Gary Jackson v. Thomas Modly
949 F.3d 763
| D.C. Cir. | 2020Background
- Gary L. Jackson, a Black male, served in the U.S. Marine Corps 1977–1991 and alleges race- and sex-based discrimination by supervisors at Henderson Hall circa 1988 (relocation, blocked training/reenlistment, derogatory records).
- After discharge he sought correction of his records from the Board for Correction of Naval Records (multiple filings 1990–2000) without success.
- Jackson filed an EEOC charge (Nov. 19, 2014); the Marine Corps EEO Office dismissed it under 29 C.F.R. §1614.103(d)(1) and the EEOC affirmed (July 19, 2016) on the ground that Title VII does not cover uniformed service members.
- Jackson sued pro se in D.D.C. (Nov. 2, 2016) alleging Title VII discrimination; the district court construed additional claims (APA, Military Pay Act, etc.) and dismissed all (timeliness / jurisdictional grounds).
- D.C. Circuit appointed amicus counsel for Jackson on appeal; the court affirmed: Title VII does not apply to uniformed servicemembers, §2401(a) is nonjurisdictional (so equitable tolling available but not warranted on these facts), and it lacks appellate jurisdiction over the Military Pay Act claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title VII §2000e-16(a) covers uniformed members of the armed forces | Jackson: Title VII protections for federal employees should include uniformed servicemembers injured by discrimination | Secretary: Title VII’s reference to “military departments” and EEOC regulation exclude uniformed military personnel from coverage | Court: Title VII does not apply to uniformed members; statutory text, Title 5 civil-service definitions, military–civil distinctions, consistent circuit precedent, and congressional inaction support exclusion |
| Whether 28 U.S.C. §2401(a) six-year time bar is jurisdictional for APA claims | Jackson/Amicus: District court erred in treating APA claim as untimely/jurisdictional; equitable tolling may apply | Secretary: §2401(a) operates as a jurisdictional condition on suits against the U.S., barring untimely suits | Court: §2401(a) is nonjurisdictional per Supreme Court’s Kwai Fun Wong reasoning; prior D.C. Circuit precedent holding it jurisdictional overruled |
| Whether Jackson is entitled to equitable tolling of §2401(a) for his APA claim | Jackson/Amicus: Jackson’s severe mental anguish and prolonged efforts to correct records justify tolling (non compos mentis) | Secretary: Facts do not show extraordinary circumstance preventing timely filing | Held: Equitable tolling not warranted—Jackson’s allegations do not establish incapacity; his documented, repeated attempts to pursue relief show diligence |
| Jurisdiction over Military Pay Act claim (claim for reenlistment/back pay) | Jackson sought relief construed as Military Pay Act claim | Secretary: D.C. Circuit lacks jurisdiction; Federal Circuit has exclusive jurisdiction over Military Pay Act appeals | Held: D.C. Circuit lacks jurisdiction under 28 U.S.C. §1295(a)(2); claim not reviewable here |
Key Cases Cited
- United States v. Kwai Fun Wong, 575 U.S. 402 (2015) (statutory time bars are nonjurisdictional absent clear congressional statement; FTCA time bar nonjurisdictional)
- Brown v. United States, 227 F.3d 295 (5th Cir. 2000) (circuit precedent holding Title VII inapplicable to uniformed servicemembers)
- Coffman v. Michigan, 120 F.3d 57 (6th Cir. 1997) (Title VII does not cover uniformed military)
- Gonzalez v. Dep’t of the Army, 718 F.2d 926 (9th Cir. 1983) (discussed textual distinctions between "military departments" and "armed forces")
- Johnson v. Alexander, 572 F.2d 1219 (8th Cir. 1978) (military service materially differs from civilian employment)
- Feres v. United States, 340 U.S. 135 (1950) (FTCA bar for injuries incident to service; discussed but not relied upon here)
- Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979) (definition-of-"employee" analysis; distinguished)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishing jurisdictional requirements from merits elements)
- Cummings v. Dep’t of the Navy, 279 F.3d 1051 (D.C. Cir. 2002) (Privacy Act decision; distinguished on statutory differences)
- P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021 (D.C. Cir. 2008) (prior D.C. Cir. precedent treating §2401(a) as jurisdictional, now overruled)