Jackson v. Modly, No. 18-5180

Decision Date14 February 2020
Docket NumberNo. 18-5180
Citation949 F.3d 763
Parties Gary L. JACKSON, Appellant v. Thomas B. MODLY, Acting Secretary, The United States Department of the Navy, Appellee
CourtU.S. Court of Appeals — District of Columbia Circuit

Anthony F. Shelley, Washington, DC, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs was Dawn E. Murphy-Johnson, Washington, DC.

Gary L. Jackson, pro se, was on the briefs for appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Rhonda L. Campbell, Assistant U.S. Attorney, entered an appearance.

Before: Henderson and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

Gary L. Jackson served in the United States Marine Corps from 1977 to 1991. Almost thirty years after his honorable discharge from the Marine Corps, Jackson filed a pro se complaint against the Secretary of the Navy (Secretary) alleging that toward the end of his military career, his supervising officers discriminated against him because of his race and sex (he is a black male) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq . In addition to Jackson’s Title VII claim, the district court inferred other claims from his pro se complaint, including one under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and another under the Military Pay Act, 37 U.S.C. § 204. The district court ultimately dismissed all of Jackson’s claims and Jackson now appeals.

As detailed below, we join the unanimous rulings of our sister circuits, concluding that Title VII does not apply to uniformed members of the armed forces, and therefore affirm the dismissal of Jackson’s Title VII claim. We also affirm the dismissal of Jackson’s APA claim because it is untimely and the facts alleged in the complaint are insufficient to apply equitable tolling. In so holding, we also recognize that our long-standing interpretation of the six-year statute of limitations in 28 U.S.C. § 2401(a) as jurisdictional is no longer correct in light of the United States Supreme Court’s decision in United States v. Kwai Fun Wong , 575 U.S. 402, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015). And, last, we conclude that we lack jurisdiction to review the dismissal of Jackson’s Military Pay Act claim.

I. BACKGROUND

This case involves Jackson’s claims of discrimination that he allegedly suffered toward the end of his service with the United States Marine Corps. Jackson served from 1977 until his honorable discharge on January 15, 1991. His complaint alleges that in 1988, while he was stationed at Henderson Hall, Marine Corps Headquarters in Arlington, Virginia, assigned to the Warehouse Chief position, he began to experience discrimination, harassment and retaliation from his superiors. For example, Jackson alleges that one of his superiors relocated him to another section of the warehouse stating that he "preferred that the number of Blacks not exceed the number of whites in any one section of the Warehouse." Compl. 9. He also alleges that, among other things, his superiors intentionally delayed responding to his request to attend a training academy, placed false accusations in his military record and went to extraordinary lengths to prevent his reenlistment. Jackson alleges that, upon his discharge, one of his superiors said to another, "we finally got Staff Sergeant Jackson ... That’s one less Black Staff Sergeant." Id. After his discharge, Jackson alleges that he filed applications with the Board for Correction of Naval Records multiple times from 1990 until 2000 to remove derogatory material from his fitness record and thus make him eligible for reenlistment but his attempts were unsuccessful.

On November 19, 2014, Jackson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) against the Marine Corps. The EEOC responded that it lacked jurisdiction because Jackson’s complaint was against a branch of the military and therefore had to be filed initially with the Marines Corps. On December 9, 2014, Jackson filed his employment discrimination claim with the Equal Employment Opportunity Office of the Marine Corps (EEO Office). The EEO Office dismissed his complaint under 29 C.F.R. § 1614.103(d)(1), stating that uniformed military personnel of any branch of the armed forces are not covered by Title VII. Jackson then appealed to the EEOC. The EEOC affirmed the EEO Office’s decision on July 19, 2016, also relying on § 1614.103(d)(1), and denied Jackson’s subsequent request for reconsideration.

On November 2, 2016, Jackson filed a pro se complaint in district court, alleging employment discrimination against the Secretary under Title VII. The Secretary moved to dismiss Jackson’s complaint under Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6). The district court granted the motion, dismissing Jackson’s claims under Rule 12(b)(1) for lack of subject matter jurisdiction. Jackson v. Spencer , 313 F. Supp. 3d 302, 311 (D.D.C. 2018). Construing Jackson’s pro se complaint in the most favorable light, the district court inferred additional claims under the Military Whistleblower Protection Act, the Administrative Procedure Act (APA), the Military Pay Act and the Federal Tort Claims Act (FTCA). Id. at 308. The district court dismissed all of Jackson’s claims, holding that Title VII did not apply to uniformed members of the armed forces, that the Military Whistleblower Protection Act does not contain a private right of action and that his other claims were untimely. Id. at 308–11.

Jackson appealed pro se. We appointed counsel as amicus to address whether Title VII applies to uniformed members of the armed forces. Amicus for Jackson (Amicus) raises arguments supporting Jackson’s Title VII, APA and Military Pay Act claims.1

II. ANALYSIS
A. Title VII

We begin with the district court’s dismissal of Jackson’s Title VII claim. Although the district court dismissed Jackson’s Title VII claim for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the district court should have dismissed the case for failure to state a claim pursuant to Rule 12(b)(6).2 We review the district court’s dismissal for failure to state a claim under Rule 12(b)(6) de novo, "taking as true the allegations of the complaint." True the Vote, Inc. v. IRS , 831 F.3d 551, 555 (D.C. Cir. 2016).

"Title VII of the Civil Rights Act of 1964 reflects the American promise of equal opportunity in the workforce and shields employees from certain pernicious forms of discrimination." Figueroa v. Pompeo , 923 F.3d 1078, 1082–83 (D.C. Cir. 2019) (citation omitted). As originally enacted, Title VII did not apply to the federal government. Barnes v. Costle , 561 F.2d 983, 988 (D.C. Cir. 1977). In 1972, however, the Congress extended the protections of Title VII to federal as well as state and local employees in the Equal Employment Opportunity Act of 1972, Pub. L. No. 92–261, § 11, 86 Stat. 103, 111–13 (codified at 42 U.S.C. §§ 2000e–16 ). As a result, Title VII now provides, as relevant here, that "[a]ll personnel actions affecting employees or applicants for employment ... in military departments as defined in section 102 of Title 5" and other federal departments "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a).

The issue before us is whether Title VII, specifically, the provision covering federal employees, § 2000e-16(a), applies to uniformed members of the armed forces of the United States military. We have never squarely addressed this issue. But see Milbert v. Koop , 830 F.2d 354, 358 (D.C. Cir. 1987) (assuming arguendo Title VII does not apply to members of armed forces). But we note at the outset that every one of our sister circuits to address this question has concluded—albeit based on varying rationales and depths of analysis—that the answer is no. See, e.g. , Brown v. United States , 227 F.3d 295, 299 (5th Cir. 2000) ; Coffman v. Michigan , 120 F.3d 57, 59 (6th Cir. 1997) ; Randall v. United States , 95 F.3d 339, 343 (4th Cir. 1996) ; Stinson v. Hornsby , 821 F.2d 1537, 1539 (11th Cir. 1987), cert. denied , 488 U.S. 959, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988) ; Roper v. Dep’t of the Army , 832 F.2d 247, 248 (2d Cir. 1987) ; Salazar v. Heckler , 787 F.2d 527, 530 (10th Cir. 1986) ; Gonzalez v. Dep’t of the Army , 718 F.2d 926, 928–29 (9th Cir. 1983) ; Johnson v. Alexander , 572 F.2d 1219, 1224 (8th Cir.), cert. denied 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978).

With this unanimous precedent from our sister circuits in mind, we begin our analysis with the text. See S.C. Pub. Serv. Auth. v. F.E.R.C. , 762 F.3d 41, 55 (D.C. Cir. 2014) (per curiam) ("In addressing issues of statutory interpretation, the court must begin with the text, turning as need be to the structure, purpose, and context of the statute."); Janko v. Gates , 741 F.3d 136, 139–40 (D.C. Cir. 2014). Here, the relevant text of Title VII provides that "employees or applicants for employment ... in military departments as defined in section 102 of Title 5... shall be made free from" unlawful discrimination. 42 U.S.C. § 2000e-16(a).

At the outset of our textual analysis, we clarify—and ultimately reject—a textual hook other courts and the Secretary here erroneously rely upon to reach the conclusion that Title VII does not include uniformed members of the armed forces—namely, the term "military departments." The argument is based on Title VII’s reference to the definition of military departments in section 102 of Title 5 of the United States Code, which organizes the federal government. See 5 U.S.C. §§ 101, et seq . Title 5 defines "military departments" as "The Department of the Army. The Department of the Navy. ...

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