Petition for Writ of Certiorari — Becker v. Pena

Supreme Court, U.s

ah e &:

961886 May 27 1997

Ni UEEICE QF IKE CLERK

IN THE

Supreme Court of the United States

October Term. 1996

CAROLYN BECKER,

Petitioner.

FEDERICO PENA, et al

Respondents

Petition for Wnt of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

KIM D. KOENIG*

Attorney of Record for Petitioner

MUENSTER & KOENIG

1613 Smith Tower

506 Second Avenue

Seattle, WA 98104

(206) 467-7500

aBCD Legal Printers “Seattle Washington

QUESTIONS PRESENTED

Should the Feres doctrine be overruled?

2 Is the sexual harassment of a Coast Guard service

member "incident to service" when the harassment serves no

military purpose?

) May uniformed members of the Coast Guard

utilize the protections of the Fifth Amendment, the Federal Tort

Claims Act, Title VII and/or 42 U.S.C. §§ 1985(3), 1986 to seek

compensatory damages for harm caused by a gender-hostile work

environment?

se

LIST OF PARTIES

The parties to the proceeding below are petitioner,

Carolyn Becker, an employee of the United States Coast Guard,

who was the Plaintiff-Appellant below; and respondents Federico

Pena, Secretary of the United States Department of Transporta-

tion; Robert Kramek, Admiral, Commandant of the United States

Coast Guard, in their official capacities; and Gregory W.

Blanford, Daniel E. Shipman, and James A. Bankson, individu-

ally, and as employees of the United States Coast Guard: and

the United States of America, who were Defendants-Appellees

below.

11)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

LIST OF PARTIES i

TABLE OF CONTENTS iT

TABLE OF AUTHORITIES \

PETITION FOR WRIT OF CERTIORARI |

OPINIONS BELOW

JURISDICTION .... |

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE ........ | 5

A. MATERIAL FACTS ........--5 5

B. THE PROCEEDINGS BELOW ... 7

& The District Court Opinion ... 7

ca The Court of Appeals Decision... 8

c. THE BASIS OF JURISDICTION IN

fy, De ha O90 e 4, 3) 4 )

iI.

. 1\ ~

LABLE OF CONTENTS (CONT'D)

Page

REASONS FOR GRANTING THE PETITION

A THE FERES DOCTRINE IS EXTEN-

SIVELY AND ALMOST UNIVERSAL-

By Be 60 6 1S SR ae

1. A View From Justice Scalia .

2. A View From the Circuit Courts

i gtk eta at Oe

a. The Ninth Circuit .. .

b. Other Federal Circuits ... .

B. AS A MATTER OF PUBLIC POLICY,

THE SEXUAL HARASSMENT OF

AMERICAN SERVICE MEMBERS,

WHICH ALL PARTIES — AGREE

SERVES NO MILITARY PURPOSE,

SHOULD NOT BE IMMUNIZED BY

BO BERRI PANS SACRE MER OE Ane Reet eam

a MEN AND WOMEN WHO DEFEND

THEIR COUNTRY FOR A LIVING

SHOULD NOT BE DENIED THE PRO-

TECTIONS OF THE VERY CONSTITU-

SR Be I ggg we eek Ss

CB Eo igs CN oe

9

7]

LABLE OF AUTHORITIE:!

\tkinson v. United States

825 F.2d 202 (9th Cir. 1987)

cert. denied, 485 U.S. 987

lO8 S. Ct. 1288,

99 L. Ed. 2d 499 (1988) | |

Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics

403 U.S. 388, 29 L. Ed. 2d 619

91S. Ct. 1999 (1971) 9, 8-10, 13

Bois v. Marsh.

SOl F.2d 462 (D.C. Cir. 1986) 12

Bozeman v. United States,

780 F.2d 198 (2nd Cir. 1985) 14

Chappell v. Wallace,

462 U.S. 296, 103 S. Ct. 2362.

76 L. Ed. 2d 586 (1983) 19. 3.9

Christoffersen v. Washington

State Air National Guard,

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

cert. denied, 490 U.S. 1098,

lO9 S. Ct. 2448,

104 L. Ed. 2d 1003 (1989) 13, 14

( ooney \ Dalton

877 F. Supp. 508 (D. Hawaii 199

Davis v. Passman

447? U.S. 228 99 S. Ct. 2264

60 L. Ed. 2d $46 (1979)

FDIC v. Meyer

L114 S. Ct. 996 (1994)

Feres v. United States

540 U.S. 135. 71 S. Ct. 153

95 L. kd. 152 (1950) i. 8-18. 3. 9

Gonzalez v. Department of the Army

18 F.2d 926 (9th Cir. 1983)

Hinkie v. United States,

715 F.2d 96 (3rd Cir. 1983)

cert. denied, 465 U.S. 1023

104 S. Ct. 1276,

79 L. Ed. 2d 680 (1984)

Hunt v. United States,

636 F.2d 580 (D.C. Cir. 1980)

Vil

TABLE OF AUTHORITIES (CONT'D)

Cases (Cont d)

In re “Agent Orange’ Product

Liability Litigation,

580 F. Supp. 1242 (E.D.N.Y.)

appeal dism ‘d,

745 F.2d 161 (C.A.2 1984) 10

Khalsa v. Weinberger,

779 F.2d 1393 (9th Cir.),

reaff'd, 787 F.2d 1288 (1986) 14

LaBash v. United States

Department of Army,

668 F.2d 1153 (10th Cir. 1982),

cert. denied, 456 U.S. 1008,

102 S. Ct. 2299,

73 L. Ed. 2d 1303 (1982) .... ey ate 13

Lutz v. Secretary of the Air Force,

944 F.2d 1477 (9th Cir. 1991) .......... | 5 40.13

Mier v. Owens,

57 F.3d 747 (9th Cir. 1995).

cert. denied, sub nom.

Mier v. VanDyke,

-- US. --, 116 S. Ct. 1317,

poe Me! Be Fs. 5 re ret rae 19

Pe a.

- Vili -

TABLE OF AUTHORITIFS (CONT'D)

Page

Cases (Cont'd)

Miller v. Newbauer,.

862 F.2d 771 (9th Cir. 1988) 4

Monaco v. United States,

661 F.2d 129 (9th Cir. 1981).

cert. denied, 456 U.S. 989.

102 S. Ct. 2269,

73 L. Ed. 2d 1284 (1982) .........,. Aye Tie 1]

Peluso v. United States,

474 F.2d 605 (3rd Cir. 1973) (per curiam),

cert. denied, 414 U.S. 879,

94S. Ct. 50,

ry ie or” eh 14

Persons v. United States,

925 F.2d 292 (9th Cir. 1991) ......2.20. 0 1]

Sanchez v. ite tes,

813 F.2d 593 (2nd Cir. 1987)................... 12

Scales v. United States,

685 F.2d 970 (Sth Cir. 1982),

cert. denied, 460 U.S. 1082,

103 S. Ct. 1772,

™ 40 L. BG, 20 SOO CT9GS) 5 So ice cee. 13

PETITION FOR WRIT OF CERTIORARI

[he petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United States

©ourt of Appeals for the Ninth Circuit, filed on Februar, 28.

1997

OPINIONS BELOW

[he decision of the Ninth Circuit Court of Appeals is

reproduced in the Appendix at A-] through A-5. The United

States District Court’s Minute Order and Order dismissing the

case for lack of subject matter jurisdiction and failure to state

a Claim upon which relief can be granted, are reproduced in the

\ppendix at A-6 through A-15

JURISDICTION

[he Court of Appeals’ decision was filed and judgment

entered on February 28. 1997 [he jurisdiction of this Court

invoked pursuant to 28 U.S.C. § 1254(1)

4 | nd it 4

ee

CONSTITUTIONAL PROVISIONS INVOLVED

THE FIFTH AMENDMENT?

No person shall be ... deprived of life,

liberty, or property without due process of law....

STATUTORY PROVISIONS INVOLVED

TITLE VII--42 U.S.C. § 2000e-16(a), (e)°

(a) Discriminatory practices prohibit-

ed: employees or applicants for

employment subject to coverage

All personnel actions affecting employees

or applicants for employment in military depart-

ments as ... defined in Section 102 of Title 5 ...

shall be made free from any discrimination based

on race, color, religion, sex, or national origin.

(Emphasis added. )

See Appendix A-18 for verbatim text.

See Appendix A-19, A-20 for verbatim text.

!

ve

'

(e) Government agency or official not

relieved of responsibility to assure

nondiscrimination in employment

or equal employment opportunity.

Nothing contained in this Act shall relieve

any Government agency or official of its or his

primary responsibility to assure nondiscrimination

in employment as required by the Constitution

and the statutes or of its or his responsibilities

under Executive Order 11478 relating to equal

employment opportunity in the Federal Govern-

ment.

42 U.S.C. § 1985(3)*

Depriving persons of rights or privileges

If two or more persons in any State or

lerritory conspire ... for the purpose of depriv-

ing, either directly or indirectly, any person or

class of persons of the equal protection of the

laws, or of equal privileges and immunities under

the laws ... the party so injured or deprived may

have an action for the recovery of damages,

occasioned by such injury or deprivation, against

any one or more of the conspirators.

See Appendix A-25, A-26 for verbatim text

7

42 U.S.C. § 1986°

Action for Neglect to Prevent

Every person who, having knowledge that

any of the wrongs conspired to be done, and

mentioned in section 1985 of this title, are about

to be committed, and having power to prevent or

‘aid in preventing the commission of the same

neglects or refuses so to do’, if such wrongful act

be committed, shall be liable to the party injured,

or his legal representatives, for all damages

caused by such wrongful act, which such person

by reasonable diligence could have prevented;

and such damages may be recovered in an action

on the case; and any number of persons guilty of

such wrongful neglect or refusal may be joined

as defendants in the act; ...

28 U.S.C. § 2674°

Federal Tort Claims Act

Liability of the United States

The United States shall be liable respect-

ing the provisions of this title relating to tort

claims, in the same manner and to the same

extent as a private person under like circumstanc-

ae

See Appendix A-27 for verbatim text.

See Appendix A-21, A-22 for verbatim text.

eee

I. STATEMENT OF THE CASE

A. MATERIAL FACTS

Petitioner Carolyn Becker entered the United States Coast

Guard in 1991. By all accounts, she was an excellent petty

officer.’ For approximately one year, Becker was the only

woman stationed at a small boat station with numerous men.

Upon her arrival, her male supervisors began a relentless

campaign of gender-based harassment against her.” She was

called a "wench", a "douchebag", and a “cunt".” Her supervis-

ing officers urinated and played with their groins in front of

10

her Masturbation was simulated in front of her and she was

summoned to a conversation about ejaculation.'' She was

forced to sleep on a living room couch or in a bedroom with

men (in violation of Coast Guard regulation).~ She was

Complaint, pages 18-20; ER 18-20

Complaint, page 8; ER 8

Complaint, page 10; ER 10.

Complaint, pages 12, 15; ER 12, 15

Complaint, pages 12, 15; ER 12, 15.

Complaint, page 16; ER 16.

re

threatened with a screwdriver.’ Her car was _ illegally

prowled.'* She was relentlessly harassed about the details of

a GYN visit.'° She was forced to paint and breathe intoxicat-

ing fumes without a respirator. (The men were all given respira-

tors.)'° The harassment targeted Becker because of her gender

and continued, unabated, for years.'’

Becker was denied access to her administrative remedies

without first processing her complaints through numerous

harassing supervisors (in violation of Coast Guard policy).'*

Despite this obstacle, Becker filed numerous complaints of

sexual harassment, and the District Court found she exhausted

her administrative remedies.'”

Complaint, page 14; ER 14.

Complaint, page 13; ER 13.

Complaint, page 13; ER 13.

Complaint, page 9; ER 9.

Complaint, pages 8-18, 21-26; ER 8-18, 21-26.

Complaint, page 6; ER 6; Supplemental Declaration of

Carolyn Becker in Opposition to Defendants’ Motion to Dismiss

for Alleged Lack of Subject Matter Jurisdiction and Alleged

Failure to State a Claim Upon Which Relief Can Be Granted,

pages 2, 3; ER 53, 54.

"Appendix, A-14-.

A Coast Guard investigation confirmed 28 of Ms

Becker’s complaints, yet the Coast Guard failed to follow its

policy and make her "whole". Ms. Becker developed Post-

[Traumatic Stress Disorder and was disabled as a result of the

harassment.”

B THE PROCEEDINGS BELOW

The District Court Opinion

[he horrible nature of the Coast Guard's conduct was

acknowledged by the District Court Judge during oral argument

and conceded by the Assistant U.S. Attorney

THE COURT: This is pretty horrible

conduct, isn’t it, counsel’?

U.S. ATTORNEY if you take the

facts as a whole, yes, it is egregious conduct.~

[he District Court further found that, ° plaintiff :

allegations, 11 true would constitute serious constitutional

violations. *

Complaint, page 22; ER 22

Declaration of Plaintiff Carolyn Becker, page 3; ER 50

Hearing on Motion, page 31, lines 8, 15, ER 142

Appendix at A-14

Despite these findings, the District Court, bound by the

Feres"* doctrine, dismissed Ms. Becker’s claims for lack of

subject matter jurisdiction and failure to state a claim on which

relief could be granted.*°

>

fa The Court of Appeals Decision

A three-judge panel of the Court of Appeals found: "The

Coast Guard does not dispute the impropriety of the harassing

officers’ conduct."*° However, the panel affirmed the dismiss:

al, stating: ‘While the acts of sexual harassment served no

military purpose, they were incident to Becker’s military

service.’ and thus barred by the Feres doctrine

[he Court of Appeals also concluded, "Title VII

protections do not extend to uniformed members of the Coast

Guard.""* The panel failed to reach petitioner’s claims under

42 U.S.C. $§ 1985(3). 1986. asserting Becker failed to exhaust

Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95

L. Ed. 152 (1950)

Appendix at A-6, A

Appendix at A-4

Appendix at A-3

Appendix at A-2

her administrative remedies.” This conclusion directly

contradicted the district court’s finding that Ms. Becker had in

fact exhausted her administrative remedies.” See also: Final

Agency Action of the U.S. Department of Transportation United

States Coast Guard. Appendix at A-16, A-17

( THE BASIS OF JURISDICTION IN [HI

DISTRICT COURT

Subject matter jurisdiction in the district court 1s based

on 28 U.S.C. § 1331; 28 U.S.C. § 1343(a)(1), (2). (3) and (4)

42 U.S.C. § 2000e-5(f)(3); 42 U.S.C. 2000e-16(a) and (c); and

Bivens v. Six Unknown Agents of Federal Bureau of Narcotics

403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971)

II. REASONS FOR GRANTING THE PETITION

A THE FERES DOCTRINE IS EXTENSIVEL’‘

AND ALMOST UNIVERSALLY CRITICIZED

A View From Justice Scalia

Justice Scalia expresses the following opinion: [he Feres

decision is "clearly wrong" and has bred "unfairness" and

irrationality". United States v. Johnson, 481 U.S. 681, 703, 95

Fd. 2d 648. 107 S. Ct. 2063, 2075 (1987) (Scalia, J

Appendix at A-4

Appendix at A-14

- 10 -

dissenting). Justice Scalia’s dissent in Johnson, supra, persua-

sively argues that the rationales underlying the Feres doctrine

are "bad estimations", and "unpersuasive", Johnson, supra, 481

U.S. at 695-696, 107 S. Ct. at 2071-72 (Scalia, J., dissenting).

He refers to the Feres decision as "unauthorized rationalization

gone wrong", Johnson, supra, 481 U.S. at 702, 107 S. Ct. at

2075 (Scalia, J., dissenting).

Justice Scalia’s scholarly criticism of the Feres doctrine

concludes:

Feres was wrongly decided and deserves the

‘widespread, almost universal criticism’ it has

received. Inre “Agent Orange’ Product Liability

Litigation, 580 F. Supp. 1242, 1246 (E.D.N.Y.),

appeal dism’d, 745 F.2d 161 (C.A.2 1984).

Johnson, supra, 481 U.S. at 700, 107 S. Ct. at 2074 (Scalia, J.,

dissenting).

This Court is urged to examine Justice Scalia’s dissent

in the Johnson case, supra, and consider overruling the Feres

doctrine.

2. A_ View From the Circuit Courts of

Appeal

a. The Ninth Circuit

The Ninth Circuit Court of Appeals, from which

petitioner's case arises, states "The Feres doctrine today stands

Other Federal Circuits

[he critics of the Feres doctrine extend far beyond the

Ninth Circuit

"| have grave doubts about too casually advanc-

Bois v. Marsh, 801 F.2d 462, 471 (D.C. Cir. 1986) (Wald Chiet

}.. dissenting)

"[ T]he Feres doctrine clearly lives, although its

theoretical bases remain subject to serious doubt".

Hunt v. United States, 636 F.2d 580, 589 (D.C. Cir. 1980)

"Feres appears to grant an immunity which is

broader than necessary and, as a result, the

application of that immunity may at times lead

to unconscionable results".

[hornwell v. United States, 471 F. Supp. 344, 348 n.1 (D.C

D.C. 1979)

"Over the years, Feres has been criticized widely

by courts and commentators, and the theoretical

bases of the doctrine have lost much of their

force.”

Sanchez v. United States, 813 F.2d 593, 595 (2nd Cir. 1987).

"Therefore, once again we are constrained to

follow the Feres doctrine, notwithstanding its

harsh result."

LaBash v. United States Department of Army, 668 F.2d 1153,

1156 (10th Cir. 1982). cert. denied, 456 U.S. 1008, 102 S. Ct

1299. 73 L. Ed. 2d 1303 (1982).

[W]e are compelled, however reluctantly, to

dismiss the claim as barred by Feres. We are

not blind to the tragedy of [the plaintiff's]

condition, and regret the effects of our conclu-

sion. Nevertheless, we are not writing on a clean

"

slate

Scales v. United States. 685 F.2d 970, 974 (Sth Cir. 1982), cert

denied, 460 U.S. 1082, 103 S. Ct. 1772, 76 L. Ed. 2d 344

(1983)

"We are forced once again to decide a case where

‘we sense the injustice ... of [the] result’ but

where nevertheless we have no legal authority,

as an intermediate appellate court, to decide the

case differently."

Hinkie v. United States, 715 F.2d 96, 97 (3rd Cir. 1983), cert

denied, 465 U.S. 1023, 104 S. Ct. 1276, 79 L. Ed. 2d 680

(1984).

"If the matter were open to us we would be

receptive to appellants’ argument that Feres

should be reconsidered.... Only the Supreme

Court can reverse it.... Certainly the facts

pleaded here, if true, cry out for a remedy.”

oe

Peluso v. United States, 474 F.2d 605, 606 (3rd Cir. 1973) (per

curiam), cert. denied, 414 U.S. 879, 94S. Ct. 50, 38 L. Ed. 2d

124 (1973).

"The Feres doctrine is a blunt instrument...".

Bozeman v. United States, 780 F.2d 198, 200 (2nd Cir. 1985)

The time has come to revisit Feres.

B. AS A MATTER OF PUBLIC POLICY, THE

SEXUAL HARASSMENT OF AMERICAN

SERVICE MEMBERS, WHICH ALL PARTIES

AGREE SERVES NO MILITARY PURPOSE.

SHOULD NOT BE IMMUNIZED BY LAW.

The United States Justice Department has conceded that:

[T]he damage claims for sexual harassment raised by the Coast

Guard service member in this case involve legal and factual

issues that are of ... substantial public importance."

The sexual harassment of American service members is,

like the conduct in Stanley, infra, "... conduct ... so far beyond

the bounds of human decency that as a matter of law it simply

cannot be considered a part of the military mission." United

States v.Stanley, 483 U.S. 669, 107 S. Ct. 3054, 3065, 97 L

Ed. 2d 550 (1983) (O'Connor, J., dissenting).

See Letter from E. Roy Hawkins, Attorney, Appellate

Staff, U.S. Justice Department, to the Clerk of the United States

Court of Appeals for the Ninth Circuit, Appendix A-28, A-29.

the military wil!

ary Officials are permitted to sexually harass subordinate

h impunity precisely because they wear uniforms and comm

r harassing acts during working hours

[1 ]n considering the public interest, the court

also believes that the public has a strong interest

in having a military that conducts itself fairly and

according to its stated regulations and policies

If the military misapplies its own rules and

infairly discharges and stigmatizes a serviceman

without giving him the constitutional consider

he 1s due, tl rodes trust in the military

ney v. Dalton, 877 F. Supp. 508, 515 (D. Hawaii 199

ry Tt 2 y r } | r T

+ MALler ] ( C CXUd lal asSITit (

rican service membe! vho exhaust their admunistratis

die ould not go unchecked by the federal court Lhe

1OCTTINE i ipp! 1D [ OoweT courts, aliov Kua

ment to perpetua u lita lhe legal immunizatio1

xual misconduct by m nen compromises milital

‘ ninyYv ] Cl 1¢ ll Cnice ] UT mult ij

iment

Petitioner s loca pap the Seattle I im«¢ litoria

regarding the injust Guard's responsi

ner s Clain

I ali the ~oast Gual i Or } Trort

‘ I iv iad I I a ‘ ‘

err

16

investigation, then it has no program. Simply

gathering facts does nothing to convey from the

top down that sexual harassment will not be

tolerated. Paper shuffling without consequences

is nO answer.”

This Court is urged to grant petitioner’s writ and consider

whether the sexual harassment of American service members

should be immunized from civil prosecution pursuant to the

Feres doctrine. As a matter of public policy, we believe it

should not. No judicially-crafted rule should insulate from

liability the deliberate and calculated mistreatment of one

military member by another. Stanley, supra, 107 S.Ct. at 3065-

3066 (O'Connor, J., dissenting).

This Court is urged to grant petitioner’s writ and consider

ruling that sexual harassment serves no military purpose and

therefore 1s not "incident to service" as a matter of law.

"No Coast Guard Justice for Harassed Petty Officer",

Seattle Times Editorial, Appendix A-32.

oS

& MEN AND WOMEN WHO DEFEND THEIR

COUNTRY FORA LIVING SHOULD NOT BE

DENIED THE PROTECTIONS OF THE VERY

CONSTITUTION THEY SERVE.

[he Feres doctrine denies American service members

equal justice under the law. Public opinion, expressed in an

editorial published in the Seattle Times, notes the injustice

wrought by Feres. "Does a woman lose the right to redress the

wrongs of sexual harassment because she puts on a uniform’

If she is in the Coast Guard, the answer appears to be yes

As a matter of public policy, American citizens who

choose to wear a uniform and defend their country for a living

should not be denied the protections of the very Constitution

they serve

the decisionmaking of federal officials deliber-

ately choosing to violate the constitutional nights

of soldiers should be impaired. I cannot compre-

hend a policy judgment that frees all federal

officials from any doubt that they may intention-

ally, and in bad faith, violate the constitutional

rights of those serving in the Armed Forces.

United States v. Stanley, supra, 107 S. Ct. at 3076 (Brennan, J

dissenting)

Seattle Times Editorial, "No Coast Guard Justice for

Harassed Petty Officer", Appendix A-30

=

The Feres doctrine denies American service members

equal access to justice. The Feres doctrine permits the military

establishment to violate the American Constitution with

impunity. The Feres doctrine is legally indefensible and morally

wrong. American justice requires that a great civil wrong be

afforded an appropriate civil remedy. "Soldiers ought not be

asked to defend a Constitution indifferent to their essential

human dignity." United States v. Stanley, 483 U.S. 669, 97 L.

Ed. 2d 550, 107 S. Ct. 3054, 3077 (1987) (Brennan, J.,

dissenting).

lil. CONCLUSION

Justice Scalia is right: Feres was wrongly decided and

heartily deserves the "’widespread, almost universal criticism’

it has received." Johnson, supra, 107 S. Ct. at 2074. Asa

matter of public policy, the American justice system should not

deny legal redress to the honorable citizens who devote their

lives to serving our country.

For the above reasons, this Court is urged to grant the

Petition for Writ of Certiorari and consider overruling the Feres

doctrine. In the alternative, this Court is urged to grant the

Petition for Writ of Certiorari and consider narrowly defining

the Feres "incident to service" test to exclude conduct which

serves no conceivable military purpose, i.e., sexual harassment.

-19.-

[his Court is also asked to grant the Petition for Writ of

Certiorari for another reason: The plain reading of Title VII

prohibits discrimination against employees of "military depart-

ments", 42 U.S.C. § 2000e-16(a), page 2, infra. In deciding

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

nom. Mier v. VanDyke,. -- U.S. --, 116 S. Ct. 1317, 134 L. Ed

2d 470 (1996), the Ninth Circuit ignored the plain wording of

Congress and created a "uniformed member" exception to the

law which prohibits sexual harassment in the military. his

unjust and illogical interpretation of Title VII deprives petitioner

of her statutory right to access the American court system to

seek compensatory damages for violation of her constitutional

right to work in an environment free from relentless gender-

based hostility. This Court is asked to consider ruling that the

protections of Title VII extend to uniformed members of the

United States Coast Guard.

This Court is also asked to grant the petition for Writ of

Certiorari and consider ruling that the protections of 28 U.S.C

§§ 1985(3), 1986, extend to uniformed members of the military

This question was specifically left open in Chappell v. Wallace.

462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586, 593 (1983)

Sexual harassment is a major problem in the United

States military. This cases raises issues of national importance

hs

which have not been and should be decided by the United States

Supreme Court.

DATED this the day of May, 1997.

Respectfully submitted,

MUENSTER & KOENIG

KIM D.€OENIG =“ J}

Attorney at Law

WSBA No. 11878

Of Attorneys for Petitioner Carolyn

Becker

CAROLYN BECKER, formerly

Carolyn Green,

Plaintiff-Appellant,

FEDERICO PENA, Secretary of

the United States Department of

lransportation; ROBERT

KRAMEK, Admiral, Commandant

of the U.S. Coast Guard;

GREGORY W. BLANFORD,

individually and as an employee

of the U.S. Coast Guard;

DANIEL E. SHIPMAN,

individually and as an employee

of the U.S. Coast Guard;

JAMES A. BANKSON,

individually and as an

employee of the U.S. Coast Guard;

FILED

FEB 28 1997

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-36172

1ID.C.No.C V-95-00748-TSZ

A-2

UNITED STATES OF AMERICA, )

) MEMORANDUM ~~

Defendants-Appellants. )

a )

Appeal from the United States District Court

for the Western District of Washington

[homas S. Zilly, District Judge, Presiding

Argued and Submitted February 3, 1997

Seattle, Washington

Betore: BROWNING, RYMER, and T.G. NELSON,

Circuit Judges

I.

Carolyn Becker’s Title VII claims were properly

dismissed. Title VII protections do not extend to uniformed

members of the Coast Guard. See Gonzalez v. Department of

the Army, 718 F.2d 926, 928-29 (9th Cir. 1983); see also 10

U.S.C. § 101(4).

I].

The district court lacked subject matter jurisdiction over

Becker’s claims under the Federal Tort Claims Act because her

*” This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by 9th Cir. R. 36-3.

7

a ;

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A-4

doctrine bars suits that question the military’s decisions about

management and supervision). And she may not state a direct

constitutional claim against the Coast Guard. See FDIC v.

Meyer, 114 S. Ct. 996, 1005-06 (1994).

IV.

We do not reach Becker’s claims under 42 U.S.C. §§

1985(3) and 1986 because she failed to exhaust her administra-

tive remedies. See Miller v. Newbauer, 862 F.2d 771, 775 (9th

Cir. 1988). Becker admits that she has not followed the

procedure for obtaining administrative relief outlined in the

Military Civil Rights Manual or in the Uniform Code of Military

Justice. She contends she need not exhaust these administrative

remedies because her harassing supervisors denied her the

opportunity for administrative redress by denying her access to

the Chetco River commanding officer from July 1992 through

September 1993. The Coast Guard does not dispute the

impropriety of the harassing officers’ conduct. However,

subsequent to this period, Becker received personal counselling

from Military Civil Rights Counselors/Facilitators on how to file

both informal and formal discrimination complaints in accor-

dance with the Military Civil Rights Manual. She never pursued

these avenues. Nor did Becker utilize 10 U.S.C. § 938, a

provision of the Uniform Code of Military Justice that enables

a servicemember to complain of unredressed wrongs committed

A-6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

HON. THOMAS S. ZILLY, U.S. DISTRICT JUDGE

Deputy Clerk: Elva McGregor

Court Reporter Date: October 12, 1995

MINUTES

C95-748Z Carolyn Becker Kim Koenig

VS Ricardo Guarnero

United States of America

ORAL ARGUMENT - GOVT’S MOTION

FOR SUM. JDMT. OF DISMISSAL, docket

no. ll

Cnsl. present. After hearing arg. of cnsl. the

Court gives findings & conclusions and the

motion is granted in part & denied in part for the

reascuns stated on the record.

[he Court dismissed all claims except the first six

causes of action and the eleventh cause of action,

limited solely to the constitutional claims

lhe Court takes the matter under submission re

pltf’s constitutional claims and an order shall be

issued within two weeks

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CAROLYN BECKER (formerly

Carolyn Green), NO. C95-748Z

Plaintiff

VS ORDER

FREDERICO PENA, Secretary of)

the United States Department )

of Iransportation, et al.,

)

Defendants )

!HIS MATTER comes before the Court on Defendant’:

motion to dismiss for lack of subject matter jurisdiction and

failure to state a claim on which relief can be granted (docket

no. 11). The Court, having heard oral argument on October 12.

1995, and having considered the parties’ arguments and papers

filed in support of and in opposition to the motion, hereby

GRANTS Defendant’s motion to dismiss all claims asserted by

the plainuff

Plaintiff Carolyn Becker entered the United States Coast

Guard in 1991. She was assigned to Chetco River Station

Rogue River, and the USCGC MELLON from August 30, 1991

to September, 1993. Her complaint alleges various acts of

A-8

harassment, including being called vulgar, derogatory names:

being subject to men urinating in front of her; discussions of

ejaculation, simulated sexual acts; an illegal car prowl; being

forced to sleep on a living room couch; and being menaced with

a screwdriver.

Plaintiff's complaint alleges fourteen causes of action

against six defendants. At the oral argument on October 12,

1995, the Court dismissed causes of action seven through ten and

eleven through fourteen. See Minutes, docket no. 38. This

Order addresses only the remaining constitutional claims in

causes of action one through six, and eleven.

Plaintiff asserts a claim for damages under the Fifth

Amendment to the Constitution for sexual harassment. Although

the complaint prays for injunctive relief, plaintiff concedes that

injunctive relief is not practical in this case and has withdrawn

her request for that remedy.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme

Court authorized a suit for damages against federal officials

whose actions violate an individual’s Fourth Amendment rights.

even in the absence of a statute authorizing such relief.

Subsequently, in Davis v. Passman, 442 U.S. 228, 248-49, 99

S. Ct. 2264, 2279, 60 L. Ed. 2d 846, 865 (1979), the Court

extended Bivens to suits for damages brought under the Due

A- 10

incident to service, "special factors counselling hesitation" exist

and no Bivens-type action may be brought.

Plainuff argues that the allegations in her complaint

involve actions not incident to military service. She relies

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

(9th Cir. 1991), in which the Ninth Circuit found that the actions

of the individual defendants were not "incident to service" and

therefore the plaintiff's claims against them were not barred.

In Lutz, three off-duty sergeants broke into Lutz’s office, opened

her personal mail, and disseminated it to others in an attempt

to harm her reputation and damage her military career. Id. at

1479. The government focused on three factors in arguing that

the course of activity was "incident to military service:" (1)

Lutz’s status as an active duty military officer, (2) the fact that

both Lutz and the sergeants were subject to military discipline,

and (3) the fact that plaintiff's alleged damages were to her

military career. Id. at 1485. The court rejected the govern-

ment’s argument that these factors were determinative, noting

that these factors were overinclusive and, if applied, would

preclude suits that would otherwise be maintainable under

Stanley. Lutz, 944 F.2d at 1485. Having rejected these factors,

the court concluded that the defendants’ removal of personal

documents from their commander’ s desk after working hours and

distribution of them to other personnel constituted "[i]ntentional

12

The alleged acts of harassment here are closer to the

actions in Stauber than those in Lutz. Defendants’ alleged

harassment of plaintiff took place during working hours within

the working environment. While many of the most menacing

and demeaning acts of harassment were allegedly committed by

other servicemembers, the plainuff has brought constitutional

claims only against her superior officers. Plaintiff's claims

against these officers are limited for the most part to the officers’

failure to discipline the servicemembers who harassed her, to

respond professionally and responsibility to her complaints, and

to take steps to ameliorate the allegedly hostile working

environment.’ Because plaintiff's constitutional claims are

Plaintiff does allege that defendant Shipman, a superior

officer, personally committed acts of harassment. For example,

plaintiff alleges that Shipman made a lewd gesture to another

servicemember, in full view of the plaintiff (Complaint £ 29):

violated her privacy by hounding other servicemembers to

determine plaintiff's reasons for seeing a gynecologist (Com-

plaint © 34); and screamed at her while repeatedly stabbing a

screwdriver into a counter top (Complaint § 36). These

particular acts clearly furthered no military purpose and were

"incident to service" only in the sense that they occurred on the

job during working hours. Nevertheless, the majority of

plaintiff's allegations involve the officers’ failure to take

appropriate action in response to her complaints of sexual

harassment. As Lutz instructs, where it is "sufficiently

ambiguous" whether the allegations as a whole are incident to

(continued...)

a eT a a oS

A-13

based largely on the failure of her superior officers to maintain

proper order and discipline, her claims arise out of or are in the

course of activity incident to service. As a result, "special

factors counselling hesitation" exist and no Bivens cause of

action can be maintained.

Even if this Court accepted plaintiff's argument that the

alleged acts of sexual harassment were not incident to military

service and therefore she is not precluded from bringing a Bivens

action for damages, the court would still have to determine

whether it is proper to exercise judicial review of plainuff's

constitutional claims. The multifactored test for determining

whether a civilian court should review a servicemembers

constitutional! claims against the military is set forth in Christof-

fersen v. Washington State Air National Guard, 855 F.2d 1437,

1442 (9th Cir. 1988), cert. denied, 490 U.S. 1098, 109 S. Ct

2448, 104 L. Ed. 2d 1003 (1989):

{A]jn internal military decision is unreviewahle

unless the plaintiff alleges (a) a violation of [a

‘(...continued)

service, and where the process of disentangling conduct not

incident to service itself works an impermissible intrusion upon

military matters, the conduct as a whole must be viewed as

incident to service. Lutz, 944 F.2d at 1487. Here, viewing

plaintiff s Complaint in its entirety, the Court concludes that the

alleged acts of harassment were "incident to service."

A- 14

recognized constitutional right], a federal statute,

or military regulations; and (b) exhaustion of

intraservice remedies. If the plaintiff meets both

prerequisites, the trial court must weigh four

factors to determine whether review should be

granted:

(1) The nature and strength of the

plaintiff's claim. .. .

(2) The potential injury to the plaintiff

if review is refused.

¥ (3) The extent of interference with

military functions.

(4) The extent to which military

discretion or expertise 1s involved.

Id. (quoting Khalsa v. Weinberger, 779 F.2d 1393, 1398 (9th

Cir.), reaff'd, 787 F.2d ‘1288 (1986)) (emphasis in original).

Here, plaintiff has met both prerequisites to review in that

she has alleged a constitutional violation and exhaustion of her

administrative remedies. Thus, this Court’s task is limited to

balancing the four Christoffersen factors to determine if review

is proper. The Court concludes that, on balance, these factors

weigh against granting review. The first factor, the nature and

strength of plaintiff's claims, favors review because plaintiff s

allegations, if true, would constitute serious constitutional

violations. The second factor weighs slightly in favor of review

because plaintiff will not be fully compensated for the injuries

she has sustained if review is denied. Plaintiff is not wholly

without a remedy, however, in that she may receive compensa-

A- 15

tion under the Coast Guard’s medical disability benefits program

for any medical conditions caused by the harassment. The third

and fourth factors, the extent of interference with military

functions and the extent to which military discretion is involved,

weigh heavily against judicial review. The essence of plaintuff’s

claims against her superiors is that they failed to discipline

properly their subordinates, failed to maintain proper order, and

failed to take corrective actions they had discretion to take. The

Coast Guard has already investigated the allegations in plainuff s

complaint and issued findings of fact, an opinion, and a

recommendation. Any review of the plaintiff's allegations by

this court would necessarily involve second-guessing the

military's discretion and expertise. Under these circumstances,

this Court must decline to review plaintiffs constitutional claims

despite their seriousness.

IT IS SO ORDERED

The Clerk of the Court is directed to send uncertified

copies of this order to all counsel of record

DATED this 2nd day of November, 1995

(Thomas S. Zilly

THOMAS S. ZILLY

UNITED STATES DISTRICT JUDGE

A - 16

U.S. Department Commander (Ic) Building 54-C

of [Transportation Maintenance&LogistidSoast Guard Is-

land

Command Pacific Alameda, CA

94501-5100

TEL: (510)437-

3644

FAX: (510)437-

334]

$890/7

3395LC0140

4 May 95

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Kim D. Koenig, Esq.

Muenster & Koenig

1613 Smith Tower

$06 2nd Ave

Seattle, WA 98104

Re Formal Admunistrative

Complaint and Claim for

Damages - SK3 Carolyn

Becker, USCG

Dear Ms. Koenig

The claim for damages which you submitted on behalf of Petty

Officer Becker is denied

Your claim for damages was considered under all possibly

relevant statutory authorities. To the extent that this claim may

fall within the federal Tort Claims Act, this denial constitutes

final agency action. If you are dissatisfied with this decision,

you may file suit in an appropriate U.S. District Court not later

than six months after the date this letter is mailed. Requirements

for filing suit under various claims statutes differ considerably

An tatutes which you consider applicable should be consu

pecific requirement

\ny request for reconsideration of this denial must be submitt

writing prior to filing suit and must be filed with Commande!

Hugh Sage, Chief, Claims & Litigation Branch, at the abo'

address within six months of the date of this letter!

Your Formal Administrative Complaint and Claim for Damag

asserts violations of the Uniform Code of Military Justice. No

military justice action can be initiated based on your complaint

Petty Officer Becker should contact her unit chain of command

if she desires to report an offense by any military member

Your formal Administrative Complaint and Claim for damag:

oO asserts violations of federal equal rights statutes. Militan

members generally have no right to claim Title VII protection

yr sue the Federal Government under Title VIl. However, the

Coast Guard has established policies and procedures to addre:

complaints of discrimination by members so that uniformed

personnel are treated fairly. If you have any questions about

}

these policies and procedure you may contact M tleanc

s | |

4 74

Elrod. Chief. General Law Branch at (510)4

Captain, U.S. Coast G

|

Chief, Legal Divisi

2 lit cuon O] ne ( Till

(Oo! nder, | hirt th Coast Guard District (d

( nding Offi ( t ( ard Ip] rt (

A- 18

AMENDMENT V

No person shall be held to answer for a capital, o1

otherwise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of War

or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness against himself

nor be deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use without

just compensation

2000e-16. Employment by Federal Government

(a) Discriminatory practices prohibited; employes

or applicants for employment subject

coy crape

| , SS for

) ( th if | {

zz ) imt i T

? ’ ;o?

{ { T | l ’ ) | ;

\

(< Covernment agency or official not relieved of

responsibility to assure nondiscrimination

employment or equal emplovment opportunity

i

A - 20

assure nondiscrimination in employment as required by the

Constitution and statutes or of its or his responsibilities under

Executive Order 1 1478 relating to equal employment opportunity

in the Federal Government

A - 2]

FEDERAL TORT CLAIMS ACT

TITLE 28, U.S.C. § 2674

§ 2674. Liability of United States

The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the same manner

and to the same extent as a private individual under like

circumstances, but shall not be liable for interest prior to

judgment or for punitive damages.

If. however, in any case wherein death was caused, the

law of the place where the act or omission complained of

occurred provides, or has been consti ued to provide, for damages

only punitive in nature, the United States shall be liable for

actual or compensatory damages, measured by the pecuniary

Injuries resulting from such death to the persons respectively.

for whose benefit the action was brought, in lieu thereof.

With respect to any claim under this chapter, the United

States shall be entitled to assert any defense based upon judicial

or legislative immunity which otherwise would have been

available to the employee of the United States whose act or

omission gave rise to the claim, as well as any other defenses

to which the United States is entitled.

With respect to any claim to which this section applies,

the Tennessee Valley Authority shall be entitled to assert any

defense which otherwise would have been available to the

|

. . * i424

wnose act

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i¢ ya\

'

T? |

102. Military departments

A.« 25

—

42 USC. § 1985(3)

(3) Depriving persons of rights or privileges

lf two or more persons in any State or Territory conspire,

or go in disguise on the highway or on the premises of another,

for the purpose of depriving, either directly or indirectly, any

person or class of persons of the qual protection of the laws, or

of equal privileges and immunities under the laws; or for the

purpose of preventing or hindering the constituted authorities of

any State or Territory from giving or securing to all persons

within such State or Territory the equal protection of the laws:

or if two or more persons conspire to prevent by force,

intimidation, or threat, any citizen who is lawfully entitled to

vote, from giving his support or advocacy in a legal manner,

toward or in favor of the election of any lawfully qualified

person as an elector for President or Vice President, or as a

Member of Congress of the United States; or to injure any

citizen in person or property on account of such support or

advocacy; in any case of conspiracy set forth in this section,

if one or more persons engaged therein do, or cause to be done.

any act in furtherance of the object of such conspiracy, whereby

another is injured in his person or property, or deprived of

having and exercising any nght or privilege of a citizen of the

United States, the party so injured or deprived may have an

A - 26

action for the recovery of damages, occasioned by such injury

or deprivation, against any one or more of the conspirators

(RS. § 1980.)

a

A - 27

42 U.S.C. § 1986

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section 1985 of

this title, are about to be committed, and having power to

prevent or aid in preventing the commission of the same,

neglects or refuses te so do, if such wrongful act be committed,

shall be liable to the party injured, or his legal representatives,

for all damages caused by such wrongful act, which such person

by reasonable diligence could have prevented; and such damages

may be recovered in an action on the case; and any number of

persons guilty of such wrongful neglect or refusal may be joined

as defendants in the action; and if the death of any party be

caused by any such wrongful act and neglect, the legal represen-

tatives of the deceased shall have such action therefor, and may

recover not exceeding five thousand dollars damages therein, for

the benefit of the widow of the deceased, if there be one, and

if there be no widow, then for the benefit of the next of kin of

the deceased. But no action under the provisions of this section

shall be sustained which is not commenced within one year after

the cause of action has accrued

(R.S. § 1981.)

A - 28

U.S. Department of Justice

ERHawkens Telephone: (202)514-5714

DJ#145-18-2488 Fax: (202)514-815]

Washington, D.C. 20530

March 10, 1997

Ms. Cathy Catterson

Clerk, United States Court of Appeals

for the Ninth Circuit

121 Spear Street, Second Floor

San Francisco, CA 94105-1566

Re: | Carolyn Becker v. Secretary of Transportation,

No. 95-36172 (9th Cir. Feb. 28 1997).

Dear Ms. Catterson:

This Court (Judges Browning, Rymer, T.G. Nelson)

issued a memorandum decision in the above-referenced case on

February 28, 1997. Pursuant to Ninth Circuit Rule 36-4, the

Government requests that this decision be designated as an

opinion for publication. It meets the "Criteria for Publication"

in Rule 36-2 in the following respects. First, the damage claims

for sexual harassment raised by the Coast Guard service member

in this case involve legal and factual issues that are "of unique

interest [and] substantial public importance" (Rule 36-2(d)).

Second, this decision "clarifies [the following] rule[s] of law"

A - 29

(Rule 36-2(a)): (1) uniformed members of the Coast Guard are.

tor purposes of Title VII, deemed to be members of the Armed

Forces at all times; and (2) although sexual harassment serves

no military purpose, a service member’s alleged injuries arising

trom such harassment are deemed incident to service under the

eres doctrine if they occur on a military base, during working

hours, and at the hands of her military superiors.

Thank you for your assistance in this matter

Sincerely,

E. ROY HAWKENS

Attorney, Appellate Staff

A - 30

THE SEATTLE TIMES OPINION

FRIDAY, OCTOBER 20, 1995

EDITORIALS

No Coast Guard justice for harassed petty officer

DOES a woman lose the right to redress the wrongs of

sexual harassment because she puts on a uniform? If she ts in

the Coast Guard, the answer appears to be yes.

[he Coast Guard's own exhaustive investigation

confirmed that Petty Officer Carolyn Becker had been tormented

and humiliated, but the Coast Guard failed to punish individual

wrong-doers and send a message that sexual harassment will not

be tolerated.

Meanwhile, the Navy’s handling of harassment charges

that are a closer call sets a standard for other miJitary branches

dealing with the same problem.

In the Navy case, its former top equal-opportunity officer

was acquitted yesterday of the sexual harasament of a female

officer who worked for him. Capt. Everett L. Greene had

overseen the Navy ’s awareness programs after the 1991 Tailhook

scandal. He was accused of taking an office friendship too far

with suggestive poems, greeting cards and small gifts.

Greene's circumstance is light years away from the

assaultive debauchery of Tailhook, but the Navy has drawn a

A - 32

civilian-military boundary. Why does it have to come to this

extraordinary court proceeding?

If all the Coast Guard can show for its efforts to

discourage sexual harassment is a vigorous investigation, then

it has no program. Simply gathering facts does nothing to

convey from the top down that sexual harasgheet will not be

tolerated. Paper shuffling without consequences is no answer.

The Navy has heard and answered public outrage; the

Coast Guard seems ignorant of those lessons. Will equity and

protection have to come through legislative changes or through

political pressure from the Coast Guard’s civilian patron, the

Department of Transportation? |

Why does it fall to Petty Officer Becker to change how

the Coast Guard responds to sexual harassment?