Opposition Brief — Zuress v. Donley

No. 10-374

Jn the Supreme Court of the Gnited States

LISA M. ZURESS, PETITIONER

MICHAEL B. DONLEY, SECRETARY OF THE AIR FOR

ON PETITION FOR A WRIT OF CERTIORAR

THE UNITED. TATES COURT OF APPEA

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

NEAL KUMAR KATYA

Lcting Solicitor Gene

Counsel of Record

TONY WEST

Assistant Attor

MARLEIGH DOVER

LOWELL V. STURGII

Attorneys

De partment {) has (

Washi? gion. Pt SUD

Supre meCtBriets LviN¢

QUESTION PRESENTED

hether the National Defense Authorization Act

KFiseal Year 1998, Pub. L. No. 105-85, § 522(a), 111 Stat

1734 (10 U.S.C. 10216(a)), authorizes a military tech

nician (dual status) to sue under Title VII of the Cin

Rights Act of 1964, 42 U.S.C. 2000e-16(a), to recover fo

alleged discrimination incident to the technician’s n

tary servi

1056 (2001

Cases—Continued: Page

Cee, Pe ae a eo ee ee LS

Watson v. Arkansas Nat'l Guard, 886 F.2d 1004

[ee ae Pe eu a eee Loe eee 15

Wetherill v. Geren, 616 F.3d 789 (Sth Cir. 2010),

petition for cert. pending, No. 10-638 (filed Nov. 9,

eR saa eee eh ye es eee ae ele we 12, 14, 16

Wiliams v. Wynne, 533 F.3d 360 (5th Cir. 2008) .... 10,14

Willis v. Roche, 256 Fed. Appx. 534 (3d Cir. 2007) ....... 6

Wood v. United States, 968 F.2d 738 (8th Cir. 1992) ..... 15

Wright v. Park, 5 F.3d 586 (1st Cir. 1993) ...... eee |

Statutes, regulations and rules:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

ET ate cane e ue AS ree passim

Department of Defense Appropriations Act. 1996,

Pub. L. No. 104-61, § 8087, 109 Stat. 668 (1995) 22.2... 3

Equal Pay Act of 1963, 29 U.S.C. 206(d) ............... 11

Little Tucker Act, 28 U.S.C. 1346(a)(2) ......2.0.0..... 17

National Defense Authorization Act for Fiscal Year

1996, Pub. L. No. 104-106, § 513, 110 Stat. 305-306 .... 3

National Defense Authorization Act for Fiscal Year

1997, Pub. L. No. 104-201, § 1214, 110 Stat. 2695

(1996):

toe Ope ae) 3 a ee eet rane nee ee Dee

Ti WS a Ci 9 |.) a a . passim

10 U.S.C. 10216(a) (2000) ............... ccc cee. 5

IO TIS. He eet) yc. ce ee ce cea. 13, 15, 16

National Defense Authorizat

»

‘ tianal (iy “-d Technician

YalIONal GUard iecnnician

1998, Pub. L. No. 105-85,

5) reer retype? 3 =

l'(d4, Liod Liob (190,

90-486, S2 Stat. 755 (32 U

ew ‘

Sa

C. 101015

YULS.C. 10111

ITLS.C. 208(e (2) 4

2 U.S.C. 101(2

ICLE_R

Sect lol4. lt

Fed. Cu Ola d

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Fed. R. App. P. 3

liscellar S

la

Agence, Dex IS]

TLOTOS00S FOOT fs

«

Jn the Supreme Court of the Cited States

No. 10-374

Lisa M. ZURESS, PETITIONER

v’.

MICHAEL B. DONLEY, SECRETARY OF THE AIR FORCE

ON PETITION FOR A WRIT OF CERTIORAR!

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-15a)

is reported at 606 F.3d 1249. The order of the district

court (Pet. App. 16a-26a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 8, 2010. On September 10, 2010, Justice Kennedy

extended the time within which to file a petition for a

writ of certiorari to and including September 16, 2010,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress has exercised its extensive constitu.

tional powers over matters of national defense by estab-

(1)

lishing the armed forces of the United States. Those

forees consist of the Army, Navy, Air Foree, Marine

Corps, and Coast Guard. 32 U.S.C. 101(2). The armed

forces each have a reserve component in order to pro-

vide trained military units as a supplement “in time of

War or national emergeney, and at such other times as

the national security may require.” 10 U.S.C. 16102.

The reserve components of the Air Force are the Air

National Guard of the United States and the Air Force

Reserve. 10 U.S.C. 10101(5) and (6), 10110, 10111. This

case concerns an atten pt by a military technician (dual

status) in the Air Force Reserve to sue the Secretary of

the Air Foree under Title VII of the Civil Rights Aet of

1964, 42 U.S.C. 2000e-16(a), to recover for alleged dis-

crimination incident to her military service.

a. Military technician programs originated during

the World War T era, when state National Guard organi-

zations created hybrid positions, held by state employ-

ees who were also Guard members, to}. 9) # n mainte-

nance and clerical duties. See Michael J. vavidson and

Steve Walters, Neither Man Nor Beast: The National

fruard Technician, Modern Day Military Minotaur,

1995 Army Law 49, 51 (Dee. 1995). In 1968, Congress

conferred federal civilian employee status on National

Guard technicians. See National Guard Teehnician Act

of 1968, Pub. L. pe 90-486, 82 Stat. 755 (codified princi-

pally at 32 U.S.C. 709). In so doing, Congress sougit to

aid oo for the positions by providing those

“essentially state military personnel” with federal re-

tirement and fringe benefits while preserving “the es-

sential military requirements” of the positions. Ameri-

can Fed’n of Gov't Employees v. FLRA, 730 F.2d 1534,

1543 (D.C. Cir. 1984). Thus, the 1968 Act gave National

~

wv

Guard technicians a dual status, under which they per-

form full-time work as a civilian in their military unit but

also serve as members of the military with the same unit

and are available at all times to be called into active ser-

vice. Jd. at 1545. By statute, a National Guard techni-

cian must be a member of the National Guard, must hold

the military grade specified for that position, and must

wear a military uniform while performing his or her du-

ties. 32 U.S.C. 709.

In 1957, the Air Force created its own technician

program, the Air Reserve Technician (ART) program.

See American Fed’n of Gov't Employees v. Hoffman,

543 F.2d 930, 932-936 (D.C. Cir. 1976), eert. denied,

430 U.S. 965 (1977). Like National Guard teehnicians,

ARTs have dual civilian and military status and are

available for military mobilization. 7d. at 933. “The pri-

mary goal of the [ART program is] to increase the com-

bat readiness of Air Force Reserve units, as well as their

effectiveness in the event of mobilization.” /d. at 932-

033.

In 1996, Congress provided express statutory au-

thority for the ART program. National Defense Autho-

rization Act for Fiseal Year 1996, Pub. L. No. 104-106,

§ 513, 110 Stat. 305-306. That legislation, which re-

quired ARTs and other military technicians hired there-

after to maintain membership in the armed forces re-

serves as a condition of their federal employment, alter

nately reterred to the technicians as “military teehni-

cians” and as “dual-status military technicians.” /bid.

Appropriations legislation used still different terminol-

ogy, referring to the technicians as “military (civilian)

technicians.” Department of Defense Appropriations

Act, 1996, Pub. L. No. 104-61, § S087, 109 Stat. 668.

In a separate law enacted later in 1996, Congress

provided a military-wide definition for the “military

technician” position:

Military 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 em

ployment. Such employees shall be authorized and

accounted for as a separate category of dual-status

eivilian emplovees, exempt as specified in subsection

(b)(3) trom any general or regulatory requirement

for adjustments in Department of Defense civilian

personnel.

National Defense Authorization Act for Fiseal Year

1997, Pub. L. No. 104-201, § 1214, 110 Stat. 2695

(10 U.S.C. 10216).

In 1997, Congress adopted a new title for the posi-

tion—“military technician (dual! status)”"—and sought to

amend every provision of the United States Code that

mentions the position to use that nomenclature. Na-

tional Defense Authorization Act for Fiseal Year 1998,

Pub. L. No. 105-85, § 622(a) and (g)-(i), 111 Stat. 1734,

1735-1736. The House Report accompanying the amend-

ments explained that clarification was needed because

previous enactments contained “provisions defining the

term ‘military technician’ which were not completely

consistent with one another.” H.R. Rep. No. 132, 105

Cong., Ist Sess. 358 (1997). The amended definition, the

Report explained, “would remove the inconsistencies” by

providing a uniform definition for the term “military

technician (dual status).” /bid.

As amended in 1997, the definition of “military tech

nician (dual status)” provides as follows:

For purposes of this section and any other provision

of law, a milite~y technician (dual status) is a Federal

eivilian 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 teehni-

clan in the administration and training of the Se

lected Reserve or in the maintenance and repair

of supplies or equipment issued to the Selected

Reserve or the armed forces.

10 U.S.C. 10216(a) (2000).

b. Air Force Instructions (AFI) reiterate that “dual

status” ARTs “are full-time civilian employees who are

also active members of the Air Force Reserve unit in

which they are employed.” Air Foree Reserve Com-

mand Instruction 36-114, at 2 (Aug. 10, 2001). “In addi-

tion to their civilian assignments, [ARTs] are assigned

to equivalent positions in the reserve organization with

a reserve military rank or grade.” Jbid. ARTs “play

vital roles in the combat readiness of their reserve unit

by training other reservists and serving as mobilization

assets when the unit is mobilized.” /bid. The ART

workforce “provides stable, continuous full-time man-

agement, administration, and training of the Ready Re

serve and oversees the transition from a peacetime to a

wartime or national emergency situation to ensure mobi

lization readiness is maintained.” AFI 36-108, at 1 (July

26, 1994).

ARTs answer to a nominally civilian chain of supervi

sion during the week, but often those civilian supervi

sors are also military technicians, and they frequently

are the very same people who compromise the chain of

command for the ARTs in their military status. See,

e.g., Pet. App. 17a. ARTs are required to wear their

nilitary uniforms while they are carrying out their civil-

ian functions, as well as while they are acting in their

military status. See 7d. at 7a.

c. Based on the principle that waivers of sovereign

immunity are strictly construed and the doctrine of

intra-military immunity derived from Feres vy. Unites

States, 340 U.S. 1385 (1950), the courts of appeals have

uniformly concluded that Title VII does not apply to

uniformed members of the armed forces. See //odge v.

Dalton, 107 F.3d 705, 708 (9th Cir.) (citing cases), cert.

denied, 522 U.S. 815 (1997). The courts of appeals have

also uniformly concluded that dual-status military tech-

niclans may not bring Title VII suits based on alleged

discrimination that is incident to their military service.

See, e.g., Overton v. New York State Div. of Military

and Naval Affairs, 373 F.3d 88, 96 (2d Cir. 2004); Brown

v. United States, 227 F.3d 295, 299 (5th Cir. 2000), cert.

denied, 531 U.S. 1152 (2001); Fisher v. Peters, 249 F.3¢

433, 443 (6th Cir. 2001); Hupp v. Department of the

Army, 144 F.3d 1144, 1148 (8th Cir. 1998); Mier v.

Owens, 57 F.3d 747, 748 (9th Cir. 1995), cert. denied, 517

U.S. 1103 (1996); see also Willis v. Roche, 256 Fed.

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

Uniformed members of the military (including dual-

status military technicians) have numerous alternative

remedies for service-related discrimination claims. For

example, a uniformed member of the Air Force, includ-

ing a dual-status military technician, who believes that

he or she has suffered service-related discrimination can

file an administrative complaint with the Air Force

Equal Opportunity (EO) Office. AFI 36-2706, §§ 3B, 3C

(Oct. 5, 2010). A formal complaint triggers an investiga-

tion by the EO Office, zd. § 3.20, and a service member

who is dissatisfied with the results of that investigation

is entitled to at least two levels of appeal, ?d. § 3.38. Un-

der certain circumstances, a service member can also

pursue relief from Air Force Inspector General. AFI

90-301 (Aug. 10, 2010). In addition, a service member

who believes that he or she has been discriminated

against by his or her commanding officer can file a com

plaint under Article 138 of the Uniform Code of Military

Justice, 10 U.S.C. 988. Service members may also pur

sue relief from the Air Force Board for Correction of

Military Records. See 10 U.S.C. 1552 (2006 & Supp. ITI

2009); Chappell v. Wallace, 462 U.S. 296, 302 (1983).

Finally, service members may bring federal court ac-

tions seeking injunctive relief for alleged violations of

the Constitution. See, e.g., Brown v. Glines, 444 U.S.

348 (1980); Frontiero v. Richardson, 411 U.S. 677 (1973).

2. From July 3, 2000, until June 30, 2005, petitioner

was a dual-status ART at Luke Air Force Base in Ari-

zona. Her civilian position was as a GS-12 Operations

Staff Specialist for the 944th Operations Group, and her

military position was as a Captain in the Air Force Re-

serve. She performed similar duties in both capacities

and was supervised in both by the same military com-

mander. Pet. App. 17a.

Beginning in November 2008, and until petitioner

retired, Colonel William Binger served as petitioner’s

military commander. Petitioner alleges that, after she

sent an anonymous letter to senior Department of De

fense officials describing inappropriate sexual behavior

following a “naming” ceremony on the base, Col. Binger

subjected her to unfair treatment in various ways, such

as by failing to address her former military com

mander’s refusal to return her salute in December 2003

and by giving her two “average” military Officer Perfor

mance Reports in 2004. First Am, Compl. 11 16-17, 20

23, 33; Pet. App. 7a.

In December 2004, petitioner saw a copy of her Offi

cer Performance Report, which questioned her officer

ship and judgment. Petitioner alleges that she knew the

report would prevent her from being promoted to Major,

which would mean that she would be ineligible to remain

in the Air Force Reserve. Because she had to be in the

Reserve to maintain her civilian position, petitioner

would also lose her civilian job if she were not promoted.

Pet. App. 18a.

In January 2005, petitioner requested a military re

tirement, went on leave, and asked for a one-year leave

of absence. Col. Binger granted her a four-month leave

instead. Petitioner then cancelled her request for a

leave of absence and returned to work, after having been

on leave for approximately two weeks. At that point, she

was detailed to a GS-7 position in the Medical Squadron

(with no loss of pay) because Col. Binger had detailed

another person to fill her original position. See Pet

App. 18a; Final Agency Decision, Air Force Docket No

7TIOJO5008F'07, at 6 (Feb. 25, 2008)

In March 2005, petitioner contacted an Equal km

ployment Opportunity counselor and alleged gender

discrimination and retaliation. Some time later, after she

was officially informed that she had not been promoted

to Major, plaintiff retired from the Air Force Reserve

and was separated as a civilian employee. Pet. App. 19a

3. In March 2008, petitioner sued the Secretary of

the Air Force in his official capacity, alleging that the

Air Force had violated her rights under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e-16(a). First

Am. Compl. 11 5, 49; Pet. App. 19a.

The Air Force filed a motion to dismiss, arguing that

petitioner had failed to exhaust her administrative rem

edies with respect to certain claims and that all of her

claims were barred under the Ninth Circuit’s decision in

Mier, supra. See Pet. App. 20a-2la. The district court

granted the Air Force’s motion, holding that the case

was controlled by Mier. /d. at 16a-26a.

Mier, the district court explained, 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.’” Pet. App. 21a (quot

ing Mier, 57 F.3d at 750). Noting that petitioner had

conceded “that the timely events which support her Title

VII claim are all based on actions integrally related to

the military’s unique structure,” the district court con

cluded that Mier required dismissal of her suit. /bid. In

reaching that conclusion, the court rejected petitioner’s

argument that Mier had been superseded by the 1997

amendments to 10 U.S.C. 10216(a). Pet. App. 22a-25a.

Because petitioner conceded that no Ninth Circuit pre

cedent questioned Mier’s continued vitality, and because

the Fifth Circuit in a recent decision had rejected the

10

argument petitioner advanced, see Williams v. Wynne,

533 F.3d 360, 364 (2008), the district court “decline[d] to

depart” from Mier. Pet. App. 25a.

4. The court of appeals affirmed. Pet. App. la-15a.

The only question petitioner presented on appeal was

whether the 1997 amendments to Section 10216(a) abro

gated the court’s earlier ruling in Mier that dual-status

military technicians cannot bring Title VII suits based

on actions that are integrally related to the military’s

unique structure. See id. at 2a; Pet. C.A. Br. 2, 3, 16-23.

On appeal, as in the district court, petitioner “concede|d|

that the personnel actions that she challenges are inte-

grally related to the military’s unique structure.” Pet.

App. lla.

Deciding only the narrow legal issue that petitioner

raised, the court of appeals held that the 1997 amend

ments do not provide the clear statement necessary to

waive the United States’ sovereign immunity and sub-

ject the military to Title VII suits based on alleged dis-

crimination that is incident to a dual-status technician’s

military service. Pet. App. lla-15a. As the court ex-

plained, petitioner relied on language in the 1997

amendments stating that the new definition of “military

technician (dual status)” applies “[flor purposes of this

section and any other provision of law” and that “a mili-

tary technician (dual status) is a Federal civilian em-

ployee.” /d. at 12a. Petitioner argued that this lan

guage indicates that Congress intended that dual-status

military technicians would thereafter have the same

rights to sue under Title VIJ as civilian employees with

no military affiliation. /Jbzd. The court noted that the

Federal Circuit, in Jentoft v. United States, 450 F.3d

1342 (2006), had relied on similar reasoning to conclude

that the 1997 amendments authorized dual-status tech

nicians to bring claims against the military under the

Mqual Pay Act of 1968, 29 U.S.C. 206(d). Pet. App. 12a

The court rejected petitioner’s argument, however, rea

soning that, even before the 1997 amendments, dual

status technicians had long been recognized as civilian

employees whose positions require that they also serve

in the military reserves. /d. at l3a. Because “| bloth

before and after the 1997 Amendments, dual-status Air

Force Reserve Technicians held ‘a hybrid job entailing

both civilian and military aspects,’” the court concluded

that the amendments do not clearly evince Congress’s

intent to treat dual-status technicians as purely civilian

employees for purposes of suits under Title VIL. /bid

(citations omitted).

The court of appeals further observed that the legis

lative 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.”

Pet. App. 18a. By contrast, the court noted, “[t]here is

no mention of Title VII in the legislative history of the

1997 Amendments, nor is there any indication that Con

gress intended to authorize any cause of action that was

previously unavailable to a dual status technician.” /d

at 14a-15a (citation omitted).

ARGUMENT

The court of appeals correctly held that the 1997

amendments to 10 U.S.C. 10216(a) do not waive the

United States’ sovereign immunity and authorize Title

Vil suits by dual-status military technicians based on

14

App. l2a-l5a; Wetherill v. Geren, 616 F.8d 789, 796-797

(Sth Cir. 2010), petition for eert. pending, No. 10-688

(filed Nov. 9, 2010); Bowers v. Wynne, 615 F.8d 455, 466

468 (6th Cir. 2010); Walch v. Adjutant Gen.’s Dep't of

Tex. , 5383 F.8d 289, 299 (Sth Cir. 2008); see also Williams

v. Wynne, 533 F.8d 360, 866-868 (5th Cir. 2008).

The 1997 amendments do not mention Tithe VIET, pur

port to authorize any new cause of action against the

United States, or contain any languagre that expressly

waives the United States’ sovereign immunity. That fact

alone requires the conclusion that the amendments do

not waive the sovereign immunity of the United States

for Tithe VET claims by dual-status military technicians

that are related to their military service.

The absence of any clear statement creating a cause

of action or waiving immunity ts particularly fatal to peti

tioner’s argument because, before the 1997 amend

ments, it was well settled that dual-status military tech

nicians did not have the same rights to bring Title VII

actions as purely civilian employees. As discussed

above, the courts of appeals had consistently held that

uniformed members of the military have no right to sue

under Title VIT, and the only court of appeals that had

addressed the ability of dual-status technicians to sue

under Tithe VII had held that they may not bring suits

based on “personnel actions integrally related to the mili

tary’s unique structure.” Mver v. Owens, 57 F.3d 747,

751 (Oth Cir. 1995), cert. denied, 517 U.S. 1108 (1996).

Moreover, numerous other courts had held that prinei

ples of intra-military immunity bar dual-status military

technicians from bringing damages actions under other

statutes based on alleged violations of their civil rights

that are incident to their military service. See, e.q..

Lb

Wright v. Park, 5 F.3d 586, 586-591 (ist Cir, 1998);

Wood v. lU/nited States, 968 I°.2d 738, 740 (8th Cir. 1992);

Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1005

LOO8 & n.1 (Sth Cir. 1989); Jorden v. National Guard

Bureau, 799 F.2d 99, 107-108 (8d Cir. 1986), cert. de

nied, 484 U.S. 815 (1987); Martelon v. Temple, 747 F.2d

1348, 1850-1351 (Oth Cir. 1984), cert. denied, 471 U.S.

1135 (1985). Congress is presumed to be familiar with

established case law and to expect that its enactments

will be interpreted as consistent with that law unless

those enactments provide otherwise. Pet. App. 9a (cit

ing United States v. Wells, 519 U.S. 482, 495 (1997)). Tf

Congress intended the 1997 amendments to effeet the

“radical departure from past practice” asserted by peti

tioner, Congress surely would have “mal|de|]a point of

saying so.” Jones v. United States, 526 U.S. 227, 234

(1999).

Kiven ifa clear statement were not necessary, Section

10216(a)(1)'s definition of “military technician (dual sta

tus)” would not indicate that dual-status technicians

have the same rights as purely civilian employees to sue

under Title VII, regardless of the nature of their claims.

The definition “does not end with the stateraent that

dual status teehnicians are federal civilian employees.

It [zoes on to] state[] that National Guard technicians

and ARTs are ‘dual status’ employees because they are

federal civilian employees and members of the reserve

forces.” Bowers, 615 F.3d at 467 (emphasis in original)

(citation omitted). As explained above, dual-status tech-

nicians play a critical role in our nation’s military de

fense, often report to the same military supervisor in

both their military and civilian positions, must wear

their military uniform while working in their civilian

lt

jobs, and must maintain their military status in order to

keep their civilian jobs. Nothing in Section 10216 sug

rests that those faets should be ignored when dual-sta

tus technicians attempt to sue the military for alleged

Title VII violations that are incident to their military

service,

As the court below recognized, the 1997 amendments

added the phrase “for any provision of law” to the defini-

tion in Section 10216(a)(1) “to eliminate inconsistencies

in the nomenclature used to refer to dual status techni-

cians, rather than to override settled case law on intra-

military immunity.” Pet. App. 18a. The House Report

accompanying the amendments explained that they were

needed because previous cnaclments contained “provi-

sions defining the term ‘military technician’ which were

not completely consistent with one another.” H.R. Rep.

No. 182, 105th Cong., Ist Sess. 3858 (1997). The amended

definition, the Report explained, “would remove the in-

consistencies” by providing a uniform definition for the

term “military technician (dual status).” /b7d. The leg-

islative history thus confirms that Congress did not in-

tend the 1997 amendments to waive the United States’

sovereign immunity for service-related Title VIL suits

by dual-status military technicians. See Pet. App. 18a;

Wetherill, 616 F.8d at 797; Bowers, 615 F.3d at 467.

2. a. Contrary to petitioner’s contention (Pet. 14-

19), this Court’s review is not warranted to resolve any

purported conflict with the Federal Circuit’s deeision in

Jentoft. Jentoft involved the right of a dual-status tech-

nician to sue under the Equal Pay Act, not Title VIL.

See 450 F.8d at 1348; 7d. at 1345 n.2 (noting that Jentoft

had abandoned her Title VIL claims). Moreover, in con

cluding that Seetion 10216(a)’s definition of dual-status

17

technicians as “civilian” employees entitles them to

bring service-related Equal Pay Act suits, the Federal

Circuit relied on “the plain language of the Iqual Pay

Act,” which defines a covered employee to include “any

individual employed by the Government of the United

States .. . asactvilian in the military departments.”

Id. at 1848 (emphasis added) (quoting 29 U.S.C.

203(e)(2)(A)()). Title VIT contains no such language.

See also Bowers, 615 F.3d at 467 (distinguishing Jentof?

because it involved the Equal Pay Act); Walch, 5838 F.3d

at 300-301 (same).

Petitioner’s assertion that the status quo is an “unac

ceptable invitation to forum shopping” (Pet. 18) is also

incorrect. Petitioner notes that 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, bid. (citing 28 U.S.C. 13846(a)(2)), and she

argues that no rational dual-status military technician

would file an Equal Pay Act suit in district court in the

Seeond, Fifth, Sixth, Fighth, and Ninth Circuits because

the claim would be barred by the case law of those cir-

cuits regarding Title VIT claims, cbed. That argument is

mistaken because the Federal Circuit has exclusive ju-

risdiction over any appeal ina case that involves a claim

against the federal government under the Equal Pay

Act, even if the complaint requests $10,000 or less.

Kgqual Pay Act claims against the federal government

are authorized by the Tucker Act, 28 U.S.C. 1491(a)(1),

or the Little Tucker Aet, 28 U.S.C. 1846(a)(2) (elaims

secking $10,000 or less), and there is “exclusive Iederal

Cireuit jurisdiction over every appeal from a Tucker Act

or nontax Little Tucker Act claim.” United States v.

Hohri, 482 U.S. 64, 73 (1987). Thus, there is no incen-

IS

tive for forum shopping because an Equal Pay Act claim

is governed by the Federal Circuit’s decision in Jentoft

wherever the claim is filed. See Golan v. Pingel Enter.

Jnc., 310 F.3d 1360, 1868 (Fed. Cir. 2002) (“Federal Cir-

cuit law applies to causes of action within the exclu

sive jurisdiction of the Federal Cireuit.”); accord Doe

v. Goss, No. CIV. A. 04-2122, 2007 WL 106523, at *10

n.l6 (D.D.C. 2007); Jarrett v. White, No. CIV. A.

(1-800-GMS, 2002 WL 1348304, at *4 n.4 (D. Del. 2002),

aff'd, 80 Fed. Appx. 107 (Fed. Cir. 2003); Ward v. Aspin,

No. CIV. A. 92-7280, 19938 WL 379181, at *4 n.4 (E.D.

Pa. 1998).

Finally, to the extent that Jentoft is in tension with

the Title VIT decisions of the other courts of appeals, the

Federal Cireuit may reconsider its decision in Jentoft.

The Federal Circuit did not consider the legislative his-

tory of the 1997 amendments in reaching its decision,

nor did it have the benefit of the analysis of the four cir-

cuits that have since held that the 1997 amendments do

not authorize service-related Title VII actions by dual-

status military technicians. See pp. 13-14, sepra (citing

cases). Contrary to petitioner’s contention (Pet. 19),

nothing would prevent the government from asking the

Federal Circuit. to reexamine Jentoft in light of those

considerations in an appropriate case. See Fed. R. App.

P. 35(b) (authorizing petitions for initial hearing en

bane); Fed. Cir. R. 385(a)(1) (authorizing arguments to a

panel that circuit preeedent should be overruled).”

' Petitioner also notes (Pet. 19 n.2) that although some circuits, such

as the court below, have held that dual-status military technicians may

not bring Title VIT claims that are service-related, at least one circuit

has indicated that those employees may not bring any Title VIT claims

because all of their job-related functions are integrally related to the

19

b. Petitioner also errs in contending (Pet. 19-23) that

the decision below conflicts with the position of the

Equal Employment Opportunity Commission (EEOC)

on when dual-status military technicians may bring a

Title VII claim. The EEOC’s cases recognize that dual-

status military technicians may not bring a Title VII

action based on any personnel decision that. “affect{s]

their capacity as uniformed military personnel.” Muse

v. Geren, EEOC Doce. 0120083293, 2008 WL 4463514, at

*3 (B.E.0.C. 2008); accord Brown v. Wynne, EEOC

Doc. 0420050011, 2007 WL 1523917, at *2 (E.E.0.C.

2007); Snyder v. Roche, EEOC Doc. 01423583, 2003 WL

1791143, at *2 (k.E.0.C. 2003); Conley v. Widnall,

EEOC Doe. 019455382, 1995 WL 81271, at *1 (h.E.0.C.

1995). That standard is not materially different from

the standard articulated by the court of appeals, which

is whether the employee's claim is based on “personnel

actions integrally related to the military’s unique struc-

ture.” Pet. App. lla.

Petitioner contends (Pet. 19-21) that the EEOC has,

in various eases, applied the standard for when dual

military’s unique structure. That issue is not properly presented by

this case because it was neither pressed in nor passed on by the court

of appeals. The only issue that petitioner raised in the court below was

whether the 1997 amendments to Section 10216(a) authorize service

related suits by dual-status technicians. See Pet. App. 2a; Pet. C.A. Br.

2,3, 16-23. And the court of appeals expressly stated that was the only

issue it was addressing. Pet. App. 15a. Moreover, this case would not

be an appropriate vehicle to address the standard for when (if ever)

dua]-status technicians can sue under Title VII because petitioner

conceded in both courts below that her Title VII claim is integrally

related to the military’s unique structure. /d. at lla, 2la. Petitioner

therefore would not be entitled to maintain her suit under the rule of

any circuit.

20

status technicians may sue under Title VII differently

than the court below. Even if any purported difference

between how the EEOC and the Ninth Circuit apply the

standard to the facts of different cases otherwise mer-

ited this Court’s review, this case would not be an appro-

priate vehicle, because petitioner gave neither the court

below nor the EEOC the opportunity to apply the stan-

dard here. Petitioner could have appealed the rejection

of her claim by the Air Force to the EEOC, see 29

C.F.R. 1614.401, but she chose not to do so and instead

exercised her right to proceed directly to court, see 29

C.F.R. 1614.407. Petitioner also did not give the district

court or the court of appeals the oecasion to apply the

standard, because she conceded in both courts that her

claims are integrally related to the military’s unique

structure. See Pet. App. lla, 2la.*

Petitioner is also mistaken in asserting that she has

been subjected to an “unjust bait and switch” (Pet. 21)

because EEOC regulations and Air Force guidance indi-

cate that she had a right to go to court if she was dissat-

isfied with the administrative resolution of her com-

plaint. The statements that petitioner had the right to

go to court were entirely accurate. Petitioner had the

right to ask the court to determine that her Title VII

claims (in whole or in part) could proceed to judicial res-

olution because they were not integrally related to the

military’s unique structure. Petitioner chose not to ex-

ercise that right, and she cannot complain now about the

consequences.

* Petitioner's concessions in the courts below foreclose her current

assertion in the petition for a writ of certiorari that her “claims involve

several acts that indisputably arise purely from her civilian role.” Pet.

>

21

3. The other arguments that petitioner makes in her

petition (Pet. 23-34) were neither raised in the courts

below nor addressed by those courts, and they therefore

have not been preserved for review by this Court. See

Pet. C.A. Br. 2, 3, 16-23 (raising only the Section

10216(a) issue); Pet. App. 15a (expressly declining to

address any other issue). In any event, none of peti-

tioner’s other arguments warrants the Court’s review.

a. Petitioner argues (Pet. 23-30) that the courts of

appeals have erred in relying on principles of intra-

military immunity derived from Feres to conclude that

service members may not bring Title VII claims based

on actions incident to their military service. As dis-

cussed above, however, all of the courts of appeals that

have addressed the question have concluded that Title

VII does not apply to uniformed members of the mili-

tary. See p. 6, supra. EEOC regulations reflect the

same position. See 29 C.F.R. 1614.102(d). The courts of

appeals have also uniformly concluded that principles of

intra-military immunity bar service-related Title VII

claims by dual-status military technicians. See p. 6, sw-

pra. Although petitioner contends that the courts of

appeals have extended Feres beyond its proper scope,

this Court itself has applied the principles animating

that decision outside the context of the FTCA. See, e.g.,

Stanley, supra; Chappell, supra. Petitioner also argues

(Pet. 27-30) that the rationales behind F'eres do not ap-

ply in Title VII actions like this one. But petitioner ac-

knowledges that one of those rationales is the need to

bar 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.”

Pet. 28 (citation omitted). Petitioner’s assertion that her

claims are not of that type is foreclosed by her conces-

sions below (Pet. App. lla, 21a) that her claims are inte-

grally related to the military’s unique structure.

b. Finally, petitioner contends (Pet. 31-34) that if

this Court is unwilling to accept any of her other argu-

ments, the Court should overrule /'eres. It would not,

however, be appropriate for the Court in this Title VII

case to decide whether F'eres correctly held that service

members may not bring service-related suits under the

FTCA, or whether the Court has correctly applied prin

ciples of intra-military immunity in other contexts, such

as Bivens suits.

Moreover, in its most recent FTCA decision concern

ing the F'eres doctrine, this Court expressly reaffirmed

the vitality of the doctrine. See United States v. John-

son, 481 U.S. 681 (1987). In Johnson, the Court noted

that it had never deviated from F'eres in the decades

since that case was decided, and that Congress, which

had been on notice of this Court’s decisions in the area,

had not amended the FTCA to overturn Feres. See id.

at 686. Twenty-three years after Johnson—and with

more than 60 years of precedent now supporting

Feres—this Court should be even more reluctant to re-

examine that settled statutory ruling. See Patterson

v. McLean Credit Union, 491 U.S. 164, 172-173 (1989)

(holding that stare decisis has special force in the area

of statutory interpretation).

The Court concluded when it decided Johnson that

the rationales underlying the decision in Feres remained

applicable, 481 U.S. at 688-691, and those rationales

have just as much force today. Moreover, contrary to

petitioner’s contention, Peres has not proven “unwork-

able” in practice. Pet. 33. Petitioner cites various lower

23

court opinions that criticize the Keres doctrine in the

FTCA context (see ibid.), but none of those opinions

contends that Feres is difficult to apply. All of the

courts of appeals apply the same fact-based approach in

determining whether an FTCA claim by a service mem-

ber resulted from service-related activity, and all focus

on similar factors, including the service member’s duty

status at the pertinent time, the nature of the service

member’s activity, and its location (7.e., on or off base).

See, e.g., McConnell v. United States, 478 F.3d 1092,

1095 (9th Cir.), cert. denied, 552 U.S. 1088 (2007);

Speigner v. Alexander, 248 F.3d 1292, 1298 (11th Cir.),

cert. denied, 534 U.S. 1056 (2001); Pringle v. United

States, 208 F.3d 1220, 1224 (10th Cir. 2000); Wake v.

United States, 89 F.3d 53, 57-61 (2d Cir. 1996). There is

nothing unworkable about that kind of analysis, which is

no more difficult to apply than any other fact-based test.

In the years since Johnson, the Court has repeatedly

denied petitions for writs of certiorari urging that Feres

be reexamined. See, e.g., Matthew v. Department of the

Army, 130 8S. Ct. 101 (2009); McConnell v. United

States, 552 U.S. 1038 (2007); Costo v. United States, 534

U.S. 1078 (2002); O'Neill v. United States, 525 U.S. 962

(1998); George v. United States, 522 U.S. 1116 (1998);

Bisel v. United States, 522 U.S. 1049 (1998); Schoemer

v. United States, 516 U.S. 989 (1995); Hayes v. United

States, 516 U.S. 814 (1995); Forgette v. United States,

513 U.S. 1113 (1995); Sonnenberg v. United States, 498

U.S. 1067 (1991). The Court should follow the same

course here.

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