Full opinion text
MEMORANDUM OPINION LAMBERTH, District Judge. On March 19, 2001, the Court granted in part and denied in part the defendant’s motion to dismiss the plaintiffs original complaint. Thereafter, the plaintiff amended his complaint. Now the defendant again seeks dismissal, or in the alternative, summary judgment. In addition, the plaintiff has moved for summary judgment on the issue of liability. Specifically, the plaintiff claims that as a matter of law the defendant’s use of racial and gender classifications in its promotion policy violated his Fifth Amendment rights and that the only issue left for the Court to resolve concerns fashioning an appropriate remedy. After a full review of the parties’ memoranda, the applicable law, and for the following reasons, the Court DENIES in part and GRANTS in part the defendant’s motion and DENIES in part and GRANTS in part the plaintiffs motion. I. BACKGROUND The facts of this case have already been fully recounted in the Court’s March 19, 2001 Memorandum Opinion. For the present purposes, it enough to state that the plaintiff is a white male who is on retired status in the United States Army. He is ranked as a lieutenant colonel and, during the years 1996 and 1997, he sought promotion to the rank of colonel. In each instance, he was denied promotion. On October 25, 1999, the plaintiff filed this action alleging that his failure to be promoted was due to the Army’s equal opportunity policy. His complaint clearly alleged that the Army’s policy was unconstitutional both facially and as applied. See Amended Complaint, Mar. 19, 2001 (stating that the defendant’s equal opportunity instructions “both as set forth in writing and as actually interpreted and executed” violated the plaintiffs constitutional rights.) On March 31, 2000, the Army moved to dismiss LTC Saunders’ original complaint on several standing and mootness grounds. As such, the Army did not address whether the equal opportunity policy was, on its face, unconstitutional. The Court granted in part and denied in part the Army’s motion. Specifically, the Court dismissed Saunders’ claims for prospective relief on the ground that he, as a retired officer, had no standing to seek such relief. With respect to Saunders’ retrospective claims, the Court found that Saunders had properly stated a claim. Thereafter, the plaintiff amended his complaint. He added an allegation that he was denied “equal protection of the laws [through the use of] racial and sexual classifications in [the] composition of the [promotion] selection boards.” Amended Complaint, at 7. In response to Saunders’ amended complaint, the Army moved to dismiss, or in the alternative, for summary judgment. Aside from its argument against the selection board composition claim, the Army advances several different arguments: (1) Saunders’ claim with respect to the 1996 selection board should be dismissed because the equal opportunity policy did not discriminate on the basis of race or gender; (2) Saunders’ claim with respect to the 1997 selection board should be dismissed because (a) his claim was mooted by the convening of a special selection board, (b) he would not have been promoted even in the absence of the equal opportunity policy, and (c) the Army’s behavior is justifiable under a standard of intermediate scrutiny. II. ANALYSIS A. The Defendant’s Motion to Dismiss the Plaintiffs Selection Board Membership Claim 1. Standard of Review for a Motion to Dismiss 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)). 2. The Defendant’s Motion As the plaintiffs amended complaint is identical to the plaintiffs original complaint in all respects save one, few words are needed to resolve the defendant’s motion. The only issue presented in the instant motion that was not addressed by the Court’s March 19, 2001 Opinion is the issue of selection board composition. On this issue, the Court finds that the plaintiff is without standing to facially challenge the selection board composition, but may proceed with an as applied claim. See Ward v. Caldera, 138 F.Supp.2d 1 (D.D.C.2001). To have jurisdiction over a case, a court must find there to be “a causal relationship between the [plaintiffs] 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). In the case at hand, there is no such relationship between the defendant’s membership policy and the plaintiffs non-promotion. The Court recently explained its reasoning at length in Ward v. Caldera: To hold [in favor of the non-promoted plaintiff] 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. The Supreme Court has consistently shunned such racial and gender stereotypes, and, in any event, has never held that a decision-maker’s race or sex, by itself, prevents her from making an objective decision. The second presumption behind the plaintiffs claim is completely devoid of logic. While it is reasonable to assume that women and non-whites, together with the other members of selection boards, inform the decisions of the board, it is patently unreasonable to assume that a few members, constituting a numerical minority of the board, can control the outcome of the board’s decisions. Thus, even if women and nonwhites were possessed of the class narcissism which the plaintiff implies, there is no reason to think they would be successful in converting the rest of the board to their views. Of course, there exists the possibility (though it is a slight one for sure) that a particular woman or minority, possessed of both class narcissism and Machiavellian powers of persuasion, could pull off a coup of racial or gender discrimination against a particular applicant. But the mere possibility of this is a far cry from the necessity that, in a facial challenge, the plaintiff “establish that no set of circumstances exists under which the [policy] would be valid.” Ward, 138 F.Supp.2d at 8-9 (citations omitted). Regarding selection board composition, the instant case presents the same material facts as Ward v. Caldera. Thus, the Court finds that the plaintiffs facial challenge to the policy must fail. The plaintiff, however, may continue to pursue an as-applied challenge; that is, an allegation that the 1996 and 1997 selection boards that considered his promotion intended to discriminate against him. As the Court recognized in Ward, the plaintiff in this case might, in accordance with his duty to demonstrate a discriminatory purpose under Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), utilize the selection board membership, together with other evidence such as the promotion rate for certain races and genders, to persuade the Court that he has been discriminated against. Ward, 138 F.Supp.2d at 9. Thus, although the Court holds that board membership itself is not conclusive (or even probative) as to discrimination, the individual identities of board members may, of course, play a role in discrimination. B. The Plaintiffs Standing to Seek Retrospective Relief Before reaching the merits of a particular claim, a federal court must assure itself that it has jurisdiction over the case. See FW/PBS Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (noting that “the federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps.the most important of the jurisdictional doctrines.’ ”); Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (same); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (same). In order for a court to have jurisdiction over a case, the plaintiff bringing the suit must have standing to raise the claims asserted therein. 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) (recognizing that “[t]he doctrine of standing is an essential and unchanging part of the case- or-controversy requirement of Article III[.]”). Courts should not, however, consider the merits of the plaintiffs claim in determining whether he has standing to bring the lawsuit. Warth, 422 U.S. at 500, 95 S.Ct. 2197 (recognizing that “standing in no way depends on the merits of the plaintiffs contention that particular conduct is illegal”); Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (stating that “we thus put aside for now Whitmore’s Eighth Amendment challenge and consider whether he has established the existence of a ‘case or controversy.’ ”). In fact, “[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth, 422 U.S. at 501, 95 S.Ct. 2197; AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C.Cir.1982) (noting that “[f]or purposes of the standing issue, we accept as valid Congressman Sabo’s pleaded legal theory.”). As the Court has already dismissed the plaintiffs claims for prospective relief, the Court is now presented with the interesting and uncommon question of what showing a plaintiff seeking retrospective relief must make to obtain the jurisdiction of this Court. The Court enunciates this showing below and finds that the plaintiff has met its requirements. 1. The Plaintiffs Injury in Fact In order to have standing a plaintiff must demonstrate that: (1) he has suffered an injury that is both (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to (or caused by) the conduct of which he complains; and (3) the injury is likely to be redressed by a court decision in his favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Skaggs v. Carle, 110 F.3d 831, 834 (D.C.Cir.1997). While ah three of these elements must be satisfied in order for a plaintiff to have standing, “the central focus is fixed on the injury requirement.” Wright, Miller, and Cooper Federal Practice and Procedure 418 (1984). The reason that the injury component of this tripartite test is particularly important is because without first determining the precise injury that a plaintiff has suffered or will suffer, it is impossible for a court to-ascertain whether the remaining two requirements — causation and redress-ability — have been met. Indeed, there is no question that the manner in which the plaintiffs injury is defined will necessarily impact whether the injury is “fairly traceable” to the actions of the defendant and whether the injury can be “redressed” by a favorable decision of the court. Thus, in enunciating the showing that a plaintiff seeking retrospective damages has to make in order to have standing, the Court must begin by determining what the “injury” is in this type of case. a. Inability to Compete on an Equal Footing When a plaintiff challenging an allegedly discriminatory governmental policy seeks prospective relief, the plaintiff “need not allege that he would have obtained the benefit but for the [discriminatory policy] in order to establish standing.” Northeastern Fla., 508 U.S. at 666, 113 S.Ct. 2297. Rather, the “ ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the [discriminatory policy], not the ultimate inability to obtain the benefit.” Id. (noting that “in the context of a challenge to a set-aside program, the ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.”). See also Adarand Constructors, 515 U.S. at 211, 115 S.Ct. 2097 (same). Thus, for a plaintiff seeking prospective relief to suffer an injury for purposes of standing, he only needs to demonstrate that he is ready and able to apply (or be considered) for a benefit and that a discriminatory policy prevents him from doing so on an equal basis. Id. Moreover, based on this definition of injury in fact, it is relatively easy for a plaintiff to demonstrate both that the discriminatory policy is the ‘cause’ of his injury and that a judicial decree directing the government to discontinue its program would ‘redress’ the injury. See, e.g., Northeastern Fla., 508 U.S. at 666, 113 S.Ct. 2297. Some courts have also applied the “inability to compete on an equal footing” standard in cases where the plaintiff seeks retrospective relief. See, e.g., Wooden v. Board of Regents of the University System of Georgia, 247 F.3d 1262 (11th Cir.2001); Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487 (10th Cir.1998). For example, the plaintiffs in Wooden, who unsuccessfully sought admission to the University of Georgia, alleged that the university’s freshman admissions policy illegally favored non-white applicants. Wooden, 247 F.3d at 1264. The Eleventh Circuit began its discussion of standing by explicitly citing cases such as Northeastern Florida and Adarand Constructors for the proposition that “when a plaintiff competing for a government-sponsored benefit has been treated differently because of race, he has standing to challenge that differential treatment because his application has not been considered on an equal footing with applications from members of the favored racial group.” Id. at 1274-76. Based on this definition of injury in fact, the court concluded that: the critical inquiry for standing purposes [is] whether the plaintiffs application has actually been treated differently at some stage in the admissions process on the basis of race. If so, then the plaintiff has not competed on an equal footing with other applicants outside his racial classification, and standing should be conferred regardless of whether race is ultimately a factor in the decision to reject the application. Conversely, if the plaintiffs application is never actually treated differently because of race, then the fact that race may be a consideration in assessing other applicants at a different stage of the process should not by itself confer standing. Id. at 1278 (emphasis in original). The court further held that to the extent the injury is differential treatment, “that injury was unquestionably caused by” the University and the “court could redress that injury” in a number of ways. Id. at 1281. Moreover, in Buchwald, the plaintiff, who unsuccessfully sought admission to the University of New Mexico School of Medicine, alleged that the school’s admissions process illegally favored long-term residents. Again, relying on cases like Northeastern Florida, the Tenth Circuit found that: [i]njury .in fact in an equal protection case like this may simply be the existence of a government-erected barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group. It is not necessary for the plaintiff to show that she would have received the benefit but for the operation of the policy, because the injury is the imposition of the barrier itself. Here defendants admit favoring long-term over short-term residents, all other qualifications being equal, which by itself is therefore a sufficient demonstration of injury in fact. Because it is clear that defendant’s stated policy ‘caused’ the plaintiff to compete at a disadvantage vis-a-vis long term residents, we have little doubt that, were the district court to award damages, plaintiffs injury would likely be redressed. Buchwald, 159 F.3d at 493. It is important to note that, under this standard, plaintiffs who were not actually subjected to different treatment — that is, plaintiffs who competed on an equal footing — lack standing since they failed to suffer an injury in fact. Wooden, 247 F.3d at 1282-83 (finding that “a white applicant knocked out at the first stage of the UGA admissions process based on purely race-neutral criteria — -as part of an entirely race-neutral inquiry into objective qualifications— cannot claim to have been denied an opportunity to compete ‘on an equal footing’ with non-white applicants.”); Donahue v. City of Boston, 2001 WL 1682613 (D.Mass. December 13, 2001) (stating that “[t]he undisputed facts demonstrate that Donahue’s test scores and lack of statutory-preference doomed his candidacy to failure before the consent decree came into play. Because Donahue has no injury, he has no standing.”). b. Actual Denial of the Benefit In contrast, other courts have found that when a plaintiff seeks retrospective relief the “injury in fact” is the actual denial of the benefit rather than the inability to have competed for the benefit on an equal footing. Yeager v. General Motors Corp., 265 F.3d 389, 395 (6th Cir.2001); Comfort v. Lynn School Committee, 150 F.Supp.2d 285, 299-301 (D.Mass.2001) (noting that “standing to claim compensatory relief requires a plaintiff to show that he would receive the benefit in question were race not considered, whereas to claim equitable relief, a showing of inability to compete on an equal footing will suffice.”); Sims v. Ware, 1999 WL 637226 at *2 (N.D.Texas August, 20, 1999) (finding “that the plaintiffs have failed to meet this fundamental standing requirement as complete eradication of the affirmative action plan would not result in promotion to the rank of Senior Corporal for these seven Baird plaintiffs”). For exam-pie, in Yeager, the plaintiff, who was not admitted into General Motors Corporation’s apprentice program, alleged that the apprentice program (which included a pre-apprentice training program) impermissi-bly favored minority and female candidates. In affirming the district court’s determination that Yeager lacked standing to bring the suit, the Sixth Circuit found that “Yeager was not injured within the meaning of Article III because GMC hired fifty apprentices in 1996 and fifty candidates with higher unadjusted scores outranked Yeager.” Yeager, 265 F.3d at 395. That is, the court found that Yeager did not suffer an injury in fact-and therefore he lacked standing-because he would have been rejected even under race and gender neutral criteria. Id. Cf. McNamara v. Chicago, 138 F.3d 1219, 1221 (7th Cir.1998) (noting that “[h]ad there been no favoritism, the six low-ranking plaintiffs would not have been promoted, because promotions would have stopped at 146 and the highest-ranking of these plaintiffs was as we said number 152. A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.”). , Even if the injury in fact is the actual denial of a benefit rather than the inability to have competed for it on an equal footing, however, plaintiffs do not have to show-at least in employment discrimination cases-that they would have received the benefit absent the discriminatory policy. As Judge Posner, writing for the Seventh Circuit, explained in Doll v. Brown: The plaintiff in an ordinary tort case must prove not only that the defendant committed a wrongful act but also that the act injured the plaintiff, that is, made him worse off than he would have been had the defendant not acted. Both wrong and injury are elements of the plaintiffs case, which he thus must prove by a preponderance of the evidence, because, as we tirelessly repeat ... there is no tort without an injury. But, in the case of the statutory and constitutional torts of employment discrimination, the Supreme Court has held that the burden of proof on the issue of injury rests on the employer, the defendant, rather than the employee, the plaintiff. Doll, 75 F.3d 1200, 1202 (7th Cir.1996). See also Bishop v. Gainer, 272 F.3d 1009, 1016 (7th Cir.2001) (agreeing with the district court’s conclusion that “[i]t is defendants who bear the burden of establishing that plaintiffs would not have been promoted irrespective of any racial or gender discrimination.”). In employment discrimination cases where the plaintiff challenges an employer’s decision as being based on illegal as well as legal factors, the injury that the plaintiff has to allege (and, in fact, ultimately prove) is that the impermissible reason was a motivating or substantial factor in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (finding that “[w]hen, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was ‘because of sex and the other, legitimate considerations-even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.”); Thomas v. NFL, 131 F.3d 198, 202-03 (D.C.Cir.1997) (recognizing that “[a] plaintiff asserting mixed motives must persuade the trier of fact by a preponderance of the evidence that [an] unlawful [factor] constituted a substantial factor in the defendant’s action.”). As the Supreme Court stated in Price Water-house, which was a Title VII action based on gender discrimination, “our assumption always has been that if an employer allows gender to affect its decisionmaking process, then it must carry the burden of justifying its ultimate decision. We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today.” Price Waterhouse, 490 U.S. at 248, 109 S.Ct. 1775 (stating that the “critical inquiry ... is whether gender was a factor in the employment decision at the moment it was made”) (emphasis in original); Toney v. Block 705 F.2d 1364, 1366 (D.C.Cir.1983) (noting that “in such circumstances it is unreasonable and destructive to the purposes of Title VII to require the plaintiff to establish in addition the difficult hypothetical proposition that, had there been no discrimination, the employment decision would have been made in his favor.”)- In applying this standard to employment discrimination suits, the Court explicitly cited cases in other contexts, such as Mt. Healthy City Board of Education v. Doyle, for the proposition that the plaintiff only has to show that an illegal motive was “a ‘substantial’ or ‘motivating factor’ in the adverse treatment of him by his employer.” Price Waterhouse, 490 U.S. at 248-49, 109 S.Ct. 1775. Moreover, the Court further noted that “[i]n saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.” Id. at 250, 109 S.Ct. 1775. Once a plaintiff has shown that the illegal criteria was a motivating or substantial factor, “the factfinder is entitled to presume that the employer’s discriminatory animus made a difference to the outcome, absent proof to the contrary by the employer.” Id. at 276, 109 S.Ct. 1775 (O’Connor, J., concurring). Finally, because the injury under this standard is that the employer relied on an impermissible factor in making the decision, there is no doubt that such reliance would be fairly traceable to the actions of the employer and that a favorable decision by the court could redress the injury. 2. The “Same Decision” Defense and Texas v. Lesage Under this latter standard, “[w]hen the plaintiff successfully shows that an unlawful motive was a substantial factor in the employer’s action, the defendant may seek to prove in response that it would have taken the contested action even absent the discriminatory motive.” Thomas, 131 F.3d at 202-03. The reason why the employer may attempt to make this showing is that “under Price Waterhouse a defendant who is guilty of acting pursuant to an unlawful motive may nonetheless escape liability by proving that it would have made the same decision in the absence of the unlawful motivation.” Id.; Doll, 75 F.3d at 1202 (noting that “[i]f the plaintiff proves that the employer was motivated to take the action of which the plaintiff complains, which might be, as here, the denial of a promotion, by a discriminatory purpose, but the employer proves that he would have taken the same action even if he had had no discriminatory purpose, the employer has negated liability and not just injury.”). Courts have referred to this showing by the employer as the same decision defense. In order to satisfy this burden, the employer “must show that its legitimate reason, standing alone, would have induced it to make the same decision.” Price Waterhouse, 490 U.S. at 252, 109 S.Ct. 1775. “As to the employer’s proof, in most eases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive.” Id. See also Hopkins v. Price Waterhouse, 920 F.2d 967, 972-74. Merely showing that the employer could have made the same decision is not the same as proving that it would have made the same decision, and such a demonstration is therefore insufficient. Id. See also Speedy v. Rexnord Corp., 243 F.3d 397, 402 (7th Cir.2001) (“proving that the same decision would have been justified absent an [illegal] motive is not the same as proving the same decision would have been made absent the motive.”). If the employer is unable to show that it would have made the same decision absent the illegal factor, then the factfinder is justified, as noted above, in concluding that the decision was made because of consideration of the illegal factor. Price Waterhouse, 490 U.S. at 252, 109 S.Ct. 1775. One recent (and controversial) application of the same decision defense occurred in Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). Lesage involved the claim of a white applicant, Francois Daniel Lesage, who alleged that he had been denied admission to a school’s Ph.D. program in counseling psychology on account of his race. The school admitted to considering race in the selection process, but argued- — in its motion for summary judgment — that Lesage’s qualifications were such that he would have been denied admission even if the selection process were colorblind. The school initially noted that in the year Lesage applied, it received 223 applications for the program and offered admission to approximately 20 candidates. The school submitted evidence that “[a]t least 80 applicants had higher undergraduate grade point averages (GPA’s) than Lesage, 152 applicants had higher Graduate Record Examination (GRE) scores, and 73 applicants had both higher GPA’s and higher GRE scores.” Id. at 19, 120 S.Ct. 467. The school also filed an affidavit of Professor Ricardo Ainslie, one of two faculty members on the school’s admissions committee. In his affidavit, Professor Ainslie stated that in addition to having a lower GPA and GRE score than several other applicants, Lesage also had “weak” letters of recommendation and his personal statement indicated that he only had a “superficial interest” in the field. Id. Based on these factors, Professor Ainslie stated that Lesage’s application was rejected early in the review process, when the committee was winnowing the full application pool to a list of 40. Id. Based on this evidence, the District Court concluded that race did not effect the decision to reject Lesage and that there was uncontested evidence that the students ultimately admitted to the program had credentials that the committee considered superior. to the plaintiffs. It therefore granted the university’s motion for summary judgment and dismissed the case. Although the Fifth Circuit recognized the district court’s findings as undisputed, it nevertheless concluded that they were irrelevant to the question before the court, namely, “whether the state violated Les-age’s constitutional rights by rejecting his application in the course of operating a racially discriminatory admissions program.” Lesage v. Texas, 158 F.3d 213, 222 (5th Cir.1998). In reversing the district court, the Fifth Circuit found that summary judgment could not be granted in favor of the school because there remained a factual dispute as to whether the stage of review during which it rejected Lesage’s application was in some way race conscious. Id. The Fifth Circuit additionally found that the possibility that Lesage “would not have been offered admission [wa]s relevant only to the quantum of damages available — not the pure question of the state’s liability, which [wa]s the issue on summary judgment.” Id. at 222. On appeal, the Supreme Court reversed. The Court held that “where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the discrimination precludes any finding of liability.” Lesage, 528 U.S. at 21, 120 S.Ct. 467. In making this determination, the Court found that “[ijnsofar as the Court of Appeals held that summary judgment was inappropriate on Lesage’s 1983 action seeking damages for the school’s rejection of his application for the 1996-1997 academic year even if [the school] conclusively established that Lesage would have been rejected under a race neutral policy, its decision is inconsistent with this Court’s well-established framework for analyzing such claims.” Id. at 20, 120 S.Ct. 467. Specifically, the Court cited its decision in Mt. Healthy City Board of Education v. Doyle as providing the appropriate framework to apply in this type of case. Id. The Court observed that under Mt. Healthy, “even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration.” Id.; See also Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568 (finding that initially, “the burden was properly placed upon [the plaintiff] to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’ or to put it in other words, that it was a ‘motivating factor’ in the Board’s decision not to rehire him. [Plaintiff] having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to [the plaintiffs] reemployment even in the absence, of the protected conduct.”)- Thus, the Court opined that “where a plaintiff challenges a discrete government decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983.” Id. Accordingly, the Court held that the university’s motion for summary judgment should have been granted and the case dismissed. As a result of the Supreme Court’s decision in Lesage, some courts have found that the same decision defense can — in addition to defeating a plaintiffs claim for compensatory damages' — be used by an employer to demonstrate that a plaintiff lacks standing to bring a lawsuit in the first place. Yeager, 265 F.3d at 395-97; Boston’s Children First v. Boston School Committee, 183 F.Supp.2d 382 (D.Mass.2002); Comfort v. Lynn School Committee, 150 F.Supp.2d at 300. In particular, these courts have stated that once an employer demonstrates that the same decision would have been made absent the illegal factor, the employer has proven that the plaintiff has not suffered an injury in fact and, therefore, that the plaintiff lacks standing. For example, in Yeager (which is discussed above), the Sixth Circuit held that the plaintiff lacked standing because General Motors demonstrated that he would not have been admitted into the apprentice program even under race and gender neutral criteria. Yeager, 265 F.3d at 395-97. While the court did not expressly rely on Lesage, it nonetheless found that the plaintiff was not injured within the meaning of Article III because the defendant would have taken the same action regardless of the plaintiffs race and gender. Moreover, the court in Boston’s Children First v. Boston School Committee specifically interpreted Lesage as holding that “[i]f the result would have been the same, regardless of the plaintiffs race, he or she cannot be said to have suffered an injury attributable to the defendants’ unconstitutional conduct. The plaintiff, in other words, would lack standing.” Boston’s Children First, at 392. On the other hand, some courts have explicitly found that the same decision defense, while dispositive in the context of liability, is not even probative on the plaintiffs standing to bring a discrimination claim. Wooden, 247 F.3d at 1279-82; Farmer v. Ramsay, 159 F.Supp.2d 873, 886 (D.Md. 2001). In Wooden, as discussed above, the Eleventh Circuit held that a plaintiff who was denied admission to the University of Georgia under race neutral criteria had standing to challenge the policy because his application was treated differently at an earlier stage in the admissions process. Wooden, 247 F.3d at 1279-82. In reaching this conclusion, the Court found that: “A showing that Green was denied admission under race-neutral criteria, and that his application would have been handled in exactly the same way even if race were not a factor at the TSI stage, may well defeat Green’s claim or establish a Mt Healthy defense. But at least in this context the Supreme Court has chosen to define the relevant injury-in-fact without regard to the end result of the defendant’s consideration of race... Especially in this area, we cannot read the Court’s jurisprudence as conflating the standing inquiry with resolution of the merits of the plaintiffs attack on race-conscious governmental decision-making. Defendant’s argument that Green suffered no injury-in-fact is unconvincing because, at bottom, it conceives of the standing inquiry as duplicating an inquiry into the merits.” Wooden, 247 F.3d at 1280; Alexander v. Estepp, 95 F.3d 312, 315 n. 5 (4th Cir.1996) (“The district court held as a preliminary matter that all the plaintiffs had standing, including those who would not have been hired even in the absence of the department’s affirmative action program. We affirm this ruling [since their injury was that they were unable to compete on an equal footing, rather than that they would have obtained the benefit but for the discriminatory policy].”). In Farmer, the court agreed with the Eleventh Circuit’s classification of the “ ‘same decision’ argument as a complete defense on the merits rather than a challenge to standing.” Farmer, 159 F.Supp.2d at 886. 3. Causation and Redressability Requirements Because the manner in which the injury is defined in these cases is so significant, the Court will only briefly discuss the other two requirements of the standing doctrine. First, in order to have standing to initiate a lawsuit, the plaintiff must be able to show that his alleged injury is fairly traceable to the defendant’s unlawful conduct. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. To satisfy this causation requirement, there must be a sufficiently clear causal connection between the illegal action taken by the defendant and the injury suffered by the plaintiff. California Assoc. of Physically Handicapped v. FCC, 778 F.2d 823, 825-26 (D.C.Cir.1985). Moreover, to satisfy the redressability prong, the plaintiff must show that it is likely, as opposed to merely speculative, that his injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. 4. The Instant Case In determining whether a plaintiff has standing, the foregoing discussion illustrates that courts have applied two distinct standards in cases where the plaintiff challenging an allegedly discriminatory government policy seeks retrospective relief. In particular, some courts find that the “injury” in these cases is that the plaintiff was not able to compete for the benefit on an equal footing with other candidates. These courts hold that the critical inquiry is whether the plaintiff was personally subject to different treatment. If the answer is yes, and the plaintiff further demonstrates that the unequal treatment was because of the government or its policy and that the court could redress his injury, then the plaintiff has standing to bring the claim. On the other hand, some courts find that the injury in these cases is the actual denial of the benefit. These courts find that the plaintiff must allege that an illegal factor was a motivating or substantial factor in the ultimate decision to deny him the benefit. The plaintiff also must show that the illegal factor was used because of the employer or its policy and that the court could redress the injury. After the plaintiff makes that showing, however, the defendant may be able to divest the plaintiff of standing by showing that the same decision would have been made even absent the discriminatory factor. The Court finds that it does not need to determine at this time which standard is correct because it concludes that Saunders has standing to challenge the Army’s promotion policy under both of them. In his amended complaint, Saunders alleges that the Army’s equal opportunity policy— which was used twice in determining whether he would be promoted to the rank of colonel — favors minority and female officers in the promotion process. Specifically, he claims that the “instructions, both as set forth in writing and as actually interpreted and executed by” the 1996 and 1997 boards “denied Plaintiff his equal protection rights, guaranteed by the Fifth Amendment to the United States Constitution.” Amended Complaint at ¶ 20. Saunders contends that the Army’s promotion policy created racial and gender classifications that resulted in preferential treatment towards minority and female candidates during the initial phases of the process and during the review and revote stage. Thus, Saunders claims that he was unable to compete with minority and female candidates on an equal footing in the promotion process and that race and gender were motivating factors in the decision whether to promote him. Assuming that these factual allegations are true, which the Court must do for purposes of a motion to dismiss, Saunders clearly would satisfy the threshold showing of injury in fact. Moreover, the Court finds below that the equal opportunity instructions provided to the 1996 and 1997 selection boards did contain racial and gender classifications. Thus, at this point in the litigation, Saunders may very well have sustained his ultimate burden of showing that race and gender were motivating factors in the decision not to promote him or that the factors prevented him from competing with minority and female candidates on an equal footing. In addition, there is no doubt that the introduction of race and gender into the selection process-both in the initial phases and during the review and revote stage-can be fairly traced to the equal opportunity instruction that the Army gave to the boards. Finally, Saunders seeks compensatory damages and to have his personnel file corrected. Both of these forms of relief would redress his injury in this case. As discussed above, however, some courts have held that despite making this showing, the government can still divest the plaintiff of standing by proving that the plaintiff would not have received the benefit even absent the illegal factor. The Army contends that this is such a case (like Lesage) and that Saunders would not have been promoted to the rank of colonel even under gender and race neutral criteria. The Court finds that, even assuming arguendo that the same decision defense goes to standing, the instant case is readily distinguishable from Lesage (and its progeny) because the defendant has failed to demonstrate that both the 1996 and 1997 selection boards would have reached the same conclusion regarding the promotion of the plaintiff without the army’s equal opportunity instruction. First, it is worth noting that the selection boards’ records might have resolved this question, but the Army, in accordance with standard operating procedure, had them destroyed shortly after the boards made their decisions. Second, the defendant has failed to provide any evidence that the 1996 Board, using race and gender neutral criteria, would still not have recommended Saunders for promotion to the rank of colonel. Rather, the defendant merely argues that the outcome would have been the same, since the 1996 Board did not conduct a revote; that is, decide to replace a white male that was tentatively recommended for promotion with a minority or female candidate that tentatively was not selected for promotion. The problem with the Army’s position is that even the initial phases of the equal opportunity instruction are being challenged as unconstitutional under the 5th Amendment. In other words, according to the plaintiff, the 1996 Board utilized impermissible criteria, namely race and gender, when it was determining who should tentatively be selected for promotion. Further, the defendant’s own evidence indicates that out of the sixteen individuals that the 1996 Board recommended for promotion, two were black males and two were white females. This evidence establishes that the criteria found in the equal opportunity instruction could have been a factor that prevented the plaintiff from being promoted to the rank of colonel. Thus, for purposes of this lawsuit, it makes no difference that the 1996 Board did not ultimately conduct a revote. Third, the defendant has failed to show that the 1997 Board would not have recommended Saunders for promotion if it had used a race and gender neutral standard while evaluating potential promotees. As noted above, the plaintiff alleges that even the initial phases of the recommendation process violated the 5th Amendment. In particular, Saunders claims that in addition to having a selection goal for minority and female officers, the 1997 Board was explicitly instructed to review the plaintiffs credentials without looking for signs of past discrimination while it was instructed to “be alert to the possibility of past personal or institutional discrimination” when evaluating the records of minority and female officers. Moreover, the evidence presented by the defendant shows that out of the sixteen officers recommended for promotion, two were black males, two were white females, and one was an Asian/Pacific Islander male. This evidence establishes that, for a second time, the criteria found in the equal opportunity instruction could have been a factor that prevented the plaintiff from being promoted to the rank of colonel. Furthermore, unlike the 1996 Board, the 1997 Board, after concluding that it did not meet its selection goal for women, did review the record of those female candidates that, though fully qualified for selection, had nevertheless not been recommended for promotion. As a result of this review and the subsequent revote, the 1997 Board upgraded a female officer’s status to selec-tee, and downgraded another officer’s status to non-selectee. Thus, the 1997 Board clearly denied a place on the recommendation list to a male officer as a result of the equal opportunity instruction. Additionally, it is worth noting that the Army’s own evidence indicates that the plaintiff was ranked higher than at least 80 of the 103 individuals the 1997 Board considered for promotion. Def.’s Supplemental Memo. In Support of Motion to Dismiss at 9-10. This finding directly refutes the defendant’s contention that Saunders’ case is comparable to the action instituted by Lesage. Lesage, 528 U.S. at 21, 120 S.Ct. 467. See also Yeager, 265 F.3d at 395-97. In short, the Army has failed to present evidence that demonstrates that Saunders would not have been recommended for promotion even if the selection boards utilized race and gender neutral criteria. The mere fact that Saunders was one of several individuals who was denied a promotion does not by itself satisfy the defendant’s burden. In all of the cases where the court found that the plaintiff lacked standing because the government would have made the same decision anyway, the defendant had demonstrated that the plaintiff in particular would not have received the benefit. In this case, the Army’s evidence that numerous individuals were vying for a limited number of slots does not show that Raymond Saunders would have been rejected. Despite this conclusion, however, it is important to note that, after discovery is complete, the government can still move for summary judgment based on the same decision defense. The Court expresses no opinion at this time on the merits of such a motion. In finding that Saunders has standing to assert these claims, the Court has also been mindful of the overarching principles underlying the doctrine of standing. Such principles include, first and foremost, the separation of powers doctrine implicit in Article Ill’s case or controversy requirement. This doctrine warns against accepting cases where plaintiffs are seeking to “convert the judicial process” for goals they were unable to obtain from the other branches. See, e.g., Haitian Refugee Center v. Gracey, 809 F.2d 794, 800-07 (D.C.Cir.1987) (Bork., J., for the majority) (arguing that standing analysis should always be “informed by separation of powers concerns”). Another principle is the desire to have plaintiffs with a significant personal stake in the outcome. Such a stake, argues the judiciary, will assure the court of “ ‘that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)); Warth, 422 U.S. at 499 (noting that “[t]he Article III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal aetion[.]’ ”). A final principle, which is somewhat a derivative of the first two, is that individuals do not have standing to assert generalized grievances. Under this principle, plaintiffs with nothing more than a “generalized interest,” that is, an interest which is “ ‘undifferentiated’ from that of all other citizens,” are not possessed of a concrete enough injury to have standing. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) (citing United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). Keeping these principles in mind, as well as the precedent discussed above, the Court is satisfied that the plaintiff has standing to seek retrospective relief. First, the Court sees nothing in the principles undergirding the standing doctrine that suggests that the Court should not exercise jurisdiction. Although affirmative action is, of course, a very charged political issue and has been repeatedly addressed by the legislative and executive branches, the issue is not solely a political one. To the contrary, the issue implicates core constitutional rights which the judiciary has long found within its purview to review. See, e.g., Adarand Constructors, 515 U.S. at 227, 115 S.Ct. 2097. Therefore, there is little concern that the plaintiff is attempting to “convert the judicial process” for his own policy objectives. Nor is there any concern in this case that the plaintiff is positioned in a way that he will fail to present the Court with the “concrete adverseness” necessary for an “illuminated” adjudication. As a white male who has been denied a promotion, he is perfectly situated to challenge the promotion policies that treated the females and minority candidates that he was competing against differently than him. The Court’s conclusion that Saunders has standing is thus entirely consistent with the cases that hold that only those persons who are personally denied equal treatment have standing to challenge an allegedly discriminatory governmental policy. See e.g., United States v. Hays, 515 U.S. 737, 744, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (noting that “even if a governmental actor is discriminating on the basis of race, the resulting injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.”); Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (same). Finally, this case does not arise from a “generalized grievance”; to the contrary, it is a very specific grievance that only applies to a small population of military officers. 5. Mootness Alternatively, the defendant argues that the convening of a Special Selection Board (“SSB”) makes the instant case moot because it provided the plaintiff with all the relief he was seeking. The Court disagrees. First, it is worth noting that this is the second time that the defendant has presented this argument. In its March 19, 2001 Memorandum Opinion, the Court explicitly rejected the defendant’s contention in this regard. The Court sees no reason to disturb that conclusion. Second, the convening of a SSB, which reconsidered the plaintiffs application using a changed affirmative action policy and subsequently re-denied him a promotion, says nothing about what decision the original selection board would have made. That is, the fact that a different board using different criteria failed to recommend Saunders for promotion does not demonstrate that the original selection board, using race and gender neutral criteria, would have failed to recommend Saunders for promotion. As noted above, the defendant has not presented any evidence that demonstrates that the original boards would have reached the same conclusion using a race and gender neutral standard. Thus, at the outset, it is important to understand that convening a SSB could only be applicable in the context of determining the appropriate relief in this case, it would not defeat (or even affect) liability. Third, the Court is troubled by the plaintiffs allegation that the President of the SSB which reconsidered the plaintiff for promotion was “well acquainted with the instant litigation and ... has personally given speeches and presentations to other Army JAG officers throughout the world, opining therein that the Plaintiffs case is a frivolous attack on the institution of the Army and the JAG Corps.” The plaintiff further alleges that “[g]iven this General Officer’s bias, knowledge of, and personal involvement in this current litigation-even prior to his presiding over Plaintiffs [SSB]-the results of that [SSB] were nothing more than a cruel sham[.]” While the Court will not simply accept the plaintiffs allegations as true, this issue would have to be explored further before the Court could rule as a matter of law that it lacks jurisdiction because of mootness. Horn v. United States, 230 Ct.Cl. 18, 671 F.2d 1328, 1331 (1982) (noting that “[w]here, as here, the defect goes to board composition, rather than to the contents of an officers OERs or files ..., automatic voiding of the passover is justified.”). Finally, even if the Court accepted the defendant’s contention that a SSB would make the plaintiffs claims moot, the defendant did not convene a SSB to reconsider the decision of the 1996 Board. Thus, Saunders’ claims with respect to the 1996 Board’s decision are clearly not moot. Porter v. United States, 163 F.3d 1304, 1307 (Fed.Cir.1998) (“The Air Board thus recommended to the Secretary of the Air Force that the OER be voided and that two SSBs (for each of the CY84B and CY85A captain promotion boards) convene to reconsider Porter for promotion.”) (emphasis added). In addition, it appears that the SSB that reconsidered the 1997 Board’s decision knew of Saunders’ failure to be promoted in 1996. Thus, the failure to convene a SSB to reconsider the decision of the 1996 Board is also important because it affects the validity of the SSB that reconsidered the 1997 Board’s decision. Id. In other words, the SSB that reconsidered the 1997 Board’s decision is likely not an adequate remedy because it knew of Saunder’s illegal non-selection by the 1996 Board. Before considering the constitutionality of the Army’s promotion policy, a brief discussion about cases such as Dilley v. Alexander, 603 F.2d 914 (D.C.Cir.1979), and Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984 (1979), is warranted. In these cases (and their progeny), the courts found that where the composition of the board itself was illegal, the Mt. Healthy framework did not apply and consequently the Army could not avoid liability by showing that the board would have made the same decision anyway. Dilley, 603 F.2d at 921-23; Doyle, 599 F.2d at 994-96. In Dilley, the court explained the basis for its conclusion as follows: The Mount Healthy Court was concerned solely with whether the school board had acted beyond the scope of its discretion. The school board had no power to act on constitutionally impermissible considerations, and the Supreme Court’s ‘but for’ test, if it may be deemed such, was fashioned only to resolve the factual issue of whether the school board had so acted. There was no procedural violation, statutory or otherwise, leading to the school board’s action .... Here, appellants do not attack the substantive basis for the Army’s decision. Their challenge is instead based on a violation of conceded procedural rights contained in the statute governing the military’s promotion system.... [T]his case simply does not involve the permissible exercise of discretion, and herein lies the principal error in the Army’s analysis. Dilley, 603 F.2d at 922; Doyle, 599 F.2d at 995 (noting that “[t]he error in this case, however, is not a violation of the plaintiffs’ substantive rights but rather a violation of the plaintiffs’ rights to a fair procedure or process.”). In these eases, the composition of the boards was illegal because they did not contain reserve officers. The courts determined that as a result of this compositional defect, it was impossible to remove the taint of illegality by showing that the same decision would have been made because no set of circumstances could make those particular boards’ determinations valid. Id. In fact, in these cases there was no indication that the boards considered an illegal or impermissible factor in making the decision. The principal issue was therefore not whether the boards exercised or would have exercised their discretion properly (since illegally constituted boards have no discretion or power to act in the first place), but rather whether the boards were in fact legally or illegally constituted. Accordingly, once the courts found the composition of the boards to be illegal, they had no trouble finding that the boards’ decisions regarding the plaintiffs had to be reversed. Id.See also Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (noting that a criminal conviction will be reversed if minorities were prevented from serving on the jury). In contrast, the Supreme Court has made it clear that when the illegality concerns the basis for (or the factors used in making) the defendant’s decision, the Mt. Healthy framework is the controlling standard. Lesage, 528 U.S. at 20-21, 120 S.Ct. 467; Price Waterhouse, 490 U.S. at 246-50, 109 S.Ct. 1775. In these cases, there is no doubt that the defendant has the discretion and power to deny the plaintiff admission to a university program or to deny her a promotion. The relevant issue, rather, is whether the defendant would have exercised that discretion in the same manner without relying on any illegal factors. If the defendant can prove that it would have made the same decision irrespective of the illegal factors, then.it has, for purposes of liability, exercised its discretion in a legal manner. As the Supreme Court noted in Lesage, “even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration.” Lesage, 528 U.S. at 20-21, 120 S.Ct. 467. At least as far as liability is concerned, Saunders’ case is more analogous to Les-age and Price Waterhouse than to Dilley and Doyle. In the instant action, the Court emphatically rejected Saunders’ facial claims concerning the composition of the selection boards that failed to choose him for promotion. The Court determined that these boards were properly constituted and, as such, Saunders’ challenge now exclusively concerns the manner in which these selection boards exercised their discretionary power to pick individuals for promotion. This is precisely the same posture that Lesage and Price Waterhouse were in when the Supreme Court decided that the same decision defense was available to the defendants in those cases. Therefore, the Court finds that if the Army proves that the 1996 and 1997 boards would not have selected Saunders for promotion using valid criteria, then the Army would defeat his claims for liability. Now, as a practical matter, the fact that the Army destroyed the relevant selection files may prevent it from making the necessary showing. It does not, however, mean that as a matter of law the Army should be prevented from trying to do so. Moreover, it is worth noting that in reaching this conclusion the Court took into account the distinct framework the Army uses in making promotions and the unique relationship between the judiciary and the military. With respect to the selection board process and the notion of promoting individuals based on a “whole-man” concept, the Court finds that th