No. 96-1913 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 W.L. HODGE, PETITIONER v. JOHN DALTON, SECRETARY OF THE NAVY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER SANDRA WIEN SIMON Attorneys Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals correctly held that petitioner is barred from suing the Secretary of the Navy under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., because petitioner is a uni- formed member of the United States Marine Corps. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 4 Conclusion . . . . 8 TABLE OF AUTHORITIES Cases: Doe v. Garrett, 903 F.2d 1455 (llth Cir. 1990), cert. denied, 499 U. S. 904(1991) . . . . 7 Gonzalez v. Department of the Army, 718 F.2d 926 (9th Cir.. 1983) . . . . 4, 6 Johnson v. Alexander, 572 F.2d 1219(8th Cir.), cert. denied, 439 U. S. 986(1978) . . . . 6-7 McGowan v. Scoggins, 881 F.2d 615, Opinion amended and superseded on denial of reh'g, 890 F.2d 128(9th Cir. 1989) . . . . 3 Roper v. Department of the Army, 832 F.2d 247(2d Cir. 1987) . . . . 6 Stinson v. Hornsby, 821 F.2d 1537(llth Cir. 1987), cert. denied, 488 U. S. 959(1988) . . . . 6 Taylor v. Jones, 653 F.2d 1193(8th Cir. 1981) . . . . 6 Statutes and regulations: Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et seq . . . . 2 701(b)42 U. S. C.2000e(b) . . . . 4 717,42 U.S.C. 2000e-16 . . . . 3, 4, 5, 6 717(a), 42 U.S.C. 2000e-16(a) (1994 & Supp. I 1995) . . . . 5 717(b)42 U. S .C. 2000e.16(b) . . . . 5 5 U.S.C. 102 . . . . 5 10 U.S.C . 101 (4) . . . . 5 10 U.S.C. 938 . . . . 6 (III) ---------------------------------------- Page Break ---------------------------------------- IV Statutes and Regulations-Continued: Page 10 U.S. C. 1552 . . . . 4, 6 42 U.S. C.1985(3) . . . . 4 29 C. F. R. Pt. 1614 . . . . 3 Section 1614.103(b) . . . . 5 Section 1614.103(d) . . . . 4, 5 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-1913 W.L. HODGE, PETITIONER v. JOHN DALTON, SECRETARY OF THE NAVY ON PETITION FOR A WRIT OF CERTIORARI 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. 1-18) is reported at ,107 F.3d 705. The opinion of the district court is unreported. JURISDICTION The judgment of the court of appeals was entered on February 19, 1997. The petition for a writ of certio- rari was filed on May 19, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). The petition appendix is not paginated. We have assigned consecutive numbers to the pages therein. Additionally, the opinion of the district court was not reproduced in the appen- dix. That opinion can be located in the C.A. Appellant's Ex- cerpts of Record 5-24. (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Petitioner, an active duty member of the United States Marine Corps, brought suit in the United States District Court for the District of Hawaii under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. He alleged that he was injured by racial discrimination in employment. The district court ruled that the relevant provisions of Title VII, which are administered through regulations promul- gated by the Equal Employment Opportunity Com- mission (EEOC), do not provide a remedy for uni- formed members of the armed forces. See C.A. Appellant's Excerpts of Record (E.R.) 5-24, Peti- tioner appealed, and the court of appeals affirmed that judgment, Pet. App. 1-18. 1. At the time of the relevant events, petitioner was assigned to active duty at the Camp H.M. Smith Marine Corps Base, on the island of Oahu, Hawaii. In addition to his military assignment, he worked at the Marine Corps Base Enlisted Club at Kaneohe, Hawaii. The Club is a part of the Base's Morale, Welfare, and Recreation Department (MWR). Pet. App. 5. The MWR is governed by the military chain of command and operates under the direct supervision and control of the installation commander. Id. at 12- 13. Petitioner had a dispute with his supervisor at the MWR over the number of hours that petitioner was required to work. He complained to the MWRS per- sonnel office and attempted to file an administrative action alleging that he was subjected to racial discrimination in violation of Title VII. The person- nel office determined that petitioner was not eligible ---------------------------------------- Page Break ---------------------------------------- 3 to file the Title VII action because he was a uni- formed member of the Marine Corps. Pet. App. 5-6. 2. Petitioner filed this suit in district court to compel respondent to process his administrative action. Pet. App. 6; E.R. 6. The court granted the Secretary of the Navy's motion to dismiss peti- tioner's complaint and denied petitioner's motion for summary judgment. Pet. App. 6; E.R. 6-25. The court held that Section 717 of Title VII, 42 U.S.C. 2000e-16, which addresses the application of Title VII to the federal government, does not provide a remedy for uniformed members of the military departments. E .R. 10-14. The district court examined the EEOC'S regula- tions governing the application of Section 717, 29 C.F.R. Pt. 1614, and it concluded that the EEOC had "acted within its delegated authority to exclude complaints by active duty service members from the coverage of [Section 717]." E.R. 15. The court re- jected petitioner's contention that he was entitled to Title VII relief based on his part-time employment at the MWR. E.R. 16. The court found that the MWR is governed by the military chain of command and concluded that petitioner's action "involves a legal challenge to a senior Marine Corps officer and is subject to the rationale of the line of cases which has precluded discrimination claims by members of the military in light of the unique relationship existing therein." Ibid. The district also relied on the doctrine of intra- military immunity in denying relief. See E.R. 16-20, citing McGowan v. Scoggins, 881 F.2d 615, 619-620, opinion amended and superseded on denial of reh'g, 890 F.2d 128 (9th Cir. 1989), and other cases. The court noted that uniformed members of the military have ---------------------------------------- Page Break ---------------------------------------- 4 other statutory remedies to address complaints of discrimination in the military. See E.R. 20-22, citing 10 U.S.C. 1552 and 42 U.S.C. 1985(3). In light of its holding that petitioner had no right to a Title VII remedy, the court concluded that the issue of peti- tioner's right to mandamus relief was moot. Id. at 22- 23. 3. The court of appeals affirmed. Pet. App. 1-18. Like the district court, the court of appeals concluded that petitioner was "explicitly excluded from cover- age by EEOC regulations." Id. at 9, citing 29 C.F.R. 1614.103(d). The court adhered to its previous decision in (Gonzalez v. Department of the Army, 718 F.2d 926 (9th Cir. 1983), which held that Section 717 of Title VII allows suits only by "civilian employees of the Army, Navy, and Air Force and not both civilian employees and enlisted personnel." Id. at 928. The court of appeals noted that all the other circuits that have addressed the issue have also held that Title VII is inapplicable to uniformed members of the military. Pet. App. 10. It found no reason to depart from those rulings in this case. Id. at 10-18. ARGUMENT The court of appeals held that Title VII does not provide a remedy to persons, such as petitioner, who are uniformed members of a military service. That decision is correct, it does not conflict with any decision of this Court or another court of appeals, and it does not warrant further review. 1. Title VII does not include the United States within the statute's general definition of an "em- ployer." See 42 U.S.C. 2000e(b) (defining "employer" and excluding the "United States"). Congress in- stead provided remedies for discrimination in federal ---------------------------------------- Page Break ---------------------------------------- 5 employment through Section 717 of Title VII, 42 U.S.C. 2000e-16, which provides a proscription against discrimination, 42 U.S.C. 2000e-16(a) (1994 & Supp. I 1995), and directs the EEOC to issue rules to implement and enforce that policy in the federal work- place, 42 U.S.C. 2000e-16(b). See Pet. App. 6-8. Section 717(a) of Title VII provides that "personnel actions affecting employees * * * in military departments as defined in section 102 of title 5 [of the United States Code] * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. 2000e-16(a) (1994 & Supp. I 1995). The EEOC has implemented that pro- vision through regulations that allow civilian employ- ees of the military departments to invoke prescribed remedies. 29 C.F.R. 1614.103(b). The EEOC's regula- tions do not extend, however, to uniformed "members" of the military departments. 29 C.F.R. 1614.103(d). See Pet. App. 7-8. The EEOC's regulations rest on a sound inter- pretation of Section 717, which refers to the term "military departments" as it is used elsewhere in the United States Code. Section 102 of Title 5 of the United States Code defines "military departments" as "The Department of the Army," "The Department of the Navy," and "The Department of the Air Force." By contrast, Section 101(4) of Title 10 of the United States Code defines "armed forces" to include "the Army, Navy, Air Force, Marine Corps, and Coast Guard." As the court of appeals explained: [T]he two differing definitions show that Congress intended a distinction between `military depart- ments' and `armed forces' the former consisting of civilian employees, and the latter of uniformed ---------------------------------------- Page Break ---------------------------------------- 6 military personnel. Pet. App. 9-10, quoting Gonzalez v. Department of the Army, 718 F.2d 926, 928 (9th Cir. 1983), That distinc- tion also accords with Section 717's legislative his- tory. Ibid. As the court of appeals recognized in Gonzales, Section 717's distinction between uniformed members and civilian personnel does not leave petitioner with- out a remedy for discrimination. See 718 F.2d at 929 n.2. Petitioner may pursue statutory remedies, de- signed specifically for military members, to remedy wrongs committed within the service. See 10 U.S. C. 938, 1552. In addition, a military member may pursue administrative remedies for discrimination through the military's equal opportunity programs. See E.R. 21. Petitioner was specifically informed that this remedy was available to him. Ibid. 2. The court of appeals' decision in this case is con- sistent not only with Gonzalez, but with the decisions of every other court of appeals that has considered the question. Those courts have uniformly held that Title VII does not provide uniformed members of the armed forces with a remedy for discrimination. See Roper v. Department of the Army, 832 F.2d 247, 248 (2d Cir. 1987) (rejecting Army Reserve member's claim of discriminatory non-promotion based on sex and race); Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir. 1987) (rejecting National Guard member's claim of discriminatory discharge based on race), cert. denied, 488 U.S. 959 (1988); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir. 1981) (rejecting National Guard Reserve recruiter's race discrimination claim); John- son v. Alexander, 572 F.2d 1219, 1223-1224 (8th Cir.) (rejecting Army applicant's claim of discriminatory ---------------------------------------- Page Break ---------------------------------------- 7 rejection based on race), cert. denied, 439 U.S. 986 (1978); see also Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir. 1990) (rejecting Naval Reserve member's claim under the Rehabilitation Act of discriminatory release from active duty based on handicap), cert. denied, 499 U.S. 904 (1991). 3. Petitioner appears to argue that his situation is distinguishable because he is "part-timed employed by a non-appropriated funded agency of the U.S. Navy during his off-duty hours" (Pet. I). The court of appeals considered and properly rejected that claim. As the court observed, the relevant statutes provide no basis to "distinguish between military depart- ments operated out of appropriated funds and those using nonappropriated funds." Pet. App. 11. The court also noted that even though petitioner was em- ployed outside of his normal duty hours, his employ- ment at the MWR, a department of the Marine Base, was "governed by the military chain of command," id. at 13, "was subject to `direct military control," id. at 14, and "as such was `incident to military service," ibid. In any event, in the absence of a conflict in the circuits, the factual distinction that petitioner posits does not give rise to an issue of general importance warranting this Court's review. ---------------------------------------- Page Break ---------------------------------------- 8 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER SANDRA WIEN SIMON Attorneys JULY 1997