Gonzalez v. Department of Army

• Decision Date: 17 October 1983
• Docket Number: No. 82-4270,82-4270
• Citation: 718 F.2d 926
• Parties: 34 Fair Empl.Prac.Cas. 1850, 32 Empl. Prac. Dec. P 33,893 Aristides GONZALEZ, Plaintiff-Appellant, v. DEPARTMENT OF the ARMY, Clifford L. Alexander, individually and in his capacity as Secretary of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 926

718 F.2d 926

34 Fair Empl.Prac.Cas. 1850,

32 Empl. Prac. Dec. P 33,893

Aristides GONZALEZ, Plaintiff-Appellant, v. DEPARTMENT OF the ARMY, Clifford L. Alexander, individually and in his capacity as Secretary of the Army Defendants-Appellees.

No. 82-4270.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 12, 1983.

Decided Oct. 17, 1983.

Carlos Ernesto Duque, San Francisco, Cal., for plaintiff-appellant.

Richard D. Rosen, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before PECK, ^* FLETCHER, and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant, an Army Major, appeals from the district court's dismissal of his complaint alleging race discrimination in violation of Title VII, 42 U.S.C. Sec. 2000e et seq. (1976 & Supp. V 1981), 42 U.S.C. Sec. 1981 (1976), and 42 U.S.C. Sec. 1983 (Supp. V 1981). The district court dismissed the complaint because it found appellant's claims nonjusticiable and unreviewable, holding that Title VII did not apply to uniformed members of the Armed Forces, and that the section 1981

claim was barred by the doctrine of sovereign immunity. Appellant filed a timely appeal; this court's jurisdiction rests on 28 U.S.C. Sec. 1291 (1976). We affirm the district court's judgment.

I FACTS

Appellant, Aristides Gonzalez, is a native of Puerto Rico and a regular commissioned officer in the Army, holding the rank of Major. He entered on active duty in 1965 as a Second Lieutenant. He was promoted to First Lieutenant in 1966 and to Captain in 1967. From 1967 to 1980 appellant was several times considered for, but not promoted to, the rank of Major. During this period appellant alleges that he had outstanding ratings and would have been promoted but for the intentional race discrimination practiced by the Army.

In 1980, appellant was terminated from duty in the Army. At that time he began to pursue administrative remedies seeking a correction of his record and reinstatement. Through this process, several of his performance ratings were raised and he was granted reinstatement and a promotion to Major with a retroactive effective date of October 1, 1979.

Appellant contends that despite this retroactive promotion he is "at least four years behind his class-year contemporaries in the promotion process." He claims that this and other injuries were caused by the Army's intentional race discrimination. The discrimination that the Army practiced is alleged to consist of: (1) reliance on Officer Efficiency Ratings (OERs) that purport to measure the qualifications of eligible officers, but actually operate to discriminate against persons of appellant's race and national origin; (2) inadequate recruitment of minorities and failure to accept them on an equal and impartial basis; (3) reliance on arbitrary, non-job-related requirements for continued employment; and (4) other generalized complaints regarding Army recruitment and promotion programs.

Appellant filed this action against the Army in September, 1980. It was stayed pending the outcome of the Army administrative hearings which resulted in appellant's reinstatement. Following the conclusion of the administrative proceedings, the Army moved to dismiss appellant's complaint. The district court granted the motion to dismiss without giving appellant leave to amend.

II DISCUSSION

A. Appellant's Title VII Claim.

The district court dismissed appellant's claim of race discrimination in employment under Title VII, 42 U.S.C. Sec. 2000e-16(a) (Supp. V 1981) (provisions relating to federal employees), because it concluded that the statute did "not apply to members of the armed forces." Appellant contends on appeal that the district court's conclusion on this question of law is erroneous. We review this contention de novo. See Turner v. Prod, 707 F.2d 1109, 1114 (9th Cir.1983).

Section 717(a) of Title VII, 42 U.S.C. Sec. 2000e-16(a), extends the protections against employment discrimination afforded by the Civil Rights Act of 1964 to "[a]ll personnel actions affecting employees or applicants for employment ... in military departments as defined in section 102 of Title 5 ...." The referenced statute provides that "[t]he military departments are: The Department of the Army[;] The Department of the Navy[; and] The Department of the Air Force." 5 U.S.C. Sec. 102 (1982). Appellant argues that this statutory language is unambiguous and compels the conclusion that Title VII's coverage extends to both civilian employees and uniformed members of the Army, Navy, and Air Force.

We are not convinced that the language of section 717(a) is capable only of the construction appellant would give it; nor are we confident that appellant's construction of the statute is the one intended by Congress. The historical and revision Our reading of the statutory text is confirmed by the legislative history of section 717(a). This history is set forth in H.R.Rep. No. 238, 92d Cong., 1st Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 2137. The relevant parts of the report indicate that section 717 was primarily intended to improve the record of non-discrimination in federal employment by transferring to the Equal Employment Opportunity Commission (EEOC) much of the Title VII enforcement responsibility formerly vested in the Civil Service Commission. Id. at 22-26, 1972 U.S.Code Cong. & Ad.News at 2157-60. There is no indication in the legislative history that the former jurisdiction of the Civil Service Commission was to be expanded upon the transfer of functions to the EEOC. Id. Moreover, it is abundantly clear that the Civil Service Commission was never authorized to review or police discrimination within the armed forces. See generally S.Rep. No. 969, 95th Cong., 2d Sess. 2-13, reprinted in 1978 U.S.Code Cong. & Ad.News 723, 2724-35 (summary of Civil Service Reform Act of 1978 and need for reform). Thus the legislative history provides a strong inference that section 717 was not intended to extend Title VII coverage to enlisted and commissioned members of the armed forces in active service.

                note to 5 U.S.C. Sec. 102 states that the definition of military department appearing there "is supplied to avoid the necessity for defining 'military departments' each time it is used in [Title 5]."  5 U.S.C. Sec. 102 note (1982).  The note then cites section 101(7) of Title 10, which contains a definition of military departments substantially similar to that contained in section 102 of Title 5.  Compare 10 U.S.C. Sec. 101(7) (1976) with 5 U.S.C. Sec. 102 (1982).  Section 101 of Title 10, however, also contains a separate definition for "armed forces":  " 'Armed Forces' means the Army, Navy, Air Force, Marine Corps, and Coast Guard."    10 U.S.C. Sec. 101(4) (1976).  The two differing definitions show that Congress intended a distinction between "military departments" and "armed forces," the former consisting of civilian employees, the latter of uniformed military personnel.  See, e.g., 10 U.S.C. Sec. 3031(a)(6) & (7) (1976) (defining two separate categories of Army personnel, "civilians in the Department of the Army" and "members of the Army").  We conclude, therefore, that the term "military departments" in section 717(a) of Title VII, when read in the context of the statutory definitions to which it refers, can be fairly understood to include only civilian employees of the Army, Navy, and Air Force and not both civilian employees and enlisted personnel as appellant argues. 1
                

This inference is consistent with the conclusion reached in those few cases to consider the question of whether section 717 makes Title VII applicable to uniformed military personnel. In the leading case of Johnson v. Alexander, 572 F.2d 1219 (8th Cir.1978), the Eighth Circuit stated:

There is no question that Congress intended for Sec. 717(a) to afford protection against discrimination to civilian employees and applicants for civilian employment in the Departments of the Army, Navy, and Air Force. But we think that if Congress had intended for the statute to apply to the uniformed personnel of the various armed services it would have said so in unmistakable terms. We agree with the district court that neither Title VII nor its standards are applicable to persons who enlist or apply for enlistment in any of the armed forces of the United States.

Id. at 1224 (footnote omitted); accord, Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981); Hunter v. Stetson, 444 F.Supp. 238, 239 (E.D.N.Y.1979). In light of these cases, the legislative history, and the pertinent

                statutory language, we hold section 717(a) does not make Title VII of the Civil Rights Act of 1964 applicable to uniformed members of the armed forces. 2   Accordingly, the district court's holding that appellant has no right of action under Title VII is affirmed
                

B. Appellant's Section 1981 Claim.

The district court dismissed appellant's claim of intentional race discrimination in violation of 42 U.S.C. Sec. 1981 (1976), on the ground that the Army and the Secretary of the Army, as agents of the United States, were immune from suit. Without addressing the correctness of this ruling, ³ we affirm the district court's dismissal of appellant's section 1981 claim but on a different basis.

In Chappell v. Wallace, --- U.S. ----, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Supreme Court remanded to this court a suit by a number of Navy enlisted men alleging race discrimination by their superior officers in order for us to determine whether the plaintiffs' claims for relief might be cognizable under 42 U.S.C. Sec. 1985(3). See id. at 2368 n. 3. ⁴ Implicit in the court's order of remand is the recognition that, in some situations at least, uniformed members of the Armed Services may assert that their constitutional and statutory rights have been violated by their superiors. See id. at 2368. We need not decide in this case, however,...