Wetherill v. Geren: the Eighth Circuit Erred by Applying the Feres Doctrine to Bar Dual Status Military Technicians from Bringing Civil Actions Under Title Vii

• Jurisdiction: United States,Federal
• Citation: Vol. 46
• Publication year: 2022

46 Creighton L. Rev. 433. WETHERILL V. GEREN: THE EIGHTH CIRCUIT ERRED BY APPLYING THE FERES DOCTRINE TO BAR DUAL STATUS MILITARY TECHNICIANS FROM BRINGING CIVIL ACTIONS UNDER TITLE VII

WETHERILL V. GEREN: THE EIGHTH CIRCUIT ERRED BY APPLYING THE FERES DOCTRINE TO BAR DUAL STATUS MILITARY TECHNICIANS FROM BRINGING CIVIL ACTIONS UNDER TITLE VII

Daniel Lam

I. INTRODUCTION................................... 434

II. FACTS AND HOLDING............................ 437

III. BACKGROUND .................................... 441

A. THE UNITED STATES SUPREME COURT INTERPRETS FEDERAL STATUTES BY THEIR PLAIN MEANING ........................................ 441

B. JENTOFT V. UNITED STATES: THE FEDERAL CIRCUIT REFUSED TO EXTEND THE FERES DOCTRINE TO DUAL-STATUS MILITARY TECHNICIANS.................................... 446

C. OTHER CIRCUITS APPLY THE FERES DOCTRINE TO DUAL-STATUS MILITARY TECHNICIANS, BARRING THEM FROM BRINGING SUITS UNDER TITLE VII____ 448

1. The Fifth Circuit Played Down 10 U.S.C. § 10216(a): Dual-Status Military Technicians Have "Always" Been Civilian Employees................................... 448

2. The Ninth Circuit Rushed to Legislative History: 10 U.S.C. § 10216(a)'s Enactment Eliminated "Inconsistencies" in Referring to Dual-Status Military Technicians............ 449

3. The Sixth Circuit Scapegoated the EEOC: 29 C.F.R. Section 1614.103(d)(1)'s Reference to Uniformed Members Is Inclusive of Dual-Status Military Technicians.................. 451

D. EMERSON ELECTRIC CO. V. SCHLESINGER: THE EIGHTH CIRCUIT REAFFIRMED THAT THE EEOC HAS PROCEDURAL BUT NOT SUBSTANTIVE RULEMAKING AUTHORITY WHEN ISSUING REGULATIONS PURSUANT TO TITLE VII............ 452

IV. ANALYSIS......................................... 454

A. THE FEDERAL CIRCUIT APPROPRIATELY HELD THAT DUAL-STATUS MILITARY TECHNICIANS ARE FEDERAL CIVILIAN EMPLOYEES UNDER ANY PROVISION OF LAW............................... 455

B. THE FEDERAL CIRCUIT WAS CORRECT IN FINDING THAT THE FERES DOCTRINE DOES NOT PRECLUDE DUAL-STATUS MILITARY TECHNICIANS FROM BRINGING A CIVIL ACTION WHEN CIVILIAN EMPLOYEES GENERALLY HAVE A STATUTORY RIGHT TO DO SO................................. 457

C. THE EIGHTH CIRCUIT ERRED BY DECLINING TO FOLLOW THE FEDERAL CIRCUIT'S DECISION THAT 10 U.S.C. § 10216(A) REMOVED THE FERES DOCTRINE'S BAR OVER TITLE VII SUITS BY DSTS .. 459

D. THE EEOC OVERSTEPPED ITS AUTHORITY BY ENGAGING IN SUBSTANTIVE RULEMAKING WITH 29 C.F.R. SECTION 1614.103 TO AFFECT A PER SE BAR ON DUAL-STATUS MILITARY TECHNICIANS' TITLE VII SUITS.................... 461

V. CONCLUSION ..................................... 465

I. INTRODUCTION

Title VII of the Civil Rights Act of 1964,(fn1) as amended, prohibits employers from discriminating against their employees based on race, national origin, color, religion, or sex.(fn2) The protections of Title VII are not generally available to employees of the military unless the military employee is deemed a civilian employee.(fn3) This is the case because courts have generally applied Feres v. United States(fn4) (the "Feres doctrine") to bar Title VII claims by servicemembers arising out of actions incident to service.(fn5) Courts are split, however, on whether the Feres doctrine bars Title VII claims brought by dual-status military technicians ("DSTs") because of the inherent hybrid military/civilian nature of DSTs.(fn6) Under federal statute, DSTs are federal civilian employees under any provision of law.(fn7) Based on the plain meaning of that statute, the United States Court of Appeals for the Federal Circuit has allowed DSTs to sue the military, notwithstanding the Feres doctrine.(fn8) In contrast, other appellate courts, including the United States Court of Appeals for the Eighth Circuit, have decided that § 10216(a) did not override the Feres doctrine for DSTs; accordingly, these courts prohibit DSTs from bringing suit under Title VII and similar anti-discrimination statutes.(fn9)

According to data from the U.S. Equal Employment Opportunity Commission ("EEOC"), there were over ninety-nine thousand charges filed in 2012 based on employment discrimination.(fn10) Of those charges, 33.7% constituted claims based on race, and 30.5% constituted claims based on sex.(fn11) Given the fact that in 2012 there were 68,891 authorized DSTs affiliated with the Army and Air Force, whether DSTs are barred from bringing Title VII employment discrimination suits under the Feres doctrine significantly impacts their ability to have such potential claims adjudicated.(fn12)

In Wetherill v. Geren,(fn13) the Eighth Circuit held that notwithstanding § 10216(a), the Feres doctrine precludes DSTs' Title VII suits when the claim arises from or is incident to military service.(fn14) In Wetherill, a Japanese-American female DST in the National Guard was forced to retire from the military before she was eligible to receive a full pension in connection with her civilian technician position.(fn15) The DST, Nancy Wetherill ("Wetherill"), sued the Army National Guard and the Secretary of the Army among others (collectively the "Guard defendants") in the United States District Court for the District of South Dakota, alleging discrimination and retaliation in violation of Title VII.(fn16) The district court granted the Guard defendants' motions to dismiss.(fn17) On appeal, the Eighth Circuit affirmed the district court's dismissal, concluding that the Feres doctrine applied to DSTs regardless of § 10216(a).(fn18)

This Note will first review the facts and holding of Wetherill.(fn19) This Note will then discuss how the United States Supreme Court engages in statutory interpretation, specifically when the Court interprets statutes containing the word any.(fn20) Next, this Note will examine certain United States Courts of Appeals' interpretations of the relationship between the Feres doctrine and § 10216(a) as it relates to DSTs.(fn21) This Note will also describe the rulemaking authority of the Equal Employment Opportunities Commission ("EEOC") in connection with Title VII.(fn22)

This Note will explain that the Federal Circuit was correct in qualifying DSTs as federal civilian employees pursuant to the plain meaning of § 10216(a).(fn23) Furthermore, this Note will show that the Federal Circuit appropriately lifted the restraints of the Feres doctrine from DSTs' employment-related civil actions.(fn24) Accordingly, this Note demonstrates that the Eighth Circuit erred by applying the Feres doctrine to a DST's claim and barring that DST from relief.(fn25) Finally, this Note will refute the potential argument that 29 C.F.R. section 1614.103(d)(1) independently bars DSTs Title VII claims by illustrating that the EEOC may not promulgate substantive regulations.(fn26)

II. FACTS AND HOLDING

In Wetherill v. Geren,(fn27) a Japanese-American woman sued the National Guard under Title VII of the Civil Rights Act of 1964,(fn28) alleging discrimination and retaliation due to her gender and/or national origin.(fn29) In 1974, plaintiff Nancy Wetherill began working for the South Dakota Army National Guard ("S.D. Guard"), and in 1977 she was commissioned as an officer.(fn30) As a dual-status technician ("DST"), Wetherill was considered both civilian and military because the Civil Service system paid her as a civilian employee but the National Guard employed her as an officer and required her to work in uniform.(fn31) In 1999, Wetherill was promoted to Colonel, and in 2007 she became the Director of Operations, Military Technician, for the S.D. Guard, where she remained until forced into retirement in July 2008, two years before she would have qualified for a full pension under the Civil Service Retirement System.(fn32)

Pursuant to 10 U.S.C. § 14507(b), a colonel's active status ends on the first day of the month following the month that the officer finishes thirty years of commissioned service.(fn33) In other words, National Guard officers who fail to achieve a higher rank than colonel are forced to retire from the military after thirty years.(fn34) Thus, this statute effectively fixes an officer's Mandatory Retirement Date ("MRD").(fn35) For Wetherill, her MRD was originally set for July 31, 2007.(fn36) Because Wetherill was a DST, her MRD would ultimately be the end of her civilian employment as well because that position was contingent upon being a commissioned officer in the military.(fn37) That meant she would not receive a full retirement annuity under the Civil Service Retirement System, which required her to work in her civilian capacity until December 31, 2010, in order to receive a full pension.(fn38)

This predicament led Wetherill to ask the then-Adjutant General of the S.D. Guard, Major General Michael A. Gorman, to postpone her MRD via a waiver, which would have allowed her to continue working until her Civil Service pension matured.(fn39) On May 10, 2007, General Gorman granted Wetherill's request, and on July 18, 2007, the National Guard Bureau ("NGB") approved his decision.(fn40) However, in September 2007, General Gorman retired and the S.D. Guard appointed Brigadier General Steven R. Doohen as his replacement.(fn41) Shortly thereafter, in January 2008, General Doohen asked the NGB to rescind the waiver previously granted to Wetherill, and the NGB approved the General's request, effectively resetting Wetherill's MRD to July 31, 2008.(fn42) General Doohen informed Wetherill that the reason for her MRD waiver being...