Williams v. Wynne

• Decision Date: 30 June 2008
• Docket Number: No. 07-30173.,07-30173.
• Citation: 533 F.3d 360
• Parties: Roynell J. WILLIAMS, Plaintiff-Appellant, v. Michael W. WYNNE, Secretary of the United States Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

533 F.3d 360

Roynell J. WILLIAMS, Plaintiff-Appellant, v. Michael W. WYNNE, Secretary of the United States Air Force, Defendant-Appellee.

No. 07-30173.

United States Court of Appeals, Fifth Circuit.

June 30, 2008.

John Bennett Wells (argued), Slidell, LA, for Williams.

Sandra Ema Gutierrez (argued), Stephen A. Higginson, Diane Hollenshead Copes, Asst. U.S. Attys., New Orleans, LA, for Wynne.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARZA, STEWART and OWEN, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff-appellant Roynell Williams occupied a dual status position with the United States Air Force, working both as an Aircraft Electrician, in a civilian capacity, and serving as a member of the Air Force Reserves. After testing positive for cocaine use while on active reserve status, the appellant was discharged from the reserves and then removed from his civilian position. In this action, the appellant challenges his removal from his civilian position and discharge from his military status. He also asserts a claim for employment discrimination under Title VII. The district court dismissed the Title VII claim for lack of subject matter jurisdiction and granted summary judgment for the defendant-appellee Michael W. Wynne, Secretary of the United States Air Force ("Air Force"),¹ on the remaining claims. Williams appeals. For the reasons that follow, we AFFIRM the judgment of the district court.

I

The appellant held a dual status position with the Air Force for many years. In his civilian capacity, he was an Aircraft Electrician; in his military capacity, he was an Air Reserve Technician ("ART"). In January 1997, while the appellant was on active status with the reserves, the appellant provided a urine sample that tested positive for cocaine. In separate proceedings, the plaintiff was discharged from both his civilian position and his military position for drug use.

The appellant challenged his removal from his civilian position and his discharge from his military position. He appealed his discharge from the Reserves to the Air Force Board for the Correction of Military Records ("AFBCMR"). He appealed his removal from his civilian position to the Merit Systems Protection Board ("MSPB"). Before the MSPB, the appellant also asserted that he was terminated in retaliation for filing a prior Equal Employment Opportunity Commission ("EEOC") complaint. The MSPB denied the appellant's retaliation claim, as well as his challenge to the merits of the removal decision, and the EEOC affirmed. The AFBCMR likewise rejected the appellant's objections to his removal from the Reserves and affirmed his discharge.

The appellant then brought this action challenging the removal decisions of the AFBCMR and the MSPB and further alleging that his removal from his civilian position was discriminatory and in violation of Title VII, 42 U.S.C. § 2000e-5.

In December 2002, the Air Force filed an administrative record with the district court. That record contained a previously undisclosed letter. The letter explained that an expert witness in the appellant's administrative discharge hearing, who provided evidence regarding the laboratory procedures used in the case, had been removed prior to the hearing from his position as chief of the forensic sciences branch at the Air Force base's drug laboratory. Based on this new evidence, and its potential value for impeachment, the appellant filed a request for reconsideration with the AFBCMR. The AFBCMR denied the request. The appellant challenges this decision as well.

The district court dismissed the appellant's Title VII claim for lack of subject matter jurisdiction and granted summary judgment to the Air Force on the remaining claims. This appeal followed.

II

We review dismissals for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) de novo. Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 601 (5th Cir.2007).²

We review a district court's decision to grant summary judgment de novo as well. Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir.2007). Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). On a motion for summary judgment, we view the facts, and all reasonable inferences drawn from those facts, in the light most favorable to the non-moving party. Stotter, 508 F.3d at 820.

III

Relying on this court's decision in Brown v. United States, 227 F.3d 295 (5th Cir.2000), the district court concluded that because the appellant's Title VII claim arose from the appellant's military status, it was not cognizable; the district court therefore dismissed the claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The appellant argues that (a) Brown is distinguishable and, (b) in any event, the claim did not arise from his military status. The Air Force disagrees and further contends that the appellant waived his Title VII claim by failing to include that claim in the amended complaint that was filed after the Title VII claim was dismissed.

We first reject the Air Force's contention that the appellant waived his Title VII claim by failing to include it in his amended complaint after that claim was dismissed by the district court. "[A] plaintiff, by filing an amended complaint after a dismissal with leave to amend, [is] not barred from raising on appeal the correctness of the dismissal order." Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.1978), vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979). Applying this rule, the appellant did not waive his Title VII claim by filing an amended complaint that failed to replead the claim already rejected by the district court.

The next question is whether the district court correctly concluded that it lacked subject matter jurisdiction under Brown to consider the appellant's Title VII claim. In Brown, this court considered whether a dual status Air Force Reserve Technician could bring a claim against the Air Force for employment discrimination under Title VII. 227 F.3d at 297. Title VII waives federal sovereign immunity as to the Air Force and all other "military departments," see 29 C.F.R. § 1614.103(d)(1), but in Brown the court explained that "this waiver has been understood to apply only to suits by civilian employees of the military departments and not members of the armed forces." 227 F.3d at 298. Addressing the problem of the dual status employee, the court stated that "employment discrimination claims by ARTs must be categorized as either arising from their position as a civilian employee of a military department, or their position as a uniformed service member." Id. at 299. "[C]laims arising purely from an ART's civilian position are provided for under Title VII; claims that originate from an ART's military status, however, are not cognizable" under Title VII. Id. The district court concluded that the appellant's claim arose from his military status and thus was not cognizable.

The appellant argues that the district court's reliance on Brown was misplaced. The appellant attempts to distinguish Brown, relying on a case from the Federal Circuit, Jentoft v. United States, 450 F.3d 1342 (Fed.Cir.2006). Jentoft addressed the problem of the dual status employee in the context of the Equal Pay Act, 29 U.S.C. § 206. Id. at 1343. There, the court rejected the distinction between nonmilitary and military status to determine the right of dual status employees to bring Equal Pay Act claims. Id. at 1349. The court's decision rested in part on 10 U.S.C. § 10216(a), a statute not cited in Brown. The current version of § 10216(a) provides that "[f]or purposes of this section and any other provision of law, a military technician (dual status) is a Federal civilian employee ...." (emphasis added). Id. at 1348-49. Because the court found "no language in § 10216(a) limiting the circumstances in which a dual status technician can be considered a federal civilian employee," the Federal Circuit concluded that a dual status employee, as defined in § 10216(a), could bring a claim under the Equal Pay Act. Id. at 1348. Jentoft distinguished Brown by noting that Brown did not cite § 10216(a). Id. at 1349.

Relying on Jentoft, the plaintiff argues that Brown should be limited to cases involving employment actions taken against dual status employees that occurred prior to the 1996 enactment of § 10216(a) as part of the National Defense Authorization Act for Fiscal Year 1997, Pub.L. No. 104-201, § 1214(1)-(2), 110 Stat. 2422, 2695 (1996).³ The Government responds that Jentoft is distinguishable because it dealt with the Equal Pay Act and not Title VII. The Government points out that Brown relied on the definition of "military departments," not at issue in the Equal Pay Act context, to determine the scope of Title VII's coverage and to conclude that Title VII did not extend to uniformed members of the military.

The rule articulated in Brown applies, notwithstanding the statement in § 10216(a) that "a military technician (dual status) is a Federal civilian employee." That provision also provides that a military technician "is required as a condition of that employment [(i.e., the civilian employment)] to maintain membership in the Selected Reserve ...." § 10216(a)(1)(B) (emphasis added). Consistent with this provision, Brown recognized that "ARTs, such as Brown, are civilian employees whose positions require that they also serve in the military reserves." 227 F.3d at 297 (emphasis added). The court concluded that these civilian employees could not bring Title VII claims arising from events related to their military reserve status, a necessary condition of their civilian...