Petition for Writ of Certiorari — Wetherill v. McHugh

Supreme Court, U.S

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OFFICE OF THE CLERK

IN THE

Supreme Court of the dnited States

PETE R. GEREN, SECRETARY OF THE ARMY; THE ARM

NATIONAL GUARD: STEVEN R. DOOHEN, BRIGADIER

GENERAL, IN HIS OFFICIAL CAPACITY AS ADJUTANT

GENERAL OF THE SOUTH DAKOTA NATIONAL GUARD

THEODORE JOHNSON, BRIGADIER GENERAL, IN HIS

PFICIAL CAPACITY; AND THE SOUTH DAKOTA ARM

NATIONAL GUARD,

Ie

On Petition For A Writ Of Certiorari

lo The United States Court Of Appeal

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORAI

SARAH BE. BARON Hot CLIFFORD M. SLO

MICHAEL M. HICKEY’ Counsel of Record

BANGS, MCCULLEN GEOFFREY M. WYA’1

BUTLER, FOYE & RAY D. MCKENZII

SIMMONS, L..L.P MARQUES P. RICHESO

333 West Blvd., Ste. 4 1440 New York Ave

P.O. Box. 2670 Washington, D.C. 2000

Rapid City, SD 577! (202) 371-7000

(605) 343-1040 chff.sloan@probonolaw.c«

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Nancy J. Wetherill respectfully pet

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eight

7

OPINIONS BELOW

he opinion of the court of appeals 1s reported a

616 F.3d 789. App. A, at la. The order and opinior

{f the district court 1s reported at 644 F. Supp

App. B, at 26

JURISDICTION

urt of appeals entered its judgment o1

t 11, 2010. This Court has jurisdiction p

U.S.C. § 1254(1)

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

| ‘Oly O] ing ni

ine petition involves the following p1

r

rtn in the appendalx, A} p. { IA

lOTITS CC. § 1091¢

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e present the que

ul technician in the Nati

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Nitle VI of the Civil Rights Act of

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Wetherill’s M#mpltoyment

reer witn tT! South Dakot

SDARNG”’) in 1974 trom

luly 31, 2008 e was the D1

he SDARNG 1 dual-statu

Rapid City, South Dakota

Wethe Yr] |

was he ily iob. for

ivilian empl under tl

App \. { I y conti

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ekend pez nt] 1d be

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time civilian position’)

Wetherill’s Eligibility for Civilian Retirement

Benefits. As a federal civilian employee, Wetheril

was potentially eligible for full annuity payment

nder the Civil Service Retirement System (“CSRS”)

But in order to achieve eligibility for such payment

Wetherill needed to keep her position until Decemb«s

2010. App. A, at 3a \n earlier retirement dat«

would not eliminate but would reduce Wetherill’

1uity, as she would not have garnered the requisit«

number - of civilian ervice veal LO Warrantl 1 tull

Pursuant to federal law, Wetherill Mandat

Removal Date (“MRD”) from the military was July

2007. 10 U.S.C. § 14507(b). Once removed from th«

military, she would be required to quit her Directo)

of Operations position. In May 2007, Major Genera

Michael Gorman, then-Adjutant General of thé

SDARNG, requested that the National Guard Bureai

(“NGB”) “waive” Wetherill’s MRD and retain her uz

til December 30. 2010 The request was approve

App. A, at 4a

In eames: -007/, steven RK. Voonhen succeeds

Gorman as Adjutant General. /d. In January 2008

Doohen requested revocation of Wetherill’s MRD

walver The NGB granted the request the next

month, and Wetherill’s removal date was set at Jul]

31, 2008. Consequently, Wetherill would be forced t

tire from her Director of Operations job on July

008. Id

Wetherill’s Termination In Feb

lheodore elohn on nother? a { | | !

and Wetherill’s supervisor, told Wetherill she wa:

being terminated from her technician position due to

“force management” reasons, effective July 31, 2008

App. B, at 25a. Doohen’s revocation of Wetherill’s

MRD waiver, meanwhile, already required her to

leave the Director of Operations position on that date

App. A, at 5a

No other technician in the SDARNG has ever had

an MRD waiver denied, modified, or revoked. /d. at

la. Wetherill, the only Asian-American female in the

SDARNG, believed that Doohen’s decision was based

on animus towards her gender and national origin

Id. She also believed that Johnson’s statements re

garding her “termination” from the Director of

Operations position were pretextual. App. D, at 47a

EEO Proceedings and Subsequent Retalia

tion. Between February and May of 2008, Wetherill

protested Doohen’s revocation of her MRD waiver. /d.

at 46a. She also informally complained to the Equal

Opportunity and Civil Rights Office at the National

Guard Bureau. App. A, at 4a. In May of 2008, after

unsuccessful informal attempts at resolution with

her Equal Employment Opportunity (“EEO”) coun

selor, Wetherill submitted a formal EEO complaint

App. D, at 50a.

Shortly after voicing her protests and bringing

her EKEO complaint, Wetherill was reassigned to

work in an isolated building with no other occupants

She was forced to perform tasks for which she wa:

considerably over-qualitied. App. A, at 4a. These ac

tions were taken against her at Johnson’s behest

and Wetherill believes that they were taken in re

tahiation for her protests of the revocation of her

MRD waiver. App. D, at 47a

On July 1, 2008, Wetherill received a notice of

dismissal of her complaint from the NGB Office of

Equal Opportunity and Civil Rights. App. D, at 44a.

The notice specifically provided that Wetherill was

“authorized under Title VII... to file a civil action in

an appropriate United States District Court.” App. D.

at 59a.

As a result of Doohen’s revocation of her MRD

waiver, Wetherill was forced to retire from her mili-

tary position on July 31, 2008. App. A, at 5a.

Pursuant to federal law, she also was forced to retire

from her civilian Director of Operations position with

the SDARNG. 7d.

District Court Proceedings. Wetherill brought

suit alleging she was discriminated against on the

basis of her gender and national origin and subse

quently retaliated against after complaining about

the discrimination. /d. Wetherill invoked 42 U.S.C.

§ 2000e-16 in her complaint. ‘That statute specifi

cally vests employees of “military departments” with

the Title VII protections against “any [employment]

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

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

D, at 39a, 43a.

Wetherill’s complaint named several defendants:

Pete R. Geren, Secretary of the Army, the Army Na

tional Guard (“ARNG”) (collectively, the “federal

defendants’); and Doohen, Johnson, and_ the

SDARNG (collectively, the “state defendants”). App.

D, at 44a. Both the federal and state defendants

moved to dismiss Wetherill’s complaint under Rules

12(b)(6) and 12(b)(1). App. B, at 29a-30a. The dis-

trict court evaluated both as 12(b)(6) motions and

granted the motions to dismiss, holding that Wether.

a on

t'ederal Courts Of Appeals Are Divides

Over Whether And How The Feres Do

\pplies To Dual-Status Technicia

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Feres in that

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technicians bringing

OveTeCxX

iI. The Court Should Grant Review To Clarify

That The Feres Doctrine Does Not Bar Dual

Status Technicians From Suing For Dis

crimination Under Title VIl

his Court eVv1iew

uUurts below reache d tne wrong outcome t } iS ¢

‘he Court should grant the writ to clarify t t ¢

tatus technicians art mployee|[s

pressly stated by l l [ ub T

Fer \t minimul ul hoi old th

laims of employment di il-stat

echnicians are yt 1d tar rv1ce nd

that Feres does not apply (eve

might apply t

her context

The Court Should Give Effect To The

Plain Statement In 10 U.S.C. § 10216(¢,

Phat Dual-Status Technicians Are

“Civilians” For The Purpose Of “An

Federal Law

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intend for the 1997 amendments to affect the appli

cation of [the Feres| doctrine to dual-status

technicians.” App. A, at 13a (citation omitted). Not

withstanding the plain language of the statute, the

court looked to the NDAA’s legislative history. The

court reasoned that, because the statute’s history

lacked any mention of the Feres doctrine, the broad

statutory language could not be given its plain mean

In’

The court of appeals’s analysis ran contrary t

this Court's precedent. As the Court recently ex

plained, the plain meaning of the phrase “any othez

provision of law” ~ as “a generally phrased residual

clause” — is not undermined because a statute’s legis-

lative history fails to mention a particular provision

of law. Beaty, 129 S. Ct. at 2191. Moreover, when

presented with a clear legislative statement as 1s

the case here — the court should not resort to legisla-

tive history to discern Congress’s intent. See Ex

parte Collett, 337 U.S. 55, 61 (1949) (“[T]here is no

need to refer to the legislative history where the

statutory language 1s clear.”).

‘ah

The Eighth Circuit believed that it could ignor

the plain text of the statute because Congress does

not “hide elephants in mouseholes.” App. A, at 15a

(quoting Whitman v. Am. Trucking Ass’ns, Inc., 531

U.S. 457, 468 (2001)). But the case from which that

metaphor was drawn presented a_= statutory

construction argument that was the opposite of the

yne in this case: an interpretation of the Clean Air

Act that had no basis in the text of the statute. See

Whitman, 531 U.S. at 468. Here, Wetherill advanced

in argument in harmony with statutory language

ihe Court Should Hold

Doctrine Does Not Apply

lechnicians Alleging Di

nder Title VII

rere apptl

piciad) notwith Land)

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holding that Feres should

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nent-discrimination claim nd judicial retusal

nsider such claims 1s contrary t eal mere

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nal intent Accordingly tne Court hould

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t Phere ip} to Wethe

f _Wourt yoted a

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imilita) immunit which hold ton lal

embe t the military nonjusticiable er

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1m irise out of conduct incident to military

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ce lhe Court has articulated a number of differs

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tional In support of this doctrin in “eres i

Court noted three concern (1) that there did n

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St Vi ~A-Vi eCervice WCHovel ( L1Ty) ivaAallS\

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nilitary parallel habuility O} private individual

{ . »\ | } ;

( Civlliian context ( { ment | ( non

ke Kistence of the ICcLIVE lu oldie) LL maa

nse ce) the seopraphy QO] } mwury > aererm)

he law to be apphed t Nn] tort claim na | tl

~nO uid ' h _ d 1 4, icdy

onyrre coulda not lave renaed fo hae!

ePlVe VOT ran npenetit ( 1 eT | '

istainea aurin ! rant

litional remed \ der tl wt her

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ré ] ) dittere a rie } i¢ ft iti

4 rte? wit} t | “—" 111 y H > : { { | . }

ePriert With 4 pecull } i neciatl reiabtion |

ne oldier Oo |! upe©rtit { Isavl milit

fall because of the potential harm t nilit

cipin ind etfectivene I /> al

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ana) y) } | § a HU) , (inte! ij quota

ir} n a ted ea ( tea

considerations as JUSLITICALIO

within the FTCA context).4

The ipplication of these prin ipl to military

vicemembers based on injuries sustained on the

battlefield is straightforward enough. Accidents an

Mihtary decision

re endemic to combat

among other thing

casualties a

making thus “entails balancing,

‘the mission with the safety of the n

the demands «

the unit

dividual service member and the safety of

Major Deirdre G. Brou, Alternatives to the Judicial

Promulgated keres Doctrine, 192 Mail. L. Rev. 1, 3-4

(2007) \cco) ling to one heres advocate militar’

leaders thu: “cannot attord LO cloud then dec} On

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with ISSUCS a) potential rOvernmenta el

tort habilits ld. at 4

POLI { prid €° ft bITa}

But none of thes«

*) Title Vil claim brought by dual bat

technicial wat oncern

A

ie context

| ; rivimszye o)

it hould be noted that Line if ]

even w he nD apphed to the FTCA conte

Lrie f rationale:

kirst. the actua

has been the subject of much criticism

existence of adverse effects on military discipline b

Johnson 181 US. at 699

(Scalia, d Bennett, The Fe

Doctrine, Discipline, and the Weapons of War, 29 St. Lou

l LJ. 3883. 407-11 (1985)): see also Nicole Melvani. The

Fourteenth kxception: How the Feres Doctrine Improperl

Medical Malpractice Claims of Military Servu

LL. Rev. 3895, 422-31 (2010): Turl

1/-18 Second. these 1

“long been disputed.”

dissenting) (citing Barry

ults’ has

Bars

Members, 48 Cal. W

supra, 71 Geo. Wash. L. Rev. at

tionales fail to respect or implement the text of the

181 U.S. at 699 (Scalia, J., dissenting): see al

Johnson,

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App. A, at 6a, n.5 (recogniazi

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MICHAEL M. HICK Counsel of Recor

SANGS, MCCULLI EOFFREY M. Wys

BUTLER, FOYE & LAY D. MCKENZI}

SIMMONS, I..L.P MARQUES P. RICHI

§ West Blvi 140 New York Ave