# Petition for Writ of Certiorari — Zuress v. Donley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 564 U.S. 1037

## Text

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,
Vs
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
SPEND MPEGEAI YY cccsccsscvesscossevcvsssesescies POR er Ber
JURISDICTION........ cea mebiteniaahtakassieenss Maacenthanesrese? l
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yee 8) Oe ye) ON OY.) Oe 4
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Superseded By the Feres Doctrine ................ 23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

1V

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

Vv

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" :
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

4a

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

5a

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

6a

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;

(C) is assigned to a civilian position as a
technician in the administration and training of the
Selected Reserve or in the maintenance and repair of
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

ta

(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

8a

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

9a

may affirm on any basis supported by the record,
Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th
Cir. 2007).

I]

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;

(C) is assigned to a civilian position as a
technician in the administration and training of the
Selected Reserve or in the maintenance and repair of
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
10216(a) in 1996.!© The Federal Circuit found that
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2490%3A1. Public record. Not legal advice.