Sirmans v. Caldera

• Decision Date: 19 March 2001
• Docket Number: No. CIV.A. 00-1135 (RCL).,CIV.A. 00-1135 (RCL).
• Citation: 138 F.Supp.2d 14
• Parties: Lieutenant Colonel G. Allan SIRMANS, USA Plaintiff, v. Louis CALDERA, Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Columbia

138 F.Supp.2d 14

Lieutenant Colonel G. Allan SIRMANS, USA Plaintiff, v. Louis CALDERA, Secretary of the Army, Defendant.

No. CIV.A. 00-1135 (RCL).

United States District Court, District of Columbia.

March 19, 2001.

Christopher Alexander Sterbenz, Vienna, VA, for Plaintiff or Petitioner.

Herbert Forrest, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant or Respondent.

MEMORANDUM OPINION

LAMBERTH, District Judge.

Now before the Court is the defendant's motion to dismiss the plaintiff's complaint. The plaintiff, an American Indian male, alleges that he was several times denied a promotion by the defendant's equal opportunities policies. These policies, he alleges, violate the Fifth Amendment. After a full consideration of the parties' memoranda and the applicable law, the Court GRANTS in part and DENIES in part the defendant's motion.

BACKGROUND

Allan Sirmans is a lieutenant colonel serving on active duty in the United State Army. For five consecutive years, he sought a promotion to the rank of colonel. In each case, the promotion selection board denied him a promotion.

In 1998, LTC Sirmans came before this Court challenging two instances of his non-promotion. He alleged that the Army's policy and practice of giving preference to minorities and women in promotion decisions caused him not to be promoted in 1997 and 1997 (August). That claim was settled out of Court. The plaintiff now comes before this Court alleging that he was denied a promotion in various years due to (1) the Army's policies and practices with respect to selection board membership, and (2) the Army's equal opportunity policy with respect to promotion. He also alleges that he was denied a promotion in 1996, 1999, and 2000 as a result of the Army's policy and practice of giving preferences to minorities and women in promotion. See Complaint for Sirmans, July 21, 2000, at ¶ 29.

A. The Army's Selection Board Membership Policies

The Army has an official policy of composing its promotion selection boards with "at least one minority and one female." See Brief for Defendant, Nov. 15, 2000, at 5 (citing to Defendant's Exhibit A-3). LTC Sirmans alleges in his complaint that the policy and practice of requiring "one or more females and one or more members of racial groups other than Caucasian [to be on the selection board]", and the lack of a policy requiring "one or more males and one or more members of the Caucasian racial group [to be on the selection board]" caused him to be repeatedly passed over for promotions. Complaint for Sirmans, July 21, 2000, at ¶ 29.

B. The Army's Equal Opportunity Policies with Respect to Promotion

In addition to his board membership claim, LTC Sirmans also alleges that he was denied a promotion in 1996, 1999, and 2000 as a result of the Army's policy and practice of giving preferences to minorities and women in promotion. See Complaint for Sirmans, July 21, 2000, at ¶ 29. Although the policy has changed several times during the years in question, its consistent use of a "revote" policy is a core dispute in this case.¹

As its name suggests, the revote procedure occurs after the selection board has "completed a review of [the officers'] personnel files and initially ranked [them] in order of qualification for promotion." Brief for Defendant, Nov 15, 2000, at 4 (quoting Sirmans v. Caldera, 27 F.Supp.2d 248, 249 (D.D.C.1998) (Lamberth, J.)). After this ranking, and in accordance with official instructions, the selection board reviews the results to determine whether promoting the leading candidates from the first ranking would "produce a selection rate for minorities and women that was comparable to the selection rate for all officers considered for promotion." Brief for Defendant, Nov. 15, 2000 at 4. If promotions made in accordance with the initial ranking would not produce comparable promotion rates, the board was then obliged to reexamine the records of all female and minority candidates who were qualified for promotion yet unable to receive one on account of their ranking. The reexamination was "to determine if any of the personnel files show[ed] evidence of discrimination against the individual officer." Id. If a majority of the selection board found "evidence of past discrimination, that officer was `revoted' and assigned a new qualification ranking." Id. This new ranking might be higher or lower than the candidate's first ranking and might not result in the candidate being ranked high enough for a promotion. In any event, the ranking ascribed to the female or minority applicant was final after the revote took place.

* * * * * *

In sum, LTC Sirmans claims that his promotion was repeatedly thwarted by the Army's selection board membership policy and its equal opportunity policy with respect to promotion. The Court now considers these and other pertinent issues.

ANALYSIS

I. Jurisdiction

Because the plaintiff's well-pleaded complaint presents a federal question, this Court properly has jurisdiction under 28 U.S.C. § 1331.

II. Standard of Review

If a plaintiff has failed "to state a claim upon which relief can be granted," a court may grant a defendant's motion to dismiss. Fed.R.Civ.P. 12(b)(6); see also Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000). In evaluating a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and give the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." Wiggins v. Hitchens, 853 F.Supp. 505, 508 n. 1 (D.D.C.1994) (citing 2A Moore's Federal Practice, § 12.07, at 63 (2d ed.1986) (footnote omitted); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987)).

III. The Plaintiff's Claim Based on Selection Board Membership

The plaintiff alleges that he was denied a promotion five consecutive times because the Army has a policy of requiring that women and minorities sit on selection boards. This policy, he alleges, violates the Constitution. The defendant argues that the plaintiff is either without standing to pursue this claim, or is without a constitutional right in the first place. The Court finds that he is without standing to facially challenge the composition of the selection board.

Article III standing rules ensure that parties will not "convert the judicial process into `no more than a vehicle for the vindication of the value interests of concerned bystanders.'" Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (quoting United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). To this end, one of the requirements for standing is that there be "a causal relationship between the [plaintiff's] injury and the challenged conduct." Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (citations and internal quotation marks omitted) (analyzing a plaintiff's standing in an equal protection challenge to an affirmative action program); see also Simon v. Eastern Kent. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). This should not suggest, however, that one need show that the defendant's conduct was the proximate cause of the alleged injury. See Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir.1990) ("The `fairly traceable' requirement of the Valley Forge test is not equivalent to a requirement of tort causation."); Loggerhead Turtle v. County Council of Volusia County, Fla., 148 F.3d 1231, 1251 n. 23 (11th Cir.1998). Rather, a plaintiff need only show that there is a "substantial likelihood" that the defendant's conduct caused the plaintiff's injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75 n. 20, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

Thus, the Court is posed with the question of whether there is a substantial likelihood that the Army's selection board membership policy caused the plaintiff's non-promotion. The Court finds that there is not such a likelihood. To hold otherwise would be to hold that every time "one or more females and one or more members of racial groups other than Caucasian" are placed on a selection board, the collective promotion decisions of the selection board are unavoidably altered. Such a conclusion would necessarily include two presumptions. First, that all women and non-whites have an inherent and unavoidable disposition to favor their own race and gender. And second, that all promotion decisions by selection boards are controlled by the voting habits of a few women and non-whites.

The first presumption is not just patently false, it is diametrically opposed to Supreme Court jurisprudence which this Court is bound to follow.² The Supreme Court has consistently shunned such racial and gender stereotypes, and, in any event, has never held that a decisionmaker's race or sex, by itself, prevents her from making an objective decision. See, e.g., Bush v. Vera, 517 U.S. 952, 986, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) ("Our Fourteenth Amendment jurisprudence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial stereotypes."); Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) ("[T]he exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party"); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 ...