJUDICE THE DEFENDANT'S ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
The plaintiff is a white minister formerly employed as a Commander in the Navy Chaplain Corps. He commenced this action to challenge the recommendation of the Department of the Navy's Selective Early Retirement Board's ("SERB") that resulted in his involuntary retirement. The plaintiff now moves for summary judgment, arguing that the recommendation was based on official Navy policy giving preference to minorities and thus constituted reverse racial discrimination. The defendant, the Secretary of the Department of the Navy ("Secretary"), has filed a motion to dismiss or, in the alternative, a cross-motion for summary judgment,*fn1 arguing, inter alia, that this court lacks jurisdiction to entertain the plaintiff's claim because he failed to exhaust his administrative remedies prior to commencing this action. The court concurs that the plaintiff has failed to establish the court's subject matter jurisdiction over this matter and, as a result, grants the defendant's motion to dismiss.
II. FACTUAL & PROCEDURAL BACKGROUND
In November 1995, the Secretary issued an instructional memorandum or "precept" that convened a selection board to consider whether Chaplain Corps servicemembers at the rank of Commander should be made eligible for selective early retirement. Admin. R. at 4. In the "supplemental guidance" attached to the precept, the Secretary stated in relevant part as follows:
The Department of the Navy is dedicated to equality of treatment for all personnel without regard to race, creed, color, sex, or national origin. Aggressive commitment to equal opportunity is critical.
(a) Many minority officers have been assigned involuntarily outside the traditional career development patterns, i.e., recruiting, equal opportunity and specific billets requiring minorities. These assignments, though beneficial to the interests of the Navy, have resulted in those officers having career patterns different from officers who have been able to serve in their primary or warfare specialties. In making your determination of those officers who are best suited for retention, you must view such assignments as having the same value as assignments within the primary or warfare specialty.
(b) The 1988 CNO Study Group Report on Equal Opportunity in Navy, which is available to you, noted that minority officers who, prior to entering Navy, had limited interaction with a predominately majority environment, may take a longer time to adjust and, perform to the level of their contemporaries. This may result in initially lower fitness reports at the junior officer level (through 0-3) and a higher percentage of 'late bloomers' than their majority counterparts. You must consider this when evaluating a minority officer.
(c) In evaluating the records of eligible officers, you should be aware that past discrimination may have operated to the disadvantage of minority officers. Such discrimination may have manifested itself in comparatively lower fitness reports. Equivalent performance by a minority officer and a non-minority officer may not have resulted in equivalent fitness reports. You must consider this when evaluating minority officers.
In August 1996, the plaintiff, a white minister who served as a Commander in the Chaplain Corps, was "involuntarily retired" in accordance with a recommendation of the SERB.
Compl. ¶ 4. In May 2002, almost six years after the SERB's decision forcing his involuntary retirement, the plaintiff applied to the Board for Correction of Naval Records ("BCNR"), arguing that the SERB had failed to consider some officers for early retirement who should have been considered before the plaintiff. Admin. R. at 2. After requesting and reviewing the comments and recommendation of the Office of the Judge Advocate General ("OJAG"), the BCNR denied the plaintiff's application in February 2003. Id. at 113-14.
The plaintiff subsequently submitted a petition to the BNCR for reconsideration of its decision, which the BCNR accepted in March 2003. Id. at 136-37, 165. In December 2003, the plaintiff amended his petition for reconsideration to include allegations that the SERB's decision forcing his early retirement had been guided by a "precept" which "established a preference for minority personnel." Pl.'s Mot. at 2; Admin. R. at 186-87. The plaintiff asked that the SERB decision be overturned "because the [precept] constituted illegal reverse racial discrimination." Pl.'s Mot. at 3; Admin. R. at 184-85.
The BCNR again requested comments and a recommendation from the OJAG. Admin. R. at 253. The OJAG acknowledged that other selection boards had used "[t]he practice of re-grading," which involved "taking the preliminary results of the selection board, and re-grading minority candidates where there [was] a discrepancy between the selection rates of minority and non-minority candidates." Id. at 263. The OJAG concluded, however, that "improper re-grading of minority candidates" had not occurred in the 1996 SERB decision and the controlling precept "did not instruct or even permit members to re-grade minority officer records." Id. at 255. The BCNR denied the plaintiff's petition for relief upon reconsideration in ...