Petition for Writ of Certiorari — Brown v. Wynne (No. 06-1051)

IN THE

Supreme Court of the Anited States

JAMES E. BROWN, SR..

Petitioner,

V.

Dr. JAMES G. ROCHE,

Secretary. USAF

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

GREGORY D. SMITH *

331 Franklin Street. Suite |

Clarksville, Tennessee 37040

(931) 647-1299

DLBRA A. WALI

133 Franklin Street

Clarksville. TN 37040

(931) 906-3904

* Counsel of Record Attorneys for Petitioner

WILSON-EPES PRINTING CO.. INC. — (202)789-0096 — WASHINGTON, D.C 20002

QUESTIONS PRESENTED FOR REVIEW

1. Should this Honorable Court abandon the “Feres doc-

trine” originating from Feres v. U.S., 340 U.S. 165 (1950)?

Il. Feres v. U.S., 340 U.S. 135 (1950) should not bar dual

status National Guard technicians from pursuing ADEA dis-

crimination cases. [The Federal Circuit Courts of Appeals are

split as to application of Feres in these situations].

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. ................... i

TAR Oe FGF a a ren veepnescceesncecintoientenancianeaiin iv

OPINIONS BELOW .......... Ss siisdhuceseninaaactadindeamaaiisalicas l

STATEMENT OF JURISDICTION .....0 eee 2

CONSTITUTIONAL PROVISIONS INVOLVED ...... 2

STATE E OE FE CATE cesscsertccsonsinvrecvaseiseccnnetens 2

PIII vintinticthitnnminiititinnichnmiicakiaantastebiaie 3

CRUG RAUNT socicsnncuhancntsiecniinioncscnsteniitovtatestiniiitninediuceaiion 1]

APPENDIX A-—-Unpublished Opinion of Sixth Cir-

CRITE RRR FOO easetcievevccevenssemmntcinnineiviotiminssins la

APPENDIX B—Unpublished Opinion of U.S. District

Court, M.D. Tenn. Dated 09/26/2005................cceeeeee Sa

APPENDIX C—Unpublished Agency Decision dated

STE iin niniarscnniscncecninavscniasedenamebidiaandnniiens 12a

APPENDIX D—Unpublished ALJ Decision dated

06/10/2004............... bi gaibscciNdeubeanguadagaeis: o-apacimaamadanle 30a

(iii)

iV

TABLE OF AUTHORITIES

CASES

Atkinson v. U.S., 825 F.3d 202 (9th Cir. 1987) .....

Boyle vy. United Technologies Corp., 487 U.S.

a sicscdiisiaieie sibicaaelnsiadipiipinipipistiitincinadiani

Bozeman v. U.S., 780 F.2d 198 (2nd Cir. 1985)...

Brown v. U.S., 227 F.3d 295 (Sth Cir. 2000).........

Costo v. U.S., 248 F.3d 863 (9th Cir. 2001)..........

Day v. Massachusetts Air National Guard, 167

lB iiccnss cette tevciesendindasibcconions

Del Rio v. U.S., 833 F.2d 282 (11th Cir. 1987).....

Dred Scott v. Sandford, 60 U.S. 393 (1857)..........

Duncan v. Usher, 23 M.J. 29 (C.M.A. 1986)........

Elliott v. U.S., 37 F.3d 617 (11th Cir. 1994) .........

Feres v. U.S., 340 340 U.S. 135 (1950).................

Fisher v. Peters, 249 F.3d 443 (6th Cir. 2001)......

Hunt v. U.S., 636 F.2d 580 (D.C. Cir. 1980).........

Jones v. LaRiviera Club, Inc., 655 F. Supp. 1032

SIs ET Ris kiichecl nny teed nbindcnnialdoieanictaeleermoess

LaBash v. U.S. Dept. of Army, 668 F.2d 1153

SG IE itistccansih dich esoeiacicidacieliasatasaieds

Luckett v. Bure, 290 F.3d 493 (2nd Cir. 2002)......

Khan v. State Oil Co., 93 F.3d 358 (7th Cir.

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

Millang v. U.S., 817 F.3d 533 (9th Cir. 1987).......

Overton v. N.Y. Div. of Military & Naval Affairs,

<M AE ce Ty GIN A, FO soettiscsicrecnesccsncnvnsie

Persons v. U.S., 925 F.2d 292 (9th Cir. 1991).......

Plessy v. Ferguson, 163 U.S. 537 (1896)..............

Schwager v. U.S., 279 F.Supp. 262 (E.D. Pa.

Taber v. Maine, 67 F.2d 1029 (2nd Cir. 1995)......

Tennessee v. Dunlap, 426 U.S. 312 (1976)...........

Page

Jy tees

- ON CO

Vv

TABLE OF AUTHORITIES—Continued

: Page

U.S. v. Johnson, 481 U.S. 681 (1987) .......... eee 3,5

U.S. v. Moreno, 63 M.J. 129 (CAAF 2006) .......... 6

U.S. v. Ortiz, 24 M.M. 323 (C.M.A. 1987) ........... 6

U.S. v. White, 54 M.J. 469 (CAAF 2001).............. 6

West v. U.S., 744 F.3d 1317 (7th Cir. 1984).......... 9

West v. U.S., 729 F.3d 1120 (7th Cir. 1984).......... 9

Williams v. City of Boston, 784 F.2d 430 (ist Cir.

DERN aecarer te aa me SCORER AE EET AEE Nee oe 9

STATUTES/CONSTITUTIONS/RULES

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ee Re PE in cc satiatv scien onspacveabindonanstbuvebensiies Zz

Ee Bee es ED vathenvssahaitvvbsttncidccbscicdecteentopete 9

Vth Amendment, U.S. Constitution......00000..0......05. 2, 10

PO Pes Fs BAIR ED oksthtaiitapasinnnevarpenssseioasteies 2, 3010

NE A, Be FOP nctitsccsdcornisctviinadisinessinvaehieienes 2

OTHER :

Turley, “Pax Militaris: the Feres Doctrine and the

Retention of Sovereign Immunity In the

Military System of Governance”, 71 Geo.

I Ba: FG. FE g Da iccenstnteensetvitossnsvnixaa 6-7

L. Peter, Peter’s Quotations at 240 (William

ECO Fe. GO TG, BFF TD icccitnncsitsdssevsccersensieeces 10

“Quotable Quotes”, Reader’s Digest at 23 (May,

IN THE

Supreme Court of the Anited States

No. 06- __

JAMES E. BROWN, SR.,

Petitioner,

Vv.

DR. JAMES G. ROCHE,

Secretary, USAF

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

In 1999, James E. Brown, Sr., (“Mr. Brown’’), an Air Force

National Guard civilian technician, filed a pro se_ discrim-

ination claim, using the Age Discrimination in Employment

Act, (ADEA), 28 U.S.C. § 623(d), [App. A at 2a].' The

basis for this claim is that Mr. Brown was passed over for a

promotion that was given to a younger, less qualified, can-

didate for the job. [/d.] Initially, an Administrative Law

Judge, (“ALJ”), ruled in Mr. Brown’s favor in a decision ren-

dered on August 30, 2004. [/d. at 3a and App. C at 27a]. On

the Ist day of July, 2004, the U.S. Air Force reversed the

' All exhibits/opinions from the lower courts discussed herein were

unpublished opinions.

2

ALJ’s decis... [App. A at 2a]. A timely lawsuit was filed in

the United States District Court for the Middle District of

Tennessee. [/d.]. The Middle District dismissed the case for

lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)(1) and Feres v. U.S., 340 U.S. 135 (1950) on the 26th

day of September, 2005. [App. A at 2 and App. B]. The

matter was timely appealed to the United States Court of

Appeals for the Sixth Circuit. [App. A at 3a]. The Sixth

Circuit handed down a November 1, 2006, decision which

upheld the Middle District’s opinion dismissing this case on

the Feres doctrine and Fed. R. Civ. P. 12(b)({1). [“App. A”’].

Mr. Brown now respectfully presents this certiorari petition

to this Honorable Court.

STATEMENT OF JURISDICTION

This matter is reviewable pursuant to Sup. Ct. Rule 10(a)

& (c) as well as the federal question jurisdiction of 28 U.S.C.

§ 1331.

CONSTITUTIONAL PROVISIONS INVOLVED

The U.S. Constitution’s Vth Amendment Due Process and

Equal Protection clauses impact this case. The “Separation of

Powers” of the branches of government is also impacted by

this case.

STATEMENT OF THE CASE

The facts of this case are fairly straight-forward. They are

as follows:

1) James E. Brown, Sr. was employed by the Tennessee

Air Force National Guard as a civilian technician at

Berry Field in Nashville, Tennessee in 1998. [App.

A at 2a].

2) 32 U.S.C. § 709(b) defines technicians as a “dual

status” employee—meaning that a technician is both

a civilian employee and maintains membership in the

3

military reserves as a condition of employment as

discussed in 10 U.S.C. § 10216. [App. A at 2a].

3) In December, 1998, fifty-seven (57) year old Mr.

Brown applied for a position that opened at Berry

Field as a Quality Assurance Specialist, (“QAS”).

[App. A at 2a]. The QAS position was filled by a

man in his mid-thirties with less experience than Mr.

Brown. [/d.].

4) In September, 1999, Mr. Brown filed a pro se age

discrimination suit under the ADEA. Initially, an

ALJ ruled in Mr. Brown’s favor, but the Air Force

reversed said findings. [App. A at 2a to 3a].

$) Suit was filed in the U.S. District Court for the

Middle District of Tennessee. The case was dis-

missed under Fed. R. Civ. P. 12(b)(1), for lack of

subject matter jurisdiction. [App. A at 2]. The Dis-

trict Court’s decision to dismiss for lack of subject

matter jurisdiction was upheld by the Sixth Circuit

citing Feres v. U.S., 340 U.S. 135 (1950). [App.

A at 4].

ARUGMENT

ISSUE I: Should this Honorable Court abandon the

“Feres doctrine” originating from Feres v.

U.S., 340 U.S. 135 (1950)?

To say that the Feres doctrine was one of the more

unpopular decisions handed down by the U.S. Supreme Court

would be a gross understatement. “Four Justices now believe

Feres was wrongly decided.” [Atkinson v. U.S., 825 F.2d 202,

206 (9th Cir. 1987)].2 “Feres was wrongly decided and

heartily deserves the ‘widespread, almost universal criticism’

it has received”. [U.S. v. Johnson, 481 U.S. 681, 682 (1987),

Scalia, J., dissenting]. Keres is frequently questioned and Mr.

* The Justices referred to by the Ninth Circuit are Scalia, Brennan,

Marshall and Stevens. [Johnson, 481 U.S. at 659].

4

Justice Scalia has been credited with the resolve to eventually

kill the flawed Feres doctrine and to place the doctrine on the

U.S. Supreme Court’s “Wall of Shame” next to Plessy v.

Ferguson, 163 U.S. 537 (1896) and Dred Scott v. Sandford,

60 U.S. 393 (1857). [See, Taber v. Maine, 67 F.3d 1029,

1043 fn. 9 (2nd Cir. 1995), citing Johnson, 481 U.S. at 692-

703, Scalia, J., dissenting]. The Second Circuit explicitly

noted a blatant need for guidance and requested guidance

from this Honorable Court on how to apply Feres. [/d.].

The Ninth Circuit’s Judge Ferguson pulled no punches in

attacking Feres declaring:

I begin this dissent with the understanding that I and this

Court of Appeals must abide by the deciSions of the

Supreme Court. I write to demonstrate that the Feres

doctrine is unconstitutional and to present the Supreme

Court with a case and controversy in order for it to be

able to review the doctrine. . . . I believe that the Feres

doctrine violates the equal protection rights of military

service men and women. I alse believe that Feres

violates our constitutional separation of powers.

[Costo v. U.S., 248 F.3d 863, 870 (9th Cir. 2001) Ferguson,

.J., dissenting]. Other federal circuit courts have described

applying and following Feres as “. . . complicated by the

imprecise contours of the doctrine enumerated in Feres. . .”

[Hunt v. U.S., 636 F.2d 580, 582 (D.C. Cir. 1980)]. Several

Circuits, noting either concern or distain with the results

Feres produces, have noted that if the problem is to be fixed,

this Honorable Court ts the only body that can fix it. Here are

just a few of the Circuits’ comments:

_A) “. . . although many courts have expressed reser-

vations about the continuing validity of the broad

Feres doctrine, only the United States Supreme

Court can overrule or modify Feres.” [LaBash v.

U.S. Dept. of Army, 668 F.2d 1153, 1156 (10th Cir.

1982)];

5

B) “... although Feres remains a controversial decision,

we are bound by the Supreme Court’s continual

adherence to it.” [Kohn v. U.S., 680 F.2d 922, 925

(2nd Cir. 1982)];

C) Feres is a “blunt instrument”. [Bozeman v. U.S., 780

F.2d 198, 200 (2nd Cir. 1985); Accord, Jones v.

LaRiviera Club, Inc., 655 F.Supp. 1032, 1033, fn. 6

(D.P.R. 1987)];

D) “. . . Feres itself deserves re-examination by the

Supreme Court. A few of Fere’s original reasons no

longer seem so persuasive.” [Day v. Massachusetts

Air National Guard, 167 F.3d 678, 683 (ist Cir.

1999)].

E) The “. . . tasks, [of correcting the Feres doctrine], if

it is to be undertaken at all, is properly left to the

Supreme Court or to Congress.” [Atkinson v. U.S.,

825 F.2d 202, 206 (9th Cir. 1987)];

F) “The reasoning for the Feres decision has frequently

been questioned and has in fact been felt to have

been eroded.” [Schwager v. U.S., 279 F.Supp. 262,

263 (E.D. Pa. 1968)].

Just this quick look at Feres has five (5) different Circuits

calling on this Honorable Court to reconsider Feres.

In explaining the historic problems with Feres, the Second

Circuit described said decision by declaring, “. . . Feres

quickly lurched toward incoherence.” [Tabor v. Maine, 67

F.3d 1029, 1039 (2nd Cir. 1995)]. The Second Circuit went

on to opine that one option “. . . would be to agree with

Justice Scalia’s dissent in Johnson and to admit that Feres is

a mistake—-was perhaps always a mistake—and should be

scrapped. That option is, of course, not open to us.” [Tabor,

67 F.3d at 1043]. The Second Circuit did note that the

Eleventh Circuit in Elliott v. U.S., 37 F.3d 617 (11th Cir.

1994), came close to a de facto overruling of Feres. [Taber,

67 F.3d at 1043 fn. 9]. “Feres has been regularly—albeit

6

inconsistently—applied by the Supreme Court, and the mere

existence of a convincing dissent in a closcly divided Court

cannot alter its binding force.” [Taber, 67 F.3d at 1043]. In

closing the Tabor opinion, the Second Circuit noted that even

if the Feres doctrine could be made workable, that does not

suggest that this Honorable Court should not follow Justice

Scalia’s suggestion to abandon the Feres doctrine. [Taber, 67

F.3d at 1044 fn. 11}. Clearly, the United States Courts of

Appeals are begging this Honorable Court, in unison, to re-

examine Feres.

The U.S. District Court sitting in Puerto Rico directly and

bluntly joined the wide-spread criticism of the harsh Feres

doctrine. [Jones v. LaRiviera Club, Inc., 655 F. Supp. 1032,

1037 (D.P.R. 1987)]. Interestingly, even military courts have

noted that Feres gives draconian results to military personnel.

Here are a few examples:

A) Feres applies differently to active duty military and

reservists who are not on active duty. [Duncan v.

Usher, 23 M.J. 29, 32 (C.M.A. 1986)];

B) An appointed attorney for a soldier or sailor facing

a military courts-martial cannot seck malpractice

relief against said attorney if the attorney is inept

or incompetent. [U.S. v. Ortiz, 24 M.J. 323, 324

(C.M.A. 1987)];

C) “Unlike civilians, military prisoners have no civil

remedy for alleged constitutional violations” {while

being detained}. [U.S. v. White, 54 M.J. 469, 472

(CAAF 2001), citing Feres and other cases].

D) “We recognize that military service members are

unable to pursue relief under 42 U.S.C. § 1983 as a

result of the extended Feres . .. doctrine”. [U-.S. v.

Moreno, 63 M.J. 129, 139 (CAAF 2006)].

Professor Jonathan Turley, of the George Washington

School of Law, has referred to Feres as “... one of the most

extraordinary cxamples of the Court acting as a ‘super-

7

legislature’. Not only has this doctrine been, used to funda-

mentally alter both the legal status of service members and

the liability of the military . . . It has been used in cases where

the military acted in violation of the most basic international

human rights provisions.” [7urley, “Pax Militaris: The Feres

Doctrine and the Retention of Sovereign Immunity In the

Military System of Governance”, 71 Geo. Wash. L. Rev. 1,

68 (Feb., 2003)]’ Professor Turley sums up the whole of the

Feres doctrine’s cancerous impact on American jurisprudence

by stating, “The Feres doctrine continued to produce bizarre

and disturbing rulings for the Court.” [Pax Militeris at 10].

Respectfully, this Honorable Court, should hear the cry of

multiple federal courts on both the circuit and district court

levels, as well as the cry of soldiers yearning for justice, and

grant certiorari to abolish or vastly revise Feres v. U.S., 340

U.S. 135 (1950). As this Honorable Court has noted to the

lower federal courts, if there are to be departures from prior

Supreme Court precedents, said departures should come for

the U.S. Supreme Court alone. [See e.g., Khan v. State Oil

Co., 93 F.3d 358, 1363 (7th Cir. 1996), rev'd on other

grounds, 527 U.S. 3 (1997)]. Plato said, “To do injustice

is more disgraceful than to suffer it.” [Reader's Digest,

“Quotable Quote” at 23 (May, 1992)]. Feres has been

allowed to inflict enough injustice on the American military!

Certiorari should be granted!

’ Hereinafter, “Pax Militaris”.

8

ISSUE II: Feres v. U.S., 340 U.S. 135 (1950) should not

bar dual status National Guard technicians

from pursuing ADEA discrimination cases.

[The Federal Circuit Courts of Appeals are

split as to the application of Feres to these

situations].

“(T]he Feres doctrine is a judicially created exception to

the broad congressional waiver of soverign immunity

contained in the FTCA. . . Feres precludes members of the

armed forces from maintaining an FTCA action where the

‘claimant, while on active duty and not on furlough, sustained

injury due to the negligence of others in the armed forces’

. . .The injury must arise out of or be sustained in the course

of activity ‘incident to [military] service’.” [Jones v.

LaRiviera Club, Inc., 655 F.Supp. 1032, 1034 (D.P.R. 1987)].

Professor Turley explains Feres by saying, “. . . there is no

evidence that Feres serves any meaningful purpose beyond

protecting the government from the financial pressures of

liability.” [Pax Militeris, at 90]. The key focus of whether

Feres applies to a civilian’s case, such as Mr. Brown’s case,

is whether or not the matter is “incident to service”.

The “incident to service” standard has been described as

“elusive” and a “repository of ambiguity”. [Millang v. U.S.,

817 F.2d 533, 535 (9th Cir. 1987)]. This Honorable Court

has noted concern regarding stretching Feres to other areas of

tort/contract law. [Boyle v. United Technologies Corp., 487

U.S. 500, 510 (1988)]. The “incident to service” question

allows civilians to bring suit against the government for mili-

tary related events, but would bar similar claims by military

personnel. [/d.]

The Sixth Circuit dismissed Mr. Brown’s case under the

Feres doctrine, actually a Fed. R. Civ. P. 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction. [App. A at 2a].

Appellate courts viev’ Feres dismissals as a motion to dismiss

and the appellate court accepts as true the plaintiffs alle-

9

gations set forth in a complaint and further give all, reason-

able and favorable inferences that can be deduced from the

allegations set forth in the pleadings to the plaintiff. [Williams

v. City of Boston, 784 F.2d 430, 433 (1st Cir. 1986)].

Exceptions to the application of the Feres doctrine have

been made for some medical malpractice situations. [See e.g.,

Del Rio v. U.S., 833 F.2d 282, 287 (11th Cir. 1987)]. On the

contrary, the Sixth Circuit, in Mr. Brown’s case, opined that

Feres is an absolute bar, no exceptions. [App. A at 3a to 4a].

See also, Persons v. U.S., 925 F.2d 292, 297 (9th Cir. 1991).

Interestingly, the Seventh Circuit found both ways on a single

case, eventually resolving the matter in favor of Feres having

no exceptions. [See, Persons, 925 F.2d at 297 fn. 11, citing

West v. U.S., 729 F.2d 1120, 1125 (7th Cir. 1984), vacated by

West v. U.S., 744 F.2d 1317 (7th Cir. 1984) (en banc)}.

The Sixth Circuit has held that discrimination cases under

42 U.S.C. § 2000e-16 never supersede the Feres doctrine in

an action by a National Guard technician, even if the alleged

discrimination arises in the course of his or her civilian

employment. [Overton v. N.Y. Div. of Military & Naval

Affairs, 373 F.3d 83, 94-95 (2nd Cir. 2004), citing Fisher v.

Peters, 249 F.3d 443, 443-444 (6th Cir. 2001)].

The Ninth Circuit, in Mier v. Owens, 57 F.3d 747, 750 (9th

Cir. 1995) held that suits by National Guard technicians over

discrimination claims are never justifiable. [But see, Overton,

373 F.3d at 95 fn. 12]. A contrasting view comes from the

Fifth Circuit which holds that 42 U.S.C. § 2000e-16 ex-

plicitly, but only partially, overrides the Feres doctrine in

discrimination situations. [Brown v. U.S., 227 F.3d 295, 299

(Sth Cir. 2000). Accord, Overton, 373 F.3d at 95]. The

Second Circuit, like the Fifth Circuit, specifically place their

findings at odds with the Sixth and Ninth Circuits on the issue

of whether or not National Guard technicians can bring dis-

crimination suits if the suit has any military nexus. [Overton,

373 F.3d at 95, citing Luckett v. Bure, 290 F.3d 493, 499 (2nd

10

Cir. 2002)]. Clearly, there is a split among the Circuits on

this very important question. Certiorari should be granted to

address this issue.

Now, turning to the case at hand, the ALJ found that the

sole reason Mr. Brown was passed over for his QAS

promotion was age discrimination. [App. C at 27a]. The ALJ

found that both Mr. Brown and the Respondent/U.S. were

acting in civilian, not military capacitics at the time Mr.

Brown was suffering justifiable age discrimination. [App. D

at 30a].

Since Fed. R. Civ. P. 12(b)(1) cases are viewed in the light

most favorable to the plaintiff, and a split in Circuits exist,

and Feres is not necessarily viable or applicable to the case at

hand; certiorari should be granted. As noted by the ALJ, this

Court’s decision in Tennessee v. Dunlap, 426 U.S. 312 (1976),

a National Guard technician case, seems to support an excep-

tion to Feres. [App. D at 3la fn. 1]. Certiorari should be

granted.

CONCLUSION

Plato said, “What is honored in a country will be cultivated

there.”* The military is a vital and respected part of

American’s past, present and future. An important Vth

Amendment Due Process and Equal Protection question

regarding the rights of civilians associated with the military

should be addressed by this Honorable Court. Further, this

case presents a strong separation of powers question which

deserves this Honorable Court’s consideration. As noted by

many Circuit decisions, this Honorable Court is the on/y court

that can “fix” Feres. An overwhelming number of the

Federal Circuits join this request asking certiorari to be

granted. [See e.g., LaBash v. U.S. Dept. of Army, 668 F.2d

* L. Peter, Peter’s Quotations at page 240 (William Morrow & Co.,

Inc. 1977)

1]

1153, 1156 (10th Cir. 1982) and Atkinson v. U.S., 825 F.2d

202, 206 (9th Cir. 1987)]. Certiorari should be granted.

This is the 29 day of January, 2007.

Respectfully submitted,

GREGORY D. SMITH *

331 Franklin Street, Suite |

Clarksville, Tennessee 37040

(931) 647-1299

DEBRA A. WALL

133 Franklin Strect

Clarksville, TN 37040

(931) 906-3904

* Counsel of Record Attorneys for Petitioner

APPENDIX |

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

{Filed Nov. 1, 2006]

No. 06-5001

JAMES E. BROWN, SR.,

Plaintiff-Appellant,

v.

Dr. JAMES G. ROCHE, Secretary,

Department of the U.S. Air Force,

Defendant-Appellee,

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

OPINION

Before; MOORE, ROGERS, and GIBSON,” Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Plaintiff-Ap-

pellant James E. Brown, Sr. (“Brown”) appeals the district

court’s dismissal of his claim that the Air Force National

Guard’s (the “National Guard”) failure to promote him vio-

lated the Age Discrimination in Employment Act (“ADEA”).

When a younger and allegedly less qualified applicant was

chosen over Brown for a supervisory position, Brown, a

National Guard technician, filed a discrimination charge with

the Equal Employment Opportunity Commission (“EEOC”).

* The Honorable John R. Gibson, Circuit Judge of the United States

Court of Appeals for the Eighth Circuit, sitting by designation.

2a

At the conclusion of the administrative adjudication process,

the agency determined that no discrimination had occurred,

and Brown then filed the instant suit. The district court

granted the Air Force’s motion to dismiss for lack of subject

matter jurisdiction on the ground that, became Brown’s posi-

tion was a military one, his action is barred. Brown now

appeals that ruling.

I. FACTS AND PROCEDURE

Brown was employed by the Air Force as a National Guard

technician (a “technician’”’) at Berry Field in Nashville, Ten-

nessee. Technicians are employed in “(1) the administration

and training of the National Guard; and (2) the maintenance

and repair of supplies issued to the National Guard or the

armed forces.” 32 U.S.C. § 709(a). As a technician, Brown

was required by statute to serve in both civilian and military

capacities—in, that is, a “dual status.” § 709(b).

[A] military technician (dual status) is a Federal civilian

employee who—

(A) is employed under . . . section 709(b) of title 32;

(B) is required as a condition of that employment to

maintain membership in the Selected Reserve; and

(C) is assigned to a civilian position as a technician

in the administration and training of the Selected

Reserve or in the maintenance and repair of sup-

plies or equipment issued to the Selected Reserve or

the armed forces.

10 U.S.C. § 10216.

In December 1998, the National Guard announced that it

had a vacancy for a Quality Assurance Specialist (“QAS”) at

Berry Field. Brown, who was then fifty-seven years old,

applied for the position. He was granted an interview, but the

job was eventually awarded to Clay Crabtree who was in his

mid-thirties. In September 1999, Brown filed a pro se age

3a

discrimination complaint with the National Guard Bureau.

Although administrative law judge (“ALJ”) found that the

National Guard had violated the ADEA, the agency later

reversed that determination and issued a Final Agency

Decision finding that Brown had not suffered age discrimina-

tion. Brown then filed suit in the United States District Court

for the Middle District of Tennessee which subsequently

granted the National Guard’s motion to dismiss for lack of

subject matter jurisdiction pursuant to Federal Rule of Civil.

Procedure 12(b){1). Brown now appeals that ruling.

Il. ANALYSIS

“We ... review de novo the district court’s decision to

dismiss for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1).” Howard v. Whitbeck, 382

F.3d 633, 636 (6th Cir. 2004). In this case, the district court

dismissed Brown’s claim on the ground that Feres v. United

States, 340 U.S. 135 (1950), prohibits federal courts from

adjudicating employment discrimination claims brought by

employees of the United States armed forces. The district

court reasoned that the federal courts repeated refusal to

exercise jurisdiction over discrimination claims brought under

other federal statutes indicates that the Feres doctrine applies

to ADEA claims as well

In Feres, the Supreme Court held that, because “the

relationship of military personnel to the Government has

_ [historically] been governed exclusively by federal law,” the

courts “cannot impute to Congress . . . [,] in the absence of

express congressional command,” the intent to authorize civil

suits against the government by members of the armed ser-

vices. 340 U.S. at 146; see also Major v. United States, 835

F.2d 641 (6th Cir. 1987) (applying Feres). Although Feres

and Major involved the Federal Tort Claims Act, 28 U.S.C.

§ 1346, subsequent cases have expanded the Feres doctrine to

encompass, inter alia, discrimination claims brought under

Title VII 42 U.S.C. §§ 2000¢c et seq., see Fisher v. Peters, 249

4a

F.3d 433, 437-38 (6th Cir. 2001), and claims for the violation

of constitutional rights brought under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), see Chappell v. Wallace, 462 U.S. 296, 304 (1983).

Brown argues that the Feres doctrine does not apply to his

ADEA claim because he asserts that claim in his civilian, not

his military, capacity. As the government points out, how-

ever, we have held that the National Guard technician posi-

tion is “irreducibly military” for purposes of the Feres doc-

trine. Fisher 249 F.3d at 439 (“The district court was correct

in observing that [e]very count having occasion closely to

consider the capacity of National Guard technicians has deter-

mined that capacity to be irreducibly military in nature, and

we are satisfied that Col. Leistiko’s technician job was of

this nature.”) (internal quotation marks and citation omitted;

alteration in original). We therefore conclude that the Feres

doctrine, as applied in Fisher, bars Brown’s action.

Ill. CONCLUSION

Because the Feres doctrine applies to Brown’s ADEA

claim that claim is barred. We therefore AFFIRM the district

court’s dismissal of this action.

Sa

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

[Filed Sept. 26, 2005]

Case No. 3:04-1090

Judge Trauger

JAMES E. BROWN, SR.,

Plaintiff,

V.

Dr. JAMES G. ROCHE, Secretary,

Department of the U.S. Air Force,

Defendant,

MEMORANDUM

Pending before the court is the defendant’s Motion to

Dismiss and to Strike Plaintiffs Request for Compensatory

Damages and a Jury Trial. (Docket No. 8) The plaintiff has

responded to this motion (Docket No. 12) and the defendant

has replicd (Docket No. 14). For the reasons discussed herein,

the defendant’s motion will be granted.

FACTUAL BACKGROUND AND

PROCEDURAL HISTORY

At all times relevant to his claim, the plaintiff was em-

ployed as a civilian technician in the Tennessee Air National

Guard.' Specifically, he worked as a WL-10 Inspection Dock

—_— —

' Unless otherwise stated, the facts have been drawn from the plaintiffs

Complaint (Docket No. 1) and from his Response to the defendant's Motion

to Dismiss and to Strike Plaintiffs Request for Compensatory Damages

and a Jury Trial (Docket No. 12).

6a

Supervisor, which required him to lead a crew of between

seven and thirty employees in the inspection of aircraft. As

required by the terms of his civilian employment in the

National Guard, the plaintiff also held a corresponding Na-

tional Guard military position. (See Docket No. 12, Ex. C at

18:4-8); see also 32 U.S.C. § 709 (2000) (listing requirements

for employment as a military technician). The terms of

the plaintiff's “dual-status” employment dictated that, while

performing his dutics, he had to “wear the uniform appropri-

ate for [his] grade and component of the armed forces.”

§ 709(b)(4), (see also Docket No. 9 at 3).

On January lg 1999, the plaintiff, who was then fifty-six

years old, requested a lateral transfer from his Inspection

Dock Supervisor position to a vacant GS-09 Quality Assur-

ance Specialist position. (Docket No. 12, Ex. A at 4) The

selecting official denied his transfer request. The plaintiff

then submitted an application for the position as part of the

general applicant pool. In total, ten men applied for the

position and met its minimum qualifications. The selecting

official ultimately hired Clay Crabtree, an applicant who, at

age thirty-seven, was one of only two applicants under the

age of forty.

These events led the plaintiff to file a discrimination com-

plaint with the Equal Opportunity Employment Commission.

An administrative judge held a full hearing and, on July 1,

2004, issued a decision finding that the defendant had dis-

criminated against the plaintiff on the basis of his age. The

National Guard Bureau of Tennessee reversed this decision

on September 28, 2004.

On December 8, 2004, the plaintiff filed a Complaint in

this court alleging that the defendant had discriminated against

him in violation of the Age Discrimination in Employment

Act, 29 U.S.C. § 633a (2000) (hereinafter “ADEA”). On

February 28, 2005, the defendant moved to dismiss the plain-

Ta

tiffs Complaint and to strike his request for compensatory

damages and a jury trial. (Docket No. 8)

ANALYSIS

1. Motion to Dismiss Standard

The defendant in this case has moved for dismissal based

on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

This court is bound to consider the 12(b)(1) motion first, as

the 12(b)(6) challenge becomes moot if subject matter juris-

diction is lacking. See Moir v. Greater Cleveland Reg’l

Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Bel/

v. Hood, 327 U.S. 678, 682 (1946) (finding that a motion to

dismiss for failure to state a cause of action may be decided

only after the establishment of subject matter jurisdiction be-

cause determination of the validity of the claim is itself an

exercise of jurisdiction)).

On a motion to dismiss pursuant to Rule 12(b)(1), the party

claiming subject matter jurisdiction bears the burden of

establishing it by a preponderance of the evidence. Moir, 895

F.2d at 269; Farmer v. Tenn. Air Nat'l Guard, No. 2574-D/P,

2005 WL 2177004, slip op. at *2 (W.D. Tenn. Sept. 2, 2005).

When the facts presented to the district court give rise to a

factual controversy over the existence of subject matter juris-

diction, the court must “weigh the conflicting evidence to

arrive at the factual predicate that subject matter jurisdiction

exists or does not exist.” Ohio Nat'l Life Ins. Co. v. United

States, 922 F.2d 320, 325 (6th Cir. 1990). In resolving this

controversy, the court has “wide discretion to allow affida-

vits, documents, and even a limited evidentiary hearing to

resolve disputed jurisdictional facts.” /d. With these guide-

lines in mind, the court turns to an examination of the

jurisdictional issues at hand.

2. Subject Matter Jurisdiction

The plaintiff in this case attempts to mcet his burden of

establishing this court’s subject matter jurisdiction by noting

8a

that, “while the government was able to convince the Sixth

Circuit” that federal courts do not have jurisdiction over

claims such as the one he hopes to assert here, “the vast

majority of the country holds otherwise.” (Docket No. 12 at

5) Even if the “vast majority” of the other circuits were of this

mind, which the plaintiff has not demonstrated to be the case

here, the simple fact that the Sixth Circuit has determined

otherwise necessarily determines this court’s decision.

Indeed, the Sixth Circuit has indicated a strong reiuctance

to hear claims asserted by members of the military. In Major

v United States, it noted that “review of . . . Supreme Court

precedents makes it clear that, in recent years, the Court

has embarked on a course dedicated to broadening the Feres

doctrine to encompass, at a minimum, a// injuries suffered by

military personnel that are even remotely related to the

individual’s status as a member of the military . . . .” 835 F.2d

641, 644 (6th Cir. 1987) (emphasis in original); see Feres v.

United States, 340 U.S. 135, 146 (1950) (holding that the

government “is not liable under the Federal Torts Claims Act

for injuries to servicemen where the injuries arise out of or

are in the course of activity incident to service”); see also

Stone v. Groves, No. 3:01CV-419-H, 2001 WL 1772119, at

*4 (W.D. Ky. Dec. 21, 2001) (unpublished) (noting that “a

long line of Supreme Court and Sixth Circuit precedent

articulates the doctrine” that certain claims by members of the

military “are nonjusticiable in federal district court”).

Since its decision in Major, the Sixth Circuit has repeatedly

determined that federal courts lack jurisdiction to enforce

various employment discrimination statutes when such stat-

utes serve as the basis of a claim asserted by a member of the

military. See, e.g., Fisher v. Peters, 249 F.3d 433, 443-44 (6th

Cir. 2001) (lacking jurisdiction to hear a Title VII claim);

Leistiko v. Stone, 134 F.3d 817, 820-21 (6th Cir. 1998) (lack-

ing jurisdiction to hear a claim under the Rehabilitation Act);

Bradley v. Stump, No. 97-1472, 1998 WL 385903, at *3 (6th

9a

Cir. July 1, 1998) (unpublished) (lacking jurisdiction to hear a

§ 1983 claim, among others).

Notably, these decisions all involved claims brought by

a plaintiff who, like the plaintiff in this case, served as a

National Guard technician. Each of the plaintiffs in these

cases attempted to argue, as does the plaintiff here, that as a

military technician, rather than a full-time member of the

armed forces, she or he was entitled to bring her claim in the

federal courts. In each case, however, the Sixth Circuit held

that such access was not available to military technicians

because, despite the civilian components of the job descrip-

tion,” such positions were “irreducibly military” in nature.

Fisher, 249 F.3d at 439; Leistiko, 922 F.3d at 820-21;

Bradley, 1998 WL 385903, at *3. As such, the technicians

were precluded from bringing their suits in civilian courts.

Fisher, 249 F.3d at 443-44 (directing the plaintiff to military

channels); Leistiko, 922 F.3d at 820-21; Bradley, 1998 WL

385903, at *3.

Although neither of the parties in this case raises this point,

it is worth noting that the Sixth Circuit has never specifically

addressed the efforts of a military technician to bring an

ADEA claim such as the one the plaintiff asserts here. That

court’s rejection of previous technicians’ claims under other

employment discrimination statutes, however, compels this

court to make a similar decision here. For the reasons that

follow, we find particularly persuasive the Sixth Circuit’s

rejection of the plaintiff's Title VII claims in Fisher. See

Fisher, 249 F.3d at 443.

* The military technician position involves service both as a federal

civilian employce and as a member of the National Guard. See 10 U.S.C.

§ 10216(a) (2000) (“a military technician . .. is a [flederal civilian

employce who . . . is assigned to a civilian position as a technician . . .”);

32 U.S.C. § 709(a)-(b)(4) (2000) (“a person employed under [this] sub-

section must . . . [bJe a member of the National Guard . . . [and] wear the

uniform appropriate for the member’s grade and component of the armed

forces”’).

10a

Title VII and the ADEA contain nearly identical language

governing employment discrimination by the military. Both

statutes prohibit discrimination in “all personnel actions af-

fecting employees or applicants for employment . . . in

military departments as defined in section 102 of Title 5

.... 42 U.S.C. § 2000e-16(a) (2000); 29 U.S.C. § 633a(a).

A number of circuit courts have found that this duplication of

statutory language indicates that, like Title VII causes of

action, ADEA claims cannot be raised in federal courts by

members of the military reserves. See Kawitt v. United States,

842 F.2d 951, 953 (7th Cir. 1988) (“We agree with the Ninth

Circuit that [ADEA § 633a(a)] was not meant to extend the

protections of the statute to the uniformed personnel, whether

active or reserve, of the armed forces.”); Helm v. California,

722 F.2d 507, 509 (9th Cir. 1983) (“Title VII uses language

identical to that in the ADEA to bar discrimination . . . . This

court has applied Title VII precedent to ADEA cases... .

The ADEA does not apply to military reservists.”’); see also

Quinonez-Cruz v. Diaz-Colon, No. 97-1677, 1997 WL

704423, at *2 (1st Cir. Nov. 4, 1997) (unpublished) (pro-

viding a compendium of cases in which various courts found

that the ADEA did not apply to members of the National

Guard).

In addition, the Sixth Circuit has enunciated that “claims of

discrimination brought pursuant to Title VII... and the

ADEA .. . are analyzed under the same framework.”

Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th

Cir. 2002). The fact that the Sixth Circuit has determined that

military technicians may not bring their Title VII claims in

federal court, see Fisher, 249 F.3d at 443-44, coupled with

the identical language of Title VII and the ADEA, as well as

other circuits’ determinations that claims under both statutes

were similarly inaccessible to members of the military, con-

vince this court that military technicians may not bring

ADEA claims tn the federal courts within the Sixth Circuit.

lla

Accordingly, because the plaintiff's cause of action here

arises from his service as a military technician in the Air

National Guard, he may not seek relief in this court. As such,

this court need not reach any of the parties’ remaining claims,

but instead must dismiss the plaintiff's case for lack of juris-

diction.

CONCLUSION

The plaintiff has failed to establish this court’s subject

matter jurisdiction over his claim of age discrimination by the

Air National Guard. Thus, the defendant’s motion to dismiss

plaintiff's claim will be granted.

An appropriate order will enter.

/s/ Aleta A. Trauger

ALETA A. TRAUGER

United States District Judge

12a

APPENDIX C

AMENDED STATEMENT OF

FINDINGS AND CONCLUSIONS

IN THE DISCRIMINATION COMPLAINT

OF: James E. Brown v. Dr. James G. Roche,

Secretary of the Air Force and The Tennessee National Guard

EEOC No. 250-2000-008413X

AGENCY Ne. T-0449-TN-F-02-99-A0

COMPLAINANT: James E. Brown

94 Paradise Drive

Mt Juliet, TN 37122

COMPLAINANT’S Debra A. Wall, Esq.

REPRESENTATIVE: 110 Franklin St., Suite 101

Clarksville, VA 30740

AGENCY: Department of Defense

Tennessee National Guard

AGENCY’S Maj. Brett Rypma, Esq.

REPRESENTATIVE: Office of the State Judge

Advocate

Houston Barracks

3041 Sideo Drive

Nashville, TN 37204

COMPLAINT: Age Discrimination

ADMINISTRATIVE Zia C. Schostal

JUDGE: Administrative Judge

Equal Employment

Opportunity Commission

140-7 Union Avenue,

Suite 621

Memphis, TN 38104

DATE OF HEARING: June 29-July 1, 2004

PLACE OF HEARING: Nashville, TN

DATE DECISION ISSUED: | July 1, 2004

13a

I. INTRODUCTION

James E. Brown, the Complainant, filed the present complaint

pursuant to 29 CFR §1614.106, alleging that because of his

age (57), the Tennessee National Guard had failed to promote

him to Quality Assurance Specialist on or about January 4,

1999, in violation of the Age Discrimination in Employment

Act.

The following witnesses appeared at the hearing and gave

testimony under oath:

For the Complainant: James E. Brown

Larry Burns

James Horn

Robert Ragin

For the Agency: CMS Douglas Lester

MSG William Nagey

MAJ William R. Wynn

Thomas Gober

Each side had requested additional witnesses to testify to the

relative qualifications of the Complainant and the Selectec.

Witnesses were limited for the reasons set forth in the sched-

uling order. The Agency had requested CPT Holly Payne to

testify to the sclection method. However, she was deployed

prior to the hearing. The Complainant objected, and it was

determined that if CPT Payne’s testimony were deemed es-

sential at the end of the hearing, alternative means would be

found to secure it. Col. Marvin Riddle, who had been ap-

proved as an Agency witness, had retired and was unavailable

to testify,

PROCEDURAL HISTORY

The following is a chronology of the events leading to the

hearing. The alleged discriminatory act occurred on or about

January 4, 1999, the date the selection of an applicant other

than the Complainant occurred. On February 18, 1999, the

14a

Complainant sought precomplaint counseling. Counseling

was concluded on July 20, 1999. On July 27, 1999, the Com-

plainant filed a formal complaint of discrimination, alleging

discrimination based on age (57) and retaliation. The Com-

plainant withdrew his allegation of retaliation after it was

found that he had not engaged in activity protected activity

prior to filing his complaint.

The complaint was accepted for processing by the Agency on

August 27, 1999, and subsequently was investigated. On July

18, 2000, the Complainant requested an evidentiary hearing

before the Equal Employment Opportunity Commission. Pur-

suant to this request, the Agency transmitted the complaint

file which was received at the Memphis District Office on

August 15, 2000.

During the preheating proceedings, rulings on three substan-

tive motions were made. An Agency motion to dismiss due to

election of remedies was denied, An Agency motion for a

Decision Without a Hearing was denied, and an Agency

motion to dismiss for lack of jurisdiction because the EEOC

does riot have jurisdiction under the National Guard Techni-

cian’s Act was denied.

lif. ISSUE(S) CONSIDERED

Prior to the prehearing conference, the Complainant withdrew

the retaliation basis. The issue determined for hearing is:

Was the Complainant discriminated against on the basis

of his age when he was not selected for the position of

Quality Assurance Specialist, GS-09, on January 4,

1999.

IV. FINDINGS OF FACT

On December 11, 1998, the Agency posted a Vacancy An-

nouncement (266-98) advertising for applicants for a Quality

Assurance Specialist, GS-1910-09 (IR Tab 5). On December

10, 1998, the selectee, Clay Crabtree, age 37 (DOB March

lSa

28, 1961), who was the TODO Coordinator in Quality Assur-

ance, requested a priority placement for the position based On

the abolition of his prior job as an Aircraft Engine Mechanic,

WO-8062-10 which had been abolished due to a reduction in

force (IR Tab 7). On January |, 1999, the Complainant (DOB

March 29, 1942) requested a lateral transfer from his WL-10

Work Leader position in the ISO inspection dock (IR Tab 8),

Crabtree’s request was denied by the Agency Human Re-

sources Office after it found that the Quality Assurance

position was a higher level position than the one from which

he had been riffed (IR Tab 7). The Complainant’s transfer

request was denied when the RMO, Robert Lester, returned

the certificate stating that he wanted to consider additional

names (IR Tab 9). On or about January 6, 1999, the Agency

issued a list of all applicants who had applied in a timely

manner and had met the minimum qualifications for the posi-

tion. (IR Tab 6.) Both the Complainant and Crabtree were

considered with eight other applicants pursuant to the vacancy

announcement in question. The applicants were not rated or

ranked but were listed in alphabetical order. (IR Tab 9.)

The applicants for consideration were:

Date of Birth Age

Albritton, | Aircraft Mechanic, Jan. 13, 1968 31

James WG-5378-10

Brown, Aircraft Work Leader, | Mar. 29, 1942 57

James WL-8852-10

Buck, Aircraft Mechanic, Jun. 7, 1951 47

Jack WG-8852-10

Crabtree, | TODO Coordinator, Mar. 28, 1961 38

Clay GS-0303-06

Goostree, | Propulsion Mechanic, | May 6, 1955 43

Jimmy G. | WG-8602-10

Horn, Aircraft Mechanic, Nov. 9, 1952 46

James H. | WG-8852-12

l6a

Jeannette, | Aircraft Pneu. Sys. Aug. 8, 1956 42

Tony L. Mech., WG-8268-10

Nickell, Aircraft Mechanic, Apr. 5, 1943 55

James E. | WG-8852-12

Shaw, Aircraft Mechanic, Mar, 3, 1942 57

Leonard | WG-8852-10

R., Jr.

Whit, Aircraft Mechanic, Nov. 2, 1949 49

Marcus WG-8852-10

L

(IR Tabs

9 and 12.)

Robert Lester, the Quality Assurance Chief, was the selecting

official for the position. Mr. Lester interviewed each appli-

cant and used the same questions for each interviewee. A

witness was present at each interview to assure the consis-

tency of the questions asked during the interview. Age was

not mentioned during any of the interviews. At the end of

the selection process, he indicated that he had sclected Clay

Crabtree to fill the vacant Quality Assurance Specialist

position. Mr. Lester stated that the selectee worked for him

and that he knew that the Selectee had good communication

skills, got along with the other inspectors and knew the

computer and paperwork aspects of the job. He said that

he sclected the best qualified person regardless of age and

denied that he considered age when he made his selection.

V. DISCUSSION OF THE EVIDENCE AND LAW

The positions occupied by the Complainant and the Selectee

and the position which they both sought were National Guard

Technician positions and subject to the jurisdiction of the

EEOC so long as the parties were acting in their capacities of

technicians. Major Wynns, who was responsible for staffing

the position, testified at the hearing that he was staffing a

civilian position and that the AFSC (military) requirements

17a

were on the vacancy announcement simply to indicate skill

level and experience for the position (“compatibility”).

The burden of proof in an age discrimination case rests at all

times with the Complainant. In the absence of direct proof of

discrimination, the U.S. Supreme Court has devised a con-

struct of shifting burdens of proof by which discrimination

may be proved without direct evidence. Initially, the Com-

plainant must offer cnough evidence to establish a prima facie

case of unlawful discrimination. If the Complainant does so,

the burden of production of evidence fails to the Agency to

articulate a “legitimate, nondiscriminatory reason” for the

alleged discriminatory act. The reason proffered by the

Agency must be sufficiently specific to allow the Complain-

ant to produce evidence to rebut it, if the Agency meets its

articulation burden, the Complainant must then be afforded

the opportunity to establish, by the preponderance of the

evidence, that the articulated reason is a pretext for unlawful

discrimination. See: McDonnell Douglas v. Green, 411 U S.

792 (1973); Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, S. Ct. 10S9 (1981); United States

Postal Service Board of Governors v. Aikens, 460 U S. 711

(1983); St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742

(1983), In an Age Discrimination in Employment Act case, a

complainant must show by a preponderance of the evidence

that but for the discrimination, he would have been selected

but for his age.’

The complainant in a promotion case may establish a prima

facie case by showing that: (1) (s)he is a member of a class

which is protected by one of the statutes administered by the

EEOC; (2) (s)he applied for a position for which the agency

vas seeking applicants; (3) (s)he was qualified for the posi-

tion; (4) (s)he was not selected; and (4) someone outside of

' Age had “a role in the process and a determinative influence on the

outcome.” //azen at 610.

18a

the complainant’s protected group was selected for the posi-

tion. Weinstein v US. Postal Service, 01830674, 1056/f114

(1983).

At the time that the cause of action arose, the Quality Assur-

ance section had three inspector positions: one specializing in

propulsion, one specializing in avionics and ore specializing

in general airplane maintenance (IR Tab 13). Robert Lester,

the Quality Assurance supervisor and selecting official (RMO),

stated that although each Quality Assurance Specialist spe-

cialized to an extent, each had to be utilized in all areas. On

or about December 11, 1998, the Agency posted a vacancy

announcement 0266-98) soliciting applicants for a Quality

Assurance Specialist, GS 1910-09. The position was for

general aircraft maintenance. The duties and responsibilities

of the position included: (1) performing management and

compliance reviews over a wide range of specializations

within the maintenance complex; (2) conducts quality verifi-

cation inspections (QVI) of aircraft and engines to assure

quality and acceptability standards have been met; (3) pro-

vides technical guidance, expertise, interpretation and au-

thoritative reference on methods, techniques and procedures;

(4) develops methods for cost reduction programs; (5) devel-

ops methods for maximum mission effectiveness; (6) evalu-

ates highly complex support equipment for failures affecting

mission accomplishment; (7) reviews and evaluates quality

control performance by analyzing inspection reports for area

of coverage, adequacy of comments, and recommendations of

the quality control inspections, (8) investigates failure trends

attributable to design or quality of workmanship of aircraft

airframes and components and systems; (9) provides inspec-

tion /surveillance support to assure quality and reliability of

material, facilities, services and maintenance provided by

contractor facilities, depots, SRAs, contract field teams and

contract maintenance; (10) monitors system publication im-

provement and material deficiency reporting programs to

include responsibilities outlined in appropriate directives;

19a

(11) administers the functional check flight (FCF) program;

and (12) conducts the weight and balance program. (IR Ex

#5.)

Relevant skills, knowledge and abilities included: (1) knowl-

edge of quality assurance procedures and methods and perti-

nent regulatory and guidance material related to the

functional activity supported by the quality assurance pro-

gram; (2) knowledge of pertinent characteristics of the

assigned aircraft, the operations or processes affecting critical

characteristics test arid inspection techniques, the techniques

for assessing operations or processes to detect unsatisfactory

conditions; (3) skill in summarizing, analyzing and evaluating

quality data to prepare technical reports; (5) skill in inter-

preting and explaining a variety of technical requirements.

(IR Ex #5.) Both the Complainant and the Sclectce were

found to meet the minimum qualifications for the position

and were forwarded to the Sclecting Official for evaluation.

Evidence of record shows that the Complainant was born

March 29, 1942, making him almost 57 years-of age at the

time of the selection in question. Therefore, he was a member

of a group which fell within the protection of the Age Dis-

crimination Act of 1975 (ADEA). He applied for a position as

a Quality Assurance Specialist, GS-09, in response to an

Agency vacancy announcement. He was found qualified for

the position but was not selected. Instead, Clay Crabtree,

whose date of birth was March 28, 1961, and who was under

the age of 40 at the time of the selection, was selected to fill

the position, The Complainant has proven a prima fade case

.of age discrimination which is sufficient to raise an inference

of discrimination and to shift the burden of articulating a

legitimate nondiscriminatory reason for the selection to the

Agency.’

? Once the Complainant has established a prima facie case, the burden

shifts to the Agency to articulate a legitimate nondiscriminatory reason for

20a

In response to the Complainant’s allegation of age dis-

crimination, the Agency has shown that all minimally quali-

fied applicants’ names and promotion packages were sent to

the selecting official without having been ranked leaving the

selecting official free to choose anyone on the list. The

Agency has the freedom to select any applicant which it

wishes so long as the selection does not result from illicit

discrimination. The selecting official, Robert Lester, testified

that he interviewed everyone on the list using the same inter-

view questions for each applicant. He stated that he made his

sclection based on the individuals experience, interview

results and what he knew about the applicants by virtue of

having worked with them. He told the Agency EEO Coun-

selor that the reason he selected Crabtree was because “I

thought he was the best all around person for thin position.

I knew that he does good work. He has worked for me for the

past couple years and he is the best all around person for this

position. One of his strong points is his communication skills

.. . you have to have good communications skills for this

position, and of course the aircraft experience.” (IR Tab CC)

During the investigation, Lester was asked why he would

select someone who needed additional training rather than

someone who did not Lester stated that he felt that the

maintenance experience that the selectee had was what they

needed in Quality Assurance. He then went on to reitcrate,

Having worked for me, I knew of his skills in writing

and communicating with .people. He worked well with

the. current inspectors that were already assigned there.

He knew the inspection system, the entire paperwork

system. Having been the gentleman (who) had come up

and set up the new tech order distribution system for the

entire base, he had a very broad knowledge of that. I just

its action. Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248

(1981).

2la

felt like all around qualifications, he was the most quali-

fied for the job.

Mr. Lester’s testimony at the hearing was consistent with his

earlier statements. He testified that after interviewing all of

the candidates, he reviewed his notes and reviewed the appli-

cation packages. He testified that he selected Crabtree based

on his oral and written communication skills, computer liter-

acy and attention to detail. He stated that basically a quality

assurance inspector must be able to read and interpret techni-

cal material and watch and make sure that people were doing

the job correctly. He said that there was no requirement for

APG (airplane general) training before becoming an inspec-

tor. He testified that everyone on the list would have nceded

additional training.

Based on the above evidence, the Agency has met its burden

of articulating a legitimate nondiscriminatory reason for its

sclection. The Complainant must then meet the burden of

showing by the preponderance of the evidence, that the

articulated reason is a pretext for unlawful discrimination..

See: McDonnell Douglas v. Green, 411 U.S. 792 (1973);

Texas Department of Community Affairs v. Burdine, 450 U.S.

248, S. Ct. 1089 (1981); United States Postal Service Board

of Governors v. Aikens, 460 U.S. 711 (1983); St, Mary’s

Honor Center v. Hick, 113 S. Ct. 2742 (1983). This merges

with the Complainant’s burden of showing, by a preponder-

ance of the evidence, that but for his age, he would have been

selected for the position, i.e., that considerations of age made

a difference in the agency’s action. Hazen Paper Company v.

Biggins, 507 U.S. 604 (1993).

The Complainant’s evidence of pretext falls into three catego-

ries: relative qualifications for the job, statements by others

regarding age discrimination allegedly practiced by the RMO,

and lack of credibility of the seasons given by the RMO.

22a

First, the Complainant maintains that his qualifications are

substantially better than that of the selectee. He specifically

states that he had 33 years of experience in aircraft mainte-

nance and repair (APG) and held the highest skill rating to be

had. At the tune of the selection he had attained the AFSC

certification necessary to perform the job and had an even

higher AFSC than required for the Quality Assurance job. In

other Words, his experience was totally compatible with the

demands of the job. Evidence of record and testimony at the

hearing confirmed that the selectee did not hold even the most

basic AFSC level in general aircraft maintenance and would

have had to be trained in general aircraft maintenance after

obtaining the position. The Selectee did possess a high degree

of specialization in the propulsion area of the plane.

However, the Quality Assurance Specialist position to be

filled was that of a general airplane (APG) inspector, Further,

the Complainant stated that he had a second area of expertise

was in pneumohydraulics In addition to his years of experi-

ence as a general airplane mechanic, the Complainant had

several years of experience as a Work Leader in the APG area

with his own inspection bay. Further, the Complainant

testified and his application noted prior experienc : as an air-

plane parts inspector in the private sector. Part of his job as a

Work Leader (crew chief) entailed receiving, reading, inter-

preting and seeing that technical orders which governed

aircraft repairs were carried out Jn addition, he was responsi-

ble for the correct maintenance of the technical orders per-

taining to general airplane maintenance. In other words, in

addition to making sure that the technical orders were prop-

erly maintained, the Complainant was tasked with under-

standing and applying the orders.

The Complainant testified that when inspections are con-

ducted by quality assurance inspectors who are not familiar

with aircraft maintenance and repair, crroncous reports are

gencrated. The Complainant also stated that after the selec-

tion, he had to show the sclectee what to do and what to look

23a

for. The Complainant also cited examples regarding the

Selectce’s lack of knowledge about the aircraft. He claimed

that the selectee mistook a life raft bucket for a fuel tank. He

also noted that the Selectee did not know what push-pull rods

were or that the rods had to he adjusted and queried how the

Selectee could inspect them when he did not even know what

they were.

According to Lester, he knew that the Selectee was not fully

qualified for the position in that he had not obtained the

necessary military training (Airplane General AFSC) and that

the Sclectee had been placed on the referral certificate be-

cause he could become qualified after completing the military

training. Mr. Lester testified that several other applicants on

the “register, who were not selected, did have the AFSC

certification. Other witnesses testified that promotions are

often made although the selectee does not have the AFSC

necessary to fully perform the duties of the position. Training

takes place after the selectee is in place. However, that docs

not provide exculpation for tailing to select an applicant with

more compatible work experience than that of the Selectec.

Lester stated that he was familiar with the selectee’s work and

knew him to be a good worker. However, he also knew that

the Complainant was a good worker who had received

outstanding evaluations through the last three evaluation

cycles (IR Tab AA), Such a reason is riot discriminatory in

itself He stated that the Selectee got along with the other

inspectors. Evidence showed that the Complainant also was

well liked and respected by Ws pecrs and superiors. Lester

cited the Sclectee’s experience as the Technical Order Duty

Officer (TORO) in the Quality Assurance section. However,

the testimony and the Selectee’s application package shows

that he was tasked with receiving technical orders, assuring

that the correct number of pages had been received, dis-

seminating them to the appropriate persons and then follow-

ing up with an inspection to assure that they had been

24a

properly filed. As much as it was implied that the TODO, by

virtue of its location in the Quality Assurance Office was an

inspection position, the Performance Appraisal Forms (IR

Tab BE) show that it was a clerical position and the only

“inspections” were of the technical order notebooks to assure

that the crew chiefs were filing them properly. No real know-

ledge of aircraft inspections were gained in that position. His

knowledge of Quality Assurance paperwork and forms may

have exceeded that of the Complainant, but his knowledge of

aircraft inspection, the real work of the position, certainly did

not. The Complainant’s Performance Appraisal Forms and

Critical Elements show that he performed inspections as a

regular part of his job and that those inspections both discev-

ered maintenance problems and assured that the work had

been done properly. In addition, the Complainant oversaw his

own inspection bay, and interpreted, comprehended and im-

plemented the technical orders.

Mr. Lester cited the Selectee’s ability to communicate as a

factor in the selection. However, the Selectee’s application

package does not show a greater ability to communicate in

writing than does that of the Complainant, As far as oral

communication is concerned, I was impressed with not only

the Complainant but with the ability of all of the witnesses

Dom the maintenance area to communicate clearly and credi-

bly. Indeed, all of the witnesses who testified were articulate

and. impressive, particularly in the area of the knowledge of

their jobs. As to Mr. Lester’s assertion that the Complainant

had mere knowledge of the forms and more computer liter-

acy, anyone new to the Quality Assurance Section would

have to be trained M this area. Mr. Nagey, Training Manager

for the Basc, testified that it would take about 18 months to

train a person without Quality Assurance experience to do the

job while it would take three years for someone who had not

worked in aircraft general maintenance to do the job. In

addition, Mr. Ragin, the Training Manager for the Aircraft

Maintenance area stated that it would take more than three

25a

years to complete the required maintenance skill level be-

cause someone in quality assurance would not be performing

the tasks on a daily basis. Further, this training would take an

individual away from his quality inspection duties while he

learned the maintenance functions. The evidence of record

leaves no doubt that the Complainant was substantially better

qualified to perform the duties of a Quality Assurance Inspec-

tor than was the Selectee.

Secondly, the Agency Representative emphasized that the

Complainant had not been able to show a causal connection

between the nonseleetion and his age. He specifically men-

tioned a lack of evidence of other charges or accusations of

discrimination against the RMO, While I do riot give much

weight to such evidence, I mention it at this point because it

seemed to be important to him. Evidence of record shows that

a charge of discrimination based on age had been made

against the RMO by Van Maxwell (Maxeell) (IR Tab 12). In

addition, in response to questions by the EEO Counselor in

this case, statements taken from James Albritton, Larry

Barns, and James Horn indicated that they all felt that

discrimination had been present in selections made. AU cited

age discrimination, and some added other bases. Albritton,

Burns, Goostree, Horn, Nagey, and Whitt cited the disparities

in experience between the Complainant and the Selectec. (IR

Tab E.)

Lastly, Mr. Lester is simply not credible when he maintains

that he selected the best all around qualified person for the

job. He must have known what is evident to the persons who

gave their statements and testimony. The Selectee would take

longer to train than the Complainant. The Complainant could

have been trained while actually accomplishing the mission

of the Quality Assurance Section while training the Selectee

would remove him from his QA duties. The Complainant had

the respect and good will of the crew chiefs and mechanics

while the Selectee would have a difficult time gaining the

26a

respect of the maintenance crews so long as his technical

knowledge and skills were less than theirs. His selection

based on knowledge of the paperwork above knowledge of

aircraft maintenance and repairs as more important qualifica-

tions is not in conformity with the mission of assuring that the

Base’s Aircraft fly properly and safely and can only be seen

as specious. Indeed, the Union was so concerned about the

selection that it filed a safety grievance protesting the selec-

tion of Mr. Crabtree.

The Complainant, despite his superior qualifications, was al-

most 57 years old at the time of the selection. Three of the ten

qualified applicants wore in an age band over 55 years of age.

The Complainant was less than 40 years old at the time of the

selection. The Complainant testified that he would have been

forced ;0 retire in three years, at age 60, under the regulations

of the National Guard. The Selectee, at age 58, potentially

would have had a much longer tenure in Quality Assurance.

The experience differences between the Selectee and the

Complainant are not merely a matter of longevity but a matter

of highly technical skills which must be acquired over time

In addition, the evidence shows that there was a wide varia-

tion in the ages of the applicants for the position. Three of the

applicants were born in 1942-1943. All had a great deal of

experience in the General Aircraft Mechanics area. None of

them were selected. Three were born in 1949-1952. All of

them bad substantial experience as General Aircraft Mechan-

ics. None of them were selected. Two of the applicants were

born 1955-1956. Neither of them had General Aircraft experi-

ence, and neither was selected. One of them had experience

as a Propulsion Mechanic, the same area of mechanical ex-

pertise as the Selectee. The six oldest persons on the selection

register had the most directly related experience and were by-

passed in order to promote the Selectee.

The Complaint has carried the burden of showing that the

Agency’s articulated legitimate nondiscriminatory reason for

27a

its action is a pretext for discrimination, and has carried his

burden of proof of showing by a. preponderance of the evi-

dence that his age was the determinative factor in the decision

not to select him.

VI. CONCLUSIONS OF LAW

On the basis of the foregoing Findings of Fact and Dis-

cussion, I find that the Complainant, James E. Brown, was

discriminated against on the basis of his age in violation of

the Age Discrimination in Employment Act of 1975.

VII. REMEDIES

The Agency shall restore the Complainant to the position he

would have enjoyed had the discrimination not occurred. The

Agency shall pay the Complainant the difference between

what he would have earned (including pay for any overtime

worked by the Selectec) had he been promoted to the Quality

Assurance Specialist position at the time the Selectee was

promoted until the day of the Complainant’s retirement and

what the Complainant actually earned during that period

excluding any lump sum payments which resulted from his

~ retirement.

VIII. NOTICE

This is a decision by an Equal Employment Opportunity

Commission Administrative Judge issued pursuant to C.F.R.

§1614.109(b), 109(g) or 109(1). EEOC regulations require

the Agency to take final action on the complaint by issuing a

final order within 40 calendar days of reccipt of the hearing

file and this decision. The Agency’s final order shall notify

the complainant whether or not the Agency will fully imple-

ment this decision, and shall contain notice of the com-

plainant’s right to appeal to the Commission., the right to file

a civil action in federal district court, the name of the proper

defendant in any such lawsuit and the applicable time limits

for such appeal or lawsuit. With the exception detailed in the

28a

next paragraph, complainant may not file an appeal to the

Commission directly from this decision. Rather, complainant

may appeal to the Commission within 30 calendar days of

receipt of the Agency’s final order concerning its imple-

mentation of this decision If the final order does not fully

implement this decision, the Agency must also simultane-

ously file an appeal to the Commission in accordance with 29

C F R §1614.403, and append a copy of the appeal to the final

order. A copy of EEOC Form 573 must be attached to the

final order.

The Complainant may only appeal directly from this decision

in the event that the Agency has not issued its final order

within 40 calendar days of its receipt of the hearing file. In

this event, the complainant should append a copy of the

Administrative Judge’s decision to the appeal. The complain-

ant should furnish a copy of the appeal to the opposing party

at the same time it is Iliad with the Commission, and should

certify to the Commission the date and method by which such

service was made on the opposing party.

All appeals to the Commission must be filed by mail, per-

sonal delivery or facsimile to the following address:

Director

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 19848, Washington, D.C. 20036

Fax No. (202)6634022

Facsimile transmissions over 10 pages will not be accepted.

For further guidance regarding appeals, the partics may con-

sult 29 C.F.R. §1614.401 ct seq. and Chapter 10 of the

Commission’s Management Directive-110. These documents

are available on the EEOC’s web site at http://www.ccoc.gov

29a

COMPLIANCE WITH AN AGENCY FINAL ACTION

Pursuant to 29 C.F.R. §1614.504, an Agency’s final action

that has not becn the subject of an appeal to the Commission

or civil action is binding on the Agency. If the complainant

believes that the Agency has failed to comply with the turns

of its final action, the complainant shall notify the Agency’s

EEO Director, in writing, of the alleged noncompliance

within 30 calendar days of when the complainant knew or

should have known of -the alleged noncompliance. The

Agency shall resolve the matter and respond to the com-

plainant in writing. If the complainant is not satisfied with the

Agency’s attempt to resolve the matter, the complainant may

appeal to the Commission for a determination of whether the

Agency has complied with the terms of its final action. The

complainant may file such an appeal within 30 calendar days

of receipt of the Agency’s determination or, in the event that

the Agency fails to respond, at least 35 calendar days after

complainant has served the Agency with the allegations of

noncompliance. A copy of the appeal must be served on the

Agency, and the Agency may submit a response to the

Commission within 30 calendar days of receiving the notice

of appeal.

Issued: July 2004

Amended: August 10, 2004

BY: Zia C. Schostal

Zia C. Schostal

Administrative Judge

Memphis District Office

30a

APPENDIX D

Equal Employment Opportunity Commission

Memphis District Office

1407 Union Avenue, Suite 621

Memphis, TN 38104

Tele. (901) 544-0073 or 544-0116

FAX. (901) 544-0111

James E. Brown, EEOC No.: 250-2000-08413X

Complainant, | 4 sency No.: T-0449-TN-F02-99-A0

by Zia C. Schostal,

Donald Rumsfeld, Supervisory Administrative Judge

Secretary, Depart-

ment of Defense,

Agency. Order and Notice

Under consideration is the Agency’s Motion To Dismiss

for Lack of Subject Matter Jurisdiction, filed on or about May

21, 2004. The Agency contends that the EEOC lacks subject

matter jurisdiction over the case because it involves the pro-

motion of a National Guard Technician whose job duties are

primarily military in nature (aircraft repair).

I have conducted exhaustive research in this matter and

conclude that the subject of this case is a civilian promotion

and is, therefore, within the subject matter jurisdiction of the

Commission. The Commission does not accept the view that

civilian technicians of the National Guard are always within

the purview of the Military EEO process. Instead, the Com-

mission takes the position that when the alleged discrimina-

tion arises from their capacity as federal civilian employees,

the matter is covered by Title VII. There is no doubt that

when the civilian employment, be it retention or promotion, is

contingent on military retention or promotion, the matter is

3la

not within the purview of Title VII.’ In such cases, where

military rank or retention, whether arbitrary or not, causes

adverse actions to occur on the civilian side of the job, the

matter is not reviewable outside of the military. See: Brazill

v. National Guard. Bureau, Appeal No. 01891698 (1989);

Berger v. National Guard Bureau, Appeal No. 01A33270

(2003).

However, the case before us is not one where the military

action has caused civilian actions to be taken. The Complain-

ant appears to have the necessary military rank and training to

sustain the civilian sclection. The evidence does not indicate

that military considerations entered the selection process. The

selection was for a General Schedule (civilian) position which

was advertised pursuant to OPM guidelines for civilian selec-

tions. The fact that the job was one of inspecting military

aircraft is not sufficient to remove it from the civilian selec-

tion process. Had it fallen within the purview of the military,

it would not have been advertised or been a general schedule

job but rather would have had a military pay code and rank

attached to it.

Clearly, this was a civilian selection within the military

context and as such, is within the purview of Title VII of the

Civil Rights Act, as amended. Therefore, the Agency’s re-

quest for dismissal of the case for lack of subject matter

jurisdiction is hereby DENIED.

' In State of Tennessee, et al. v. Dunlap, 426 U.S. 312 (1976), the

employment of a National Guard Technician was ended as a result of his

separation from the Guard. The Court held that when such a situation ex-

ists, that part of 32 U.S.C.A. §709 which requires that civilian technicians

be separated ‘Tor cause”, has no application and cannot provide a founda-

tion for a claim that the termination of the Technician’s employment and

the allegedly arbitrary refusal to re-enlist him violated due process.

32a

The hearing will proceed as scheduled at a place to be

determined.

IT IS SO ORDERED.

Dated: June 10, 2004

By: Zia C. Schosta

Zia C. Schostal

Administrative Judge

Certificate of Mailing

I certify that the foregoing “Notice and Order” was mailed

to the following persons on June 10, 2004.

James E. Brown, Sr.

94 Paradise Drive

Mt. Juliet, TN 37122

Major Brett Rypma, Esq.

Office of the Adjutant General of Tennessee

Departments of the Army and the Air Force

Houston Barracks, P.O. Box 41502

Nashville, TN 37204-1502

Debra A. Wall, Esq.

110 Franklin St., Suite 101

Clarksville, TN 30704

/s/_ Priscilla Anderson

Priscilla Anderson

Legal Technician