Hodge v. Dalton, 95-16036

• Citation: 107 F.3d 705
• Decision Date: 19 February 1997
• Docket Number: No. 95-16036,95-16036
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 269, 69 Empl. Prac. Dec. P 44,523, 97 Cal. Daily Op. Serv. 1112, 97 Daily Journal D.A.R. 1713 W.L. HODGE, Plaintiff-Appellant, v. John DALTON, officially as Secretary of the Navy, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 705

107 F.3d 705

73 Fair Empl.Prac.Cas. (BNA) 269,

69 Empl. Prac. Dec. P 44,523,

97 Cal. Daily Op. Serv. 1112,

97 Daily Journal D.A.R. 1713

W.L. HODGE, Plaintiff-Appellant, v. John DALTON, officially as Secretary of the Navy, Defendant-Appellee.

No. 95-16036.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 11, 1996.

Decided Feb. 19, 1997.

William Tagupa, Honolulu, Hawai'i, for plaintiff-appellant.

Sandra Wien Simon, United States Department of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the District of Hawai'i, Helen Gillmor, District Judge, Presiding. D.C. No. CV-94-00970-HG.

Before: FLETCHER, WIGGINS, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

OVERVIEW

Plaintiff/appellant W.L. Hodge filed an action in federal district court seeking declaratory and mandamus relief against defendant/appellee John Dalton in his official capacity as Secretary of the Navy. Specifically, Hodge sought to compel defendant Dalton to process his formal complaint of racial discrimination in accordance with established procedures of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("the Act" or "Title VII"), and appropriate federal regulations. The district court dismissed the action, finding that it lacked jurisdiction over the matter. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute. Hodge is an active-duty service member in the United States Marine Corps. He is currently assigned to duty at Camp H.M. Smith, Marine Corps Base Hawaii, on the island of Oahu, Hawaii, in postal operations. In addition to his military assignment, Hodge worked as a duty manager during his off-duty hours at the United States Marine Corps Base enlisted club at Kaneohe, Hawaii. The enlisted club is an entity within the base's Morale, Welfare and Recreation ("MWR") Department.

After Hodge and his supervisor at the MWR got into a dispute concerning the number of hours Hodge was required to work, Hodge attempted to file an Equal Employment Opportunity Commission ("EEOC") complaint with the MWR personnel office. The complaint alleged racial discrimination. Mr. Charles Garza, Formal Discrimination Complaints Manager at Camp Pendleton, California, rejected Hodge's complaint on the ground that Hodge was specifically excluded from Title VII coverage as a uniformed service member.

Hodge subsequently filed the present case in federal district court, seeking a declaratory judgment or mandamus relief. Specifically, Hodge moved the district court to compel Dalton brought a motion to dismiss the complaint, claiming that the district court lacked subject matter jurisdiction over Hodge's complaint and that the district court was required to dismiss the complaint for failure to state a claim upon which relief may be granted. The district court granted the motion to dismiss, denying Hodge's request for declaratory and mandamus relief. Hodge timely appeals.

Dalton to process his formal complaint of discrimination in accordance with established Title VII procedures and appropriate federal regulations. In the alternative, Hodge sought to have the district court order Dalton to issue a written notice of dismissal of his complaint of discrimination with language informing him of his right to appeal the dismissal, without prejudice, to the EEOC.

STANDARD OF REVIEW

We review a district court's dismissal of a complaint for lack of subject matter jurisdiction de novo. Bon v. United States, 802 F.2d 1092, 1094 (9th Cir.1986).

ANALYSIS

The United States is immune from suit unless it consents to waive its sovereign immunity. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit. Id. The doctrine of sovereign immunity applies to federal agencies and to federal employees acting within their official capacities. South Delta Water Agency v. U.S., Department of Interior, 767 F.2d 531, 536 (9th Cir.1985). Any waiver of immunity must be "unequivocally expressed," and any limitations and conditions upon the waiver "must be strictly observed and exceptions thereto are not to be implied." Lehman, 453 U.S. at 160-61, 101 S.Ct. at 2701-02.

The underlying action in the present case was brought against John Dalton in his official capacity as Secretary of the Navy. Thus, sovereign immunity bars Hodge's action, and the district court lacked subject matter jurisdiction over the action, unless a waiver of immunity exists. The only possible waiver of sovereign immunity in the present action is Title VII.

The United States is not an employer amenable to suit under the general provisions of Title VII. ¹ Suits involving federal employment are instead governed by 42 U.S.C. § 2000e-16, which provides in relevant part:

All personnel actions affecting employees or applicants for employment ... in military departments as defined in section 102 of Title 5, ² in executive agencies as defined in section 105 of Title 5 ³ (including employees and applicants for employment who are paid from nonappropriated funds) ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-16(a) (footnotes added).

Congress expressly granted the EEOC rulemaking authority to implement and enforce Title VII. 42 U.S.C. § 2000e-16(b). Pursuant to this grant of authority, the EEOC promulgated regulations defining the various forms of discrimination prohibited by Title VII and establishing the procedure for enforcement. In these regulations, the EEOC interprets Title VII as not applying to complaints of discrimination by active-duty service members:

(a) Individual and class complaints of employment discrimination and retaliation prohibited by title VII ... shall be processed in accordance with this part....

(b) This part applies to:

(1) Military departments as defined in 5 U.S.C. 102;

(2) Executive agencies as defined in 5 U.S.C. 105;

....

(d) This part does not apply to:

(1) Uniformed members of the military departments referred to in paragraph (b)(1) of this section....

29 C.F.R. § 1614.103. This regulation affects "individual rights and obligations," and thus constitutes a substantive rule. Chrysler Corp. v. Brown, 441 U.S. 281, 302, 99 S.Ct. 1705, 1717-18, 60 L.Ed.2d 208 (1979). Moreover, because this substantive rule was promulgated under a specific grant of congressional authority, it has the "force and effect of law." Id. at 301-02, 99 S.Ct. at 1717-18.

Hodge is an active-duty member of the Marine Corps and is thus a uniformed member of a military department. ⁴ He is therefore explicitly excluded from coverage by EEOC regulations. See 29 C.F.R. § 1614.103(d).

However, Hodge contends that the EEOC regulation is invalid. Hodge argues first that the regulation conflicts with § 2000e-16(a); and second, that § 1614.103(d)(1) was invalidly promulgated.

A. Section 1614.103(d)(1) does not conflict with § 2000e-16(a).

Under § 2000e-16(a), Title VII protection is extended to employees in "military departments" and "executive agencies." In § 1614.103, the EEOC has interpreted Title VII to not apply to uniformed members of the military departments. Hodge argues that the EEOC's interpretation conflicts with § 2000e-16(a) and is therefore invalid. We disagree.

In Gonzalez v. Department of Army, 718 F.2d 926, 928 (9th Cir.1983), this court held that the term "military departments" in § 2000e-16(a) "include[s] only civilian employees of the Army, Navy, and Air Force and not both civilian employees and enlisted personnel." In reaching this conclusion, we compared the definition that Congress had given "armed forces" with the definition that Congress had given "military departments." We noted that Congress had defined "armed forces" in 10 U.S.C. § 101 as "the Army, Navy, Air Force, Marine Corps, and Coast Guard." Id. This definition differed from the definition that Congress used for "military departments" in 5 U.S.C. § 102. Id. We concluded that "[t]he 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." Id. We then examined the legislative history of § 2000e-16(a) and concluded that the legislative history also provided "a strong inference that section [2000e-16] was not intended to extend Title VII coverage to enlisted and commissioned members of the armed forces in active service." Id.

All other circuits to address the issue have also held that Title VII is inapplicable to uniformed members of the military. See, e.g., Doe v. Garrett, 903 F.2d 1455, 1461-62 (11th Cir.1990) (barring naval reserve member's Rehabilitation Act claim that his release from active-duty military was due to discrimination based on his handicap), cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991); Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987) (barring army reserve member's claim that she was not promoted due to racial and sexual discrimination); Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir.1987) (barring national guard member's claim that his discharge was due to racial discrimination), cert. denied, 488 U.S. 959, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981) (barring national guard member's claim that she was demoted due to racial discrimination); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.) (barring army applicant's claim that he was rejected due to racial discrimination), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). This interpretation of § 2000e-16(a) is consistent Hodge also argues that because "MWR is a program operated by the U.S. Navy largely out of...