Gary Jackson v. Thomas Modly

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2019 Decided February 14, 2020

No. 18-5180

GARY L. JACKSON,

APPELLANT

v.

THOMAS B. MODLY, ACTING SECRETARY, THE UNITED

STATES DEPARTMENT OF THE NAVY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-02186)

Anthony F. Shelley, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on

the briefs was Dawn E. Murphy-Johnson.

Gary L. Jackson, pro se, was on the briefs for appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Jessie K. Liu, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Rhonda L. Campbell, Assistant U.S. Attorney, entered an

appearance.

2

Before: HENDERSON and PILLARD, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Gary L.

Jackson served in the United States Marine Corps from 1977

to 1991. Almost thirty years after his honorable discharge from

the Marine Corps, Jackson filed a pro se complaint against the

Secretary of the Navy (Secretary) alleging that toward the end

of his military career, his supervising officers discriminated

against him because of his race and sex (he is a black male) in

violation of Title VII of the Civil Rights Act of 1964 (Title

VII), 42 U.S.C. §§ 2000e et seq. In addition to Jackson’s Title

VII claim, the district court inferred other claims from his pro

se complaint, including one under the Administrative

Procedure Act (APA), 5 U.S.C. § 706(2)(A), and another under

the Military Pay Act, 37 U.S.C. § 204. The district court

ultimately dismissed all of Jackson’s claims and Jackson now

appeals.

As detailed below, we join the unanimous rulings of our

sister circuits, concluding that Title VII does not apply to

uniformed members of the armed forces, and therefore affirm

the dismissal of Jackson’s Title VII claim. We also affirm the

dismissal of Jackson’s APA claim because it is untimely and

the facts alleged in the complaint are insufficient to apply

equitable tolling. In so holding, we also recognize that our

long-standing interpretation of the six-year statute of

limitations in 28 U.S.C. § 2401(a) as jurisdictional is no longer

correct in light of the United States Supreme Court’s decision

in United States v. Kwai Fun Wong, 575 U.S. 402 (2015). And,

last, we conclude that we lack jurisdiction to review the

dismissal of Jackson’s Military Pay Act claim.

3

I. BACKGROUND

This case involves Jackson’s claims of discrimination that

he allegedly suffered toward the end of his service with the

United States Marine Corps. Jackson served from 1977 until

his honorable discharge on January 15, 1991. His complaint

alleges that in 1988, while he was stationed at Henderson Hall,

Marine Corps Headquarters in Arlington, Virginia, assigned to

the Warehouse Chief position, he began to experience

discrimination, harassment and retaliation from his superiors.

For example, Jackson alleges that one of his superiors relocated

him to another section of the warehouse stating that he

“preferred that the number of Blacks not exceed the number of

whites in any one section of the Warehouse.” Compl. 9. He

also alleges that, among other things, his superiors intentionally

delayed responding to his request to attend a training academy,

placed false accusations in his military record and went to

extraordinary lengths to prevent his reenlistment. Jackson

alleges that, upon his discharge, one of his superiors said to

another, “we finally got Staff Sergeant Jackson . . . That’s one

less Black Staff Sergeant.” Id. After his discharge, Jackson

alleges that he filed applications with the Board for Correction

of Naval Records multiple times from 1990 until 2000 to

remove derogatory material from his fitness record and thus

make him eligible for reenlistment but his attempts were

unsuccessful.

On November 19, 2014, Jackson filed a charge of

discrimination with the Equal Employment Opportunity

Commission (EEOC) against the Marine Corps. The EEOC

responded that it lacked jurisdiction because Jackson’s

complaint was against a branch of the military and therefore

had to be filed initially with the Marines Corps. On December

9, 2014, Jackson filed his employment discrimination claim

with the Equal Employment Opportunity Office of the Marine

4

Corps (EEO Office). The EEO Office dismissed his complaint

under 29 C.F.R. § 1614.103(d)(1), stating that uniformed

military personnel of any branch of the armed forces are not

covered by Title VII. Jackson then appealed to the EEOC. The

EEOC affirmed the EEO Office’s decision on July 19, 2016,

also relying on § 1614.103(d)(1), and denied Jackson’s

subsequent request for reconsideration.

On November 2, 2016, Jackson filed a pro se complaint in

district court, alleging employment discrimination against the

Secretary under Title VII. The Secretary moved to dismiss

Jackson’s complaint under Federal Rule of Civil Procedure

12(b)(1) and Rule 12(b)(6). The district court granted the

motion, dismissing Jackson’s claims under Rule 12(b)(1) for

lack of subject matter jurisdiction. Jackson v. Spencer, 313 F.

Supp. 3d 302, 311 (D.D.C. 2018). Construing Jackson’s pro se

complaint in the most favorable light, the district court inferred

additional claims under the Military Whistleblower Protection

Act, the Administrative Procedure Act (APA), the Military Pay

Act and the Federal Tort Claims Act (FTCA). Id. at 308. The

district court dismissed all of Jackson’s claims, holding that

Title VII did not apply to uniformed members of the armed

forces, that the Military Whistleblower Protection Act does not

contain a private right of action and that his other claims were

untimely. Id. at 308–11.

Jackson appealed pro se. We appointed counsel as amicus

to address whether Title VII applies to uniformed members of

the armed forces. Amicus for Jackson (Amicus) raises

arguments supporting Jackson’s Title VII, APA and Military

Pay Act claims. 1

1

We thank Amicus for the outstanding effort—both on brief

and in argument—and have found it to be of great assistance.

5

II. ANALYSIS

A. Title VII

We begin with the district court’s dismissal of Jackson’s

Title VII claim. Although the district court dismissed

Jackson’s Title VII claim for lack of subject matter jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(1), the

district court should have dismissed the case for failure to state

a claim pursuant to Rule 12(b)(6). 2 We review the district

court’s dismissal for failure to state a claim under Rule 12(b)(6)

de novo, “taking as true the allegations of the complaint.” True

the Vote, Inc. v. IRS, 831 F.3d 551, 555 (D.C. Cir. 2016).

“Title VII of the Civil Rights Act of 1964 reflects the

American promise of equal opportunity in the workforce and

shields employees from certain pernicious forms of

2

In Arbaugh v. Y&H Corp., 546 U.S. 500, 514–16 (2006), the

Supreme Court held that Title VII’s threshold requirement that an

“employer” have at least fifteen employees is not jurisdictional but

instead relates to the substance of the plaintiff’s claim for relief. The

Court reasoned that Title VII’s jurisdictional provision merely

requires that a claim be “brought under” that Title and held that, if a

restriction like the fifteen-employee threshold for employers under

Title VII is not “clearly state[d]” as jurisdictional, “courts should

treat the restriction as nonjurisdictional in character.” Id. at 515–16.

Here, just as the issue of whether a person is an “employer” subject

to the requirements of Title VII is nonjurisdictional, so is the issue of

whether a person is a covered “employee.” Nothing about Title VII’s

definition of employee or its provision extending protection to

federal employees “clearly states” that such provisions are intended

to be jurisdictional. See id. at 515; 42 U.S.C. §§ 2000e(f),

2000e-16(a). The Secretary’s argument that Jackson is not entitled

to the protections of Title VII as a uniformed member of the armed

forces amounts to an argument that Jackson’s complaint fails to state

a claim for relief.

6

discrimination.” Figueroa v. Pompeo, 923 F.3d 1078, 1082–

83 (D.C. Cir. 2019) (citation omitted). As originally enacted,

Title VII did not apply to the federal government. Barnes v.

Costle, 561 F.2d 983, 988 (D.C. Cir. 1977). In 1972, however,

the Congress extended the protections of Title VII to federal as

well as state and local employees in the Equal Employment

Opportunity Act of 1972, Pub. L. No. 92–261, § 11, 86 Stat.

103, 111–13 (codified at 42 U.S.C. §§ 2000e–16). As a result,

Title VII now provides, as relevant here, that “[a]ll personnel

actions affecting employees or applicants for

employment . . . in military departments as defined in section

102 of Title 5” and other federal departments “shall be made

free from any discrimination based on race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-16(a).

The issue before us is whether Title VII, specifically, the

provision covering federal employees, § 2000e-16(a), applies

to uniformed members of the armed forces of the United States

military. We have never squarely addressed this issue. But see

Milbert v. Koop, 830 F.2d 354, 358 (D.C. Cir. 1987) (assuming

arguendo Title VII does not apply to members of armed

forces). But we note at the outset that every one of our sister

circuits to address this question has concluded—albeit based

on varying rationales and depths of analysis—that the answer

is no. See, e.g., Brown v. United States, 227 F.3d 295, 299 (5th

Cir. 2000); Coffman v. Michigan, 120 F.3d 57, 59 (6th Cir.

1997); Randall v. United States, 95 F.3d 339, 343 (4th Cir.

1996); Stinson v. Hornsby, 821 F.2d 1537, 1539 (11th Cir.

1987), cert. denied, 488 U.S. 959 (1988); Roper v. Dep’t of the

Army, 832 F.2d 247, 248 (2d Cir. 1987); Salazar v. Heckler,

787 F.2d 527, 530 (10th Cir. 1986); Gonzalez v. Dep’t of the

Army, 718 F.2d 926, 928–29 (9th Cir. 1983); Johnson v.

Alexander, 572 F.2d 1219, 1224 (8th Cir.), cert. denied 439

U.S. 986 (1978).

7

With this unanimous precedent from our sister circuits in

mind, we begin our analysis with the text. See S.C. Pub. Serv.

Auth. v. F.E.R.C., 762 F.3d 41, 55 (D.C. Cir. 2014) (per

curiam) (“In addressing issues of statutory interpretation, the

court must begin with the text, turning as need be to the

structure, purpose, and context of the statute.”); Janko v. Gates,

741 F.3d 136, 139–40 (D.C. Cir. 2014). Here, the relevant text

of Title VII provides that “employees or applicants for

employment . . . in military departments as defined in section

102 of Title 5. . . shall be made free from” unlawful

discrimination. 42 U.S.C. § 2000e-16(a).

At the outset of our textual analysis, we clarify—and

ultimately reject—a textual hook other courts and the Secretary

here erroneously rely upon to reach the conclusion that Title

VII does not include uniformed members of the armed forces—

namely, the term “military departments.” The argument is

based on Title VII’s reference to the definition of military

departments in section 102 of Title 5 of the United States Code,

which organizes the federal government. See 5 U.S.C. §§ 101,

et seq. Title 5 defines “military departments” as “The

Department of the Army. The Department of the Navy. The

Department of the Air Force.” Id. § 102. Title 10 of the United

States Code—codifying the Congress’s structuring of the

military—has the same definition of “military departments.”

10 U.S.C. § 101(a)(8). Both Title 5 and Title 10 separately

define the “armed forces” as “the Army, Navy, Air Force,

Marine Corps, and Coast Guard.” 5 U.S.C. § 2101(2); 10

U.S.C. § 101(a)(4). Thus, other courts and the Secretary here

conclude that, because the Congress treats “military

departments” and “armed forces” as distinct terms, uniformed

members of the armed forces are not covered by Title VII. See,

e.g., Gonzalez, 718 F.2d at 928 (“The two differing definitions

show that Congress intended a distinction between ‘military

departments’ and ‘armed forces,’ the former consisting of

8

civilian employees, the latter of uniformed military

personnel.”). 3

In fact, a quick review of the Congress’s structuring of the

military in Title 10 shows that uniformed members of the

armed forces are within the umbrella of the military

departments. Several Title 10 provisions make clear that the

term “armed forces” refers to the uniformed fighting forces

within the three “military departments.” See 10

U.S.C. § 101(a)(6) (defining “‘department,’ when used with

respect to a military department” as including, inter alia, “the

executive part of the department and all . . . forces”);

id. § 7062(b) (“[T]he Army, within the Department of the

Army, includes land combat and service forces and such

aviation and water transport as may be organic therein.”);

id. § 8061(4) (“The Department of the Navy is composed

of . . . [t]he entire operating forces, including naval aviation, of

the Navy and of the Marine Corps, and the reserve components

of those operating forces.”). For example, the “Department of

the Army” contains both civilian employees as well as the

“Army”—defined as “combat and service forces.” 4 See

id. §§ 101(a)(6), 7062(b). Thus, the military departments

contain both civilian employees and the armed forces, see

Johnson, 572 F.2d at 1224 (“The great ‘military

3

It appears that other courts took the Ninth Circuit’s erroneous

textual distinction in Gonzalez, 718 F.2d at 928, at face value without

conducting their own textual analysis and based their decisions at

least in part on that reasoning. See, e.g., Roper, 832 F.2d at 248;

Brown, 227 F.3d at 298 n.3; Randall, 95 F.3d at 343.

4

“The Marine Corps is an organization within the Department

of the Navy, which is one of the ‘military departments’ which

Congress has defined. The Coast Guard is a military service and one

of the armed forces of the United States which serves as a component

of the Navy in time of war or when the President so directs.”

Johnson, 572 F.2d at 1224 n.5.

9

departments’. . . referred to in 5 U.S.C. § 102 include not only

uniformed personnel of various ranks and grades but also of

thousands of men and women employed in civilian

capacities.”), and, accordingly, that term on its own, contrary

to what other courts have concluded, in fact supports an

interpretation that Title VII covers uniformed members of the

armed forces.

Nevertheless, our analysis does not stop with the term

“military departments.” The Congress specifically chose to say

“employees . . . in military departments as defined in section

102 of Title 5.” 42 U.S.C. § 2000e-16(a) (emphases added).

The reference to section 102 of Title 5 is significant. First, the

Congress explained that the civil-service legislation creating

section 102, along with the rest of Title 5, was enacted to codify

“the general and permanent laws relating to the organization of

the Government of the United States and to its civilian officers

and employees.” Act of Sept. 6, 1966, Pub. L. No. 89-554, 80

Stat. 378 (emphasis added). The Congress could have chosen

to define “military departments” with reference to section 101

of Title 10 that organized the United States military several

years earlier, see Act of Aug. 10, 1956, Pub. L. No. 1028, 70A

Stat. 1, 3–4, 84 Cong. Ch. 1041, but instead it chose to

reference the title that was codified to organize the civilian

officers and employees of the United States government. This

choice, albeit not conclusive, is one indication that the

Congress was referring to civilian employees within the

military departments by referencing Title 5.

Second, and more importantly, in the same legislation that

defined “military departments” under section 102 of Title 5, the

Congress also defined “employees” under that title.

See § 2105, 80 Stat. at 409. It defined “employee” as “an

officer and an individual who is—(1) appointed in the civil

service” by one of the various persons listed under that

10

provision. 5 U.S.C. § 2105(a). It defined “civil service” as

consisting of “all appointive positions in the executive, judicial,

and legislative branches of the Government of the United

States, except positions in the uniformed services.”

Id. § 2101(1) (emphasis added). “[U]niformed services”

means “the armed forces, the commissioned corps of the Public

Health Service, and the commissioned corps of the National

Oceanic and Atmospheric Administration.” Id. § 2101(3)

(emphasis added). Putting all of these provisions together, we

believe the Congress provided that “employees” in the “civil

service” of the United States do not include the “armed forces.”

Therefore, when the Congress amended Title VII against this

backdrop six years later, § 11, 86 Stat. at 111–13, and

specifically referenced section 102 of Title 5, it extended Title

VII protections only to federal civilian employees within the

military departments, not members of the armed forces that it

considered to be outside the definition of employees in the

federal civil service.

It is true that Title VII has its own definition of

“employee,” which it generally defines as “an individual

employed by an employer.” 42 U.S.C. § 2000e(f). The

Congress did not amend that definition in 1972 when it added

federal employees to Title VII. But it likely saw no need to

make a change. As manifested by Title 5’s definitions, it did

not consider members of the armed forces to be federal

employees within the civil service. Moreover, looking to Title

5’s definition of employee to determine whether the Congress

intended to include uniformed members of the armed forces

under Title VII does not change the broad general definition of

employee under Title VII; rather, it indicates that the Congress

did not consider a uniformed member of the armed forces to be

“an individual employed by an employer” within that general

definition in setting Title VII’s scope. Id.

11

Amicus argues that our reliance on Title 5’s definition of

employee is barred by our decision in Spirides v. Reinhardt,

613 F.2d 826 (D.C. Cir. 1979). Not so. In Spirides, we

considered whether the plaintiff, who worked as a foreign

language broadcaster for the Greek Service (a division of the

United States International Communication Agency), was an

“employee” covered by Title VII or an independent contractor.

Id. at 827–30. In doing so, we rejected the defendant’s

exclusive reliance on the definition of employee found in the

civil service laws of Title 5 because independent-contractor

status “calls for application of the general principles of the law

of agency.” Id. at 831. There is no assertion here, however,

that Jackson is an independent contractor, nor was Spirides a

member of the armed forces. In this case, we look to the

definition of employee in Title 5 not to displace the test for

distinguishing independent contractors from employees but to

determine whether “employees” in § 2000e-16(a) encompass

uniformed servicemembers. Crucially, the Congress

specifically chose to reference the civil service laws for

“employees or applicants for employment . . . in military

departments.” 42 U.S.C. § 2000e-16(a). Thus, Title VII

defines military departments by express reference to the civil

service laws. Put differently, unlike in Spirides, here we have

reason to look to the definition of employee in Title 5 because

the Congress explicitly directed us there.

The Congress’s incorporation of the civil service

definition of employee in Title 5, which does not cover

uniformed members of the armed forces, comports with the

unique nature of the armed forces as composed of

“individual[s]” not “employed by an employer” within the

meaning of Title VII. 42 U.S.C. § 2000e(f). When compared

to traditional civilian employment, military service differs

substantially. Those differences show that, at least in the

12

context of Title VII, uniformed members of the armed forces

are not “employees” as defined by the statute. See id.

First, the manner in which uniformed members of the

armed forces and the military terminate the work relationship

is different from normal employment. 5 Uniformed members

of the armed forces are not free to leave their positions in the

military in most instances. See Johnson, 572 F.2d at 1223 n.4

(“An enlisted man in the Army, for example, is not free to quit

his ‘job,’ nor is the Army free to fire him from his

employment.”). If an enlisted serviceman or a commissioned

officer attempts to leave the military or refuses to work before

the required time of service is completed, he can be punished

by court-martial. See, e.g., 10 U.S.C. §§ 886, 890, 892. Such

a court-martial can result in imprisonment, see e.g., Ortiz v.

United States, 138 S. Ct. 2165, 2168 (2018) (“Courts-martial

try service members . . . and can impose terms of imprisonment

. . .”); United States v. Sanchez-Cortez, 530 F.3d 357, 358–59

(5th Cir. 2008) (per curiam) (criminal defendant had previously

been convicted and imprisoned by court-martial for 114 days’

confinement for being absent without leave in violation of 10

U.S.C. § 886 (Art. 86 of the Uniform Code of Military

Justice)), and, during times of war, desertion or attempted

5

In this discussion, we borrow two factors we have previously

used to distinguish between employees and independent

contractors—the manner in which the work relationship is

terminated and the intention of the parties—to emphasize the

uniqueness of military service when compared to civilian

employment. See Spirides, 613 F.2d at 831. Of course, for the

reasons explained supra, the employee versus independent

contractor analysis in Spirides is different from the issue before us.

Nevertheless, we find two of the factors from that analysis

particularly helpful here to highlight how military service differs

from the typical employment relationship.

13

desertion can even result in the death penalty, 6 10

U.S.C. § 885(c). We can think of no other occupation in which

these types of restrictions are placed upon terminating the work

relationship. 7 See Brown v. Glines, 444 U.S. 348, 354 (1980)

(“The military is, ‘by necessity, a specialized society separate

from civilian society.’” (quoting Parker v. Levy, 417 U.S. 733,

743 (1974))).

Second, the parties here—service members and the

government—intend their relationship to be distinct from

traditional employment. Members of the armed forces

volunteer to serve in the military, understanding that they must

complete their service with all of its burdens, sacrifices and

duties or face possible loss of liberty. Likewise, the

government expects that uniformed members will complete

their duties and follow orders and will not hesitate to enforce

the consequences of members failing to do so. Id. (“To ensure

that they always are capable of performing their mission

6

The last time the United States executed a soldier for desertion

was 1945. See Lieutenant Commander Rich Federico, The Unusual

Punishment: A Call for Congress to Abolish the Death Penalty

Under the Uniform Code of Military Justice for Unique Military,

Non-Homicide Offenses, 18 Berkeley J. Crim. L. 1, 21 (2013) (“The

last soldier executed for desertion was Private Eddie Slovik in

1945.”). Still, the fact remains that unlike other jobs, if a soldier

attempts to leave the military in certain contexts, the consequence

can be loss of freedom or even life.

7

Amicus argues that professional basketball star LeBron James

is not free to leave one team and play for another under the National

Basketball Association’s rules and that federal employees can be

required to work during government shutdowns. But Amicus misses

the point. It is the threatened loss of liberty—or even life—that

makes the relationship between uniformed members and the

government in military service unique. LeBron James may be

contractually barred from joining another team but he will not be

jailed for walking off the court.

14

promptly and reliably, the military services ‘must insist upon a

respect for duty and a discipline without counterpart in civilian

life.’” Id. (quoting Schlesinger v. Councilman, 420 U.S. 738,

757, (1975))).

Other aspects of military service make it unique from

traditional employment. Although uniformed members

currently volunteer to serve, were the government to re-

institute the draft pursuant to the Selective Service Act,

individuals could be forced to join the military. See United

States v. Nugent, 346 U.S. 1, 9 (1953) (“The Selective Service

Act is a comprehensive statute designed to provide an orderly,

efficient and fair procedure to marshal the available manpower

of the country, to impose a common obligation of military

service on all physically fit young men.”). Additionally,

members of the armed forces are subject to a different set of

laws and justice system from those governing civilian

employees. See Johnson, 572 F.2d at 1223 n.4 (“[T]he soldier

is subject not only to military discipline but also to military

law.”); Parker, 417 U.S. at 751–52 (discussing “very

significant differences between military law and civilian law

and between the military community and the civilian

community” under Uniform Code of Military Justice). We

therefore agree with the Eighth Circuit’s reasoning that,

because military service “differs materially” from “ordinary

civilian employment,” uniformed members of the armed forces

are not employed by the government within the meaning of

Title VII. Johnson, 572 F.2d at 1223–24.

We do not, of course, hold today that, because military

service is distinct from traditional employment, the military is

free to discriminate. Indeed, pursuant to Marine Corps Order

(MCO) 5354.1E, the military is prohibited from engaging in

unlawful discrimination, including in the employment

15

context. 8 See MCO 5354.1E vol. 2, ¶ 0108 (June 15, 2018).

Likewise, we do not hold that, because military service is

unique, uniformed members of the armed forces can never be

considered “employees” of the federal government. The

Congress is free to so define them. Here, it has not done that.

In fact, it has done the opposite—the text, structure and context

of § 2000e-16(a) demonstrate that the Congress did not intend

uniformed members of the armed forces to come within the

protections of Title VII.

Apart from the text and structure of Title VII, we also must

take into account that every circuit court of appeals to address

8

MCO 5354.1E provides in relevant part:

0108 UNLAWFUL DISCRIMINATION

Any conduct whereby a Service member or

DOD employee knowingly and wrongfully and

without proper authority but with a nexus to military

service treats another Service member or DOD

employee adversely or differently based on race,

color, national origin, religion, sex (including

gender identity), or sexual orientation [constitutes

unlawful discrimination]. Unlawful discrimination

includes actions or efforts that detract from equal

opportunity, with respect to the terms, conditions, or

privileges of military service including, but not

limited to, acquiring, assigning, promoting,

disciplining, scheduling, training, compensating,

discharging, or separating. This definition excludes

justifiable conduct that discriminates on the basis of

characteristics (including, but not limited to, age,

height, and weight) that serve a proper military or

other governmental purpose as set forth in other

military policies.

MCO 5354.1E vol. 2, ¶ 0108 (June 15, 2018).

16

this issue since 1978 has held that uniformed members of the

armed forces are not included within the protections of Title

VII, 9 see, e.g., Brown, 227 F.3d at 298 n.3 (collecting cases);

in addition, the Congress has never amended Title VII to add

uniformed members of the armed forces to the statute. The

Supreme Court has held that “Congress’ failure to disturb a

consistent judicial interpretation of a statute may provide some

indication that ‘Congress at least acquiesces in, and apparently

affirms, that [interpretation].’” Monessen Sw. Ry. Co. v.

Morgan, 486 U.S. 330, 338 (1988) (quoting Cannon v. Univ.

of Chicago, 441 U.S. 677, 703 (1979))). This indication is

particularly strong if evidence exists of the Congress’s

awareness of and familiarity with such an interpretation. See

Bob Jones Univ. v. United States, 461 U.S. 574, 599–602

(1983).

Although we recognize the limited value of congressional

acquiescence as an interpretive tool, see Cent. Bank of Denver,

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 186

(1994), we nevertheless find the Congress’s inaction for over

forty years particularly significant for a couple of reasons.

First, the Congress has amended various parts of Title VII over

the years, including the specific provision at issue here, 42

U.S.C. § 2000e-16(a), see Pub. L. No. 104–1, § 201, 109 Stat.

3 (1995); Pub. L. No. 105–220, § 341, 112 Stat. 936 (1998),

but has never sought to override our sister circuits’

determination that uniformed members of the armed forces are

not included under Title VII. 10 See Merrill Lynch, Pierce,

9

The only court to conclude otherwise was the Eastern District

of New York in Hill v. Berkman, 635 F. Supp. 1228, 1238 (E.D.N.Y.

1986). That decision was later reversed by the Second Circuit. See

Roper, 832 F.2d at 248.

10

We also note that our sister circuits have interpreted other

federal anti-discrimination laws in addition to Title VII not to apply

to uniformed members of the armed forces. See Coffman, 120 F.3d

17

Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n.66 (1982)

(“Congress is presumed to be aware of an administrative or

judicial interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without change.”

(quoting Lorillard v. Pons, 434 U.S. 575, 580–581 (1978))). 11

Second, aware of the growing body of circuit decisions

consistently holding Title VII inapplicable to uniformed

servicemembers, the Congress has legislated close and

systematic oversight of the military’s substitute system for

addressing race and sex discrimination in the armed forces. See

10 U.S.C. § 481. In 1994 it required the Department of Defense

to conduct a biennial survey and report to include “the

effectiveness of current processes for complaints on and

investigations into racial and ethnic discrimination” in the

at 59 (Americans with Disabilities Act); Baldwin v. U.S. Army, 223

F.3d 100, 101 (2d Cir. 2000) (same); Spain v. Ball, 928 F.2d 61, 63

(2d Cir. 1991) (Age Discrimination in Employment Act); Helm v.

California, 722 F.2d 507, 509 (9th Cir. 1983) (same); Kawitt v.

United States, 842 F.2d 951, 953–54 (7th Cir. 1988) (same); Doe v.

Garrett, 903 F.2d 1455, 1461–62 (11th Cir.1990) (Rehabilitation

Act).

11

We have recognized that this interpretive canon based on the

Congress’s ratification of an interpretation is of limited usefulness if

the Congress has neither re-enacted a statute nor amended the

specific provision at issue. See Pub. Citizen, Inc. v. U.S. Dep’t of

Health & Human Servs., 332 F.3d 654, 668 (D.C. Cir. 2003). Here,

however, the Congress has amended the specific provision to make

clarifications and add specific government agencies such as the

Government Printing Office and the Smithsonian Institution. See

Pub. L. No. 104–1, § 201, 109 Stat. 3 (1995); Pub. L. No. 105–220,

§ 341, 112 Stat. 936 (1998). We have also noted that for the canon

to carry any weight, there must be “some evidence of (or reason to

assume)” that the Congress is familiar “with the . . . interpretation at

issue.” Pub. Citizen, 332 F.3d at 669. As explained infra, we have

reason to assume the Congress’s awareness.

18

armed forces. National Defense Authorization Act for Fiscal

Year 1995, Pub. L. No. 103-337, § 554(a), 108 Stat. 2773

(1994). Through four amendments, the Congress has

intensified its attention to the special Equal Employment

Opportunity processes and standards that apply to the armed

forces. It acted first to add gender discrimination and make the

surveys annual, Pub. L. No. 104-201, § 571(c), 110 Stat. 2532

(1996), second, to create four separate quadrennial surveys on

race and sex discrimination in the active and reserve forces,

Pub L. No. 107-314, § 561(a), 116 Stat. 2553 (2002), third, to

add “harassment” and “assault” as subjects of interest in

addition to “discrimination,” Pub. L. No. 112-239, § 570, 126

Stat. 1752 (2013), and, last, to further define “assault” as

“(including unwanted sexual contact),” Pub. L. No. 116-

92, § 591, 133 Stat. 1198 (2019). The Department of Defense

is required periodically to submit “Armed Forces Workplace

and Equal Opportunity Surveys” to the Congress. 10

U.S.C. § 481(d)-(e). The Congress’s engagement with the

efficacy of the military’s internal systems to combat sex and

race discrimination provides added assurance of its awareness

and approval of the inapplicability of Title VII itself to the

armed forces. 12

12

We also find significant the Congress’s efforts to clarify

whether members of the Public Health Service Commissioned Corps

(PHSCC) were covered by Title VII. See Middlebrooks v. Leavitt,

525 F.3d 341, 345 (4th Cir. 2008) (explaining that courts disagreed

about whether the PHSCC was covered under Title VII and that

“Congress responded to this debate by enacting the [HPEPA of

1998], which added subsection (f) to 42 U.S.C. § 213 (2000)”). To

effect this clarification, the Congress chose the following language:

“Active service of commissioned officers of the [PHSCC] shall be

deemed to be active military service in the Armed Forces of the

United States for purposes of all laws related to discrimination on

the basis of race, color, sex, ethnicity, age, religion, and disability.”

19

Nevertheless, Amicus argues that our conclusion here is

controlled by our decision in Cummings v. Department of the

Navy, 279 F.3d 1051 (D.C. Cir. 2002). We disagree. In

Cummings we held that members of the armed forces could sue

the military for damages under the Privacy Act. Id. at 1054.

Amicus relies on the fact that we construed the term “military

department” in the Privacy Act to include uniformed members

of the armed forces, see id., to argue that we must likewise

interpret Title VII’s use of that term to include uniformed

members. First, the Privacy Act’s language does not refer to

employees of the military departments like Title VII; it defines

the term “agency” to include, among other things

“any . . . military department” for the purpose of the Privacy

Act. See 5 U.S.C. § 552(f)(1). Second, in Cummings, we noted

that the Privacy Act contained specific exemptions that “would

be unnecessary if military servicepersons were excluded from

the Privacy Act altogether.” 279 F.3d at 1054 (quoting

Cummings v. Dep’t of the Navy, 116 F. Supp. 2d 76, 78 n.5

(D.D.C. 2000)). For example, it included one exemption for

“evaluation material used to determine potential for promotion

in the armed services.” Id. (emphasis added) (quoting 5 U.S.C.

§ 552a(k)(7)). Title VII contains no such provision

demonstrating an intent to protect uniformed members of the

armed forces. Thus, Cummings is distinguishable and does not

control our decision here.

42 U.S.C. § 213(f) (emphasis added). The Congress could have

simply said that the PHSCC officers are not covered by anti-

discrimination laws but, instead, it specifically chose to ground the

amendment in the term “Armed Forces” to delineate that such forces

are not covered by the nation’s anti-discrimination laws. This

legislation appears not only to recognize what circuit courts have

held but also to go further, explicitly ratifying the view that

uniformed members of the armed forces are not covered by anti-

discrimination statutes like Title VII.

20

Before concluding, we also note that some courts that

reached the same conclusion we reach today have done so

based on rationales that we decline to use. First, some courts

have based their Title VII conclusion on the “Feres doctrine,”

which doctrine originated in Feres v. United States, 340 U.S.

135 (1950). See, e.g., Hodge v. Dalton, 107 F.3d 705, 710 (9th

Cir. 1997). In Feres, the Supreme Court held that “the

Government is not liable under the Federal Tort Claims Act for

injuries to servicemen where the injuries arise out of or are in

the course of activity incident to service,” 340 U.S. at 146,

despite language in the FTCA defining “employee of the

government” to include “members of the military or naval

forces of the United States.” 28 U.S.C. § 2671. Although

Feres remains good law, it has been severely criticized. See

United States v. Johnson, 481 U.S. 681, 700–01 (1987) (Scalia,

J., dissenting) (“Feres was wrongly decided and heartily

deserves the ‘widespread, almost universal criticism it has

received.’” (quoting In re “Agent Orange” Prod. Liab. Litig.,

580 F. Supp. 1242, 1246 (E.D.N.Y. 1984))); Lanus v. United

States, 570 U.S. 932 (2013) (Thomas, J., dissenting from denial

of certiorari) (“There is no support for [Feres’s] conclusion in

the text of the statute, and it has the unfortunate consequence

of depriving servicemen of any remedy when they are injured

by the negligence of the Government or its employees.”).

Because we find sufficient independent bases to conclude that

Title VII does not apply to uniformed members of the armed

forces, we do not rely on Feres to reach our conclusion. For

this reason, we do not extend the doctrine to Title VII. See

Lombard v. United States, 690 F.2d 215, 233 (D.C. Cir. 1982)

(Ginsburg, J., concurring in part and dissenting in part) (“While

lower courts are bound by the Supreme Court’s decision in

Feres, they are hardly obliged to extend the limitation . . . .”).

Second, some courts have relied on the EEOC’s regulation

interpreting Title VII to exclude uniformed members of the

21

armed forces to deny such members’ claims under Title VII,

basing their decision on the EEOC’s authority to promulgate

rules interpreting 42 U.S.C. § 2000e-16(a). See Hodge, 107

F.3d at 707–08; Brown, 227 F.3d at 298. The EEOC regulation

states that its general prohibition against discrimination under

Title VII, the ADEA, the Rehabilitation Act, the Equal Pay Act,

and the Genetic Information Nondiscrimination Act “does not

apply to: (1) Uniformed members of the military departments

referred to in paragraph (b)(1) of this section.” 29

C.F.R. § 1614.103(a), (d)(1). Amicus raises procedural and

substantive challenges to the EEOC’s regulation treating Title

VII as inapplicable to “uniformed members of the military

departments” but we do not credit those arguments because the

Commission’s reading is compelled by the statutory text. See

Hodge, 107 F.3d at 712.

Therefore, based on the text, structure and context of 42

U.S.C. § 2000e-16(a) as well as the Congress’s subsequent

actions in light of the unanimous circuit precedent on the issue,

we hold that Title VII does not apply to uniformed members of

the armed forces. As such, we affirm the district court’s

dismissal of Jackson’s Title VII claim.

B. APA Claim

Amicus also appeals the district court’s dismissal of

Jackson’s APA claim. The district court inferred an APA claim

challenging the decisions of the Board for Correction of Naval

Records regarding Jackson’s fitness records and his

reenlistment code. Jackson, 313 F. Supp. 3d at 309. We first

note that, despite the Secretary’s arguments to the contrary, the

APA claim is properly before us. The district court liberally

construed Jackson’s pro se complaint to include claims beyond

Title VII. Indeed, the Secretary himself suggested in his

motion to dismiss that Jackson could be raising an APA claim.

22

Def.’s Mem. Supp. Mot. Dismiss 18. Moreover, although we

appointed Amicus principally to address the Title VII claim,

we did not otherwise limit the arguments or claims he could

raise on appeal on Jackson’s behalf. Order No. 1762275 at 1

(No. 18-5180) (D.C. Cir. Nov. 30, 2018).

1.

The parties do not dispute that Jackson’s APA claim is

time-barred by the six-year statute of limitations in 28 U.S.C.

§ 2401(a) for all civil actions commenced against the United

States. Instead, they dispute whether § 2401(a)’s statute of

limitations is a jurisdictional bar—thereby divesting the court

of jurisdiction as well as its ability to consider an equitable

tolling argument—or whether it is non-jurisdictional.

The long-held rule in our circuit has been “that section

2401(a) creates ‘a jurisdictional condition attached to the

government’s waiver of sovereign immunity.’” P & V Enters.

v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir.

2008) (quoting Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52,

55 (D.C. Cir. 1987)). Recently, however, especially after the

Supreme Court’s decision in Kwai Fun Wong, which held the

two-year statute of limitations in § 2401(b) to be

nonjurisdictional, 575 U.S. at 407, the soundness of our

precedent has been called into doubt. See, e.g., Jafarzadeh v.

Nielsen, 321 F. Supp. 3d 19, 37 n.7 (D.D.C. 2018) (“Given the

Supreme Court’s clear strictures on this issue, which have

undermined the foundations of Spannaus and similar cases, the

D.C. Circuit ought to reconsider its § 2401(a) precedents.”).

Since Kwai Fun Wong, the Sixth and Tenth Circuits have held

that, based on the Supreme Court’s opinion in that

case, § 2401(a) is not jurisdictional. 13 Chance v. Zinke, 898

13

Even before Kwai Fun Wong, the Ninth Circuit held

that § 2401(a) is not jurisdictional. Cedars–Sinai Med. Ctr. v.

23

F.3d 1025, 1033 (10th Cir. 2018); Herr v. U.S. Forest Serv.,

803 F.3d 809, 817–18 (6th Cir. 2015). Although we have

previously “questioned the continuing viability” of our rule

without addressing the issue directly, see Mendoza v. Perez,

754 F.3d 1002, 1018 n.11 (D.C. Cir. 2014) (citing P & V

Enters., 516 F.3d at 1027 & n.2; Felter v. Kempthorne, 473

F.3d 1255, 1260 (D.C. Cir. 2007); Harris v. F.A.A., 353 F.3d

1006, 1013 n.7 (D.C. Cir. 2004)), we now do so. Accordingly,

we hold today that the Supreme Court’s decision in Kwai Fun

Wong overrules our precedent treating § 2401(a)’s statute of

limitations as jurisdictional. 14

Shalala, 125 F.3d 765, 770–71 (9th Cir. 1997). The Fifth Circuit did

the same, see Clymore v. United States, 217 F.3d 370, 374 (5th Cir.

2000) (“[T]he doctrine of equitable tolling has potential application

in suits . . . governed by the statute of limitations codified at 28

U.S.C. § 2401(a).”), but subsequent Fifth Circuit precedent is less

clear, compare Doe v. United States, 853 F.3d 792, 802 (5th Cir.

2017), as revised (Apr. 12, 2017) (“Although courts may equitably

toll § 2401(a), they do so ‘sparingly.’” (citation omitted) (quoting

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002))),

and Louisiana v. U.S. Army Corps of Eng’rs, 834 F.3d 574, 584 (5th

Cir. 2016) (“Timeliness [under § 2401(a)] does not raise a

jurisdictional issue in this court.”), with Gen. Land Office v. U.S.

Dep’t of the Interior, 947 F.3d 309, 318 (5th Cir. 2020) (“[Section

2401(a)’s] timing requirement is jurisdictional, because it is a

condition of the United States’ waiver of sovereign immunity.”).

14

“[W]e cannot overrule a prior panel’s decision, except via

an Irons footnote or en banc review . . . .” United States v. Emor, 785

F.3d 671, 682 (D.C. Cir. 2015). “In an Irons footnote, named after

the holding in Irons v. Diamond, 670 F.2d 265, 267–68 & n. 11 (D.C.

Cir. 1981), the panel ‘seek[s] for its proposed decision the

endorsement of the en banc court, and announce[s] that endorsement

in a footnote to the panel’s opinion.’” Oakey v. U.S. Airways Pilots

Disability Income Plan, 723 F.3d 227, 232 n.1 (D.C. Cir. 2013)

(alteration in original) (quoting Policy Statement on En Banc

24

“In recent years,” the Supreme Court has “repeatedly held

that procedural rules, including time bars, cabin a court’s

power” to hear a case—i.e., subject matter jurisdiction—“only

if Congress has ‘clearly state[d]’ as much.” Kwai Fun Wong,

575 U.S. at 409 (alteration in original) (quoting Sebelius v.

Auburn Reg’l Med. Cent., 568 U.S. 145, 153 (2013)).

Applying this “clear statement rule,” the Court has “made plain

that most time bars are nonjurisdictional.” Id. at 410. In Kwai

Fun Wong, the Supreme Court explained that “Congress must

do something special, beyond setting an exception-free

deadline, to tag a statute of limitations as jurisdictional and so

prohibit a court from tolling it.” 575 U.S. at 410. Based on

that rule, the Court held that the FTCA’s statute of limitations

in § 2401(b) was “not a jurisdictional requirement.” Id. at 412.

Applying the Court’s ruling in Kwai Fun Wong

to § 2401(a), we reach the same conclusion. First, our

precedent treating § 2401(a) as a jurisdictional bar was

grounded in the belief that the provision is “attached to the

government’s waiver of sovereign immunity, and as such must

be strictly construed.” Spannaus, 824 F.2d at 55. In Kwai Fun

Wong, the Court flatly rejected this reasoning. 575 U.S. at 420

(“[I]t makes no difference that a time bar conditions a waiver

of sovereign immunity, even if the Congress enacted the

measure when different interpretive conventions

applied . . . .”). Second, like § 2401(b), § 2401(a) “does not

speak in jurisdictional terms or refer in any way to the

jurisdiction of the district courts”; rather, it “‘reads like an

ordinary, run-of-the-mill statute of limitations,’ spelling out a

litigant’s filing obligations without restricting a court’s

authority.” Id. at 411 (first quoting Arbaugh, 546 U.S. at 515;

Endorsement of Panel Decisions at 1 (Jan. 17, 1996)). Our resolution

here—recognizing the overruling of our precedent by the Supreme

Court’s decision in Kwai Fun Wong—has been approved by the en

banc court and thus constitutes the law of the circuit.

25

then quoting Holland v. Florida, 560 U.S. 631, 647 (2010));

see 28 U.S.C. § 2401(a) (“[E]very civil action commenced

against the United States shall be barred unless the complaint

is filed within six years after the right of action first accrues.”).

Also like § 2401(b), § 2401(a)’s filing deadline appears in a

section separate from the general jurisdictional grant of civil

actions against the federal government, see 28 U.S.C. § 1346;

Herr, 803 F.3d at 817, which the Supreme Court found to be

an indication “that the time bar is not jurisdictional.” Kwai Fun

Wong, 575 at 411.

Third, we conclude that § 2401(a)’s origins in the Tucker

Act do not make it otherwise jurisdictional. We find the in-

depth analyses and reasoning of the Sixth and Tenth Circuits

on this point—differentiating between the separate provisions

of the Big Tucker Act and the Little Tucker Act—particularly

cogent and persuasive. See Herr, 803 F.3d at 815–17; Chance,

898 F.3d at 1031–33. As those courts explained, although the

Supreme Court has affirmed the jurisdictional nature of the Big

Tucker Act’s statute of limitations, see 28 U.S.C. § 2501, its

affirmance was grounded solely in the doctrine of stare decisis;

further, the Congress altered the Little Tucker Act’s statute of

limitations—the provision from which § 2401(a) is derived—

by separating it from the jurisdictional grant and expanding its

reach. See Chance, 898 F.3d at 1032–33; Herr, 803 F.3d at

816–17. As the Sixth Circuit explains, this alteration

“demonstrates that § 2401(a) was designed to serve as a

standard, mine-run statute of limitations without jurisdictional

qualities. That leaves us with a statute (§ 2401(a)) that does not

clearly impose a jurisdictional limit.” Herr, 803 F.3d at 817.

Accordingly, we hold that § 2401(a)’s time bar is

nonjurisdictional and subject to equitable tolling. Our

26

decisions to the contrary, see, e.g., Spannaus, 824 F.2d at 55,

are thus overruled. 15

2.

Having determined that § 2401(a)’s statute of limitations

is not jurisdictional, we turn to Jackson’s equitable tolling

argument in support of his APA claim. The district court

considered the merits of Jackson’s equitable tolling argument

and we review its dismissal of Jackson’s APA claim de novo.16

See Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 278 (D.C.

Cir. 2003). To demonstrate that he is entitled to the benefit of

equitable tolling, Jackson must show “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005). We have described the remedy of

“equitable tolling as appropriate only in ‘rare instances

where—due to circumstances external to the party’s own

conduct—it would be unconscionable to enforce the limitation

period against the party and gross injustice would result.’”

Head v. Wilson, 792 F.3d 102, 111 (D.C. Cir. 2015) (quoting

Whiteside v. United States, 775 F.3d 180, 184 (4th Cir. 2014)).

On appeal, Amicus argues that equitable tolling is

warranted because Jackson’s “debilitating mental anguish as a

result of the government’s misconduct prevented his timely

filing of the APA claim.” Amicus Br. at 49. Amicus relies on

our holding in Smith-Haynie v. D.C., 155 F.3d 575 (D.C. Cir.

1998), to argue that Jackson was “non compos mentis,” which

ordinarily means “incapable of handling [one’s] own affairs or

15

See supra note 14.

16

Because we hold that § 2401(a)’s statute of limitations is not

jurisdictional, the dismissal of Jackson’s APA claim should be

reviewed pursuant to Rule 12(b)(6) for failure to state a claim rather

than Rule 12(b)(1) for lack of subject matter jurisdiction.

27

unable to function [in] society.” Id. at 580 (second alteration

in original).

Amicus’s equitable tolling argument does not meet the

high threshold for applying this rare remedy. See id. at 579–80

(“The court’s equitable power to toll the statute of limitations

will be exercised only in extraordinary and carefully

circumscribed instances.” (quoting Mondy v. Sec’y of the Army,

845 F.2d 1051, 1057 (D.C. Cir. 1988))). Although Jackson’s

allegations, if true, indicate that he suffered mental and

emotional harm as a result of being discriminated against, they

do not rise to the level of non compos mentis. As we explained

in Smith-Haynie, “[i]mpaired judgment alone is not enough to

toll the statute of limitations.” 155 F.3d at 580 (quoting Hendel

v. World Plan Exec. Council, 705 A.2d 656, 665 (D.C. 1997)).

“The disability of a person claiming to be non compos mentis

must be ‘of such a nature as to show [he] is unable to manage

[his] business affairs or estate, or to comprehend [his] legal

rights or liabilities.’” Id. (quoting Decker v. Fink, 47 Md. App.

202, 422 A.2d 389, 392 (Md. 1980)). Smith-Haynie references

various facts indicative of non compos mentis, including being

“[un]able to engage in rational thought and deliberate decision

making sufficient to pursue” a legal claim whether “alone or

through counsel” or diagnosed with schizophrenia, “adjudged

incompetent,” or appointed a caretaker or power of attorney.

Id. (first quoting Nunnally v. MacCausland, 996 F.2d 1, 5–6

(1st Cir. 1993); and then quoting Speiser v. U.S. Dep’t of

Health & Human Servs., 670 F. Supp. 380, 385 (D.D.C. 1986),

aff’d, 818 F.2d 95 (D.C. Cir. 1987)). Jackson’s allegations of

“pain, anger, depression, hopelessness and bewilderment,” the

“divorce from [his] wife caused by [his] difficult emotion [and]

mental state,” “[l]oss of enjoyment of life,” “insomnia, distrust,

depression, anxiety” and “financial hardship” as a result of the

discrimination he suffered, Compl. 12, 17, although serious, do

not rise to the level of non compos mentis such that he was

28

unable to manage his own affairs or comprehend his rights or

liabilities.

Indeed, the allegations in his complaint demonstrate that

Jackson was able to manage his affairs and comprehend his

rights quite well. Jackson alleges that at the time of the alleged

discrimination, he knew that he “had been subjected to

wrongdoing and strongly desired justice.” Id. at 12. He alleges

that “[f]or an extended period of time, I sought help from the

Department of the Navy, Department of Justice, Attorneys,

congressmen, news media, etc.” Id. at 12–13. He describes

these efforts as a “massive undertaking.” Id. at 13. Indeed,

after being discharged from the military, he filed applications

with the Board for Correction of Naval Records regarding his

fitness record and reenlistment code in 1990, 1991, 1992, 1993,

1994 and 2000. During this time, he sought legal assistance as

well as assistance from others, including a United States

Senator, to reenlist in the Marines. This conduct indicates that

he was capable of filing a timely APA claim. He is not entitled

to equitable tolling, then, and the district court correctly

dismissed his claim.

C. Military Pay Act

Finally, we briefly address Jackson’s Military Pay Act

claim. The district court construed Jackson’s request for

reenlistment with back pay as a claim under the Military Pay

Act, 37 U.S.C. § 204, but held that it lacked jurisdiction of that

claim. Amicus initially appealed the dismissal of the claim but

in its reply brief abandoned the claim on the ground raised by

the Secretary—namely, we lack jurisdiction to hear the appeal

of a Military Pay Act claim because the Court of Appeals for

the Federal Circuit has exclusive jurisdiction of such claims.

Having considered that argument, we agree that we lack

29

jurisdiction to review the claim pursuant to 28

U.S.C. § 1295(a)(2).

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.