Petition for Writ of Certiorari — Hodge v. Dalton

1) FILED

No. 9619193 may 19 1997

OFEICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1997

W.L. HODGE,

Petitioner

JOHN DALTON, officially as

Secretary of the Navy

Respondent.

Petition For Writ of Certiorari

To the United States Court of

Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

William Tagupa

3425 Loulu St

Honolulu, Hawaii

96822

Ph: (808)2247278

Counsel for Petitioner

W.L. Hodge

QUESTION PRESENTED

Whether Petitioner,

W.L. Hodge, a uniformed

member of the United

States Marine Corps, is

an "employee" within the

meaning of 42 U.S.C. Sec-

tion 2000e-16(a) while

part-timed employed by a

non-appropriated funded

agency of the U.S. Navy

during his off-duty hours

so as to be eligible to

invoke the protections

and procedures under Ti-

tle VII of the Civil

Rights Act of 1964.

ii

PARTIES TO THIS PROCEEDING

Petitioner is W.L. Hodge.

Respondent is John Dalton, Secretary

of the Navy.

1

PETITION FOR WRIT OF CERTIORARI

Petitioner W.L. Hodge respect-

fully prays that a writ of certiora-

ri issue to review the judgment and

opinion of the United States Court

of Appeals for the Ninth Circuit

entered on February 19, 1997 in

order to resolve an issue of first

impression regarding a dispositive

interpretation of "employee" within

the meaning of 42 U.S.C. Section

2000e-16(a).

OPINION BELOW

The Opinion of the United

States Court of Appeals for the

Ninth Circuit is reported at 107

F.3d 705 (9th Cir. 1997).

JURISDICTION

On March 1, 1995, Petitioner

W.L. Hodge filed an action in U.S.

District Court for the District of

Hawaii seeking a declaratory judg-

ment and mandamus action against the

Respondent John Dalton in his offi-

Cial capacity as Secretary of the

Navy compelling the agency to pro-

cess his complaint of unlawful dis-

crimination under Title VII in his

capacity as a part-time employee of

a non-appropriated funded agency of

the U.S. Navy. Jurisdiction of the

district court was invoked under 42

nec —_— oa ll - ——

2

U.S.C. Section 2000e-5.

On May 31, 1995, the dis-

trict court granted the Respondent’s

motion for summary judgment. Peti-

tioner timely appealed the final

judgment order May 23, 1995. The

jurisdiction for the appeal was

invoked under 28 U.S.C. Section

1291. The United States Court of

Appeals for the Ninth Circuit en-

tered judgment on February 19, 1997

affirming the judgment below. The

jurisdiction of this Court is in-

voked under 28 U.S.C. Sec. 1254(1).

STATUTORY PROVISIONS INVOLVED

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

provides in relevant part that:

All personnel actions

affecting employees. or

applicants for’ employ-

ment...in military de-

partments as defined in

section 102 of Title 5,

in executive agencies as

defined in section 105 of

Title 5 (including en-

ployees and applicants

for employment who are

paid from nonappropriated

funds)...shall be made

free from any discrimina-

tion based on race, col-

or, religion, sex, or

3

national origin.

STATEMENT OF THE CASE

Petitioner W.L. Hodge was at

all times relevant a active duty

Gunnery Sergeant of the U.S. Marine

Corps. At the same time, Petitioner

was employed part-time, during his

normal off-duty hours, at the Mo-

rale, Welfare,and Recreation Enlist-

ed Club located at the U.S. Marine

Base Hawaii. The Enlisted Club is a

nonappropriated funded entity of the

U.S. Navy.

Petitioner and his MWR supervi-

sor got into a dispute concerning

the number of hours Petitioner was

required to work. Thereupon, Peti-

tioner, an Afro-American, attempted

to file a complaint of unlawful

discrimination under Title VII of

the Civil Rights Act. with the Re-

spondent agency. Mr. Charles Garza,

Formal Complaints Manager at Camp

Pendleton, California, rejected

Petitioner’s complaint on the ground

that Petitioner, as a uniformed

member of the Marine Corps, was

excluded from Title VII coverage

under the terms of 29 C.F.R. Section

1614.103(da)(1).

Petitioner subsequently filed

an action in district court for a

declaratory order and mandamus conm-

4

pelling the Respondent agency to

process his complaint. The district

court granted the Respondent’s mo-

tion for summary judgment on the

ground that uniformed members of the

military departments were excluded

from Title VII coverage because such

persons were not "employees" and

that the doctrine of intramilitary

immunity applied as a bar for such

persons bringing suit against a

military department for injuries

occurring from activities incident

to military service.

On appeal to the United States

Court of Appeals for the Ninth Cir-

cuit, the circuit panel agreed vir-

tually verbatim with the district

court and affirmed.

REASONS FOR GRANTING THE WRIT

The opinion of the United

States Court of Appeals for the

Ninth Circuit regarding non-coverage

under Title VII for uniformed men-

bers of the Armed Services who also

are employed part-time with a entity

Supported by non-appropriated funds

is contrary to the clear language of

42 U.S.C. Section 2000e-16(a) and

the undisputed fact that for Title

VII purposes, Petitioner was a Sec-

tion 2000e-16(a) employee, regard-

less of his active duty military

status.

2

Certiorari is appropriate

to because the court of appeals has

decided an important question of

federal law that should be decided

by this Court.

CONCLUSION

For the reasons cited above, a

writ of certiorari should be grant-

ed.

Dated: Honolulu, HI May 17,1997

William Tagupa,

Attorney for Petitioner

W.L. Hodge

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

W. L. Hopce,

Plaintiff-Appellant, No. 95-16036

Vv. . D.C. No.

JouN Datton, officially as CV-94-00970-HG

Secretary of the Navy. OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Hawaii

Helen Gillmor, District Judge, Presiding

Argued and Submitted

December 11. 1996—San Francisco, California

Filed February 19, 1997

Before: Betty B. Fictcher, Charles E. Wiggins. and

Thomas G. Nelson, Circuit Judges.

Opinion by Judge T.G. Nelson

SUMMARY

Individual Rights/Civil Rights

The court of appeals affirmed a judgment of the district

court. The court held that uniformed servicemembers are

excluded from coverage under Title VII of the Civil Rights

Act of 1964.

1S79

1580 Hopce v. DALTox

Appellant W.L. Hodge was an active-duty member of the

United States Marine Corps. During off-duty hours, he

worked as manager of an enlisted club within his base’s

Morale, Welfare and Recreation (MWR) Department.

When Hodge and his supervisor at MWR disagreed on his

required hours of work, Hodge filed an Equal Employment

Opportunity Commission (EEOC) compiaint alleging racial

discrimination. The complaint was dismissed on the ground

that Hodge was excluded from Title VII coverage as a uni-

formed servicemember.

Hodge brought a federal action against appellee John Dal-

ton, the Secretary of the Navy, requesting the district court to

require Dalton to process his complaint in accordance with

Title VII procedures.

The district court granted Dalton’s motion to dismiss for

lack of subject-matter jurisdiction. Hodge appealed.

{1] The United States is immune from suit unless it con-

sents to waive its sovereign immunity. Any waiver must be

unequivocally expressed; limitations and conditions on the

waiver must be strictly observed and exceptions are not to be

implied. [2] The underlying action was brought against Dal-

ton in his official capacity. Sovereign immunity barred

Hodge’s action unless a waiver of immunity existed.

[3] The United States is not an employer amenable to suit

under the general provisions of Title VII. Suits involving fed-

eral employment are governed by 42 U.S.C. § 2000c-16. Sec-

tion 2000e-16 provides that personnel actions affecting

employees in military departments, as defined in § 102 of

Title 5, and executive agencies as defined in § 105 (including

employees who are paid from nonappropriated funds), must

be free of discrimination based on racc.

[4] Congress granted the EEOC rulemaking authority to

implement and enforce Title VII. The EEOC promulgated

Hopce v. DaLTon 1581

regulations defining the forms of discrimination prohibited by

Title VII and establishing the procedures for enforcement.

The EEOC interprets Title VII as not applying to complaints

of discrimination by active-duty servicemembers.

[5] Hodge was an active-duty member of the Marine Corps

and thus a uniformed member of a military department. He

was therefore excluded from coverage by EEOC regulations.

[6] The Ninth Circuit has held that the term “military depart-

ments” in § 2000c-16 includes only civilian employees of the

Army, Navy, and Air Force, and not enlisted personnel.

[7] A “military department” must come under the definition

of § 102 to be covered by Title VII. Section 102 does not dis-

tinguish between military departments operated out of appro-

priated funds and those using nonappropriated funds. The

term “military department” is never used in § 105. Although

MWR was apparently operated largely out of nonappropriated

funds, § 2000e-16’s discussion of nonappropriated funds

modifies the definition of “executive agencies.” not the defi-

nition of “military departments.”

[8] Although Title VII protects civilian employees of the

military, it does not protect military personnel. Hodge was an

active-duty member of the military. The fact that a civilian

could have held his position at the enlisted club did not

change his status. [9] The action involved conduct that was

integrally related to the military’s unique structure. The MWR

is governed by a military chain of command. The action thus

involved a legal challenge to a senior officer.

[10] Under the doctrine of intramilitary immunity, mem-

bers of the armed forces may not bring an action against the

government or armed service personnel for injuries during

activity under the control or supervision of a commanding

officer. [11] The doctrine is applicable whenever a legal

action would require a civilian court to examine decisions

1582 Hopce v. DaLTtox

regarding management, discipline, supervision, and control of

members of the armed forces.

[12] Although Hodge’s immediate supervisors were civil-

ians, the military chain of command retained direct control

over MWR and its employees. As an active-duty member of

the military, Hodge was at all times subject to military disci-

pline. His employment was “incident to military service” and

fell within the doctrine of intramilitary immunity.

{13] An agency must publish proposed rulemaking in the

Federal Register unless persons subject to the rule are named

and are either personally served or otherwise have actual

notice. The agency must give interested persons an opportu-

nity to participate through submissions of data, views, or

argument.

[14] The EEOC published a notice of proposed rulemaking

and requested public comment. The EEOC did not propose

language specifying that uniformed members of the armed

forces were not covered by Title VII. The EEOC issued a

final regulation that exempted uniformed members of military

departments from Title VII coverage. [15] The exclusion of

uniformed members from coverage [16] was promulgated

pursuant to a congressional grant of authority to implement

and enforce § 2000e-16. Congress did not intend to vest the

EEOC with the power to review the employment practices of

the armed forces.

COUNSEL

William Tagupa, Honolulu, Hawaii, for the plaintiff-

appellant.

Sandra Wien Simon, United States Department of Justice,

Washington, D.C., for the defendant-appellee.

Hopce v. DaLTon 1583

OPINION

T.G. NELSON, Circuit Judge:

OVERVIEW

Plaintiff/appellant W. L. Hodge filed an action in federal

district court seeking declaratory and mandamus relief against

defendanv/appellce John Dalton in his official capacity as Sec-

retary of the Navy. Specifically. Hodge sought to compel

defendant Dalton to process his formal complaint of racial

discrimination in accordance with established procedures of

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e (“the Act” or “Title VII"). and appropriate

federal regulations. The district court dismissed the action,

finding that it lacked jurisdiction over the matter. We have

jurisdiction pursuant to 28 U.S.C. § 1291. and we affirm.

FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute. Hodge is an active-

duty service member in the United States Marine Corps. He

is currently assigned to duty at Camp H.M. Smith, Marine

Corps Base Hawaii, on the island of Oahu, Hawaii. in postal

operations. In addition to his military assignment, Hodge

worked as a duty manager during his off-duty hours at the

United States Marine Corps Base enlisted club at Kaneohe,

Hawaii. The enlisted club is an entity within the base’s

Morale, Welfare and Recreation (*MWR”) Department.

After Hodge and his supervisor at the MWR got into a dis-

pute concerning the number of hours Hodge was required to

work, Hodge attempted to file an Equal Employment Oppor-

tunity Commission (“EEOC”) complaint with the MWR per-

sonnel office. The complaint alleged racial discrimination.

Mr. Charles Garza, Formal Discrimination Complaints Man-

ager at Camp Pendleton, Califomia, rejected Hodge’s com-

1584 Hopce v. DALTON

plaint on the ground that Hodge was specifically excluded

from Title VII coverage as a uniformed service member.

Hodge subsequently filed the present case in federal district

court, seeking a declaratory judgment or mandamus relief.

Specifically, Hodge moved the district court to compel Dalton

to process his formal complaint of discrimination in accor-

dance with established Title VII procedures and appropriate

federal regulations. In the alternative, Hodge sought to have

the district court order Dalton to issue a written notice of dis-

missal of his complaint of discrimination with language

informing him of his right to appeal the dismissal, without

prejudice, to the EEOC.

Dalton brought a motion to dismiss the complaint, claiming

that the district court lacked subject matter jurisdiction over

Hodge’s complaint and that the district court was required to

dismiss the complaint for failure to state a claim upon which

relief may be granted. The district court granted the motion to

dismiss, denying Hodge’s request for declaratory and manda-

mus relief. Hodge timely appeals.

STANDARD OF REVIEW

We review a district court’s dismissal of a complaint for

lack of subject matter jurisdiction de novo. Bon v. United

States, 802 F.2d 1092, 1094 (9th Cir. 1986).

ANALYSIS

{1}-The United States is immune from suit unless it con-

sents tO waive its sovereign immunity. Lehman v. Nakshian,

453 U.S. 156, 160 (1981). The terms of the United States’

consent to be sued in any court define that court’s jurisdiction

to entertain the suit. Jd. The doctrine of sovereign immunity

applies to federal agencies and to federal employees acting

within their official capacities. South Delta Water Agency v.

Department of Interior, 767 F.2d 531, 536 (9th Cir. 1985).

. — ne

Hopce v. DaLTox 1585

Any waiver of immunity must be “unequivocally expressed,”

and any limitations and conditions upon the waiver “must be

strictly observed and exceptions thercto are not to be

implied.” Lehman, 453 U.S. at 160-61.

[2] The underlying action in the present casc was brought

against John Dalton in his official capacity as Secretary of the

Navy. Thus, sovercign immunity bars Hodge’s action, and the

district court lacked subject matter jurisdiction over the

action, unless a waiver of immunity exists. The only possible

waiver of sovereign immunity in the present action is Title

VIL.

[3] The United States is not an employer amenable to suit

under the general provisions of Title VII." Suits involving fed-

eral employment are instead governed by 42 U.S.C. § 2000e-

16, which provides in relevant part:

All personnel actions affecting cmployecs or

applicants for employment . . . in military depart-

ments as defined in section 102 of Title 5.? in execu-

tive agencies as defined in section 105 of Title 5°

(including employees and applicants for employment

who are paid from nonappropriated funds) . . . shall

be made free from any discrimination based on race.

color, religion, scx, or national origin.

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

‘Title 42 U.S.C. § 2000e(b) provides: “The term ‘employer’ . . . does

not include (1) the United States. . . .~

*Title 5 U.S.C. § 102 defines “military department” as: “The Depart-

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

Ai Force.”

*Title 5 U.S.C. § 105 defines “executive agencies” as: “[A}jn Executive

department. a Government corporation. and an_ independent

establishment.”

LL eee eee nee eee eee eeeeeeeee eee eee eee

1586 Hopce v. DaLTon

{4] Congress expressly granted the EEOC rulemaking

authority to implement and enforce Title VII. 42 U.S.C.

§ 2000e-16(b). Pursuant to this grant of authority, the EEOC

promulgated regulations defining the various forms of dis-

crimination prohibited by Title VII and establishing the proce-

dure for enforcement. In these regulations, the EEOC

interprets Title VII as not applying to complaints of discrimi-

nation by active-duty service members:

(a) Individual and class complaints of employ-

ment discrimination and retaliation prohibited by

title VII . . . shall be processed in accordance with

this part... .

(b) This part applies to:

(1) Military departments as defined in 5

U.S.C. 102:

(2) Executive agencies as defined in 5

U.S.C. 105;

(d) This part does not apply to:

(1) Uniformed members of the military

departments referred to in paragraph (b)(1)

of this section ....

29 C.F.R. § 1614.103. This regulation affects “individual

rights and obligations,” and thus constitutes a substantive rule.

Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979). More-

over, because this substantive rule was promulgated under a

specific grant of congressional authority, it has the “force and

effect of law.” Jd. at 301-02.

Hopce v. DaLTon 1587

(S] Hodge is an active-duty member of the Marine Corps

and is thus a uniformed member of a military department.‘ He

is therefore explicitly excluded from coverage by EEOC regu-

lations. See 29 C.F.R. § 1614.103(d).

However, Hodge contends that the EEOC regulation is

invalid. Hodge argues first that the regulation conflicts with

§ 2000e-16(a); and second, that § 1614.103(d)(1) was imval-

idly promulgated.

A. Section 1614.103(d\1) does not conflict with § 2000e-

16(a).

Under § 2000c-16(a), Title VII protection is extended to

employecs in “military departments” and “executive

agencies.” In § 1614.103, the EEOC has interpreted Title VII

to not apply to uniformed members of the military depart-

ments. Hodge argues that the EEOC’s interpretation conflicts

with § 2000c-16(a) and is therefore invalid. We disagree.

{6] In Gonzalez v. Department of Army, 718 F.2d 926, 928

(9th Cir. 1983). this court held that the term “military

departments” in § 2000e-16(a) “include[s] only civilian

employees of the Army, Navy, and Air Force and not both

civilian employees and enlisted personnel.” In reaching this

conclusion, we compared the definition that Congress had

given “armed forces” with the definition that Congress had

given “military departments.” We noted that Congress had

defined “armed forces” in 10 U.S.C. § 101 as “the Army,

Navy, Air Force, Marine Corps, and Coast Guard.” Jd. This

definition differed from the definition that Congress used for

“military departments” in 5 U.S.C. § 102. Jd. We concluded

that “(t]he two differing definitions show that Congress

intended a distinction between ‘military departments’ and

‘armed forces,” the former consisting of civilian employees,

“The Marine Corps is within the Navy Department and thus falls within

5 U.S.C. § 102’s definition of “military deparmment.~

1588 Hopce v. DaLTton

the latter of uniformed military personnel.” /d. We then exam-

ined the legislative history of § 2000e-16(a) and concluded

that the legislative history also provided “a strong inference

that section [2000e-16] was not intended to extend Title VII

coverage to enlisted and commissioned members of the armed

forces in active service.” /d.

All other circuits to address the issue have also held that

Title VII is inapplicable to uniformed members of the mili-

tary. See, e.g., Doe v. Garrett, 903 F.2d 1455, 1461-62 (11th

Cir. 1990) (barring naval reserve member’s Rehabilitation Act

claim that his release from active-duty military was due to

discrimination based on his handicap), cert. denied, 499 U.S.

904 (1991); Roper v. Department of Army, 832 F.2d 247, 248

(2d Cir. 1987) (barring army reserve membcr’s claim that she

was not promoted due to racial and scxual discrimination):

Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir. 1987)

(barring national guard member’s claim that his discharge was

due to racial discrimination), cert. denied, 488 U.S. 959

(1988); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir. 1981)

(barring national guard member’s claim that she was demoted

due to racial discrimination); Johnson v. Alexander, 572 F.2d

1219, 1223-24 (8th Cir.) (barring army applicant’s claim that

he was rejected due to racial discrimination). cert. denied, 439

U.S. 986 (1978). This interpretation of § 2000e-16(a) is con-

sistent with § 1614.103(d)(1), which excludes uniformed

members of the military departments from coverage. There-

fore, § 1614.103(d)(1) does not conflict with § 2000e-16.

Hodge also argues that because “MWR is a program oper-

ated by the U.S. Navy largely out of non-appropriated funds.

using largely civilian employees,” it is “thus a 5 U.S.C. Sec.

105 military dept.” This argument is negated by the plain lan-

guage of the relevant statutes.

[7] Section 2000e-16(a) provides coverage for employees

or applicants for employment in “military departments as

defined in section 102” or in “executive agencies as defined

Hopce v. DALTON 1589

in section 105 . . . (including employees and applicants for

employment who are paid from nonappropriated funds). . . .”

The plain language of § 2000e-16(a) makes it clear that a

“military department” must come under the definition of

§ 102 to be covered by Title VII. Section 102 does not distin-

guish between military departments operated out of appropri-

ated funds and those using nonappropriated funds.

Furthermore, § 105 defines an executive agency as: “an Exec-

utive department, a Government corporation, and an indepen-

dent establishment.” The term “military department” is never

used in § 105. Therefore, the plain language of § 105 does not

cover military departments. Finally, although the MWR is

apparently operated largely out of nonappropriated funds,

§ 2000e-16’s parenthetical discussion of nonappropriated

tunds modifies the definition of “executive agencies”; it does

not modify the definition of “military departments.”

Finally, Hodge argues that Gonzalez and the other cases

interpreting § 2000e-16 are inapposite to his case because

those cases relied upon the assumption that the relationship

between a uniformed member of the armed forces and the

military services is distinct from a traditional employer-

employee relationship. In contrast, he argues that his claim

does not arise out of his military relationship with the Navy,

but rather arises out of his part-time employment conditions

with a component of the Navy that is neither related to nor

dependent upon his military status. In support of this argu-

ment, Hodge relies upon Mier v. Owens, 57 F.3d 747 (9th Cir.

1995), cert. denied, 116 S. Ct. 1317 (1996).

In Mier, the plaintiff worked as a technician for the Army

National Guard. His job was a hybrid position, combining

both military and civilian aspects. He served in a civilian

capacity as a full-time supply management officer and in a

military capacity as a commissioned officer not on active

duty. To hold the civilian position, the plaintiff was required

to be a member of the National Guard and to hold the com-

mensurate military position. Jd. at 748. The issue before this

1590 Hopce v. DALTON

court was whether the technician, whose job was a hybrid

military-civilian position, could maintain a Title VII employ-

ment discrimination action. Jd. We stated:

{I]n some circumstances, personnel actions are not

integrally related to the military’s structure. Con-

cems regarding military hierarchy and discipline

may not be at issue in suits alleging discriminatory

conduct on the part of peers or subordinates. In addi-

iion, actions affecting civilian employees may not

involve matters considered military in nature.

Because Guard technicians are in a hybrid job entail-

ing both civilian and military aspects, we conclude

that Title VII coverage of civilians employed by the

military encompasses actions brought by Guard tech-

nicians except when the challenged conduct is inte-

grally related to the military’s unique structure.

Id. at 750. We held that the claimed discrim?ziaiory actions—

failure to promote, suspension from the civilian job, and

retaliation—were integrally related to the military’s structure

and therefore were not within Title VII coverage. /d. at 751.

[8] Hodge’s reliance on Mier is misplaced. First, in Mier,

we explicitly stated that although Title VII protects civilian

employees of the military from employment discrimination, it

does not protect military personnel. /d. at 749. It is undisputed

that Hodge is “military personnel.” Second, the plaintiff in

Mier was a hybrid military-civilian; the plaintiff was not on

active-duty status. Hodge, in contrast, is not a military-

civilian hybrid; he is an active-duty member of the military.

The fact that a civilian could hold the part-time position in

which he is employed at the enlisted club does not change his

Status.

[9] Furthermore, the action in the present case involves

conduct which is integrally related to the military’s unique

structure. The MWR where Hodge works part-time is gov-

Hopce v. DALTON 1591

emed by a military chain of command. The MWR was under

the direct supervision of Colonel Richard Crawford, Com-

mander of the Air Station. Therefore, although the Secretary

of the Navy is the named defendant as required under 42

U.S.C. § 2000e-16(c), the real party in interest in the present

action is the installation commander as the operator of the

club system. Thus, this action involves a legal challenge to a

senior Marine Corps Officer.

[10] The doctrine of intramilitary immunity, or “the Feres

doctrine,” lends further support to the conclusion that Hodge

is not covered by § 2000e-16. Under this doctrine, members

of the armed forces may not bring an action against the Gov-

cmment or armed service personnel for injuries during activ-

ity under the control or supervision of a commanding officer.

McGowan v. Scoggins, 890 F.2d 128, 132 (9th Cir. 1989).

The doctrine is generally raised in Federal Tort Claims Act

(“FTCA”) cases applying Feres v. United States, 340 U.S.

135 (1950).

In Feres, there were three separate causes of action: two for

medical malpractice by military doctors and one for mainte-

nance of unsafe barracks. 340 U.S. at 137. The Court held that

none of these claims was sufficient to establish a cause of

action under the FTCA. The Court stated: “[T]he Government

is not liable under the Federal Tort Claims Act for injuries to

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

of activity incident to service.” Id. at 146 (emphasis added).

“The presence of direct military control is sufficient to estab-

lish the activity as incident to military service.” Bon, 802 F.2d

at 1096.

[11] Although the doctrine of intramilitary immunity is

generally applied in connection with the FTCA, its applicabil-

ity is not limited to FTCA cases. The doctrine is instead appli-

cable whenever a legal action “would require a civilian court

to examine decisions regarding management, discipline,

supervision, and control of members of the armed forces of

F

1592 HopceE v. DALTON

the United States.” McGowan, 890 F.2d at 132 (citing United

States v. Shearer, 473 U.S. 52, 57 (1985)). See also Chappell

v. Wallace, 462 U.S. 296 (1983) (applying intramilitary

immunity doctrine to both a Bivens action and a claim under

42 U.S.C. § 1985).

{12} In the present case, although Hodge’s immediate

supervisors were apparently civilian, the military chain of

command retained direct control over MWR and its employ-

ees. The MWR was required to abide by regulations from

higher headquarters within the military chain of command.

Regulations governing operation of the MWR were issued by

Headquarters Marine Corps, the Department of the Navy and

the Department of Defense. These regulations from higher

headquarters are mandatory on each MWR throughout the

Marine Corps. Furthermore, each installation issues its own

regulations governing various aspects of the MWR. These

local regulations, called Base Orders, are issued under the

authority of the Commanding General of the Base. Hodge. as

an active-duty member of the military, was at all times

“subject to military discipline for any violations of these rules,

regulations, and guidelines.” Bon, 802 F.2d at 1093. See also

Mariano v. United States, 605 F.2d 721, 723 (4th Cir. 1979)

(“All military personnel, whether patrons or employees, were

subject to discipline under the Uniform Code of Military Jus-

tice for their conduct in the [Officer’s}] Club.”). Thus, Hodge’s

employment at the MWR was subject to “direct military

control” and as such was “incident to military service.” Bon,

802 F.2d at 1096. Therefore, Hodge’s employment falls

within the doctrine of intramilitary immunity.

This conclusion is not inconsistent with Johnson v. United

States, 704 F.2d 1431 (9th Cir. 1983). In Johnson, we held

that the Feres doctrine did not bar a cause of action by an Air

Force noncommissioned officer who was injured in an auto-

mobile accident near a military base. The plaintiff was injured

during his off-duty time, after working at his on-base job as

a bartender at the Noncommissioned Officers Club (“NCO

we

Hopce v. DALTON 1593

Club”). He, along with some friends, had a party at the club

after closing hours. The plaintiff was injured after he left the

party when the car in which he was riding crashed into a tree.

We held that the doctrine of intramilitary immunity did not

bar recovery under the FTCA.

First, at the time the government’s negligence

occurred, Johnson was not subject in any real way to

the compulsion of military orders... .

The fact that Johnson was not under military con-

trol easily distinguishes the other cases that have

concluded that activities in NCO clubs are incident

to military service. In Mariano v. United States, 605

F.2d 721 (4th Cir. 1979), for example, the plaintiff

was employed during his off-duty hours as night

manager of a Club. Plaintiff was injured while

attempting to break up a fight between two patrons.

In holding that the Feres doctrine barred plaintiff’s

suit, the court emphasized that official military regu-

lations made the night manager responsible for

maintaining order in the Club. Thus, the plaintiff in

Mariano was subject to direct military control and

was assigned specific duties as night manager by

military regulations. Conversely, Johnson was not

subject to any such direct control at the time the neg-

ligent act occurred. Indeed, Johnson was injured

because the NCO Club remained open in clear viola-

tion of Air Force regulations and state law.

Second, at the time of the government’s negli-

gence, Johnson was subject to military discipline

only in the very remotest sense. Because Johnson

was off-duty and working at a non-military second

job, his activities were “purely personal.”

Johnson, 704 F.2d at 1439-40 (citations omitted).

1594 Hopce v. DALTON

The distinctions made in Johnson are directly relevant to

the present case. The alleged discrimination against Hodge

occurred in the course of his employment at the MWR. The

MWR is in the chain of military command and is subject to

military rules, regulations and policies. Therefore, unlike

Johnson, Hodge was subject to direct military control and dis-

cipline at the time the alleged discriminatory act occurred.

Thus, the doctrine of intramilitary immunity applies and gives

additional support to the conclusion that § 1614.103(d)(1)’s

bar to Hodge’s suit is consistent with § 2000c- 16.

B. Section 1614.103(d)1) was validly promulgated.

[13] Title 5 U.S.C. § 553 provides the statutory notice and

opportunity for comment requirements which an agency is to

follow in promulgating substantive rules. It provides that an

agency must publish a proposed rulemaking in the Federal

Register unless persons subject to the rules are named and are

either personally served or otherwise have actual notice

thereof. 5 U.S.C. § 553(b). After the required notice is given,

the agency must give interested persons an opportunity to par-

ticipate in the rulemaking through submissions of written

data, views, or arguments. 5 U.S.C. § 553(c). After the agency

has considered the relevant matter presented, the agency is

required to incorporate in the rules that it adopts a “concise

general statement of their basis and purpose.” /d.

[14] In the present case, the EEOC published a “Notice of

Proposed Rulemaking” and requested public comment on its

proposed regulations. See 54 Fed. Reg. 45747 (October 31,

1989). The EEOC did not propose language specifying that

uniformed members of the armed forces were not covered by

Title VII. However, a comment was received regarding the

coverage of uniformed members. In response to this com-

ment, and after reviewing case law that addressed the cover-

age of uniformed members, the EEOC issued a final

regulation that explicitly exempted uniformed members of the

military departments from Title VII coverage. See 57 Fed.

a ae et

Hopce v. DALTON 1595

Reg. 12634, 12642 (April 10, 1992) (citing Johnson v. Hoff-

man, 424 F. Supp. 490 (E.D. Mo. 1977), affd sub nom.,

Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied,

439 U.S. 986 (1978)).

[15] Hodge argues that § 1614.103(d)(1)’s exclusion of

uniformed members from Title VII coverage is not valid

because it was not promulgated properly. In support of this

argument, Hodge points to the fact that the exclusion was not

included in the EEOC’s final notice of rulemaking. We reject

this argument.

A new opportunity for comment is not generated every

time the agency reacts to comments that it receives. City of

Stoughton, Wis. v. EPA, 858 F.2d 747, 753 (D.C. Cir. 1988).

A final regulation that varies from the proposal, even substan-

tially, will be valid as long as it is “in character with the origi-

nal proposal and a logical outgrowth of the notice and

comments.” Rybachek v. EPA, 904 F.2d 1276, 1288 (9th Cir.

1990).

[16] Section 1614.103(d)(1) was promulgated pursuant to

an explicit congressional grant of authority to the EEOC to

implement and enforce § 2000e-16. The legislative history of

§ 2000e-16 indicates that Congress did not intend to vest the

EEOC with the power to review the hiring and employment

practices of the armed forces. See Roper, 832 F.2d at 248;

Gonzalez, 718 F.2d at 928. In promulgating § 1614.103(d)(1),

the EEOC was simply making explicit what was already

implicit in the legislative history of § 2000e-16 and what was

already understood to be the law. Thus, although

§ 1614.103(d)(1) was not specifically listed in the proposed

rulemaking, the regulation is “in character with the original

proposal and a logical outgrowth of the notice and

comments,” and was therefore validly promulgated.

Rybachek, 904 F.2d at 1288. See also General Motors Corp.

v. Ruckelshaus, 742 F.2d 1561, 1565-66 (D.C. Cir. 1984)

1596 Hopce v. DALTON

(interpretative rules do not need notice and comment), cert.

denied, 471 U.S. 1074 (1985).

CONCLUSION

Hodge, as a uniformed service member, is excluded from

coverage under Title VII of the Civil Rights Act.* The district

court’s dismissal of the action for lack of subject matter juris-

diction is therefore affirmed.

AFFIRMED.

*Hodge is not without a remedy for the alleged discriminatory acts. Uni-

formed members of the military have statutory remedies to correct racial

discrimination in the military. See 10 U.S.C. § 1552: Chappell v. Wallace.

462 U.S. 296, 303-05 (1983) (noting applicability of § 1552 to claims of

racial discrimination by enlisted men and remanding for consideration of

a claim of racial discrimination under 42 U.S.C. § 1985(3)). In addition.

the military itself provides members with several remedies. The military

EEO program provides a forum for complainants who feel that they have

been the victim of discrimination. Hodge was specifically informed that

this remedy was available to him. Service members may also file com-

plaints pursuant to Article 138 of the Uniform Code of Military Justice.

10 U.S.C. § 938, or Article 1150 of Navy Regulations, or register a griev-

ance with either the Inspector General or individual members of Congress.