Petition for Writ of Certiorari — Mier v. Van Dyke

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») 95-816

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ARTHUR J. MIER, an individual,

Petitioner,

VS.

GLEN W. VAN DYKE, in his capacity as Adjutant General of the

Arizona State Army National Guard; TOGO D. WEST, JR., in his

capacity as Secretary of the Army,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Daniel D. Maynard

Margo F. Shein

Douglas C. Erickson

JOHNSTON MAYNARD GRANT and PARKER, P.L.C

2300 Great American Tower

3200 North Central Avenue

Phoenix, Arizona 85012

(602) 279-8500

Counsel of Record for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Whether Title VII, 42 U.S.C. § 2000e, protects the

civil rights of National Guard technicians.

Whether racial discrimination and civil rights

violations by the National Guard against a civilian

technician are beyond judicial remedy under the

justiciability doctrine.

PARTIES TO THE PROCEEDING

The parties before the Ninth Circuit Court of Appeals

were the plaintiff, Arthur J. Mier, an hispanic civil service

technician in the Arizona State Army National Guard

(hereinafter "AANG"); and the defendants, Donald L.

Owens,' in his capacity as Adjutant General of the AANG,

and Togo D. West, Jr., in his capacity as Secretary of the

Army.’

'Glen W. Van Dyke is substituted for his predecessor Donald L.

Owens, as Adjutant General of the AANG, pursuant to Sup. Ct. R. 35.3.

7Togo D. West, Jr., was substituted for his predecessor, Michael

P.W. Stone, who was an original defendant in the case below, pursuant

to Fed. R. App. P. 43(c)(1).

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .......... i

PARTIES TO THE PROCEEDING ................ ii

po ee ill

TABLE OF CASES AND AUTHORITIES ........... Vv

EEE MUPEPUIOU gcc ce ccc es cceeeecs xi

GROUNDS ON WHICH JURISDICTION IS

Ne ee Oe OT ae ee xii

STATUTES AND REGULATIONS INVOLVED ...... xiii

SiAtemens OF THECASE .........20000. l

oss acd bee 6 6 ¢ 00 0 0 0 a

FEDERAL COURTS SHOULD APPLY TITLE

Vil TO PROTECT THE CIVIL RIGHTS OF

NATIONAL GUARD TECHNICIANS ........ 5

A. The Circuit Courts Inconsistently

Apply Title VII to National Guard

EE ES 5

B. Title VII Applies to National Guard

I Pas ako bg. 8 6-0 0 6 e004 0 8

S The Legislative History Demonstrates that

Racial Discrimination and Other Civil

Rights Violations Against National Guard

Technicians Are Within the Scope of Title

I rae ee oe ong 10

D. The Justiciability Doctrine Does Not

Preclude a Legal Remedy in this Case

1. The Supreme Court Has Not

Addressed This Issue. ........

2. The Circuit Courts Are Divided. . .

E. The Ninth Circuit’s Decision Should Be

Affirmed in Part and Reversed in Part ...

CRNA So Cb ee es Oe oS Tere ere.

APPENDIX

INDEX TO APPENDIX

TABLE OF CASES AND AUTHORITIES

Cases Page

Astoria Federal § & L Assn. v. Solimino,

ee Sea es et OE vg tbe bv eeeceeseareces 9

Becker v. Rice, 827 F. Supp. 589 (W.D. Ark. 1993) ..... 26

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ..... 16, 18, 19

Bledsoe v. Webb, 839 F.2d 1357 (9th Cir. 1988) ....... 26

Brown v. United States, 739 F.2d 362 (8th Cir. 1984),

out. Gated, S73 UB SOG CISE) ok ccc betccces 21

Chappell v. Wallace, 462 U.S. 296 (1983) .. 5, 14, 15, 17-24

Christoffersen v. Washington State Air Nat’l Guard,

855 F.2d 1437 (9th Cir. 1988), cert. denied,

es ie esc da eee & oo ake eee 26

Conley v. Gibson, 355 U.S. 41 (1957) ........... 24, 25

Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034

RR re re Ter ere 21, 22

Dillard v. Brown, 652 F.2d 316 (3d Cir. 1981) ..... 19, 21

Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990),

cert. denied, 499 U.S. 904 (1991)................ 23

Dunlap v. Tennessee, 514 F.2d 130 (6th Cir. 1975),

rev'd on other grounds, 426 U.S. 312 (1975) ......... 15

Feres v. United States, 340 U.S. 135 (1950) ..... 16-18, 23

Frey v. California, 982 F.2d 399 (9th Cir. 1993),

cert. denied, 61 U.S.L.W. 3682 (1993) .... cc eeees 26

Frontiero v. Richardson, 411 U.S. 677 (1973) ......... 15

Gant v. Binder, 766 F.2d 358 (8th Cir. 1985) ......... 21

Gilligan v. Morgan, 413 U.S. 1 (1972) ........ 13-15, 23

Goldman v. Weinberger, 475 U.S. 503 (1986) ......... 15

Gonzalez v. Department of the Army, 718 F.2d 926

ee ee ee ee eee 26

Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991) ....... 21

Helm v. State of California, 722 F.2d 507

oe Ca ee als aa ke 6 aa a 8 0-0 8 8s 26

Hishon v. King & Spalding, 467 U.S. 69 (1984) ........ 25

Hunter v. Stetson, 444 F. Supp. 238 (E.D.N.Y. 1977) ... 7,8

Johnson v. State of New York, 49 F.3d 75 (2d Cir. 1995) .. 20

Jorden v. National Guard Bureau, 799 F.2d 99

(3d Cir. 1986), cert. denied, -484 U.S. 815 (1987)... 20, 21

Khalsa v. Weinberger, 779 F.2d 1393 (9th Cir. 1985) .... 19

Kitowski v. United States, 931 F.2d 1526 (11th Cir. 1991),

ro | a RR.) ) 19

Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765

(7th Cir. 1993), cert. denied, 62 U.S.L.W.

Pe a aos oo cee eee ea aa es 14, 22

Kostan v. Arizona National Guard, 50 M.S.P.R. 182

SED 5 a Gea oe eek Cee eae 11, 12

Vii

Kreis v. Secretary of the Air Force, 866 F.2d 1508

no ee eee wie eb sa) ena ae ea 19, 23

Laird v. Tatum, 408 U.S. 1 (1972) ............. 14, 15

Love v. United States, 915 F.2d 1242 (9th Cir. 1989) . 24, 25

Lujan v. National Wildlife Federation, 497 U.S. 871

CN Ot hs ce ee AS «ele Cake bee 66-4 25

Lutz v. Secretary of the Air Force, 944 F.2d 1477

| Ce ee re eee ee ee ee 26

Mackey v. Stetson, 18 Empl. Prac. Dec. 8778 (CCH)

I I ol a da ee woe 6k wee ele ee 11

Maddick v. United States, 978 F.2d 614 (10th Cir. 1992) .. 19

Martelon v. Temple, 747 F.2d 1348 (10th Cir. 1984),

cert. denied, 471 U.S. 1135 (1985) ............ 20, 22

Mier v. Owens, 57 F.3d 747 (9th Cir. 1995) ...... 5, 6, 22

Mindes v. Seaman, 453 F.2d 197 (Sth Cir. 1971) .. 19, 21-23

Mollinow v. Carlton, 716 F.2d 627 (9th Cir. 1983),

cert. denied, 465 U.S. 1100 (1984) ............... 20

Moorehead v. United States, 774 F.2d 936 (9th Cir. 1985) . 11

New York v. Federal Labor Rel. Auth..,

3S & 2 fe Se ee eee 20

Ogden v. United States, 758 F.2d 1168 (7th Cir. 1985) ... 21

Oram v. United States, 1994 U.S. App. LEXIS 30526 .... 23

Orloff v. Willoughby, 345 U.S. 83 (1953) ....... 13, 14, 23

Renicker v. Marsh, 640 F. Supp. 244 (N.D. Ohio 1986) .. . 15

viii

Rostker v. Goldberg, 453 U.S. 57 (1981) ............ 15

Schlesinger v. Ballard, 419 U.S. 498 (1975) .......... 15

Schultz v. Wellman, 717 F.2d 301 (6th Cir. 1983)....... 22

Sebra v. Neville, 801 F.2d 1135 (9th Cir. 1986) ........ 26

Shaw v. Gwatney, 584 F. Supp. 1357 (E.D. Ark. 1984) ... 21

Stinson v. Hornsby, 821 F.2d 1537 (11th Cir. 1987),

cert. denied, 488 U.S. 959 (1988) ........... 6, 23, 26

Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981) ...... 6, 26

Thornton v. Coffey, 618 F.2d 686 (10th Cir. 1980) ....... 6

Trerice v. Summons, 755 F.2d 1081 (4th Cir. 1985) .. 20, 21

United States v. Shearer, 473 U.S. 52 (1985)..... 17, 18, 22

United States v. Stanley, 483 U.S. 669 (1987) ....... 16-19

Usher v. City of Los Angeles, 828 F.2d 556

os eo ey en ee eee 25

Watson v. Arkansas Nat'l Guard, 886 F.2d 1004

ge a ee er eee eee 19, 22

Wood v. United States, 968 F.2d 738 (8th Cir. 1992)..... 22

Wright v. Park, 5 F.3d 586 (ist Cir. 1993) ........... 19

Statutes

Pe: 6s 6 os EEE Se OF eee eh eS Ohare 8

Pe Oe 690 a eo FN 6d os OO C Chee 9

eo ee ee re oe kere ee 2

Be Ue OS OU OOD 06 oe dee Reds bs eee 689 9

Se Se EEE 5&4 6 0 0-0 09.0 00:0 CON ke PK ee ahs ]

RR ae Een er es ee aes eres l

Se a Oe nos x wees edd ob dob de wees i2, 16

See es OE Sn 60 0 bee ee ed ose bo wae wees i

Se ee ae EE 2g 0 6s 4 > ba ewes eee Mee eee l

gS Re eer ert arene er eee 1,8

ee Ce PEER Sg base ones Ee Ee 1, 8,9, 12

bin dare a pp aree ow Oe Ye ee 9

RU ie hs od eek 8 a he ee ee 19, 20, 22

TS UB Ae Gp Peer) GE TIGO nn cee sce ceenees 21

I gr eG ke es pare ne ate ae eee nao 17

eR <a <6'-y 6-0 dd o oe wee « 88:5 i, 4, 17, 18, 28

42 U.S.C. §§ 2000e-5 and 2000e-16 ................ 2

ees PD Sven secccccceveeses 9, 11, 12

RD od ts bee dete enne ee tees a 8

Rules

EE 6s ob bo eee ORO ee eee ii

cea oy ao bok 4 x 4 0 hoe ee we ii

Miscell suthoriti

141 Cong. Rec. H9466

(daily ed. Sept. 25, 1995) ..

H.R. Rep. No. 1823, 90th Cong., 2d Sess.,

reprinted in 1968 U.S. Code

Cong. & Admin. News 3318 ....

Note, Judicial Review of Constitutional

Claims Against the Military,

84 Colum.L.Rev. 387 (1984)... ..

Pub. L. No. 90-486, § 3(b), 82

Stat. 755, 757 (1968)

REPORTS OF OPINIONS*

Arthur J. Mier v. Donald L. Owens, et al., United St es

District Court, District of Arizona, No. CIV-92-0745-PHX-

PGR (1993).**

Mier v. Owens, 57 F.3d 747 (9th Cir. 1995).

“Reproduced in Appendix.

**Not published.

xii

GROUNDS ON WHICH JURISDICTION IS INVOKED

The opinion of the Ninth Circuit Court oi Appeals

sought to be reviewed herein was entered on June 9,

1995.

Petitioner’s Petition for Rehearing and Suggestion for

Rehearing En Banc were denied on August 24, 1995.

Jurisdiction to review the judgment by writ of

certiorari is based on 28 U.S.C. § 1254.

Xili

STATUTES AND REGULATIONS INVOLVED*

Federal Statutes

5 U.S.C. § 102

5 U.S.C. § 7511(b)

28 U.S.C. §§ 1331 and 1346

32 U.S.C. § 101(2) - (4)

32 U.S.C. § 101(12)

32 U.S.C. § 101(19)

32 U.S.C. § 709

32 U.S.C. § 709(a)

32 U.S.C. § 709(a)(2)

32 U.S.C. § 709(b)

32 U.S.C. § 709(d)

32 U.S.C. § 709(f)

42 U.S.C. § 2000e

42 U.S.C. § 2000e-3

42 U.S.C. § 2000e-5

42 U.S.C. § 2000e-16

42 U.S.C. § 2000e-16(a)

“Reprinted in the Appendix.

STATEMENT OF THE CASE

Arthur J. Mier (hereinafter "Mier") is an hispanic

civil service technician’ who has served in the Arizona

Army National Guard (hereinafter “AANG") for over

twenty-three years. As a civil service technician, Mier

serves both in a military capacity, as a commissioned officer

not on active duty,‘ and in a civilian capacity, as a full time

Supply Management Officer. Mier’s primary role is civilian

in nature. As a Supply Management Officer, he is

responsible for the maintenance, repair and provision of all

supplies issued to the AANG.’ As a condition of holding

the civilian position, Mier is required to be a member of the

AANG, fulfill the requisite obligations and responsibilities as

an officer, and hold the military grade commensurate with

his civil service position.®

In 1986, Mier filed an Equal Employment

Opportunity ("EEO") complaint with the AANG alleging

discrimination based on his race, color and national origin.

He prevailed on that complaint. Since that time, ranking

officers in the AANG (collectively, for purposes of this

*32 U.S.C. § 709(a) defines Mier’s position as a “technician,” and

32 U.S.C. § 709(d) states that as a technician, Mier is both an employee

of the Army and an employee of the United States.

“32 U.S.C. § 101(12) defines “active duty” as full-time duty in the

active military service of the United States. Section 101(19) defines

“full-time National Guard duty” as training or other duty other than

inactive duty, performed by a member of the Army National Guard of

the United States.

‘See 32 U.S.C. § 709(a)(2).

*32 U.S.C. § 709(b).

Petition, all discriminating officers are encompassed by

reference to "AANG") have continued their discrimination

and retaliated against Mier for filing the 1986 complaint.

The AANG’s retaliation and general harassment, prompted

Mier to file a second EEO complaint on August 14, 1991 for

discriminatory retaliation, on the grounds that the AANG (1)

failed to complete required performance appraisals, (2)

subjected him to unwarranted investigations based on his

civilian job performance and duties, (3) denied him a

promotion to the rank of Major, and (4) initiated a

groundless proceeding to withdraw his federal recognition.’

After Mier exhausted his administrative remedies, he

instituted the current litigation.

Mier filed his complaint in the United States District

Court for the District of Arizona on April 17, 1992.

Jurisdiction in the district court was based on 28 U.S.C.

§§ 1331 and 1346, as well as 42 U.S.C. §§ 2000e-5 and

2000e-16, because Mier’s claims arose under federal law and

involved the United States or an agency or department

thereof as a defendant. The defendants filed their answer on

July 2, 1992. On August 10, 1992, defendants filed a

motion to dismiss for lack of subject matter jurisdiction and

for failure to state a claim upon which relief could be

"Federal recognition is the acknowledgement by the Federal

Government that an officer [of the state militia] appointed, promoted, or

transferred to an authorized grade or position vacancy in the Army

National Guard meets the prescribed laws and regulation governing the

action. National Guard Regulation 600-100, Par. 1-3(b). The loss of

federal recognition means that the officer no longer participates in

federally-paid duty status, which includes activities such as drills, annual

training, or service schools at any cost to the federal government, nor

may he be called into active federal service." Frey v. California, 982

F.2d 399, 400 n.3 (9th Cir. 1993), cert. denied, 61 U.S.L.W. 3852

(1993).

granted. Mier filed his response on September 15, 1992.

Defendants filed their reply memorandum on September 30,

1992, and a motion to supplement, on March 2, 1993. The

district court entered an order granting defendants’ motion

to supplement on March 3, 1993. On April 12, 1993, the

Court granted defendants’ motion to dismiss and ordered tat

the complaint be dismissed in its entirety. (Appendix, pp.

A-15 through A-17) Mier timely filed a notice of appeal on

May 5, 1993.

The Ninth Circuit Court of Appeals, with a divided

panel, affirmed the dismissal. Its opinion was filed on

June 9, 1995. (Appendix, pp. A-3 through A-14) A timely

petition for rehearing and suggestion for rehearing en banc

were filed with the Ninth Circuit on July 24, 1995. The

Court denied a rehearing by its order dated August 24, 1995.

(Appendix, pp. A-1 through A-2)

Although the nature and extent of the retaliatory and

discriminatory actions against Mier by officers of the AANG

are egregious and relevant, a detailed recitation’ of those

actions is not critical to this Court’s resolution of the conflict

among the circuit courts and settlement of the issues as to

whether discrimination and civil rights violations by the

National Guard against its civilian employees are within the

scope of Title VII and justiciable.

*The specific acts of retaliation and discrimination are set forth in the

Brief of Plaintiff/Appellant before the Ninth Circuit.

ARGUMENT

We ask this Court to grant this Petition because the

case presents two issues of first impression: (1) whether Title

Vil, 42 U.S.C. § 2000e, applies to National Guard

technicians, and (2) whether a National Guard technician’s

civil rights claims under 42 U.S.C. § 2000e are justiciable.°

With regard to the first issue, the Ninth Circuit, in affirming

the lower court’s action, found that Title VII did apply to

National Guard technicians, but the it employed a test that

unduly and prejudicially narrows the circumstances in which

Title VII applies. With respect to the second issue, the

Ninth Circuit found that the actions about which Mier

complained were "integrally related to the military structure"

and, therefore, nonjusticiable, a holding that is inconsistent

with the purpose and history of Title VII.

In addition, the circuit courts have addressed these

issues and reached conflicting results. For example, as

discussed infra, the Eighth, Ninth, Tenth, and Eleventh

Circuits all apply Title VII differently to National Guard

technicians. One circuit refuses to apply Title VII at all.

With regard to the justiciability issue, the circuits are

divided. Some have not squarely addressed the issue of the

reviewability of a National Guard technician’s claims under

Title VII. Of those that have addressed the issue, some have

determined such claims to be reviewable, while others have

refused to allow such claims. In addition, some circuits

have found all claims made by military personnel to be

nonjusticiable, while others have deemed claims for

"For the current budget year it is projected that there will be a total

of 63,528 people employed as military (civilian) technicians in the Army

Reserve, Air Force Reserve, Army National Guard and Air National

Guard. 141 Cong. Rec. H9466 (daily ed. Sept. 25, 1995).

eee ee eee |

injunctive or other equitable relief to be justiciable. The

lower courts have each applied their own interpretations of

this Court’s decision in Chappell v. Wallace and devised

their own standards for determining justiciability. For all of

these reasons, Petitioner respectfully requests that the Court

accept review of this case.

FEDERAL COURTS SHOULD APPLY TITLE VII TO

PROTECT THE CIVIL RIGHTS OF NATIONAL

GUARD TECHNICIANS

A. The Circuit Courts Inconsistently Apply

Title VII to National Guard Technicians.

There are instances, in both the circuit and district

courts, where Title VII has been readily applied to

technicians, and, in some cases, even to full-fledged

members of the military. Regrettably, the Supreme Court

has not addressed the issue in the National Guard context,

and the circuit courts are anything but consistent in their

opinions and holdings.

This case illustrates the Ninth Circuit’s gradual

acceptance and affirmation of the application of Title VII to

National Guard technicians. See Mier v. Owens, 57 F.3d

747, 748-50 (9th Cir. 1995). Other circuits have not been

so generous. The Eighth Circuit has noted that "’neither

Title VII nor its standards are applicable to persons who

enlist or apply for enlistment in any of the armed forces of

the United States.’ [Citation omitted]. We do not see any

Significant distinction, for Title VII purposes, between a

member of the Army or Air Force and a member of . . . the

National Guard.” Taylor v. Jones, 653 F.2d 1193, 1200

(8th Cir. 1981).'° The Eleventh Circuit, while leaving

some question as to the scope of its holding, declared that "a

member of the National Guard {] is not an employee of the

state of Alabama for purposes of Title VII." Stinson v.

Hornsby, 821 F.2d 1537, 1539-40 (11th Cir. 1987), cert.

denied, 488 U.S. 959 (1988). The court alluded to a

balancing test to determine whether a technician is more

military personnel or state employee for purposes of

applying Title VII. Jd. at 1540, 1541. Such a test, if the

court was employing it, is entirely inconsistent with the

approach and analysis taken by the Ninth Circuit in Mier.

See Mier, 57 F.3d at 748. ("We conclude that Title VII

applies to Guard technicians except when they challenge

personnel actions integrally related to the military’s unique

structure." Jd.) The Eleventh Circuit focused on the role of

the technician; whereas the Ninth Circuit evaluated the

nature of the actions taken against Mier.

The Tenth Circuit appears to be more lenient in

allowing a Title VII action by a technician, even when the

alleged discrimination is based on "officer efficiency ratings”

and arguably a failure to promote. See Thornton v. Coffey,

618 F.2d 686 (10th Cir. 1980). In this sense, it more

closely parallels the Ninth Circuit. But regardless of how

Closely one circuit parallels another, there are clear

differences in the law as they apply it. There is a need for

uniformity, and the issue should be settled by the Supreme

Court.

"The Eighth Circuit appeared willing to recognize a Title VII

violation with respect to the plaintiff's exclusively civilian job conditions.

But see id. at 1201 n.6.

The unique circumstances of National Guard

technicians attempting to remedy discrimination was

illustrated in Hunter v. Stetson, 444 F. Supp. 238 (E.D.N.Y.

1977). The district court alertly observed that the defendants

could exploit their dual civilian/military status and attempt to

shield their wrongful conduct by arguing that it was strictly

military. The plaintiff, a federal civilian employee, who was

also a National Guardsman, brought a Title VII action on the

ground that his military rank had been reduced as a reprisal

for having participated in proceedings on a discrimination

complaint filed against the National Guard by one of its

other civilian employees. /d. at 238. The court refused to

dismiss the complaint on defendants’ motion, which was

similar in many respects to the motion that was filed in the

district court in this case.

. . . L read the complaint as alleging improper

action on the part of plaintiff's civilian

employers; i.e., exploiting their dual status as

plaintiff's military and civilian superiors to

pervert the military decision-making process.

And this was allegedly done with the intent of

furthering goals in the realm of civilian

employment: i.e. , discouraging the processing

of discrimination complaints.

It is the dual status of the Guard’s employee-

members that presents the difficult questions

on this motion... .

However, . . . the complaint states a

cause of action cognizable under Title VII.

Plaintiff contends that the act which

precipitated a reduction in his military rank

. was committed within the scope of his

civilian employment, and thai it is only by

virtue of the fact that his superiors in the

Guard wear two hats that they were able to

mete out punishment in the form of a

reduction in military rank. ... Had the

retaliation taken place in the civilian sphere,

civilian redress would of course have been

available to plaintiff.

Id. at 239-240 (emphasis original). Hunter illustrates Title

VII's applicability to the case at bar, and, more important,

it highlights the unique and difficult position in which

technicians will remain if this Court does not grant certiorari

and settle this area of the law.

B. Title VIl_ Applies to National Guard

Sesheiatons,

Title VII applies to “[aJll personnel actions affecting

employees or applicants for employment (except with regard

to aliens employed outside the limits of the United States) in

military departments as defined in Section 102 of Title 5. .

. ."" 42 U.S.C. § 2000e-16(a) (emphasis added). "A

technician employed under subsection (a) [of the National

Guard Technicians Act] is an employee of the Department of

the Army or the Department of the Air Force, as the case

may be, and an employee of the United States.” 32 U.S.C.

§ 709(d) (emphasis added). Although a technician may be

a "member of the National Guard,” 32 U.S.C. § 709(b), he

'The military departments are defined as the Department of the

Army, Department of the Navy, and Department of the Air Force. 5

U.S.C. § 102.

or she is not necessarily a member of the “armed forces.”"

Moreover, as employees of a military department, the

only standard protections that technicians are not entitled to

are spelled out in the statute. “Sections 2108, 3502, 7511

and 7512 of Title 5 do not apply to any person employed

under this section." 32 U.S.C. § 709(f). Section 2108

defines veterans and veteran status; section 3502 pertains to

the order in which civil service employees will be retained

when the work force is reduced; sections 7511 and 7512

relate to certain actions taken against federal employees. If

technicians were to be treated as regular military, they would

not need to be expressly excluded from these statutes along

with members of the foreign service, C.1.A., Postal Service,

F.B.I., etc. To hold otherwise would render the statutory

language in 32 U.S.C. § 709(f) and 5 U.S.C. § 7511(b)

superfluous -- a result discouraged in statutory interpretation.

Astoria Federal § & L Assn. v. Solimino, 501 U.S. 104, 107

(1991). Furthermore, since Congress specified four specific

provisions that did not apply to technicians, it is reasonable

to conclude that it Congress had intended for technicians to

be deprived the benefits of 42 U.S.C. § 2000e-16, it would

have made an express provision to that effect. With respect

to technicians in the National Guard only, when Congress

specified the provisions of federal law that would not apply

to them, it did not include Title VII. The omission means

that, although traditional members of the armed forces may

have to endure harassment and discrimination without

judicial recourse, Mier does not.

"The National Guard Act makes the distinction between “armed

forces,” which “means the Army, Navy, Air Force, Marine Corps and

Coast Guard,” and “National Guard," which is defined separately from

the “armed forces." 32 U.S.C. § 101(2) - (4). Nevertheless, by virtue

of section 709(d), a technician remains an employee of the department.

Cc The Legislative History Demonstrates that

When the special status of technicians is recognized,

Title VII is clearly applicable, just as it is with respect to

any other civilian employee.

When the instant case was appealed to

the Federal Circuit, the intervenor [National

Guard Bureau] brought to the attention of the

court an uncodified provision of the National

Guard Technicians Act that was not

considered in Gordon:

"Except as provided in this Act and in

the amendments made by this Act, and

notwithstanding any law, rule, regulation, or

decision to the contrary, the positions of

persons employed under section 709 of title

32, United States Code, existing on the day

before the effective date of this Act, and the

persons holding those positions on that day,

Shall, on and after that effective date, be

considered to be positions in and employees of

the Department of the Army or the

Department of the Air Force, as the case may

be, and employees of the United States to the

same extent as other positions in and

employees of the Department of the Army or

the Department of the Air Force." Pub. L.

No. 90-486, § 3(b), 82 Stat. 755, 757 (1968).

Although the primary’ concerns

prompting the enactment of the 1968 Act

sre

were the lack of a uniform and adequate

retirement and fringe benefit program, and

the question of the technicians’ legal status

under the Federal Tort Claims Act, the

language employed in section 3(b) establishes

conclusively that technicians are not to be

considered as Federal employees for these

Purposes only. Despite the fact that they

work for state organizations under the

authority of a state official, technicians must

be considered as civilian employees of the

Departments of the Army or Air Force who

possess all the rights held by other Army and

Air Force employees, save those rights

specifically denied them in the National Guard

Technicians Act.

Kostan v. Arizona National Guard, 50 M.S.P.R. 182 (1991)

(emphasis added). (Appendix, pp. A-65 through A-73) The

Board’s careful attention to the legislative history is

commendable and appropriate in this context when

attempting to derive the true legislative intent. Moorehead

v. United States, 774 F.2d 936, 940 (9th Cir. 1985) ("When

interpreting a statute, the court’s objective is to ascertain the

intent of Congress and to give effect to legislative will.").

The proposition that technicians are protected by Title

VII has been accepted by at least one federal court and, as

far as counsel can determine, rejected by no court that has

considered this portion of the legislative history. See

Mackey v. Stetson, 18 Empl. Prac. Dec. 8778 (CCH)

(W.D.N.C. 1978) ("This action was brought under 42

U.S.C. § 2000e-16 against the Air National Guard, alleging

discrimination in the operation of its Charlotte facility. The

thrust of the complaint is that defendants’ practices with

respect to the hiring and promotion of technicians are

racially discriminatory. The parties agree that technicians

are employees of the National Guard who must, by virtue of

statute (32 U.S.C. § 709), also be commissioned in the

National Guard. At the hearing and in their memoranda on

the class certification issue, defendants have conceded that

technicians are within the class of federal employees

protected from race discrimination in employment under 42

U.S.C. § 2000e-16."). (Appendix, pp. A-62 through A-64)

The discussion in Kostan thoroughly considers the

legislative history of section 709 to determine the true

congressional intent with respect to the employment status of

technicians. The discussion accurately recites the critical

portion of P.L. 90-486 and applies a reasonable and plain

interpretation of the language to conclude that National

Guard technicians are civilian employees’ for purposes of

Title VII. (Appendix, pp. A-65) The Board’s approach is

further supported by congressional materials, which indicate

that the purpose of the legislation was, in part, "[tJo clarify

the technician’s legal status which in certain areas has been

the subject of conflicting court decisions, especially on the

matter of whether technicians are covered under the Federal

Tort Claims Act regarding third party actions against the

U.S. Government.” H.R. Rep. No. 1823, 90th Cong., 2d

Sess., reprinted in 1968 U.S. Code Cong. & Admin. News

3318, 3319. “The technicians, now numbering about

42,000, are full-time civilian employees of the National

Guard whose salaries are paid in full by the Federal

Government and who must meet all the mental and physical

standards as well as professional qualifications prescribed by

the military departments." Jd. The history also reflects that

membership in the National Guard is a condition of the

technicians’ civil employment, and nothing more. Id. The

position of “technician” was clearly contemplated a "civil

service position{]."” Jd. at 3324.

"This conclusion is also clear from a reading of section 709(d) alone.

32 U.S.C. § 709(d).

Notwithstanding the sensible rationale for allowing

Title VII protection for technicians, and the clear legislative

history, as a study of Title VII cases in the lower courts

demonstrates, without a pronouncement from this Court, the

law will continue to be inconsistently applied. Potentially,

hundreds of technicians will be left without the meaningful

legal recourse to which they are entitled.

D. The _Justiciability Doctrine Does Not

Preclude a Legal Remedy in this Case.

This Court has never addressed the issue of whether

a National Guard technician’s Title VII action presents a

justiciable controversy.“ This important question of

federal law potentially impacts thousands of people.

Although most of the circuits have not addressed the issue in

the Title VII context, the circuits have all addressed the

justiciability of National Guard technicians’ actions

generally. The absence of a clear directive from this Court

as to a single standard to be applied has created a morass of

inconsistent and conflicting opinions. This void should be

filled with a reasoned clarion call for uniformity and

fairness.

The justiciability doctrine exists to prevent courts

from overzealously regulating and interfering in areas

traditionally considered to be military in nature.. See Orloff

v. Willoughby, 345 U.S. 83, 94 (1953).'5 The general

‘In Gilligan v. Morgan, 413 U.S. 1 (1972), the Court did address

claims presented by a National Guard technician, but the Court declined

to decide the question of justiciability.

'SBut see Knutson v. Wisconsin Air Nat’! Guard, 995 F.2d 765, 769

(7th Cir. 1993), cert. denied, 62 U.S.L.W. 3288 (1993) ("Reading Orloff

to support broad deference to the military ignores the narrow context in

which the language is meant to apply. Deference to the military only

(continued...)

rationale for the doctrine is that military matters involve

areas of expertise far outside the court’s domain. See

Gilligan v. Morgan, 413 U.S. 1, 10-11 (1973). The doctrine

was not, however, conceived as a cloak to prevent courts

from reviewing any and all military actions.

Generally, the Supreme Court has expressed an

unequivocal willingness to intervene in those instances where

there are judicially cognizable injuries. Laird v. Tatum, 408

U.S. 1 (1972).

[W]hen presented with claims of judicially

cognizable injury resulting from military

intrusion into the civilian sector, federal

courts are fully empowered to consider claims

of those asserting such injury; there is nothing

in our Nation’s history or in the Court’s

decided cases, including our holding today,

that can properly be seen as giving any

indication that actual or threatened injury by

reason of unlawful activities of the military

would go unnoticed or unremedied.

Id. at 15-16. Further, in Chappell v. Wallace, the Court

stated:

This Court has never held, nor do we now

hold, that military personnel are barred from

all redress in civilian courts for constitutional

wrongs suffered in the course of military

service. (Citation omitted.)

'S(, . continued)

affected the Supreme Court’s judgment as to the merits of Orloff's claim,

not the question of whether it should have reviewed the claim at all.").

aches, © stabil iiacen PEL AR ne a ge (0

Patna rele Sb. IY

Chappell, 462 U.S. 296, 304 (1983). This general

philosophy should be applied to Mier’s case, although he is

only viewed as “military” in a very limited context.

The Supreme Court previously has reviewed military

personnel policies when constitutional infirmities were

alleged. See, e.g., Rostker v. Goldberg, 453 U.S. 57

(1981); Goldman v. Weinberger, 475 U.S. 503 (1986);

Schlesinger v. Ballard, 419 U.S. 498 (1975); Frontiero v.

Richardson, 411 U.S. 677 (1973). Although these cases are

distinguishable from Petitioner’s case, they refute the notion

that military or quasi-military decisions are absolutely

beyond judicial inquiry.

Controversies between National Guard technicians

and the National Guard should be treated differently than

ordinary military disputes for the purpose of deciding

justiciability. See Laird v. Tatum, 408 U.S. 1, 15-16 (1972)

(Federal courts are fully empowered to consider claims of

injury resulting from intrusion of the military sector into the

civilian sector.); Dunlap v. Tennessee, 514 F.2d 130, 133

(6th Cir. 1975), rev’d on other grounds, 426 U.S. 312

(1975) ("Military" decisions made for non-military reasons,

and involving no application of military expertise, may be

outside the boundaries of the doctrine of unreviewability.);

Renicker v. Marsh, 640 F. Supp. 244 (N.D. Ohio 1986)

(similar holding). This Court has already stated that the

conduct of the National Guard should not be immunized

from all judicial scrutiny. Gilligan v. Morgan, 413 U.S.

110-11 (1973) (“It should be clear that we neither hold nor

imply that the conduct of the National Guard is always

beyond judicial review or that there may not be

accountability in a judicial forum for violations of law or for

specific unlawful conduct by military personnel.").

Distinguishing the National Guard from the military

is further supported by the legislative history of 32 U.S.C.

§ 709 which indicates that Congress intended for technicians

to have the same benefits and protections as other civilian

employees of the government, with the exception of four

limited statutory provisions, which are specifically identified

in section 709. The doctrine of justiciability should not be

used to circumvent or second-guess this legislative mandate.

1. The Supreme Court Has Not

Addressed This Issue.

Historically, the Supreme Court has rendered a

handful of opinions which have guided the circuits in

determining the justiciability of military disputes; however,

the courts have not been entirely successful in gleaning the

Court’s intention and they have not been uniform in their

interpretation or application of the doctrine. See United

States v. Stanley, 483 U.S. 669, 676 (1987).

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), this Court

authorized a suit for damages against federal officials whose

actions violated an individual’s constitutional rights, even

though Congress had not expressly authorized such suits.

The Court cautioned, however, that such a remedy will not

be available when “special factors counselling hesitation” are

present. Id. at 396. This rationale also formed the basis of

this Court’s decision in Feres v. United States, 340 U.S. 135

(1950). In Feres, this Court held that a soldier may not

recover under the Federal Tort Claims Act for injuries which

“arise out of or are in the course of activity incident to

service.” Id. at 146. These two cases set the stage for

Chappell v. Wallace, 462 U.S. 296 (1983).

In Chappell, the Supreme Court addressed the issue

of whether enlisted military personnel can maintain suits to

recover damages from superior officers for injuries sustained

ee ee TT

as a result of violations of constitutional rights in the course

of military service. This Court held that "the unique

disciplinary structure of the Military Establishment and

Congress’ activity in the field constitute ‘special factors’

which dictate that it would be inappropriate to provide

enlisted military personnel a Bivens-type remedy against

their superior officers." Id. at 304. Although it is not

controlling in our case since the Court was addressing claims

of enlisted Navy personnel, not of a National Guard

technician and the claims in Chappell were brought pursuant

to 42 U.S.C. § 1985, not 42 U.S.C. § 2000e, Chappell has

led to confusion on the justiciability issue.

The Supreme Court issued two subsequent decisions

regarding the justiciability of military disputes. First, in

United States v. Shearer, 473 U.S. 52 (1985), the Court

granted certiorari to decide whether the survivor of a

serviceman, who was murdered by another serviceman,

could recover from the government under the Federal Tort

Claims Act for negligently failing to prevent the murder.

The Court followed Feres and determined that the claim

involved the judiciary “in sensitive military affairs at the

expense of military discipline and effectiveness." Therefore,

it held that the claims must fail. Then, in United States v.

Stanley, 483 U.S. 669 (1987), the Court accepted review to

clarify the circumstances in which courts should decline to

permit nonstatutory damages actions for injuries arising out

of military service. In this case, the Court provided some

guidance to the circuits and advocated using the “incident to

service” test of Feres because it arguably “provides a line

that is relatively clear and that can be discerned with less

extensive inquiry into military matters." Jd. at 683. The

Court reaffirmed the "special factors" analysis of Chappell

and ultimately concluded that no Bivens remedy is available

for injuries that “arise out of or are in the course of activity

incident to service." Id. at 684. Although these cases came

closest to addressing the issues presented by Mier’s case,

they are so factually distinct that they are of limited

usefulness in this context.

As a National Guard technician, Mier is in a

predominantly civilian position. Existing case law does not

dictate that his claims be ignored as non-justiciable. First,

almost all of the cases cited above address the claims of full-

time enlisted military personnel. The courts’ general

rationale for deferring to the military and taking a laissez-

faire approach is much less compelling in the context of a

claim brought by a National Guard technician. The concerns

over interfering in matters of military discipline and areas of

military expertise do not apply when addressing the claims

of a civilian technician working in a civilian capacity.

Second, Mier is seeking relief under Title VII, 42 U.S.C.

§ 2000e, which was not the case in Bivens, Feres, Chappell,

Shearer, or Stanley. This Court has never addressed the

justiciability of a Title VII claim brought by a National

Guard technician. Finally, Mier seeks monetary damages

and equitable relief. While Bivens and its progeny dealt with

claims for monetary relief, the justiciability of even a

military member’s claims for equitable relief has never been

addressed by this Court.

2. The Circuit Courts Are Divided.

Not only does this case present a novel issue of

significant federal importance, but it also provides the Court

with an opportunity to resolve the present conflict in the

circuits. The case law is replete with inconsistent and

confusing doctrine regarding the standard to apply in

determining the justiciability of military disputes.

Several years ago, nine of the eleven circuits

employed the "Mindes test"'® to determine what constituted

'*Mindes v. Seaman, 453 F.2d 197 (Sth Cir. 1971).

i es

ie ee ee een 2 Po tae

ape eeren

a reviewable controversy.'’ See Khalsa v. Weinberger, 779

F.2d 1393, 1396 (9th Cir. 1985), reaff'd, 787 F.2d 1288,

1289 n.1 (9th Cir. 1985); see also Note, Judicial Review of

Constitutional Claims Against the Military, 84 Colum.L.Rev.

387, 397, 402 (1984). Since then, the Supreme Court issued

Chappell and the Court’s intended “legal light" has been

refracted by the circuits into a myriad of formulations for

determining justiciability.

In Wright v. Park, 5 F.3d 586 (ist Cir. 1993), the

First Circuit held that "Mindes has been banished from its

homeland" and it adopted a new rule for determining

justiciability. Jd. at 591.6. Interpreting Bivens, Chappell

and Stanley, the First Circuit concluded that civil rights

claims in the military context, including the National Guard,

against state officials under 42 U.S.C. § 1983, and under

kindred statutes, will be deemed nonjusticiable controversies

if the injuries arise out of or are in the course of activity

incident to military service. Jd. at 590-591. The court

announced that it was joining several of its sister circuits in

adopting this rule. Id. at 590 n.6, citing Maddick v. United

States, 978 F.2d 614, 615 (10th Cir. 1992); Kitowski v.

United States, 931 F.2d 1526, 1529 (11th Cir. 1991), cert.

denied, 502 U.S. 938 (1991); Watson v. Arkansas Nat’!

Guard, 886 F.2d 1004, 1006-1007 (8th Cir. 1989).

It does not appear that the Second Circuit has

squarely addressed the issue. However, in New York v.

Federal Labor Rel. Auth. , 696 F.2d 202 (2d Cir. 1982), the

Court accepted for review, without addressing the

justiciability issue, the New York National Guard’s appeal

of an order from the Federal Labor Relations Board, finding

that the National Guard had engaged in unfair labor practices

"The Federal Circuit and the Third Circuit elected not to adopt the

Mindes test. Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1512

(D.C. Cir. 1989); Dillard v. Brown, 652 F.2d 316, 323 (3d Cir. 1981).

with regard to civilian technicians by requiring its civilian

technicians to wear a military uniform while performing their

daily duties as civilians. Also, in Johnson v. State of New

York, 49 F.3d 75 (2d Cir. 1995), the Second Circuit

accepted and reviewed a claim by a New York State

National Guard technician under the Age Discrimination in

Employment Act and found that the state had discriminated

against plaintiff on the basis of his age. These cases

illustrate the Second Circuit’s willingness to review cases

involving dress code and termination decisions, both of

which have clear military overtones.

In Jorden v. National Guard Bureau, 799 F.2d 99

(3d Cir. 1986), cert. denied, 484 U.S. 815 (1987), the Third

Circuit considered the issue of whether National Guard

officers were susceptible to suits by guardsmen for damages

and injunctive relief under 42 U.S.C. § 1983. Relying on

Chappell, the district court dismissed the action on a Rule

12(b) motion to dismiss. The appellate court found that

while the district court was correct in dismissing the claim

for damages, it was incorrect in dismissing the claim for

injunctive relief or reinstatement.

The Jorden Court noted that the majority of courts to

consider the question have held that Chappell establishes a

per se prohibition of damages actions against military

officers for violations of constitutional rights. /d. at 107

(citing Trerice v. Summons, 755 F.2d 1081 (4th Cir. 1985);

Martelon v. Temple, 747 F.2d 1348 (10th Cir. 1984), cert.

denied, 471 U.S. 1135 (1985); Mollnow v. Carlton, 716

F.2d 627 (9th Cir. 1983), cert. denied, 465 U.S. 1100

(1984)). However, the court acknowledged that other courts

have disagreed in whole or in part. Jd. Shaw v. Gwatney,

584 F. Supp. 1357, 1362 (E.D. Ark. 1984) (Chappell

requires balancing strength of the right and likely degree of

interference with the military order for determining whether

suit is barred.). Cf, Brown v. United States, 739 F.2d 362

(8th Cir. 1984), cert. denied, 473 U.S. 904 ( 1985) (Chappell

automatically bars damages actions except in rare case in

which alleged conduct is entirely unrelated to military

mission.). Still other courts that have considered the

question have held that Chappell leaves open claims for

injunctive relief. Id. See also Ogden v. United States, 758

F.2d 1168 (7th Cir. 1985); Gant v. Binder, 766 F.2d 358

(8th Cir. 1985). Taking a divergent path, the Jorden Court

ultimately concluded that as a general matter, requests for

injunctive relief against the military are reviewable. Jorden,

799 F.2d at 109 (citing Dillard v. Brown, 652 F.2d 316 (3d

Cir. 1981)).

The Fourth Circuit, in Trerice yv. Summons, 755 F.2d

1081 (4th Cir. 1985), affirmed the dismissal of a Navy

enlisted man’s action for monetary damages under 42 U.S.C.

§§ 1983(3) and 1986. The court relied on Chappell, but

focused on an “intramilitary immunity" and refused to delve

into military matters without an overwhelming justification.

Id. at 1084. The Fourth Circuit also employed the Mindes

test in Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991),

leaving open to interpretation when and how the Court

determines justiciability.

The Fifth Circuit’s opinion in Crawford v. Texas

Army Nat'l Guard, 794 F.2d 1034 (5th Cir. 1986), largely

guides its approach to determining justiciability of National

Guard-related disputes. In Crawford, the court rejected the

compensatory and equitable claims of twelve guardsmen.

Interestingly, not only was the claim for monetary relief

denied, following Chappell and Shearer, the court denied the

claims for injunctive relief, or reinstatement, as well. Jd.,

at 1036-1037. This decision directly conflicts with the Third

and Sixth Circuits.

The Sixth Circuit joined the Third Circuit in finding

that a National Guard member may be entitled to injunctive

relief in a section 1983 action. Schultz v. Wellman, 717

F.2d 301 (6th Cir. 1983). In Knutson v. Wisconsin Air

National Guard, 995 F.2d 765 (7th Cir. 1993), the Seventh

Circuit followed the Fifth Circuit in finding that a claim for

injunctive relief under 42 U.S.C. § 1983 was nonjusticiable.

In Watson v. Arkansas Nat’l Guard, 886 F.2d 1004

(8th Cir. 1989), the Eighth Circuit rejected Mindes as the

justiciability test and followed the Fifth Circuit’s decision in

Crawford. The court agreed that under 42 U.S.C. § 1983,

neither claims for injunctive nor demands for monetary relief

presented a justiciable controversy. However, the court

agreed that facial challenges to the constitutionality of a

military regulation or statute are justiciable, as are actions

seeking judicial review of final agency action. See Wood v.

United States, 968 F.2d 738, 739-40 (8th Cir. 1992).

In Mier, the Ninth Circuit held that Title VII does

apply to National Guard technicians but that the actions of

which Mier complained were "integrally related to the

unique structure of the military” and therefore presented

non-justiciable controversies. This test further illustrates the

diversity of standards being used by the lower courts when

addressing the justiciability issue.

The Tenth Circuit in Martelon v. Temple, 747 F.2d

1348 (10th Cir. 1984), agreed that claims for injunctive or

monetary relief under 42 U.S.C. § 1983 were non-

justiciable. Further, in Oram v. United States, 1994 U.S.

App. LEXIS 30526, the court found that claims for

injunctive and monetary damages under the Federal Tort

Claims Act are not justiciable and used the “incident to

service” rule originally announced in Feres.

In Stinson v. Hornsby, 821 F.2d 1537 (11th Cir.

1987), cert. denied, 488 U.S. 959 (1988), the Eleventh

Circuit considered a Title VII claim of a National Guard

Jame kes

technician and, although it ultimately ruled in favor of the

National Guard, the court did consider one of the claims and

did not find it to be unreviewable. More recently, the

Eleventh Circuit considered a naval reserve member’s claims

of due process and claims under the Rehabilitation Act and,

although it did not address the district court’s finding that

Doe’s due process claim was unreviewable, it stated that it

found nothing objectionable in the district court’s application

of Mindes. Doe v. Garrett, 903 F.2d 1455, 1463 (11th Cir.

1990), cert. denied, 499 U.S. 904 (1991). Thus, it is

unclear when and to what extent the Eleventh Circuit relies

on Mindes. Id., at 1463 n.15.

In Kreis v. Secretary of the Air Force, 866 F.2d 1508

(D.C. Cir. 1989), the Federal Circuit did not apply Mindes

Or any other test, but under general principles outlined in

Orloff, Gilligan and Chappell, declined to review the merits

of an Air Force Major’s claim for retroactive promotion as

nonjusticiable but found the Major’s alternative claims for

correction of military records to be justiciable.

In determining justiciability, the circuits have

interpreted Chappell inconsistently and reached a number of

divergent conclusions. Some courts have relied on immunity

principles, while others have invoked the Feres "incident to

service” test, the Chappell "special factors” test or even the

Fifth Circuit’s Mindes test to bolster their opinions. As it

stands now, lower courts must apply their own jurisprudence

to determine the justiciability of military claims, especially

those seeking injunctive or other equitable relief. The

inconsistency in the decisions reached has been compounded

when the courts have considered claims of National Guard

technicians, who are primarily civilian employees. Finally,

Chappell’s relevance to a Title VII action is not clear. In

sum, this case presents an issue of first impression and one

of significant federal importance. The circuits’ divergent

interpretations and applications of Chappell should further

compel this Court to accept review.

E. The Ninth Circuit’s Decision Should Be

Affirmed in Part and Reversed in Part.

In its Memorandum Decision, a divided panel of the

Ninth Circyit affirmed the judgment of the district court,

albeit on different grounds. The court held that National

Guard technicians hold hybrid positions entailing both

civilian and military aspects, and that Title VII coverage of

civilians employed by the military encompasses actions

brought by National Guard technicians, except when the

challenged conduct is “integrally related" to the military's

unique structure. (Appendix, pp. A-3 through A-14) To the

extent the Ninth Circuit found Title VII applicable, its

opinion should be affirmed. The court concluded, however,

that the specific acts about which Mier complained were

integrally related to the military's structure and, therefore,

not subject to judicial review and remedy. This aspect of the

opinion should be reversed.

In addition, the Ninth Circuit construed the

allegations of the complaint too narrowly. The standard of

notice pleading is extremely liberal. See, e.g., Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Love v. United States,

915 F.2d 1242, 1245 (9th Cir. 1989). On appeal, the

allegations in the complaint must be taken as true and

reviewed in the light most favorable to the non-moving

party. Love v. United States, 915 F.2d at 1245. The Court

must draw all reasonable inferences in favor of the plaintiff.

Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.

1987). Dismissal is appropriate only when it appears

"beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief."

Conley, 355 U.S. at 45-46. A “court may dismiss a

complaint only if it is clear that no relief could be granted

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under any set of facts that could be proved consistent with

the allegations.” Hishon v. King & Spalding, 467 U.S. 69,

73 (1984).

In this case, the district court dismissed the complaint

before the facts and evidence could be presented. Although

Mier alleged certain discriminatory acts which had a military

connection and had an impact on his civilian career, the

claims are based, in part, on the fact that he was suspended

from his civilian employment. Further, not all of Mier’s

damages have been caused by purely military actions. As

Judge Reinhardt noted in his dissent:

. indeed, he based certain of his claims

upon discrimination against him as a civilian

employee. Moreover, although his specific

allegations suggest that two of his claims may

rest, in part, upon military decisions, a

plaintiff is not required to allege every factual

basis for all of his claims at such an early

Stage in the proceedings. (Emphasis in

original.)

(Appendix, p. A-14)

The Supreme Court in Lujan v. National Wildlife

Federation, 497 U.S. 871 (1990), held that when ruling on

Rule 12(b) motions to dismiss a judge “must presume } that

general allegations embrace the specific facts that are

necessary to support the claim." Jd. (emphasis added).

Contrary to well-established law, in this case, the Ninth

Circuit did not view the discrimination or retaliation claims

in a light most favorable to Mier. The court read the

general allegations too narrowly and improperly affirmed the

district court’s decision.

The Memorandum Decision sets forth new parameters

for the application of Title VII to uniformed members of the

National Guard. The Panel clarifies the protection of civil

rights laws for National Guard technicians." However, its

decision is inconsistent with other opinions. See, ¢.g.,

Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981); Stinson v.

Hornsby, 821 F.2d 1537 (11th Cir. 1987), cert. denied, 488

U.S. 959 (1988); Becker v. Rice, 827 F. Supp. 589 (W.D.

Ark. 1993).

The Ninth Circuit itself arguably has issued a number

of contrary and even conflicting opinions on this topic.

Generally, the Ninth Circuit has not applied Title VII to

uniformed members of the National Guard. See Frey v.

California, 982 F.2d 399 (9th Cir. 1993), cert. denied, 61

U.S.L.W. 3852 (1993); Helm v. State of California, 722

F.2d 507 (9th Cir. 1983); Gonzalez v. Department of the

Army, 718 F.2d 926 (9th Cir. 1983); Sebra v. Neville, 801

F.2d 1135 (9th Cir. 1986); Christoffersen v. Washington

State Air Nat’l Guard, 855 F.2d 1437 (9th Cir. 1988), cert.

denied, 490 U.S. 1098 (1989). However, the Ninth Circuit

has, on occasion, entertained Title VII actions of military

personnel and upheld their claims. See, e.g., Bledsoe v.

Webb, 839 F.2d 1357 (9th Cir. 1988); Lutz v. Secretary of

the Air Force, 944 F.2d 1477 (9th Cir. 1991). These

apparent conflicts within the circuit provide additional

support for granting this Petition for Certiorari.

CONCLUSION

The Supreme Court should review the Ninth Circuit’s

opinion because Title VII, 42 U.S.C. § 2000e, is an

"Mier contends that the Ninth Circuit's test is too limited and is

subject to easy manipulation by the perpetrators who will always be able

to find a military reason for the actions taken due to the hybrid nature of

a National Guard technician’s position.

important and widely used federal statute that has broad

implications for individuals across the country. The decision

below expands the application of Title VII to uniformed

members of the National Guard, and further confuses the law

in this area. Due to the number of individuals potentially

affected by the Court’s ruling and its uncontested “national”

application, the Court should review the Ninth Circuit's

decision.

This Court should resolve the conflict that currently

exists among the circuits and even within the Ninth Circuit

with respect to the applicability of Title VII and justiciability

by providing the guidance necessary to ensure consistent

application of federal law. Civil rights protection should be

available to National Guard technicians, whose jobs are

predominantly civil in nature. And, actions speciously

Cloaked in military garb should not be allowed to defeat

fundamental rights. Such was not the intent of Congress and

it should not be the effect of this Court’s decision.

For these reasons, Petitioner respectfully urges this

Court to grant his Petition.

RESPECTFULLY SUBMITTED this 21%” day of

November, 1995.

JOHNSTON MAYNARD GRANT and

PARKER, P.L.C.

Daniel D. Klaynard