# Petition for Writ of Certiorari — Wetherill v. McHugh

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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

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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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TATEMENT O}

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
CI duties nited l
ekend pez nt] 1d be
eek Guard tra Her
f09(b)(2): Walch 1d ni
33 F.3d 289, 291 (5th ¢ ;
ual Lat tech Cl

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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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enera!

Feres in that

l

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
neuage < i % 1Aia
Dre ssly pl Vide ] { [
I der: i CIVIL1a I ¢ )
iIsi0n of iaw l te 1 of rll b K-lett
les of statu struct our Ww

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by Congress.”

63. 68 (1982
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gress

analysis sho

for Congress,

propriate st

federal law.”
304. 317 (1981

note omitted).

that federal

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Accordingly,
common law has b
on to which the legi
ind ever pre

dd. In re

The applhcati

traightforw
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in the 1997

ments (‘NDAA’)

NDAA] and
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ard Congress n

1ature of dual-st
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See Pub. | Ni 06-65, § 7
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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)
4 OZ lo(adtl). the (
holding that Feres should
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nent-discrimination claim nd judicial retusal
nsider such claims 1s contrary t eal mere
;, .
nal intent Accordingly tne Court hould
‘ | \
t Phere ip} to Wethe
f _Wourt yoted a
| } ‘
imilita) immunit which hold ton lal
embe t the military nonjusticiable er
}
1m irise out of conduct incident to military
}
ce lhe Court has articulated a number of differs
] ‘ } : | J
tional In support of this doctrin in “eres i
Court noted three concern (1) that there did n
. . " ‘ ry) | = ' . ; + 3
St Vi ~A-Vi eCervice WCHovel ( L1Ty) ivaAallS\
1? ;
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
| 1‘) 5 Wb equ | ; |
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
| i] | 4 { 4
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
} . )

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,
| } } te

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2738%3A1. Public record. Not legal advice.