Petition for Writ of Certiorari — Zuress v. Donley

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Supreme Court, U.S.

FILED

No.0. 107374 SEP 16 2000

: —_ “OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

LISA M. ZURESS,

Petitioner,

MICHAEL B. DONLEY, ACTING SECRETARY, UNITED STATES

DEPARTMENT OF THE AIR FORCE

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

John A. Conley Thomas C. Goldstein

LAW OFFICE OF JOHN A. Counsel of Record

CONLEY, P.C. Kevin R. Amer

4647 N. 32nd Street Tejinder Singh

Suite 170 AKIN GUMP STRAUSS

Phoenix, AZ 85018 HAUER & FELD LLP

Pamela S. Karlan ers New Hampenire

ce venue, N.W.

Jeffrey 1.. Fisher Washington, DC 20036

STANFORD LAW SCHOOL (202) 887-4000

SUPREME COURT

teoldstein@akingump.com

LITIGATION CLINIC 5 & :

559 Nathan Abbott Amy Howe

Way Kevin K. Russell

Stanford, CA 94305 HOWE & RUSSELL, P.C.

7272 Wisconsin Ave.

Suite 300

Bethesda, MD 20814

coeaneas sores 260 ee

Wit SON-EPFS PRINTING CO , INC — (202) 789-0096 — WASHINGTON, D C 20002

QUESTION PRESENTED

In what circumstances are dual-status

technicians, who perform civilian” roles” within

military departments, protected by federal statutes

prohibiting employment discrimination?

TABLE OF CONTENTS

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PETITION FOR A WRIT OF CERTIORART.............. l

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JURISDICTION........ cea mebiteniaahtakassieenss Maacenthanesrese? l

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REASONS FOR GRANTING THE WRIT................ 14

.. THE COURTS OF APPEALS ARE DIVIDED

OVER THE CIRCUMSTANCES IN WHICH

THE UNITED STATES HAS MADE ITSELF

AMENABLE TO SUIT BY EMPLOYEES OF

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Il. CERTIORARI IS WARRANTED BECAUSE

THE RULING BELOW DISREGARDS THE

PLAIN STATUTORY TEXT AND

CONFLICTS WITH THIS COURT'S

PRECEDENTS ..... Pe aoc col ecadusvaileaxasenssei 23

A. Title VII's Clear Authorization for

Servicemembers To File Suit Is Not

Superseded By the Feres Doctrine ................ 23

B. Alternatively, the Keres Doctrine Should

ee cots c asc askansevesesaanssoonant 31

sacs ccsaubyanssinnedenvesvesncacnanvassssvstevec che

APPENDIX A: Ninth Circuit Opinion, 6/8/10 .......... la

APPENDIX B: District Court Opinion, 10/21/08....16a

APPENDIX C: Luke Air Force Base

Discrimination Complaint System........................6- 27%

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) vcccccsccccccosscsccosscssscosccsessoseseccsens 24

Bivens v. Stx Unknown Federal Narcotics Agents,

Oe SF en ee ED aia cecadexanenctancseene eee 26

Bowers v. Wynne,

No. 09-3566, 2010 U.S. App. LEXIS 14944 (6th

Rs0N, Meee WME Cie cecnccectus op cceucalietonedsincec maa rani ee 16, 19

Brown v. Wynne,

Appeal No. 01A22198, 2007 EEOPUB LEXIS

1923 (BE BOC May 16, 2007) cccsecvccccccccceccsecseccevccssess 20

Chandler v. Roudebush,

425 U.S. 840 (1976) ooooccccccecccecceeceeeceeeee: prslbite S

Chappell v. Wallace,

BGZ UTS. TOG CISD ona ce acc secscsesvceccsussss eteaeas 26, 29, 31

Conley v. Widnall,

Appeal No. 01945532, 1995 EEKOPUB LEXIS

BEE CEO Fats. 36, LOBBY oocccseccccsccsesceosssccctecccgse, 21

Costo v. United States,

248 F.3d 863 (9th Cir, 2001) coccccccccceccceeeeeeseseeeB2, 33

Day v. Massachusetts Air Nat'l Guard,

167 F.3d 678 (1st Cir. 1999) ..........................cseeceee BO

Estate of McAllister v. United States,

942 F.2d 1473 (9th Cir. 1991)..... Hn Rp SERS PPO

Federal Election Comm'n v. Akins,

O61. Fi CEO okie eas 24

Feres v. United States,

Ue ree Bee Oe sins chalet eae passim

Jentoft v. United States,

450 F.3d 1342 (Fed. Cir. 2006) .................. 14, 16, 19

Lavin-McEleney v. Marist College,

ee ae Oe te oe re 18

Lombard v. United States,

Oe ge Be te RE OR |, re re 34

Marek v. Chesny,

vy ROR ie Sc.” | GRE ais iene eed eee RETR aD 18

Matreale v. New Jersey Dep't of Military & Veterans

Affairs,

GOT FG LO (Be Cie BOOTY vinvvsicccsackncesccececvsccsececac dha

Mier v. Owens,

57 F.3d 747 (9th Cir. 1995) .........0........ toekesince ta AG

Muse v. Geren,

Appeal No. 0120083293, 2008 EEOPUB LEXIS

3497 (EEOC Sept. 26, 2008) ............... ccc cece eee eeceeee 20

O'Neill v. United States,

140 F.3d 664 (Sd Cir. LBBB) .....ccccccceccsecscasccsceccasees. 4

Overton v. N.Y. State Div. of Military & Naval

Affairs,

ee Wr Me he Ge GP, ZOE) oo onvcnccccccsccnceaccsgsccccecdecca. 16

Payne v. Tennessee,

501 U.S. 808 (1991) .......c.ccccccccccccccscccccseccoscccesecsoves, 3]

Republic of Iraq v. Beaty,

ee ge RT er 20

Richards v. United States,

176 F.3d 652 (3d Cir. 1999) ......-ccccccccccceccecceeeeeceeee. 34

Saudi Arabia v. Nelson,

BOT U.S. 349 (1993) .oocccccccccccccccecceceeecseveceseeseeceeeeeces 26

Snyder v. Roche,

Appeal No. 01A23583, 2003 EEKOPUB LEXIS

1796 (E2EOC Mar. 26, 2006)...........ccccccscccccsoscccces ne

Sosa v. Alvarez-Machain,

ED UF, Gee CD inv csncncccsccesccecacsevcocsessss eee 26

Stencel Aero Engineering Corp. v. United States,

TEE BD oo oscicsccccsccovccceccessesvecceess 27, 29, 33

Taber v. Maine,

eee Bee (2G Cnr. 1995) ..........00cccecceccscescene 31, 34

Texas Indus., Inc. v. Radcliff Materials, Inc.,

ET EEE oo ccc cccscesseccciesaccsccvevesseecessesenes 26

Trafficante v. Metropolitan Life Ins. Co.,

NEN CRETE ooo cc ccsscccccucceccosccccescecccsstece 23, 29

United States v. Brown,

I ED ORE coos csscccnccevevessececescececsevoncenas 29, 31

United States v. Johnson,

SS 2. passim

United States v. Muniz,

RUMEN A BOMMEIED oo. .ncesccscescscccsnsssccescvanscesensceuend 31

United States v. Shearer,

473 U.S. 52 (1985) ....ccccccccceccccceceseesseseee 27, 28, 29, 31

Wetherill v. Geren,

No. 09-3334, 2010 U.S. App. LEXIS 17004 (8th

nn cc ccesuescncanvvseeusenseseesusnoarssoneeeee 16

Williams v. Wynne,

gee 2 .o0 eae (oth Cir. 2008)...................cccccceccnesses 16

Willis v. Reche,

nee eee. mmx, 594 (Sd Cir. 2007) ..............cccccceens 16

Wright v. Park,

a ED SL: s | er 19

Statutes

10 U.S.C.

eo ysaswsi<atccuncencsncasdeueaes passim

ha oss vans cu. <eks<enssvesesecevensoeee enn 9

28 U.S.C.

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I Siioasvdsséasenarasvreesecns.chyerenvearen Funeral 18

cccsesscoscesscnseceessrsererens 17

ON 16

42 U.S.C.

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en cacicenecoonssebeuecesvesess 2

Ts ccdunnacneveccevcoevessevess 2

a ccecucescscsesecosseosssnsesoecsce. 4

IES ooo cocscsccsveesvssscssseccceocecessoscsee 2, 12, 23, 24

a nT cconnaewbnceesesonrenceveens 17

I a passim

Neen ss cccsecedenecsevesceces 2. 23

es cacsccccdecconssensons 1,23

National Defense Authorization Act for Fiscal

Year 2010, H. R. 2647, 111th Cong. § 413

rays ecccccceccecavsscccscsescesssceceees 6, 22

Regulations

29 C.F.R.

i on ic sensncanabsneoncesocsescees 24

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os cossccscscesasecsacasevessscoceceveccesseoccosseee 3

Teen ne nee nos sceenavsneceosencess 13, 34

OS 26

es aseccesstcsecosees. 18

Other Authorities

Air Force Instruction 36-2501, July 16, 2004............. 9

Air Force Instruction 36-3207, Apr. 13, 2010............. 9

In re Lisa M. Zuress, Dep’t of Air Force, Final

Agency Decision (Agency Docket No.

TI0JO5008F07) (Feb. 25, 2008)................2..000000. 18

Kevin J. Barry, A Face Lift (and Much More) for

an Aging Beauty: The Cox Commission

Recommendations to Rejuvenate the Uniform

Vil

Code of Military Justice, 2002 L. Rev. Mich. St.

ie MON sis UNO savaahiguessemenveesd Puentiedenvinuseonateeeeoe a inake 32

Major Deirdre G. Brou, Alternatives to the

Judicially Promulgated Feres Doctrine, 192

Es Bk ES © CURED swintdccaveesonsncncssetcctcacsenscadoees 32

PETITION FOR A WRIT OF CERTIORARI

Petitioner Lisa M. Zuress respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra)

is reported at 606 F.3d 1249. The order and opinion

of the district court (App. B, infra) are unreportec.

JURISDICTION

The court of appeals entered its judgment on

June 8, 2010. Justice Kennedy subsequently

extended the time to file a petition for certiorari to

and until September 16, 2010. App. 10A239. This

Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

42 U.S.C. § 2000e-16(a), entitled “Employment by

Federal Government,” subjects the military to Title

VII of the Civil Rights Act of 1964 (Title VII) by

providing that “[aJll personnel actions affecting

employees or applicants for employment .. . in

military departments as defined in section 102 of title

5, United States Code... [i.e., the Army, Navy, and

Air Force] shall be made free from any discrimination

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

42 U.S.C. § 2000e-16(d) provides that the federal

government is subject to the same standards as

private employers by providing that in cases against

the government “[t]he provisions of section 2000e-5(f)

through (k) of this title [which govern private suits

under Title VII], as applicable, shall govern civil

actions brought hereunder, and the same interest to

compensate for delay in payment shal] be available

as in cases involving nonpublic parties.”

42 U.S.C. § 2000e-2(a)(1), entitled “Unlawful

employment practices,” prohibits employment

discrimination by rendering it “unlawful . . . for an

employer” to “fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin.”

42 U.S.C. § 2000e-3(a), entitled “Other unlawful

employment practices,” prohibits. retaliation in

response to claims under Title VII by providing that

it is unlawful “for an employer to discriminate

against any of his employees . . . because he has

opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a

charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing

under this subchapter.”

42 U.S.C. § 2000e-5(f) authorizes civil actions

under Title VII in claims against governmental

entities by providing that if the federal government

does not file suit after the conclusion § of

administrative proceedings before the EEOC on such

a complaint, “a civil action may be brought against

the respondent named in the charge. . . by the person

claiming to be aggrieved.”

42 U.S.C. § 2000e-16(c) authorizes complainants

to file civil suits under Title VII after the conclusion

of administrative proceedings by providing that “an

employee or applicant for employment, if aggrieved

by the final disposition of his complaint, or by the

failure to take final action on his complaint, may file

a civil action as provided in section 2000e-5 of this

title, in which civil action the head of the department,

agency, or unit, as appropriate, shall be the

defendant.” See also 29 C.F.R. § 1614.310

(authorizing Title VII “complainant .. . to file a civil

action in an appropriate United States District

Court” upon conclusion of administrative

proceedings).

A document entitled “Luke Air Force Base

Discrimination Complaint System” (App. C, infra)

provides that a complainant has “the right to go to

U.S. District Court 180 days after filing a forraal

complaint or 180 days after filing an appeal.”

10 U.S.C. § 10216(a) identifies the class of “dual-

status” technicians employed by the government and

specifies that they shall be deemed “civilian”

employees by providing:

(1) For purposes of this section and any other

provision of law, a military technician (dual

status) 1s a Federal civilian employee who —

(A)is employed under section 3101 of title 5 or

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 organizing, administering,

instructing, or training of the Selected

Reserve or in the maintenance and repair of

supplies or equipment issued to. the

Selected Reserve or the armed forces.

(2) Military technicians (dual status) shall be

authorized and accounted for as a separate

category of civilian employees.

STATEMENT OF THE CASE

Petitioner served as a “dual-status” technician in

the Air Force, providing human resource services.

Federal law specifies that although dual-status

technicians must also separately serve in the military

reserves, they are, in their role as_ technicians,

“{flederal civilian employee|[s]” for purposes of “any . .

. provision of law.” 10 U.S.C. § 10216(a). The case

arose when petitioner’s supervisor retaliated against

her in response to two protected acts: complaining of

sexually inappropriate conduct in the Air Force unit

in which she was employed, and assisting another

civilian employee with his own employment

discrimination complaint. Petitioner accordingly

commenced proceedings under Title VII, which

prohibits gender-based employment discrimination

and retaliation in private and public employment,

including “in military departments.” 42

U.S.C. § 2000e-16(a). The applicable federal

regulations and the policy applicable to petitioner’s

workplace specify that upon the conclusion of

administrative proceedings, the complainant may file

suit. The federal district court and the Ninth Circuit

nonetheless ruled that petitioner’s suit was barred

under Feres v. United States, 340 U.S. 135 (1950),

which held that a uniformed officer may not sue the

military under the Federal Tort Claims Act (FTCA)

for claims arising from military service. The court of

appeals acknowledged that its decision conflicts

directly with the precedent of the Federal Circuit,

which has held that, as “civilian” employees, dual-

status technicians are not subject to the “Feres

doctrine” and instead may invoke the protections of

the federal employment laws.

1. In 2002, petitioner Lisa M. Zuress began

employment as a GS-12 Operations Staff Specialist

for the 944th Operations Group at Luke Air Force

Base in Arizona. The official description of

petitioner’s position indicates that her role was “to

serve as special assistant to the Operations Group

Commander, and, as such, perform[{]| staff duties,

special projects and _ taskings; and_ other

administrative functions associated with the

schoolhouse-training program.” Civilian Personne!

Position Description at 1 (Amend. Compl., Exh. C at

129). She specifically performed human relations

and budget-management tasks. For example, Zuress

was the primary monitor for officer and employment

performance reports and also oversaw the group’s

contracting and budget issues. In addition, she

served as a _ resource’ advisor, providing

recommendations regarding the unit’s $3 million

budget.

Zuress’s G-12 position fell within the category of

“Air Reserve Technician” (ART), which is one of

several classes of “dual-status military technicians.”

Dual-status technicians perform civilian roles in the

military departments; they are also are separately

required to maintain membership in the military

reserve. By statute, Congress has defined dual-

status technicians as “civilian” employees for

purposes of “any .. . provision of law.” 10 U.S.C.

§ 10216(a). Congress has provided that the minimum

number of dual-status military technicians for 2010

shall be 68,335, including 10,417 in the Air Force

Reserve. See National Defense Authorization Act for

Fiscal Year 2010, H. R. 2647, 111th Cong. § 413

(2009).

In her separate reserve capacity, Zuress was an

Air Force Reserve Captain, having served nearly

twenty-five years in the military, beginning as an

enlisted airman and later earning her commission as

an Air Force officer. Fourteen of Zuress’s years in the

military were spent as a member of the Air Force

Reserve. In that distinct role, she was typically

required, one weekend per month and two weeks per

year, to participate in Air Force Reserve activities

such as training exercises.

2. In August 2003, Roger Marichalar, an

employee at the base, filed an Kqual Employment

Opportunity (“EEO”) complaint. Marichalar sought

counsel from petitioner in her human-relations role

regarding applicable personnel regulations and other

matters related to his complaint. See Amend. Compl.

7 25. Zuress answered his questions. She

subsequently also served as a witness supporting his

complaint.

Petitioner’s supervisor, Col. Linger, repeatedly

and emphatically expressed displeasure that Zuress

had assisted Marichalar, whom Binger suspected of

circumventing the chain of command and — for

unknown reasons — regarded as having created a

“hostile and threatening environment.” Binger E-

Mail (May 4, 2004) (Amend. Compl., Exh. D). Binger

also thought that Zuress’s assistance to Marichalar

was not “in the best interest of the wing or good order

and discipline.” Binger Deposition (Dec. 5, 2006)

(Binger Depo.) 35. In his notes summarizing

feedback sessions with petitioner, Binger wrote that

Zuress’s “coaching [Marichalar] in his efforts to

complain about perceived wing problems .. . was

destructive,” and that Zuress’s actions “put [her]

loyalty in question,” as she was “[hJelping others in

hurtful actions against the wing.” Binger Depo. 45-

49; Memo 1 for Record (June 4, 2004) (Amend.

Compl. Exh. C at 144); Memo 2 for Record (June 4,

2004) (Exh. F-13 in Investigative File dated Nov. 9,

2005).

In September 20038, Zuress learned that male

members of the unit in which she served as a human

relations employee had conducted a “sex show.”

Several male fighter pilots hired strippers to come

onto the base and perform sex acts on each other

while the men watched and, in some instances,

participated.

Deeply troubled and offended, Zuress sent an

anonymous letter expressing her objections to the

inappropriate sex show to the Chief of Staff of the Air

lorce, the Secrevary of the Air Force, and other high-

ranking officers, including then-Secretary of Defense

Rumsfeld. The fallout was dramatic. Senior Air

Force officials ordered an investigation, fired

numerous participants, and imposed discipline upon

others. Delgado Deposition (Dec. 8, 2006) 17-18.

However, Zuress was unable to remain anonymous

for long. Her immediate superiors, as well as others

in her unit, determined that she had written the

letter, and she and her husband (a fighter pilot) faced

intense retaliatory pressure and hostility.

In June 2004, in the wake of both the Marichaiar

complaint and the aftermath of the sex show, Binger

held a required feedback session with Zuress as part

of her ordinary review process. Binger subsequently

sent an e-mail to his superiors, to which he attached

an article he had drafted for an Air Force publication

entitled “Are you a good leader?” Binger E-Mail

(June 5, 2005) (Amend. Compl., Exh. C at 187). The

article included = several = rhetorical questions,

including “Do you allow your military chain of

command to work problems and issues, or circumvent.

it in order to punish them from outside sources?”

Amend. Compl., Exh. C at 174. The cover e-mail

stated that Binger had “used [the article] in my

counseling session with Capt Zuress and also in

mentoring L Moya-Albee.” Binger E-Mail (June 5,

2005) (Amend. Compl., Exh. C at 187). This e-mail

was then forwarded to every officer and enlisted

member of a subordinate squadron. ZJd. As several

officers later acknowledged, the term “counseling”

carries a negative connotation in the military; thus,

Binger’s mischaracterization of his feedback session

with Zuress as “counseling” about her leadership

skills constituted an “unfortunate” statement that

reflected badly on her. Higgins E-Mail (Amend.

Compl., Exh. C at 201); Binger Depo. 73.

Zuress complained directly to Binger via e-mail,

stating that she had “continually dealt with reprisal

in this unit,” and that she considered Binger’s e-mail

to constitute “further reprisal from this unit and its

leadership.” Zuress K-Mail (June 15, 2004) (Amend.

Compl., Exh. C at 146). Binger responded to Zuress’s

complaint by drafting a memorandum in which he

described her e-mail as “another event in a long line

of indiscretions, poor attitude and morale busting

actions she has been involved in,” and he indicated

that he intended to issue a letter of reprimand “for

this breach of discipline and her accusatory tone.”

Binger Memo (June 16, 2004) (Amend. Compl., Exh.

C at 146).

Binger subsequently prepared an _ Officer

Performance Report evaluating Zuress’s military

performance. With regard to her performance of the

tasks listed as her job responsibilities, the report

described her as “Excellent,” “Superb,” “Highly

organized and systematic,” and “Effective.”

Nonetheless, the report also asserted, without

elaboration, that Zuress “needs additional work on

officership issues.” Officer Performance Report

(Amend. Compl., Exh. KE). Binger acknowledged that

as a consequence the report was “not career

enhancing,” and “certainly wouldn’t help” Zuress

obtain a promotion. Binger Depo. 89-90. At the time,

as Binger was aware, Zuress would soon be reviewed

for promotion to the rank of Major in the Reserves. If

she did not receive a promotion, she would lose her

Reserves commission, thereby forcing her out of her

position as an ART. Binger Depo. 88-89; see Air

Force Instruction 36-3207, 4] 3.4, Apr. 13, 2010

(specifying that officers passed over twice for

promotion to the rank of Major must separate from

the Air Force and Air Force Reserves); Air Force

Instruction 36-2501, § 3.10, July 16, 2004 (same); 10

U.S.C. § 10216(d) (providing that ARTs must

maintain membership in the Special Reserves or lose

their civilian positions).

Zuress understood the inevitable consequence of

Binger’s negative characterization of her

“officership”: she would not be promoted. In turn,

her civilian employment as an ART would be

automatically terminated. !

To avoid that automatic termination, petitioner

requested one year of leave without pay from her

civilian ART position in the hope that she could find

suitable replacement employment in the government,

and she submitted paperwork stating her intention to

retire from the military reserves in June of 2005.

Request for Personnel Action (Amend. Compl., Exh. C

at 165-67). Upon learning of petitioner’s plans,

Binger sent an e-mail informing his colleagues that

the coming Friday would be Zuress’s last day of work.

After specifying “[yJour eyes only .. . please do not

forward,’ Binger boasted that although “many

questioned my methods with her .. . ultimately

perseverance and pressure/accountability prevailed.”

Binger E-Mail (Dec. 27, 2004) (Amend. Compl., Exh.

1) (first alteration in original).

Binger twice advised petitioner that she would

receive the year’s leave that she had requested. On

January 12, however, Zuress learned that Binger had

in fact only granted her 120 days of unpaid leave,

thereby causing her civilian employee benefits to

terminate much sooner than she had expected and

causing her to have a break in her civil service. The

truncation provided no savings to the unit, however.

That day, Zuress wrote to Binger that she wished

to exercise her right to return to her position,

effectively withdrawing her request for unpaid leave.

Zuress K-Mail (Jan. 12, 2005) (Amend. Compl., Exh.

C at 198). Binger promptly wrote to the Luke Air

' Petitioner was indeed later informed that, as she had

anticipated, she had not been selected for promotion to Major

Nonselection Letter (Mar. 31, 2005) (Amend. Compl., Exh. F).

Force Base civilian personnel officer to ask whether

his receipt of the orders scheduling Zuress'’s

retirement from the Reserves might “change things”

— that is, enable him to stop Zuress from returning.

Binger E-Mail (Jan. 13, 2005) (Amend. Compl., Exh.

J). The personnel officer responded that “[t]he only

way it would have helped you, would have been if the

retirement date was already past or almost there.”

She advised Col. Binger to “[s]tart praying” that

Zuress would not rescind her retirement request.

Tennyson E-Mail (Jan. 13, 2005) (Amend. Compl.,

Kxh. J).

Unable to prevent petitioner from returning,

Binger instead transferred and demoted her. He

asserted that during the week in which she had been

on leave, her prior position had been permanently

filled by another employee. He transferred her

instead to a Medical Squadron, and required her to

serve at a GS-7 level — a demotion of five civilian pay

grades — until the dismissal resulting fr6m her non-

promotion took effect. See Binger E-Mail (Jan. 19,

2005) (Amend. Compl., Exh. H).

3. Zuress timely pursued her rights under Title

VII, as specified by the statute and implementing

regulations. The statute governing the application of

Title VII to “[e]mployment by [the] Federal

Government” provides that “[a]ll personnel actions

affecting employees or applicants for employment .. .

in military departments as defined in section 102 of

Title 5, [United States Code]... [le., the Army,

Navy, and Air Force] shall be made free from any

discrimination based on race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-16(a).

Title VII’s remedial provision provides that any

“person aggrieved” by a violation of the statute may

invoke its protections. Jd. § 2000e-5(f). A party

proceeding under Title VI! generally is required to

first file an administrative “charge”; after those

proceedings conclude, she may proceed to court. Id.

In cases involving federal sector employment, a party

may bring a Title VII action in federal district court

following an agency's final action on a complaint or

the EEOC’s final decision on appeal. 29 C.F.R.

§ 1614.407.

Consistent with that regime, the “Luke Air Force

Base Discrimination Complaint System” governing

petitioner's charge provided that, after an initial

mandatory effort at counseling, the employee “must

file a formal complaint within 15 days” to proceed

with her claim. App. C, at 28a. The employee then

may “request a hearing before an Equal Employment

Opportunity Commission Administrative Judge”

after a period of “180 days or after completion of

investigation, whichever comes first.” Jd. The

Complaint System then expressly recognizes the

employee's “right to go to U.S. district Court 180 days

after filing a formal complaint or 180 days after filing

an appeal.” Id.

Petitioner timely satisfied these administrative

prerequisites. In addition to complaining to the Air

Force Inspector General, petitioner duly contacted

her EEO counselor on March 17, 2005 to complain

about the continuous pattern of discrimination,

harassment, and retaliation that she had faced as a

civilian ART. When informal attempts at resolution

failed, Zuress timely filed an EEO complaint, which

highlighted the fallout from the sex show, the

retaliation she suffered for assisting Marichalar with

his own EEO complaint, and her demotion to a lower-

graded position.

When the Air Force refused to grant Zuress relief,

she properly pursued her claim before the EEOC by

requesting a hearing before an EEOC Administrative

Judge (AJ). After an amendment to her complaint,

and ensuing remand for further investigation, the Air

Force issued its final agency decision denying Zuress

relief on February 25, 2008. The final decision

expressly states that petitioner was authorized to file

a civil action “in an appropriate United States

District Court.” Jn re Lisa M. Zuress, Dep’t of Air

Force, Final Agency Decision (Agency Docket No.

710JO5008F07) (Feb. 25, 2008) at 26.

4. On March 28, 2008, Zuress timely exercised

her right to file this suit under Title VII against the

Secretary of the Air Force in the United States

District Court for the District of Arizona. Her

complaint, as amended, alleged that she suffered

retaliation and reprisals for her role in reporting the

sex show and for assisting Marichalar in pursuing his

EEO complaint. Although the statute, regulations,

and base policy all directed petitioner to complete the

administrative process and then (if unsatisfied with

the result) file suit, the Secretary nonetheless moved

to dismiss Zuress’s complaint as barred by Feres v.

United States, 340 U.S. 135 (1950). In Feres, this

Court held that the Government is not subject to

state law suits by active-duty servicemembers under

the FTCA “where the injuries arise out of or are in

the course of activity incident to service.” Jd. at 146.

Applying the Ninth Circuit’s prior extension of Feres

to Title VII claims brought by dual-status technicians

“when the challenged conduct is integrally related to

the military’s unique structure,” see Mier v. Owens,

57 F.3d 747, 750 (9th Cir. 1995), the district court

granted the Secretary’s motion to dismiss. App. B, at

26a.

5. On appeal, the Ninth Circuit affirmed. The

court of appeals rejected Zuress’ argument that its

prior ruling in Mier had been superseded by

Congress’s subsequent enactment of the National

Defense Authorization Amendments of 1997, which

provides that dual-status technicians are civilian

employees “[flor purposes of this section and any

other provision of law.” 10 U.S.C. § 10216(a).

Petitioner argued that the statute deems dual-status

technicians to be civilian employees, rather than

active-duty servicemembers, for purposes of the

federal civil rights laws. The Ninth Circuit

disagreed, holding that the phrase “any other

provision of law” did not constitute a sufficiently

“clear statement” to overturn its prior decision in

Mier. App. A, at 13a. The court of appeals

acknowledged, however, that the circuits are divided

over precisely that question, with the Federal Circuit

reaching the opposite result in Jentoft v. United

States, 450 F.3d 1342 (Fed. Cir. 2006). App. A, at

12a-13a.

This petition followed.

REASONS FOR GRANTING THE WRIT

The court of appeals recognized that its decision

squarely conflicts with the precedent of the Federal

Circuit. That conflict produces an_ intolerable

disparity in the treatment of employment-related

claims by identically situated employees of the

military. The judgment in this case is moreover

representative of a still broader array of other

disagreements regarding the scope of Feres that has

arisen as the courts of appeals have openly struggled

with how to apply that decision — which does not rest

on the Constitution or on the text of any law passed

by Congress — to a wide range of statutory schemes.

Only this Court can resolve the manifest uncertainty

and inconsistency that presently reigns.

The ruling below moreover cannot be reconciled

with this Court’s precedents and with the laws and

regulations governing the right of dual-status

technicians to bring claims under Title VII. Contrary

to the Ninth Circuit’s holding, this Court has never

extended the federal common law rule of Feres

beyond the narrow confines of tort suits brought by

uniformed servicemembers arising from the course of

their military activities. In this case, by contrast, an

employee acting in a civilian capacity seeks to pursue

a claim that Congress has specifically authorized to

be brought against the “military departments.” 42

U.S.C. § 2000e-16(a). To the extent that Feres does in

fact inevitably extend to civil rights claims by dual-

status employees, it should be overruled.

I. THE COURTS OF APPEALS ARE DIVIDED

OVER THE CIRCUMSTANCES IN WHICH

THE UNITED STATES HAS MADE ITSELF

AMENABLE TO SUIT BY EMPLOYEES OF

MILITARY DEPARTMENTS

1. The Ninth Circuit in this case held on the basis

of prior circuit precedent that a dual-status

technician may not sue the Government under Title

VII if her claim is “integrally related to the military’s

unique structure.” App. A, at lla (applying Mier).

That ruling is consistent with the _ published

precedent of the Second, Fifth, Sixth, and Eighth

Circuits. See Wetherill v. Geren, No. 09-3334, 2010

U.S. App. LEXIS 17004, at *20 (8th Cir. 2010);

Bowers v. Wynne, No. 09-3566, 2010 U.S. App. LEXIS

14944, at *35 (6th Cir. 2010); Williams v. Wynne, 533

F.3d 360, 366-68 (5th Cir. 2008); Overton v. NY.

State Div. of Military & Naval Affairs, 373 F.3d 83,

95-96 (2d Cir. 2004); see also Willis v. Roche, 256 Fed.

Appx. 534, 537 (3d Cir. 2007) (unpublished decision).

But as the Ninth Circuit acknowledged, App. A,

at 12a-13a, its holding is irreconcilable with the

precedent of the Federal Circuit. In Jentoft v. United

States, 450 F.3d 1342 (Fed. Cir. 2006), a dual-status

military technician filed suit under the Equal Pay

Act, which (like Title VII) applies by its terms to the

military. 29 U.S.C. § 203(e)(2)(A)(i) (defining

“employee” to include any individual employed “as a

civilian in the military departments”). The Federal

Circuit acknowledged the holding of other circuits

that such a suit must be dismissed under the Feres

doctrine. Jentoft, 450 F.3d at 1349. But it rejected

that position on the basis of the National Defense

Authorization Amendments of 1997 (NDAA), which

provide that dual-status military technicians are

civilian employees “for any . . . provision of law.” 10

U.S.C. § 10216(a). The NDAA, the Federal Circuit

concluded, constitutes a “broad and unambiguous’

statement of Congress’s intent “that dual status

technicians be treated in the same manner as other

federal civilian employees,” with full access to civilian

remedies for employment discrimination. Jentoft,

450 F.3d at 1349. The holding of the Federal Circuit

would compel the conclusion that a dual-status

employee could similarly bring suit under Title VII.

The circuit split over the right of dual-status

employees to bring suits under federal fair

employment statutes creates a peculiar and acute

conflict in the law. Identically situated employees

will secure relief under the federal civil rights laws,

or instead will have their claims deemed to be

categorically barred under the Feres doctrine, based

on which court of appeals happens to have

jurisdiction.

The circuit split over the right of dual-status

employees to bring suits under federal fair

employment statutes creates a peculiar and acute

conflict in the law. A dual-status technician in the

Second, Fifth, Sixth, Eighth, and Ninth Circuits who

suffers gender-based pay discrimination can file an

Equal Pay Act claim in the Court of Federal Claims,

because that court (which applies the law of the

Federal Circuit) has nationwide jurisdiction over

Equal Pay Act claims. 28 U.S.C. § 1491(a)(1). By

contrast, the identical employee would be

categorically barred from filing suit to remedy any

other form of discrimination that is incident to her

service in the military, because such a claim would

fall within the jurisdiction of the district courts. See

42 U.S.C. § 2000e-5(f)(3). Thus, a single employee

may have the right to bring an Equal Pay Act claim

but no right to sue under Title VII, notwithstanding

that the statutes are materially indistinguishable

and the two claims arise from the same operative

facts.

This inconsistency in the application of federal

employment statutes is bizarre and utterly illogical.

It effectively — and arbitrarily — privileges claims of

gender-based pay discrimination above all other

forms of discrimination, subverting the intent of

Congress, which intended Title VII and the Equal

Pay Act to protect the same population, including

employees in military departments. See 42 U.S.C.

2000e-16(a); 29 U.S.C. § 203(e)(2)(A)(i). Congress

also intended for Title VII and the Equal Pay Act to

provide a single comprehensive remedy for gender-

based pay discrimination. See Lavin-McEleney v.

Marist College, 239 F.3d 476, 483 (2d Cir. 2001) (“The

Equal Pay Act and Title VII must be construed in

harmony, particularly where ciaims made under the

two statutes arise out of the same discriminatory pay

policies.”); 29 C.F.R. § 1620.27(b) (“Recovery for the

same period of time may be had under both the EPA

and title VII so long as the same individual does not

receive duplicative relief for the same wrong. Relief

is computed to give each individual the highest

benefit which entitlement under either statute would

provide.”); Marek v, Chesny, 473 U.S. 1, 25 (1985)

(Brennan, J., dissenting) (“[S]uits involving alleged

gender discrimination are often brought under both

the Equal Pay Act of 1963 and Title VII of the Civil

Rights Act of 1964.”).

The status quo is moreover an unacceptable

invitation to forum shopping. ‘The district courts

have concurrent jurisdiction with the Court of

Federal Claims to hear Equal Pay Act claims

requesting $10,000 or less in damages. See 28 U.S.C.

§ 1346(a)(2). But since such a claim would be barred

by Feres in the Second, Fifth, Sixth, Eighth, and

Ninth Circuits, no rational plaintiff in those

jurisdictions would ever elect to sue in district court.

The current circuit conflict thus guarantees efforts at

manipulating the jurisdiction of the federal courts,

even as it arbitrarily denies dual-status technicians

the full protection of the law.

The circuit conflict is entrenched and can only be

resolved by this Court. There is no prospect that the

Federal Circuit will reconsider its position, as if

openly acknowledged that it was creating a circuit

conflict from the outset. Jentoft, 450 F.3d at 1349.

The United States notably declined to seek en banc

review of the ruling in Jentoft. Nor is there a

realistic prospect that the issue will again be

presented to that court in the foreseeable future, as it

would require the government to act in defiance of

the holding of Jentoft to pursue the question before

the court of appeals.’

2. This Court’s intervention is further warranted

because the decision below also contradicts the

settled position of the EEOC, the agency charged

with interpreting and enforcing ‘Title VII. As

discussed supra, petitioner pursued her complaint

through the federal EEO process. The position of the

KEOC is that dual-status technicians may invoke

Title VII to the extent “the discriminatory action

“ The petition also implicates a further acknowledged

conflict over the degree of relationship to military service that is

required for a dual-status employee's claim to be barred under

the Feres doctrine. As noted, the Ninth Circuit and other courts

hold that a claim is barred to the extent it is “integrally related

to the military's unique structure.” App. A, at lla. By contrast,

two circuits hold that dual-status technicians inherently occupy

a position that is “irreducibly military” in nature. Bowers v.

Wynne, 2010 U.S. App. LEXIS 14944, at *26 (acknowledging the

conflict); cf. Wright v. Park, 5 F.3d 586, 589 (ist Cir. 1993)

(holding that claims by National Guard Technicians under 42

U.S.C. § 1983 are barred because their civilian and military

roles are “inextricably intertwined”).

arises from their capacity as civilian employees.”

Muse v. Geren, Appeal No. 0120083293, 2008

EKEOPUB LEXIS 3497, at *8-*9 (EEOC Sept. 26,

2008). Applying that standard, the EEOC has

recognized that when, as here, retaliation against a

complainant takes the form of a demotion in her

civilian role, Title VII applies. See Brown v. Wynne,

Appeal No. 01A22198, 2007 EEOPUB LEXIS 1923,

at *4 (EEOC May 16, 2007) (“The challenged action is

complainant’s reassignment/demotion from one

position to another, and it is clear from the positions’

titles, that they are both part of the Wage-

Grade series designated for federal civilian

employees.”).

The EEOC has also held — in another case

involving retaliation against an ART at Luke Air

Force Base — that retaliation violates Title VII even

when the protected conduct occurs in the course of

military service. See Snyder v. Roche, Appeal No.

01A23583, 2003 EEOPUB LEXIS 1798, at *5 (EEOC

Mar. 26, 2006). In Snyder, a dual-status technician

on active military duty in Turkey witnessed and

complained to his military superiors about sexual

harassment of a woman who was also on active

military duty. The complainant asserted that in

reprisal for this action, he was subjected to a

continuing pattern of harassment in his civilian

position including denial of promotions, denial of

transfer, assignment of janitorial duties, and verbal

and physical threats. Notwithstanding the

indisputably military context of the initial incident,

the EEOC recognized that the reprisals against the

complainant, like the reprisals against petitioner,

were directed at his civilian employment as an ART

and thus were actionable. See id. at *5.

Critically, in conflict with the Ninth Circuit, the

KEOC has refused to bar an employee’s claim when

the discrimination implicated both her civilian role

and her military role. In Conley v. Widnall, Appeal

No. 01945532, 1995 EEKOPUB LEXIS 262, at *2

(EEOC Feb. 15, 1995), the EEOC considered the

claim of an ART who, like Zuress, “worked for the

agency in a civilian capacity during the week and in a

military capacity on weekends and when on active

duty”; the ART also contended “that the

discrimination was continuous, occurring while she

was on both military and civilian duty.” Rather than

find her claim barred, the EEOC held that “the

alleged discrimination affected [the ART] not only in

her capacity as a military employee but also in her

civilian capacity as well.” Jd. at *4. Therefore, the

agency allowed the AR'T’s complaint to proceed. Jd.

This conflict pits a rule of federal common law

against the expertise and considered view of the

agency charged with enforcing almost all of the

nation’s antidiscrimination statutes. The contrast

between the EEOC’s settled position that civilian

institutions may adjudicate claims like the one

presented by this case and the Ninth Circuit's

directly contrary holding demonstrates that the

courts of appeals have substituted their judgment not

just for that of Congress, but for the executive branch

as well.

Equally important, the conflict places federal

employees in an impossible dilemma that requires

this Court’s prompt intervention. As the facts of this

case illustrate vividly, federal law in several circuits

presently operates as an unjust bait and switch for

dual-status technicians who have been the victims of

unlawful discrimination. Title VIJ, its implementing

regulations, the decisions of the EEOC, and

workplace-specific policies all direct individuals like

petitioner to pursue their claims administratively.

Those same sources specify that the administrative

process, which can take years and impose a

substantial financial and emotional toll, will

culminate in a right to bring suit in federal district

court. But those complainants now arrive at the

courthouse only to have the rug pulled out from

under them and their claims barred as a matter of

law when the Government invokes the Feres doctrine.

Fortunately, this case presents an ideal vehicle

with which to decide the question presented. The

issue 1s dispositive, as the Ninth Circuit’s holding

that petitioner’s claims must be dismissed rests

entirely on the Feres doctrine. Petitioner properly

presented the claims on which she brought suit at

every stage of the administrative process. Further,

petitioner's claims involve’ several acts that

indisputably arise purely from her civilian role, such

as her assistance to another ART in the course of her

human relations responsibilities, as well as her

significant demotion in GS grade. But in addition,

the case implicates petitioner's military reserve

status insofar as she complains about the failure to

promote her to Major. Because the case illuminates

both the civilian and military roles of dual-status

technicians, it 1s an ideal vehicle in which to decide

whether the Feres doctrine bars Title VII claims by

such employees, a group of at least 68,335 civil

servants. See National Defense Authorization Act for

Fiscal Year 2010, H. R. 2647, 111th Cong. § 413

(2009) (providing that the “minimum” number of

dual-status technicians shall be 8395 for the Army

Reserve, 27,210 for the Army National Guard, 10,417

for the Air Force Reserve, and 22,313 for the Air

National Guard).

Il. CERTIORARI IS WARRANTED BECAUSE

THE RULING BELOW DISREGARDS THE

PLAIN STATUTORY TEXT AND

CONFLICTS WITH THIS COURT'S

PRECEDENTS

A. Title VII's Clear Authorization for

Servicemembers To File Suit Is Not

Superseded By the Feres Doctrine

1. Petitioner’s suit was authorized by the plain

text of Title VII. By its terms, Title VII applies to

“[a]ll personnel actions affecting employees’ or

applicants for employment . . . in~ military

departments,” 42 U.S.C. § 2000e-16(a), and prohibits

both “discrimination based on” sex, id., and

retaliation for bringing or assisting others to bring

claims under the statute, id. § 2000e-3(a).

Title VII expressly authorizes an aggrieved

military employee, like other federal employees, to

initiate a civil action, id. § 2000e-16(c), and provides

that such suits shall be governed by the same

enforcement mechanisms and remedies as_ those

available in cases brought by private parties, id.

§ 2000e-16(d). See also td. § 2000e-5(f) (claim may be

brought by any “person . . . aggrieved” by an

employers unlawful employment practice). This

Court has recognized that the presence of the term

“aggrieved” signals Congress's intention that the

cause of action be “broad and inclusive.” Trafficante

v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972)

(construing similar provision of Fair Housing Act);

see also, e.g., Federal Election Comm'n v. Akins, 524

U.S. 11, 19 (1998) (“History associates the word

‘aggrieved’ with a congressional intent to cast the

standing net broadly... .”).

Indeed, the extension of relief to all “aggrieved

person[s],” 42 U.S.C. § 2000e-5(f), is a foundational

element of Title VII's essential purpose, which is “to

make persons whole for injuries suffered on account

of unlawful employment discrimination.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1975). As this

Court has long recognized, Congress in enacting

those provisions “intended to accord federal

employees” — including military employees — “the

same right to a trial de novo as 1s enjoyed by private-

sector employees and employees of state governments

and political subdivisions.” Chandler v. Roudebush,

425 U.S. 840, 848 (1976).

The procedures adopted by the United States to

govern petitioner's rights under Title VII similarly

direct an employee to file an administrative claim

and then, if she so chooses, proceed in federal district

court. An employee must first file a complaint with

the agency where the discrimination took place, 29

C.F.R. § 1614.106, which is authorized to investigate

the charges, td. § 1614.108. Following the issuance of

the agency’s final action, the employee may appeal to

the EEOC, id. § 1614.401, or initiate an action in

district court, id. § 1614.407.

The “Luke Air Force Base _ Discrimination

Complaint System” thus instructs employees that

there is a multi-stage administrative procedure for

pursuing claims of discrimination: a counseling

session; a formal complaint; and a hearing before the

EEOC. App. C, at 27a-30a. At the conclusion of

O45

sa ©

those proceedings, the employee has the “right to go

to U.S. district court.” Jd., at 29a.

Congress in 1997 furthermore specified that

dual-status technicians are “civilian” employees for

purposes both of the National Defense Authorization

Amendments and “any other provision of law.” 10

U.S.C. § 10216(a). At the strong urging of the United

States, this Court recently recognized that this

precise phrase — “any other provision of law” — “[o]f

course ... has an ‘expansive meaning.” Republic of

Iraq v. Beaty, 129 S. Ct. 2183, 2189 (2009). The

Court held that in light of the broad terms of the

statute in Beaty, which granted the President the

power to “make inapplicable with respect to Iraq

section 620A of the Foreign Assistance Act of 1961 or

any other provision of law that applies to countries

that have supported terrorism,” there was “no

warrant to limit the class of provisions of law that the

President may waive.” Id.

Petitioner’s right to pursue her claim under the

text of Title VII and the government’s own

implementing regulations and _ policies is clear.

Petitioner alleges that a “military department|],” 42

U.S.C. § 2000e-16(a), discriminated and retaliated

against her in violation of Title VII. She properly

followed all of the required administrative procedures

to exhaust her claim, culminating in her right to

proceed in federal district court. There was no

justification for the Ninth Circuit to depart from the

statutory text and hold that petitioner’s claim is

barred.

2. In dismissing petitioner’s claims, the Ninth

Circuit relied on its own precedent to hold that the

Feres doctrine precludes Title VII claims by dual-

status employees against the military. App. A, at

15a. This Court, however, has applied the Feres

doctrine only to claims under the Federal Tort Claims

Act — where the source of substantive law is state tort

law — and Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971) — which involves a

judicially created cause of action. See Chappell v.

Wallace, 462 U.S. 296 (1983). This Court has never

gone further and there is no warrant for extending

this entirely judicially created defense into a field

such as federal fair employment litigation in which

Congress has legislated extensively. See Saudi

Arabia v. Nelson, 507 U.S. 349, 374 (1993) (Kennedy,

J., concurring and dissenting) (“The Feres doctrine is

a creature of federal common law that allows the

Court much greater latitude to make rules of

pleading” than in cases in which statute provides

“explicit terms.”); Sosa v. Alvarez-Machain, 542 U.S.

692, 730 (2004) (noting the “narrow areas’ in which

‘federal common law’ continues to exist” (quoting

Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 641 (1981))).

That conclusion follows inexorably from the

settled and ongoing role of the EEOC in deciding

complaints brought by dual-status technicians. It is

uncontested that if the EEOC had concluded its

investigation in petitioner’s favor, the Commission

had the authority to order relief. See 29 C.F.R.

§ 1614.501(a) (‘When an agency, or the Commission,

in an individual case of discrimination, finds that an

applicant or an employee has been discriminated

against, the agency shall provide full relief... .”).

There is no reasonable explanation for a remedial

scheme that deems it appropriate for a general

administrative agency such as the EEOC to award

relief on claims, while simultaneously holding that

the federal courts must be deemed impliedly barred

from adjudicating those same claims on the ground

that a judicial ruling would unduly interfere with

military affairs.

Furthermore, the justifications that this Court

identified in its narrow application of the Feres

doctrine do not justify overriding Title VII’s clear

textual command. First, the Court has justified

application of the Feres doctrine by explaining that

because “[t]he relationship between the Government

and members of its armed forces is distinctively

federal in character,” it “makes no sense” to subject

the Government to state tort law claims for injuries

incurred in the course of military service. United

States v. Johnson, 481 U.S. 681, 689 (1987) (quoting

Feres, 340 U.S. at 143, and Stencel Aero Engineering

Corp. v. United States, 431 U.S. 666, 672 (1977))

(some internal quotation marks omitted). Such a

result, the Court has reasoned, would “permit the

fortuity of the situs of the alleged negligence to affect

the liability of the Government to [the] serviceman.”

Id. (quoting Stencel, 431 U.S. at 672).

The continued viability of this first rationale is

uncertain even with respect to state law claims. See

United States v. Shearer, 473 U.S. 52, 58 n.4 (1985)

(describing factor as “no longer controlling”);

Johnson, 481 U.S. at 695 (Scalia, J., dissenting). In

any event, it has no application to Title VII, which

exists precisely to provide a uniform federal cause of

action to remedy unlawful employment practices.

Second, the Court has justified application of the

Feres doctrine by noting that “the existence of .. .

generous statutory disability and death benefits is an

independent reason why the Feres doctrine bars suit

for service-related injuries.” Johnson, 481 U.S. at

689. The Court has likewise noted that this second

rationale is “no longer controlling.” Shearer, 473 U.S.

at 58 »n.4. More fundamentally, in this case,

application of the Feres doctrine would get things

exactly backwards because it would bar the very Title

VII suit through which the Government provides the

“statutory” remedy that explains why common-law

tort suits are unnecessary. And any notion that

petitioner could have obtained relief through some

alternative process within the military is incorrect.

Petitioner followed the administrative procedures

prescribed by the Air Force for the resolution of

discrimination § claims. The Luke Air Force

Discrimination Complaint System provides for an

initial effort at counseling, followed by the filing of a

formal complaint and a hearing before the EEOC.

App. C, at 27a-30a. It then expressly recognizes the

employee’s “right to go to U.S. district court” if the

administrative process fails to provide redress. /d.,

at 29a. Thus, the “alternative process” rationale

underlying Feres is incoherent in the Title VII

context. Whether the employee is classified as

civilian or military, the review process expressly

contemplates the filing of an action in federal district

court.

Third, the Court has observed that Feres bars the

“type[s] of claims that, if generally permitted, would

involve the judiciary in sensitive military affairs at

the expense of military discipline and effectiveness.”

Johnson, 481 U.S. at 690 (quoting Shearer, 473 U.S.

at 59). The relevant “type/s/’ of claims are tort suits

seeking compensation for injuries incurred in

“[p]erformance of the military function,” which

“entails a ‘[s]ignificant risk of accidents and injuries.”

Id. at 689 (quoting Stencel, 431 U.S. at 672). It is

because of “the effects of the maintenance of such

suits on discipline, and the extreme results that

might obtain if suits under the Tort Claims Act were

allowed for negligent orders given or negligent acts

committed in the course of military duty,” United

States v. Brown, 348 U.S. 110, 112 (1954), that the

Feres doctrine reserves such claims to internal

military adjudication.

There is no basis in law or logic for extending

that rationale to the very different context of Title

VII. There is nothing about employment in a

military department that does, or should, create a

“[slignificant risk” of unlawful sex or _ race

discrimination. Actions seeking to remedy unlawful

employment practices are not the type of claims that

can be presumed to threaten “the habit of immediate

compliance with military procedures and orders.”

Chappell, 462 U.S. at 300. Should Congress

determine that such concerns are a_ sufficient

justification for barring Title VII actions by

servicemembers, it is free to accomplish that result

through legislation exempting the “military

department[s]” from its scope. But absent such

action, vague policy suppositions about the effect of

Title VII actions on military discipline cannot

override Congress’s explicit provision of a “broad and

inclusive” cause of action to members of the military.

Trafficante, 409 U.S. at 209.

Feres moreover limited its holding to those

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

activity incident to service.” Feres, 340 U.S. at 146;

see Johnson, 481 U.S. at 686 (“This Court has never

deviated from [the ‘incident to _ service’

characterization of the Feres bar.”). Many of the acts

of harassment and retaliation suffered by petitioner

as a consequence of engaging in protected activity

neither arose out of nor occurred in the course of

activity incident to military service. To the contrary,

those acts overwhelmingly occurred while petitioner

was performing her civilian-capacity duties as a

human relations administrator, which included

responsibilities like developing administrative

policies, performing budget formulation work, and

administering the “schoolhouse student training

program for the operations group.” Civilian

Personnel Position Description at 2 (Amend. Compl.,

Exh. C at 130).

To be sure, one of the retaliatory acts alleged by

petitioner 1s the Air Force’s refusal to promote her, a

fact that the Ninth Circuit construed as reflecting

petitioner's agreement that her claims were

integrally related to military service. More relevant,

the ultimate consequence of that action was the loss

of her civilian employment. Moreover, the injury

that petitioner suffered as a result of the Air Force’s

retahatory denial of her request for a one-year leave

of absence was undeniably civilian in nature, as that

action deprived petitioner of the opportunity to

maintain her civilian employee benefits and avoid a

break in her civil service while she searched for other

employment. ‘To characterize these fundamentally

civilian employment actions as conduct incident to

military service would represent a sweeping and

unwarranted expansion of the Feres doctrine, which

this Court has consistently cabined to include only

conduct performed in a military capacity.

B. Alternatively, the Feres Doctrine Should

Be Overruled

If this Court concludes that Feres would preclude

a Title VII action by a dual-status employee for

injuries suffered in her civilian capacity, petitioner

respectfully submits that the decision should be

overruled. This Court has recognized that revisiting

prior precedent is appropriate when a governing

decision is “badly reasoned” or has proven to be

“unworkable.” Payne v. Tennessee, 501 U.S. 808, 827

(1991). Each of those considerations abundantly

supports the overruling of Feres.

1. Most of the reasoning underlying the decision

in Feres itself has been disavowed in this Court’s

subsequent decisions. See Shearer, 473 U.S. at 58 n.4

(describing various factors as “no longer controlling”):

Johnson, 481 U.S. at 695-697 (Scalia, J., dissenting).

In the years following Feres, the Court cited another

justification, reasoning that the decision “seems best

explained by the ‘peculiar and special relationship of

the soldier to his superiors, [and] the effects on the

maintenance of such suits on discipline.” United

States v. Muniz, 374 U.S. 150, 162 (1963) (quoting

Brown, 348 U.S. at 112); see Chappell, 466 U.S. at

299. Even that rationale, however, has been

thoroughly discredited.

First, “the likely effect of Feres suits on upon

military discipline is not as clear as we have assumed,

but in fact has long been disputed.” Johnson, 481

U.S. at 699 (Scalia, J., dissenting); see also Taber v.

Maine, 67 F.3d 1029, 1047 (2d Cir. 1995) (“It is

difficult to see how FTCA damage awards can, except

in the rarest of cases, interfere with a disciplinary

relationship between the government and_ the

military tortfeasor.”). That criticism has only

intensified since Johnson. Indeed, members of the

military community have argued that, far from

preserving military discipline, the denial of relief to

servicemembers in cases where the Government

would otherwise be liable actually has the opposite

effect because of its sheer unfairness. Kevin J. Barry,

A Face Lift (and Much More) for an Aging Beauty:

The Cox Commission Recommendations to Rejuvenate

the Uniform Code of Military Justice, 2002 L. Rev.

Mich. St. U. Det. C.L. 57, 120-21; Major Deirdre G.

Brou, Alternatives to the Judicially Promulgated

Feres Doctrine, 192 Mil. L. Rev. 1, 4-5 (2007).

Second, the discipline rationale proves too much

because it cannot logically be limited to suits by

servicemembers for injuries based on activities

incident to military service. “If the danger to

discipline is inherent in soldiers’ suing their

commanding officers, then no such suit should be

permitted, regardless of whether the ‘injuries arise

out of or are in the course of activity incident to

service.” Costo v. United States, 248 F.3d 863, 866-

67 (9th Cir. 2001). But of course, soldiers are free to

sue the military in such circumstances. See Johnson,

481 U.S. at 700 (Scalia, J., dissenting). By the same

token, “filf the fear is that civilian courts will be

permitted to second-guess military decisions, then

even civilian suits that raise such questions should

be barred. But they are not.” Costo, 248 F.3d at 867.

Third, the Feres doctrine lacks a textual basis in

the FTCA or any other federal statute, but it is often

improperly invoked to override the statutes that

Congress has actually enacted and the President has

signed into law. Indeed, the KFTCA’s express

ms P

exclusion of lawsuits arising out of “combatant

activities ... during time of war” demonstrates “that

Congress specifically considered, and provided what

it thought needful for, the special requirements of the

military.” Johnson, 481 U.S. at 693 (Scalia, J.,

dissenting) (citing 2 U.S.C. § 2680()). As a

“judicially created exception,” Stencel, 431 U.S. at

674 (Marshall, J., dissenting) — one that is entirely

unmoored from the language of the FTCA the

doctrine provides a wholly inadequate basis for

barring causes of action expressly provided for by

Congress. See Costo, 248 F.3d at 871 (Furgeson, J.,

dissenting) (“When considering the eres doctrine .

we are not dealing with a legislative aefion, but

rather with a judicial re-writing of an un .mbiguous

and constitutional statute.”).

2. The Feres doctrine also has proven thoroughly

unworkable in the lower courts, where it has been the

subject of “widespread, almost universal criticism.’

Johnson, 481 U.S. at 700-701 & n* (Scalia, Jd.,

dissenting) (citation omitted) (collecting cases). The

First Circuit has said that eres may “deserve||

reexamination by the Supreme Court” because “a few

of Feres’s original reasons no longer seem’ so

persuasive. Day v. Massachusetts Air Natl Guard,

167 F.3d 678, 683 (1st Cir. 1999). The Ninth Circuit

has described an application of Feres as “follow[ing] a

long tradition of reluctantly acknowledging the

enormous breadth of a troubled, doctrine.” Estate of

McAllister v. United States, 942 F.2d 1473, 1480 (9th

Cir. 1991).

Numerous other cases are in accord I.f.,

Matreale v. New Jersey Dep't of Military & Veterans

Affairs, 487 F.3d 150, 159 (3d Cir. 2007) (Smith, J

concurring) (“The doctrine of intra-military immunity

remains ripe for reconsideration by the Supreme

Court in light of the questionable foundation upon

which it stands.”); Richards v. United States, 176

F.3d 652, 657 (3d Cir. 1999) (“It is because Feres too

often produces such curious results that members of

this court repeatedly have expressed misgivings

about it.”); O'Neill v. United States, 140 F.3d 564, 566

(3d Cir. 1998) (Becker, C.J., statement sur denial of

petition for rehearing) (“I urge the Supreme Court to

grant certiorari and reconsider Feres.”); Taber, 67

F.3d at 1044 n.1l (suggesting that the Court

“abandon the doctrine completely”); Lombard vu.

United States, 690 F.2d 215, 229 n.7, 233 (D.C. Cir.

1982) (Ginsburg, J., concurring and _ dissenting)

(describing Feres as “problematic court precedent”

and noting that “the soundness of the Feres Court’s

interpretation of the FTCA continues to be

questioned”).

That persistent and near universal criticism of

the Feres doctrine among the courts of appeals amply

demonstrates its unworkability and reinforces the

need for review of the decision by this Court.

eT?)

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

John A. Conley Thomas C. Goldstein

LAW OFFICE OF Counsel of Record

JOHN A. CONLEY, Kevin R. Amer

oh PA Tejinder Singh

4647 N. 32nd Street AKIN GUMP STRAUSS HAUER

Suite 170 & FELD LLP

1333 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

Phoenix, AZ 85018

) he ’ oe

Pamela 8. Karlan (202) 887-4000

Jeffrey L. Fisher tgoldstein@akingump.com

STANFORD LAW

SCHOOL SUPREME Amy Howe

COURT LITIGATION Kevin K. Russell

CLINIC HOWE & RUSSELL, P.C.

559 Nathan Abbott 7272 Wisconsin Ave.

Wavy Suite 300

. : ; thesda, MD 2081.

Stanford, CA 94305 Bethesda, MD 20814

September 16, 2010

APPENDIX

LPPENDIX

: a & | re"

LPPENDIX

APPENDIX C: Luke Air Fi

Discrimination Complaint

APPENDIX

FOR PUBLICATION

UNITED STATES COURT OF APPEAI

FOR THE NINTH CIRCUIT

Mi URI

alriti

} nell

MICHAEL B. DONLEY, Acti HRH

Secretary, United States DTAT]

Department of the Air Forcs

Defendan

Appell. é

Appeal from the United

for the District of Arizona

H. Russel Holland. District

Argued and Submitted

March 10. 2010—San F)

1 } } ‘ >" :

Kiled June &, 20]

Before: ' nthia Hole eer’ Hall.

Sidney R. Thomas, Circuit Judge

COUNSEL

John A. Conley; Phoenix, Arizona;

James Burr Shields Il; Phoenix,

Arizona; W. Blake Simms;

Phoenix, Arizona, for the

appellant

Suzanne M. Chynoweth; Phoenix,

Arizona: Marleigh Dover;

Washington, UD.C.: Lowell

Sturgill, Jr., Washington, D.C.,

for the appellee

OPINION

THOMAS, Circuit Judge

This appeal presents the question of whether the

intra-military immunity doctrine, as embraced by our

circuit in Mter v. Qwens, 57 F.3d 747 (9th Cir. 1995),

was superseded by the National Defense

Authorization Act for Fiscal Year 1998 (“1997

Amendments’), Pub. L. No. 105-85, § 522(a), 111

Stat. 1629, 1734 (1997), codified at 10 U.S.C. §

10216(a). We conclude that the 1997 Amendments

did not repeal the intra-military immunity doctrine,

and we affirm the district court’s dismissal of the

action

Pursuant to the doctrine of intra-military

immunity, “members 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.”

Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir. 1997)

(citation omitted). The doctrine applies “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 the United States.” Jd. at 710 (quotation

omitted); see also Stauber v. Cline, 837 F.2d 395, 397-

99 (9th Cir. 1988); see generally Feres v. United

States, 340 U.S. 135 (1950) (origin of the doctrine).

The doctrine arises out of the sensitive nature of

military operations, the unique relationship of the

soldier to his superiors, and the special role of the

military in providing national defense. United States

v. Brown, 348 U.S. 110, 112 (1954).

But what of the circumstance when a civilian is

employed by the military? Or, more relevant to our

analysis, when an individual serves in the dual role

of civilian and military employee? In Mier v. Owens,

we applied the doctrine of intra-military immunity to

hold that we could not entertain a Title VII claim

brought by a dual status technician in the Army

National Guard. 57 F.3d at 750. If no events had

intervened, the result in this case would be clear.

Mier would dictate that we apply the doctrine of

intra-military immunity and affirm the dismissal of

the suit. However, Zuress argues that the 1997

Amendments have altered the legal landscape, and

two of our sister circuits have disagreed on that

question. Compare Williams v. Wynne, 533 F.3d 360,

367 (5th Cir. 2008) (holding that the 1997

Amendments did not affect prior doctrine) with

Jentoft v. United States, 450 F.3d 1342, 1348-49 (Fed.

Cir. 2006) (holding that the 1997 Amendments

allowed a dual status National Guard technician to

bring an Equal Pay Act claim against the military).

But first to the background of our controversy.

Lisa Zuress was a dual status Air Force Reserve

Technician at the Luke Air Force Base in Arizona.

Air Force Reserve Technicians provide management,

administration, and training of reservists and

oversee the transition of their units from peacetime

to wartime or national emergency. Air Force

Instruction (“AFT”) 36-108, 4 1 (July 26, 1994).

The Air Force Reserve Technician program was

initiated in 1957 after authorization by letter from

the Civil Service Commission. Am. Fed’n of Gov't

Employees v. Hoffman, 543 F.2d 930, 932 (D.C. Cir.

1976); Ridgway v. Aldrige, 709 F. Supp. 265, 267 (D.

Mass. 1989). Prior to that time, Air Reserve Flying

Centers were maintained and operated by units

composed of military and civilian personnel that were

organizationally separate from the Air Reserve

Wings. Am. Fed’n of Gov't Employees, 543 F.2d at

933. “[B]y replacing military support personnel with

civil servants and _ requiring civilian support

personnel to be active reserve members,” the Air

Force Reserve ‘Technician program “in effect

integrated the support organizations into the Air

Reserve Wings.” Jd. “The primary goal of the plan

was to increase the combat readiness of Air Force

Reserve units, as well as their effectiveness in the

event of mobilization.” Jd. at 932-33; see also Air

Force Reserve Command Instruction (“AFRCI’) 36-

114, 4 2 (Aug. 10, 2001).

Congress provided express statutory authority for

the Air Force Reserve Technician program in 1996.

See National Defense Authorization Act for Fiscal

Year 1996, Pub. L. No. 104-106, § 513, 110 Stat. 186,

305-07 (1996), codified at 10 U.S.C. § 10216. That law

required, among other things, that all Air Force and

Army technicians hired after the statute’s enactment

date maintain membership in the Air Force or Army

Reserve as a condition of their employment. Jd.

In a separate law enacted later in 1996, Congress

added a statutory definition for the position of Air

Force and Army technician which provided:

IN GENERAL.—Miulitary technicians are Federal

civilian employees hired under title 5 and title 32

who are required to maintain dual-status as drilling

reserve component members as a condition of their

Federal civilian employment. Such employees shall

be authorized and accounted for as a_ separate

category of dual-status civilian employees, exempt as

specified in subsection (b)(3) from any general or

regulatory requirement for adjustments in

Department of Defense civilian personnel.

National Defense Authorization Act for Fiscal

Year 1997, Pub. L. No. 104-201, § 1214, 110 Stat.

2422, 2695 (1996), codified at 10 U.S.C. § 10216.

In 1997, Congress amended that definition and

distinguished between “dual status” and “non-dual

status” military technicians. Amended § 10216(a)

provided:

In general.—(1) For purposes of this section and

any other provision of law, a military technician (dual

status) is a Federal civilian employee who—

(A) 1s employed under section 3101 of title 5 or

section 709(b) of title 32;

(B) is required as a condition of that employment

to maintain membership in the Selected Reserve;

technician in the administration and training of the

Selected Reserve or in the maintenance and repair of

supplies or equipment issued to the Selected Reserve

or the armed forces.

(2) Military technicians (dual status shall be

authorized and accounted for as a separat) category

of civilian employees.

1997 Amendments, codified at 10 U.S.C. §

10216(a). The newly enacted § 10217(a) provided:

(a) Definition.—For the purposes of this section

and any other provision of law, a non-dual status

technician is a civilian employee of the Department of

Defense serving in a military technician position

who—

(1) was hired as a technician before November 18,

1997 ... and as of that date is not a member of the

Selected Reserve or after such date has ceased to be a

member of the Selected Reserve; or

(2) is employed under section 709 of title 32 in a

position designated under subsection (c) of that

section and when hired was not required to maintain

membership in the Selected Reserve.

National Defense Authorization Act for Fiscal)

Year 1998, § 523(a), 111 Stat. at 1736, codified at 10

U.S.C. § 10217(a). Air Force Technicians are required

to wear their military uniforms while acting in both

their civilian and military capacities. See AFI 36

2903, tbls. 1.3, 6.1 (Aug. 2, 2006).

Zuress was employed as a dual status Air Force

Reserve Technician at Luke Air Force Base from July

2000 to June 2005. She served in a civilian capacity

as a GS-12 Operations Staff Specialist for the 944th

Operations Group and in a military capacity as an

Air Force Reserve Captain in the 944th Operations

Group.

Zuress alleges that the Air Force violated her

rights under Title VII by failing to promote her;

failing to extend her military retirement date as long

as she had requested; temporarily detailing her to a

lower-grade position; and forcing her retirement. She

contends that this unfair treatment began in

September 2003 after she wrote a letter to senior

Defense Department officials describing

inappropriate sexual behavior following a Fighter

Squadron “naming” ceremony and that it escalated

when she agreed to serve as a character witness in a

coworker’s discrimination case. Zuress alleges that,

in retaliation, her former military commander

refused to return her salute and her supervisors gave

her two “average” performance reports, eliminating

her chance for promotion. Because military officers

twice passed up for promotion must separate from

the military, Zuress’s performance _ reports

guaranteed her forced retirement.

According to her complaint, Zuress realized upon

receiving her second performance report that she

would not be promoted and would be ineligible to

remain in the Air Force Reserves. The denial of

promotion meant losing her civilian position as well.

She submitted military retirement paperwork in

January 2005, went on leave, and requested a one-

year leave of absence to search for another position.

Allegedly in a retaliatory gesture, her supervisor

denied her request for a one-year leave of absence

and granted a four-month leave instead. Zuress then

cancelled her request for leave and returned to work.

When she returned, she was detailed to a lower grade

GS-7 position. In March 2005, Zuress learned that

she had not been promoted and would be forced to

retire. Three months later, she retired from the Air

Force Reserve and was separated as a civilian

employee.

Zuress filed a complaint in district court alleging

that the Air Force had violated her rights under Title

VII, naming the Secretary of the Air Force as the sole

defendant. On the Secretary’s motion, the district

court dismissed Zuress’s amended complaint for lack

of subject matter jurisdiction pursuant to Federal

Rule of Civil Procedure 12(b)(1). This appeal followed.

We review de novo dismissal for lack of subject

matter jurisdiction, Atwood v. Fort Peck Tribal Court

Assiniboine, 513 F.3d 943, 946 (9th Cir. 2008), and

may affirm on any basis supported by the record,

Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th

Cir. 2007).

When interpreting a statute, “ ‘we look first to the

plain language of the statute, construing the

provisions of the entire law, including its object and

policy, to ascertain the intent of Congress.’ ” United

States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir.

1999) (quoting Northwest Forest Res. Council ov.

Glickman, 82 F.3d 825, 830 (9th Cir. 1996)). If the

plain meaning of the statute is. unambiguous, that

meaning is controlling and we need not examine

legislative history as an aid to interpretation unless

“the legislative history clearly indicates’ that

Congress meant something other than what it said.”

Carson Harbor Village, Ltd. v. Unocal Corp., 270

F.3d 863, 877 (9th Cir. 2001) (en banc) (quotation

omitted). If the statutory language is ambiguous, we

consult legislative history. United States v. Daas, 198

F.3d 1167, 1174 (9th Cir. 1999).

In the present context, we must also examine the

relevant statutory provisions in light of case law that

pre-existed adoption of the 1997 Amendments. We

presume that Congress is familiar with controlling

precedent and expects that its enactments will be

interpreted accordingly. United States v. Wells, 519

U.S. 482, 495 (1997). For this reason, we must

consider the 1997 Amendments against the backdrop

of our intramilitary immunity precedent.

[1] Beginning with Feres, the Supreme Court has

been quite careful in guarding the doctrine of intra-

1Oa

military immunity against statutory and common

law challenges. 340 U.S. at 146 (holding that the

doctrine apphed to suits brought under the Federal

Tort Claims Act); see also Chappell v. Wallace, 462

U.S. 296, 305 (1983) (enlisted military personnel may

not maintain a suit to recover damages from a

superior officer for alleged constitutional violations).

Our Circuit has followed suit. See Hlodge, 107 F.3d at

710 Gntra-military immunity doctrine precludes suit

brought by active-duty military personnel pursuant

to 42 U.S.C. § 2000e-16(e)); Mier, 57 F.3d at 751

(intra-military immunity doctrine preludes suits by

dual status employees under Title VI1); Stauber, 837

i2d at 401 (ntra-military immunity precludes

common law tort suit by dual status employee);

Gonzalez v. Department of Army, 718 F.2d 926, 929

(9th Cir. 1983) (intra-military immunity doctrine

precludes suit under Title VII); Mollnow v. Carlton,

716 F.2d 627, 631 (9th Cir. 1983) (intra-military

immunity precludes military officers from suing

fellow military officers under 42 U.S.C. § 1985(1) or

common law tort theories); Mattos v. United States,

412 F.2d 793, 794 (9th Cir. 1969) (intra-military

immunity doctrine precludes suits by reservists

against fellow reservists for injuries received while

on reserve training)

In Gonzalez and Mier, we quoted with approval

the Eighth Circuit’s observation that “if Congress had

intended for [Title VII] to apply to the uniformed

personnel of the various armed services, it would

have said so in unmistakable terms.” Johnson v

Alexander, 572 F.2d 1219, 1224 (8th Cir. 1978)

(quoted in Gonzalez, 718 F.2d at 928 and in Mier, 57

I’.3d at 749).

lla

[2] In Mier, we began our statutory analysis by

applying the “unmistakable terms” test and

determined that Congress had not — either through

the National Guard Technicians Act or Title VII itself

— “stated in ‘unmistakable terms’ ” that Title VII

applies to dual status National Guard technicians.

Id. at 749 (quoting Gonzalez, 718 F.2d at 928). We

clarified that under the doctrine of intra-military

immunity, courts “decline to hear lawsuits involving

personnel actions integrally related to the military’s

unique structure.” Jd. at 749. We held that “Title VII

encompasses actions brought by Guard

locuiieens except when the challenged conduct is

integrally related to the military’s unique structure.”

Id. at 750. Finally, we declined to entertain the

plaintiffs claims — which alleged discriminatory

denial of military promotions and suspension from

civilian employment, as well as retaliation — because

they challenged personnel actions integrally related

to the military’s unique structure. See id. at 750-51.

([3] Zuress concedes that the personnel actions

that she challenges are integrally related to the

military’s unique structure, and thus that her claim

is foreclosed under the analysis in Mier. However,

she argues that the 1997 Amendments undermine

Mier. We disagree.

The critical portion of § 10216(a), as amended in

1997, states:

(1) For purposes of this section and any other

provision of law, a military technician (dual status) is

a Federal civilian employee who—

12a

(A) is employed under section 3101 of title 5 or

section 709(b) of title 32;

(B) is required as a condition of that employment

to maintain membership in the Selected Reserve;

technician in the administration and training of the

Selected Reserve or in the maintenance and repair of

supphes or equipment issued to the Selected Reserve

or the armed forces.

Zuress points to the phrase “any other provision

of law,” and argues that the plain language of

amended § 10216(a) indicates that Congress intends

for dual status Air Force Reserve Technicians to be

treated as civilian employees for the purpose of filing

Title VIJ claims. The Federal Circuit recently

adopted this position in Jentoft v. United States, 450

F.3d 1342 ‘Fed. Cir. 2006), in which it held, based on

the 1997 amendment, that a dual status National

Guard technician could bring an Equal Pay Act claim

against the military. 450 F.3d at 1348-49. The Jentoft

court reasoned:

Section 10216(a) provides that ‘for purposes of

this section and any other provision of law, a military

technician (dual status) is a Federal civilian

employee.’ Notably, there is no language in §

10216(a) limiting the circumstances 1n which a dual

status technician can be considered a federal civilian

employee. Thus, the plain language of § 10216(a)

makes clear that Jentoft has a justiciable claim

under the Equal Pay Act.

Id. (emphasis removed).

l3a

[4] We respectfully disagree with the Federal

Circuit. Rather, we agree with the Fifth Circuit that

the 1997 Amendments did not effect such a

substantive change, as dual status technicians have

long been recognized as “ ‘civilian employees whose

positions require that they also serve in the military

reserves.” Williams v. Wynne, 533 F.3d 360, 367 (5th

Cir. 2008) (quoting Brown v. United States, 227 F.3d

295, 297 (Sth Cir. 2000)) (emphasis removed); accord

Walch v. Adjutant Gen.'s Dep't of Tex., 533 F.3d 289,

299 (5th Cir. 2008) (noting that “there was nothing

new in 1996 about considering these technicians to be

federal civilian employees,” since they had already

been described as such in prior case law). Both before

and after the 1997 Amendments, dual-status Air

Force Reserve Technicians held “a hybrid job

entailing both civilian and military aspects.” See

Mier, 57 F.3d at 749; see also AFRCI 36-114, 4 2

(Aug. 10, 2001) (recognizing that dual status Air

Force Reserve Technicians “are full-time civilian

employees who are also active members of the Air

Force Reserve unit in which they are employed”). As

we suggested in Mier and Gonzalez, a clear statement

is required from Congress to override our settled

judicial doctrine of intra-military immunity. See

Mier, 57 F.3d at 749; Gonzalez, 718 F.2d at 928. The

text of the 1997 Amendments does not satisfy that

standard.

[5] Moreover, the legislative history of the 1997

Amendments demonstrates that Congress employed

the phrase “for any provision of law” to eliminate

inconsistencies in the nomenclature used to refer to

dual status technicians, rather than to override

settled case law on intra-military immunity. Prior to

l4a

the amendment, congressional enactments referred

to military technicians under three different titles:

“military (civilian) technicians,” see Department of

Defense Appropriations Act, 1996, Pub. L. No. 104-

61, § 8087, 109 Stat. 636, 668 (1995), “military

technicians,” see National Defense Authorization Act

for Fiscal Year 1996, § 513(c), 110 Stat. at 305, and

“dual-status military technicians,” see id. at 306. A

House Report for the bill explained:

The National Defense Appropriations Act for

Fiscal Year 1996 (Pubhe Law 104-61) and the

National Defense Authorization Act for Fiscal Year

1996 (Public Law 104-106) enacted provisions

defining the term “military technician” which were

not completely consistent with one another. This

section would remove the inconsistencies by defining

a military technician (dual status) as a federal

civilian employee who is hired in accord with titles 5

or 32, United States Code, and who, as a condition of

federal civilian employment, must maintain military

membership in the selected reserve, and who also

must be assigned to a position as a technician in the

administration and training of the selected reserve,

or to a position in the maintenance and repair of

supplies or equipment issued to the selective reserve

or armed forces.

H.R. Rep. No. 105-132, National Security

Committee, at 358 (1997). Indeed, Zuress points to

nothing in the legislative history of the amendment

that suggests Congress intended to waive the United

States’s sovereign immunity for Title VII suits by

dual status military technicians. There is no mention

of Title VII in the legislative history of the 1997

15a

Amendments, nor is there any indication that

Congress intended to authorize any cause of action

that was previously unavailable to a dual status

technician. Accord Williams, 533 F.3d at 367

(“Nothing in the legislative history of § 10216(a)(1)(B)

suggests that Congress intended to intrude on such

military personnel decisions.”). Instead, the

provisions at issue appear to have been primarily

concerned with distinguishing between dual status

and non-dual status technicians and with annual

requests to Congress for authorization of different

categories of technicians. See Walch, 533 F.3d at 299;

H.R. Rep. No. 105-132, at 348, 358.

Zuress contends that we should refuse to

consider the legislative history of amended §

10216 given its plain meaning. However, “[t]he

purpose of statutory construction is to discern the

intent of Congress in enacting a_ particular

statute.” Daas, 198 F.3d at 1174. If a statute is

ambiguous, we “may look to its legislative history

for evidence of congressional intent.” Jd. at 1174.

[6] We conclude that the 1997 Amendments do

not justify a reexamination of Mier. See 57 F.3d at

748. We therefore affirm the judgment of the district

court. We do not, and need not, address any other

issue raised by the parties.

AFFIRMED.

APPENDIX B

LHE UNITED STATES DISTRICT COU!I

OR THE DISTRICT OF ARIZOD

URI

MICHAEL W. WYNNE, Secret

Department of the Air Fores

NO 2-OR-cyV

Defendant moves to dismiss plaintiffs first

amended complaint.!

argument has been

This motion is opposed.- Oral

requested but is not deemed

disposition of this motion

been more thar

because the

necessary

legal issue that has

turns on a

adequately bnefed by the partie

17a

Facts

Plaintiff is Lisa M. Zuress. Defendant is Michael

W. Wynne, Secretary of the Department of the Air

Force.

From July 3, 2000 until June 30, 2005, plaintiff

worked as a Air Reserve Technician (ART) at Luke

Air Force Base, Arizona. ARTs carry dual status as

civilian employees and as members of the military.

Plaintiff worked as both a GS-12 Operations Staff

Specialist for the 944th Operations Group and as a

Captain in the Air Force Reserve. She performed

similar duties in both capacities and reported to the

same military supervisor. From November 2003 until

June 20, 2005, plaintiffs mihtary supervisor was

Colonel William Binger.

Plaintiff contends that she was subjected to

harassment and discrimination in both her military

and civilian capacities. Plaintiff alleges that this

harassment and discrimination began in September

2003, after she wrote an anonymous letter to senior

Defense Department officials, in which she described

mappropriate behavior during a 302d _ Fighter

Squadron “naming” ceremony.‘ Plaintiff also alleges

that the harassment and discrimination she was

subjected to related to her being a character witness

3 Effective June 23, 2008, Michael B. Donley is the acting

Secretary of the Air Force.

* Amended Complaint at 3, 9 13-15, Docket No. 9.

18a

for Roger Marichalar, who had filed a charge of

discrimination based on a failure to promote.®

In December 2004, plaintiff saw her Officer

Performance Report (OQPR), which had_ been

completed by Colonel Binger, and which questioned

her officership and judgment.® Plaintiff knew that

this OPR would prevent her from being promoted to

Major, which meant that she would be ineligible to

remain in the Air Force Reserves.? Because plaintiff

had to be in the Reserves to maintain her civilian

position, plaintiff would also lose her civilian job if

she were not promoted.

Thus, in January 2005, plaintiff submitted her

military retirement paperwork and requested a one-

year leave of absence.§ Colonel Binger denied her

request for a one-year leave of absence, granting a

four-month leave instead.’ Plaintiff subsequently

cancelled her request for a leave of absence and

returned to work.!° On her return to work, plaintiff

was detailed to a GS-7 position in the Medical

Squadron because Colonel Binger had _ detailed

another person to fill plaintiff's position.?!

> Id. at 5-6, 74] 24-27.

§ Jd. at 8, 9 33.

’ Id. at J 35. Plaintiff had not been promoted once before,

and an officer who is twice not selected for promotion is forced to

separate from the military. Jd. at n.1.

8 Id. at 9, 99 36-37.

9 Td. at | 38.

10 Id. at 4 39.

lt Jd,

19a

On March 4, 2005, plaintiff contacted a EEO

counselor and alleged gender discrimination and

retaliation. Sometime thereafter, plaintiff was

informed that, as anticipated, she had not been

promoted to Major.!2 On June 30, 2005, plaintiff

retired from the Air Force Reserve and separated as

a civilian employee. !4

On March 28, 2008, plaintiff commenced the

instant action. In her first amended complaint, she

alleges one count of retaliation under Title VII.

Pursuant to Rule 12(b)(1), Federal Rules of Civil

Procedure, defendant now moves to dismiss plaintiff's

amended complaint on the ground that the court

lacks subject matter jurisdiction.

Discussion

Where, as here, the jurisdictional issue is not

intertwined with the merits of case, “the court may

determine jurisdiction on a motion to dismiss for lack

of jurisdiction under Rule 12(b)(1) of the Federal

Rules of Civil Procedure.” Kingman Reef Atoll

Investments, L.L.C. v. United States, 541 F.3d 1189,

1195 (9th Cir. 2008). The court

is free to hear evidence regarding jurisdiction

and to rule on that issue prior to trial,

resolving factual disputes where necessary.

In such circumstances, no presumptive

truthfulness attaches to plaintiff's

allegations, and the existence of disputed

12 Jd. at 10, J 43.

13 Jd. at 11, J 43.

20a

material facts will not preclude the trial court

from evaluating for itself the merits of

jurisdictional claims.

Id. (quoting Roberts v. Corrothers, 812 F.2d 1173,

1177 (9th Cir. 1987)).

Defendant argues that the court lacks subject

matter jurisdiction over plaintiffs Title VII claim

because of the Feres doctrine.'4 “Under this doctrine,

members 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.” Hodge uv.

Dalton, 107 F.3d 705, 710 (9th Cir. 1997). “Although

th[is] doctrine of intra-military immunity is generally

applied in connection with the FTCA, its applicability

is not limited to FTCA cases.” Jd. Rather, “[t]he Feres

doctrine is applicable ‘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 the United

States.” Zaputil v. Cowgill, 335 F.3d 885, 887 (9th

Cir. 2003) (quoting Hodge, 107 F.3d at 710). The

doctrine “has been broadly construed to immunize

the United States and members of the military from

any suit which may intrude in military affairs,

second-guess [ ] military decisions, or impair [ ]

'4 Defendant also argues that any portion of plaintiff's

claim which is based on events occurring more than 45 days

prior to March 4, 2005 must be dismissed for failure to exhaust

administrative remedies. Because of the court’s resolution of the

Feres doctrine argument, the court need not address the

exhaustion argument.

Zla

military discipline.” Jd. (citations and quotation

marks omitted).

In Mier v. Owens, 57 F.3d 747, 748 (9th Cir.

1995), the Ninth Circuit considered “whether a

National Guard technician, whose job is a hybrid

military-civilian position, can maintain a Title VII

employment discrimination action.” The court first

looked to the National Guard Technicians Act

(NGTA), 32 U.S.C. § 709, to determine whether

Congress had stated that Title VII applies to

National Guard technicians. /d. at 749. The court

found that the NGTA set forth employment rules for

Guard technicians and indicated that Guard

technicians have dual status, but that the statute did

not clearly state whether or not Title VII applied to

Guard technicians. Jd. Thus, the court concluded that

Title VII could apply to dual status technicians. Jd.

The court then proceeded to consider under what

circumstances Title VII does apply to dual status

employees. Jd. Invoking the principles behind the

Feres doctrine, without ever expressly mentioning the

doctrine, the court held that Title VII does not apply

to dual status employees if their claims are based on

personnel actions “integrally related to the military’s

unique structure.” /d. at 750.

Defendant argues that Mier controls here because

plaintiff is a dual status employee. Plaintiff does not

disagree that the timely events which support her

Title VII claim are all based on actions integrally

related to the military’s unique structure. Plaintiff

also concedes that Mier is the current law of this

y by

asa

circuit regarding the justiciability of discrimination

claims by military technicians such as _ herself.'®

Plaintiff, however, urges the court to find that Mier is

no longer good law because it has been superseded by

statute. This argument is based on the Fedeyal

Circuit’s decision in Jentoft v. United States, 450 F.3d

1342 (Fed. Cir. 2006).

In Jentoft, the plaintiff, who was a dual status

National Guard technician, brought a claim under

the Equal Pay Act, alleging that she had been

discriminated against because of her gender. /d. at

1344. The lower court held that the plaintiff's Equal

Pay Act claim was barred by the Feres doctrine

because “the discriminatory acts on which she based

her claim were ‘integrally military,’ ‘within the

military sphere’, or ‘incident to service.’” Jd. at 1345.

The Federal Circuit disagreed.

The Federal Circuit first observed that the Equal

Pay Act allows “employees” to bring actions and that

an “employee” is for purposes of the Equal Pay Act is

“*any individual employed by the Government of the

United States ... as a civilian in the military

departments[.|’” Jd. at 1348 (quoting 29 U.S.C. §

203(3)(2)(A)Q)). The court then looked to the National

Guard Technicians Act to see if the plaintiff could be

considered a “civilian” employee. Jd. The NGTA

provides that a dual status technician’s position is

“defined” in 10 U.S.C. § 10216(a). Jd. (citing 39 U.S.C.

§ 709). Section 10216(a) provides, in relevant part,

15 Plaintiffs Response to Defendant’s Motion to Dismiss at

7, Docket No. 15.

23a

that “‘[flor purposes of this section and any other

provision of law, a military technician (dual status) is

a Federal civilian employee[.|’” Jd. (emphasis in the

original) (quoting 10 U.S.C. § 10216(a)). The Federal

Circuit found that there was no language in section

10216(a) which limited the circumstances in which a

dual status technician was a civilian employee. Thus,

the Federal Circuit held that the plaintiffs Equal Pay

Act claim was justiciable. /d.

The Federal Circuit recognized that “other

circuits have dismissed claims arising under other

similar statutes as non-justiciable,” including the

Ninth Circuit in Mier. Id. at 1349. However, the

Federal Circuit pointed out that Mier (and a case

from the First Circuit) had been decided prior to

1996. Id. This date is significant because the “any

other provision of law” language was added to section

this language was broad and unambiguous and

evinced an intent by Congress that dual status

technicians be treated the same as other federal

civilian employees. /d.

The Federal Circuit also considered whether the

Feres doctrine would somehow preclude the plaintiffs

Equal Pay Act claim, despite the clear statutory

language in section 10216(a). The Federal Circuit

noted that the Feres doctrine was based on the

unique nature of the military and the disruption to

the military system that could result if soldiers were

16 Even prior to the 1996 amendment, section 10216(a)

provided that military technicians were “Federal civilian

employee[s].”

24a

allowed to bring claims against their superiors. /d

The Federal Circuit acknowledged that the Vleres

doctrine “would seem to preclude a court from

adjudicating a claim brought by a dual status

technician ... based on acts that were incident to her

military service.” /d. Nonetheless, the Federal Circuit

held that the eres doctrine did not bar the plaintiffs

claim because the Feres case, on which the doctrine is

based, was decided before Congress amended section

10216(a) in 1996 and “therefore did not consider the

impact of that statute.” /d

The Federal Circuit appears to have been the

first circuit to consider the impact that the 1996

amendment to section 10216(a) has on_ the

justiciability of Title VIL claims by dual status

employees. Hlowever, it 1s not the only circuit that

has considered this issue. In Williams v. Wynne, 533

K.3d 360, 364 (5th Cir. 2008), the Fifth Circuit

considered whether an Aircraft Electrician who had

dual status as a civilian employee and a member of

the Air Force Reserves could pursue a Title VII

discrimination claim after he was discharged from

the Reserves and removed from his civilian position.

The district court dismissed the Title VII claim on

the grounds that it lacked subject matter jurisdiction,

relying on Brown v. United States, 227 F.3d 295 (5th

Cir. 2000). /d. at 365. In Brown, the Fifth Circuit had

held that “‘claims that originate from an ART’s

military status ... are not cognizable’ under ‘Title

VII.” Jd. at 366 (quoting Brown, 227 F.3d at 299)

On appeal, relying on Jentoft, Williams argued

“that Brown should be limited to cases involving

employment actions taken against dual status

25a

employees that occurred prior to the 1996 enactment

of § 10216(a)....” Id. The Fifth Circuit rejected this

argument. “As we explained in Brown, Title VII

claims arising from an ART’s military status

constitute an impermissible intrusion into military

personnel decisions. Nothing in the legislative history

of § 10216(a)(1)(B) suggests that Congress intended

to intrude on ... military personnel actions.” Jd. at

367 (internal quotation omitted). Thus, in the Fifth

Circuit, the rule as to whether dual status employees

may pursue Title VII claims remains the same,

despite the 1996 amendment to section 10216(a). A

dual status employee is still barred from bringing a

Title VII claim that is integrally related to his or her

military status. /d.

This court is bound to follow the precedent of its

own circuit. See Zuniga v. United Can Co., 812 F.2d

443, 450 (9th Cir. 1987). In Mier, the Ninth Circuit

held that dual status employees are barred from

bringing Title VII claims that are integrally related

to their military status. Given the conflicting

opinions from other circuits on the impact of the 1996

amendment to section 10216(a), the court declines to

depart from this precedent. Thus, the court concludes

that plaintiff's Title VII claim is barred because it is

integrally related to plaintiffs military status.

Dbased tne loregoing, defendant

lismiss is granted. Plaintiffs f

complaint is dismissed with prejudice

s/ H. Russel Holland

Inited States Distri |

27a

APPENDIX C

LUKE AIR FORCE BASE

DISCRIMINATION COMPLAINT SYSTEM

RIGHTS

You are advised that, at a minimum, your rights

include the following:

1. The right to anonymity in the counseling phase

of the complaint process unless you waive that right

(29 C.F.R. 1614.105g).

2. The right to representation throughout the

complaint process including the counseling stage (29

C.F.R. 1614.605).

3. The right to be informed of tiie possible

. . ° Naa

election requirement between a negotiated grievance

procedure and the EEO complaint procedure:

Where an ageticy is covered by 5 U.S.C. & 7121

(d) and where the negotiated procedure (Union

contract) and the statute* cover the alleged

discrimination, you are required to elect either (1) the

statutory procedure for discrimination (the internal

agency EEO process) or (2) the negotiated grievance

procedure, but not both.

At Luke Air Force’ Base discrimination

allegations are NOT covered by a negotiated

procedure. Discrimination allegations can only be

processed through the internal Air Force process. You

cannot file a formal grievance and a formal EEO

complaint about the same event simultaneously.

28a

4. The right to be informed of the election

requirement in the event the matter at issue is

appealable to the Merit Systems Protection Board,

1.e., the matter is a mixed case:

You have twenty (20) calendar days from the

date of the alleged discriminatory act to file a mixed

case appeal with the Merit Systems Protection Board

(MSPB), or fifteen (15) calendar days from the date of

a counselor's notice of final interview. You may also

file a formal mixed case EEO complaint thirty (30)

calendar days after the initial EEO counselor contact.

You may not file both an MSPB appeal and an EEO

complaint on the same matter. The process selected

first is deemed the elected process. (29 C.F.R.

1614.302)

5. You must file a formal complaint within 15

days of receipt of the counselors notice of right to file

a formal complaint in the event you wish to file a

complaint at the conclusion of counseling.

*The following statutes, collectively, protect on the

basis of race, color, sex, religion, national origin,

handicap, and age: Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e-16; Sections 501

and 505 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. 791 and 974a, and Section 15 of

the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. 633a, the Equal Pay Act of

1963, 29 U.S.C. 206(d).

29a

6. You have the right to go directly to U-S.

District Court on claims of sex-based wage

discrimination under the Equal Pay Act even though

such claims are also cognizable under Title VII.** If

you go to court in connection with an Equal Pay Act

claim, there 1s availability of liquidated damages for

a willful violation.

7. You have the right to request a hearing before

an Equal Employment Opportunity Commission

Administration Judge in a non-mixed case after 180

days or after completion of investigation, whichever

comes first. (29 C.F.R. 1614.108f)

8. You have the right to go to U.S. District Court

180 days after filing a formal complaint or 180 days

after filing an appeal.

9. If you are alleging age discrimination, you

have the right to file an administrative complaint

under 29 C.F.R. 1614 or to bypass the administrative

process and file a civil action in a U.S. District Court.

If you decide to file a civil action, you must give the

EEOC not iess than 30 days notice of intent to file

such an action (29 C.F.R. 1614.201). This notice must

be filed, in writing, with the EEOC, Federal Section

Programs, 1801 L Street, NW, Washington, DC

20507, within 180 days of the occurrence of the

alleged unlawful practice.

id. You have the right to file 2 class

complaint (29 C.F.R. 1614.105b)

it F You have the right to receive in writing

within 30 calendar days of your first EEO counseling

30a

contact (unless the time period is extended by your

prior written consent) a notice terminating

counseling and informing you of (1) your right to file

a formal complaint within 15 calendar days of receipt

of the notice. (2) the appropriate official with whom to

file a formal complaint, and (3) your duty to

immediately inform the agency if you retain counsel

or a representative.

Any extension of time for counseling may not

exceed an additional 60 days. Where notice is not

provided and no extension is secured, you have the

right to file a formal complaint after the 30th day.

Exception: Where a complainant agrees to participate

in an established Alternative Dispute Resolution

(ADR) program, the written notice terminating the

counseling period will be issued upon completion of

the ADR process or within 90 days of the first

contact, whichever is earlier. The Air Force has

adopted mediation as its ADR program.

**Sex-based claims of wage discrimination may also

be raised under Title Vil; individuals so aggrieved

may thus claim violations of both — statutes

simultaneously. Equal Pay Act complaints may be

processed under Part 1614. In the alternative, a

complainant may go directly to U.S. District Court.

3la

RESPONSIBILITIES

1. You have the duty to mitigate damages, e.g.,

interim earnings, or amounts which could be earned

by you with reasonable diligence, generally must be

deducted from an award of back pay.

2. You are required to keep the agency and

KEOC informed of any change in your employment

and of your current mailing address and to serve

copies of any appeal papers on the agency. (29 C.F.R.

1614.605b)

3. Only matters raised at the counseling stage or

matters like or related to matters raised at the

counseling stage may be the subject of a formal

complaint.

4. You must tell the EEO Director if you are

represented and by whom, and must inform the chief

counselor of any change in representation. (29 C.F.R.

1614.605b)

5. You must fully furnish the agency copies of

your appeal papers. (29 C.F.R. 1614.105b)

6. You must fully cooperate with counselors,

investigators, etc. (29 C.F.R. 1614.605e)

If you have questions about any of the above,

please contact Mr. Ronald Goodwyn, EEO Director,

56th Fighter Wing/CCD, 7383 N. Litchfield Road,

Suite 2112, Luke Air Force Base, Arizona 85309-

1544; phone (623) 856-7113

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.