# Petition for Writ of Certiorari — Hodge v. Dalton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 815

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0838%3A1. Public record. Not legal advice.