Middlebrooks v. Leavitt

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

LILLIE M. MIDDLEBROOKS, 
Plaintiff-Appellant,
v.
MICHAEL O. LEAVITT, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.  No. 05-1860

GEORGETOWN APPELLATE LITIGATION
CLINIC,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-04-2792-PJM)

Argued: December 4, 2007

Decided: May 6, 2008

Before MOTZ and DUNCAN, Circuit Judges, and
Leonie M. BRINKEMA, United States District Judge for the
Eastern District of Virginia, sitting by designation.

Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Motz wrote the opinion, in which Judge Duncan and Judge
Brinkema joined.
2 MIDDLEBROOKS v. LEAVITT
COUNSEL

ARGUED: David Joseph Arkush, PUBLIC JUSTICE, Washington,
D.C., for Amicus Supporting Appellant. Melanie L. Glickson,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Steven H. Goldblatt, Director,
Ari Hershowitz, Student Counsel, Gregory J. Langlois, Student Coun-
sel, GEORGETOWN UNIVERSITY LAW CENTER, Appellate Liti-
gation Program, Washington, D.C., for Amicus Supporting Appellant.
Rod J. Rosenstein, United States Attorney, Neil R. White, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In her pro se complaint, Lillie M. Middlebrooks alleges that the
Secretary of the United States Department of Health and Human Ser-
vices ("HHS") violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3 (2000) and 42 U.S.C. § 1981 (2000), in refusing to
hire her. On the Government’s motion, the district court dismissed
Middlebrooks’ complaint, holding that it lacked subject matter juris-
diction over her Title VII claim and that her § 1981 claim also failed.
We affirm in part, but because the record provides insufficient sup-
port for critical elements of the district court’s order, we also vacate
and remand in part.

I.

In February and March 2003, Middlebrooks, an experienced,
African-American registered nurse, applied for three nursing positions
at the Warren Grant Magnuson Clinical Center, a program operated
by the National Institutes of Health ("NIH"), an agency within HHS.
Middlebrooks sought to fill an NIH nursing position as a commis-
sioned officer of the United States Public Health Service Commis-
sioned Corps ("PHSCC").
 MIDDLEBROOKS v. LEAVITT 3
The PHSCC is one of the seven uniformed services of the United
States military designated under 10 U.S.C. § 101(a)(4)-(5) (2000);
other uniformed services include the five armed forces (Army, Navy,
Air Force, Marine Corps, and Coast Guard) and the commissioned
corps of the National Oceanic and Atmospheric Administration. Id.
The PHSCC employs approximately 6,000 officers in a variety of
medical health professions; those officers administer programs
designed to promote public health, prevent disease, and advance pub-
lic health science. See U.S. Dep’t of Health & Human Servs., U.S.
Pub. Health Serv. Commissioned Corps, About the Commissioned
Corps, http://www.usphs.gov/aboutus/ (last visited Apr. 16, 2008).

PHSCC commissioned officers may serve in programs adminis-
tered directly by the PHSCC, or they may serve in a variety of pro-
grams within HHS, such as the NIH, the Centers for Disease Control
and Prevention, and the Food and Drug Administration. See U.S.
Dep’t of Health & Human Servs., U.S. Pub. Health Serv. Commis-
sioned Corps, Agencies, http://www.usphs.gov/aboutus/agencies.aspx
(last visited Apr. 16, 2008). Alternatively, they may seek employment
in certain non-HHS federal agencies and programs, such as the Envi-
ronmental Protection Agency and the National Park Service. See id.
In order to serve in any programs other than those administered
directly by the PHSCC, an individual must apply to, and be accepted
by, both the PHSCC and the executive agency in which he or she
wishes to work. Only if the PHSCC and the executive agency deter-
mine to hire an applicant can that applicant become a commissioned
officer working within the specified executive agency. See U.S. Dep’t
of Health & Human Servs., U.S. Pub. Health Serv. Commissioned
Corps, Overview of the Application Process, http://www.usphs.gov/
applynow/#overview (last visited Apr. 16, 2008). Yet, when an appli-
cant seeks to serve as a commissioned officer in an executive agency
position that is not dedicated exclusively to the PHSCC, hiring offi-
cials within the executive agency assess the applicant’s qualifications
in a manner identical to the way in which they assess civilian candi-
dates for that position. In fact, the applicant may be hired to serve in
the executive agency position even if the applicant is not offered, or
decides to decline, a position with the PHSCC.

In this case, after the executive agency in question, NIH, deter-
mined not to hire Middlebrooks, she filed a formal employment dis-
4 MIDDLEBROOKS v. LEAVITT
crimination complaint with the NIH Office of Equal Opportunity and
Diversity Management. Middlebrooks complained that NIH officials
discriminated against her because of her race when they failed to hire
her for the first two positions to which she applied, and, after she
complained of this discrimination, the officials retaliated against her
by excluding her from consideration for a third position. HHS offi-
cials investigated the complaint and then issued a final decision con-
cluding that no evidence supported Middlebrooks’ race discrimination
or retaliation claims.

Having exhausted her administrative remedies, Middlebrooks
brought this action against the Secretary of HHS. She asserts a claim
under Title VII, alleging discrimination on the basis of race and retali-
ation, as well as a claim under 42 U.S.C. § 1981, alleging intentional
discrimination on the basis of race. Middlebrooks seeks monetary and
injunctive relief for those asserted violations.

The Government moved to dismiss Middlebrooks’ complaint, con-
tending that the district court lacked subject matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). The court granted the motion, reasoning that
the "military exception" to Title VII exempted from Title VII protec-
tion both PHSCC commissioned officers and those applying to be
PHSCC officers. The court then rejected Middlebrooks’ claim under
§ 1981, because it concluded that "Title VII represents the exclusive
remedy for federal sector employees who wish to pursue claims of
intentional discrimination in employment."

Middlebrooks noted a pro se appeal. At our invitation, the Appel-
late Litigation Program of the Georgetown University Law Center
filed amicus briefs on her behalf, which we very much appreciate.

We review de novo a dismissal for lack of subject matter jurisdic-
tion. Suter v. United States, 441 F.3d 306, 310 (4th Cir. 2006). We
first address Middlebrooks’ Title VII claim and then consider her
§ 1981 claim.

II.

Title VII outlaws discrimination in employment based on race and
 MIDDLEBROOKS v. LEAVITT 5
waives sovereign immunity with respect to claims for "personnel
actions affecting employees or applicants for employment . . . in mili-
tary departments . . . [and] in executive agencies . . . ." 42 U.S.C.
§ 2000e-16(a) (2000). Although the Supreme Court has not consid-
ered the question, numerous appellate courts, including this one, have
concluded that uniformed members of the armed services do not con-
stitute "employees . . . in military departments," id., and so do not fall
within the scope of the waiver of sovereign immunity contained in
§ 2000e-16.1 See, e.g., Randall v. United States, 95 F.3d 339, 343 (4th
Cir. 1996) (holding that "Congress intended [in § 2000e-16] to
include only civilian employees of the military departments, and not
uniformed service members, within the reach of Title VII"). Courts
have also concluded that Congress did not intend § 2000e-16(a)’s
waiver of immunity to encompass applicants for enlistment in the uni-
formed armed services and therefore have held that applicants may
not bring Title VII claims. See, e.g., Johnson v. Alexander, 572 F.2d
1219, 1223-24 (8th Cir. 1978).

For several years, the federal appellate courts differed as to whether
the § 2000e-16(a) waiver encompassed the PHSCC, or whether, like
the armed forces, the PHSCC fell outside of the waiver’s intended
scope. Compare Salazar v. Heckler, 787 F.2d 527, 533 (10th Cir.
1986) (concluding that § 2000e-16(a) "did not extend the protections
of Title VII . . . to commissioned officers, or to applicants for com-
missioned officer positions, in the Public Health Service"), with Mil-
bert v. Koop, 830 F.2d 354, 359 (D.C. Cir. 1987) (holding that "the
1
For the sake of convenience, courts have often described the exclu-
sion of uniformed personnel in the armed forces from the scope of
§ 2000e-16(a) as the "military exception" to Title VII. See, e.g., Hedin
v. Thompson, 355 F.3d 746, 747-48 (4th Cir. 2004); Doe v. Garrett, 903
F.2d 1455, 1461 (11th Cir. 1990). That phrase may be misleading,
because it may imply that § 2000e-16(a) initially waived sovereign
immunity for all "military" employees, but courts created an exception
to that waiver in order to eliminate otherwise valid Title VII claims for
uniformed military personnel. As Randall makes clear, however, the
original scope of the § 2000e-16(a) waiver in fact "includes only civilian
employees of the Army, Navy, or Air Force." 95 F.3d at 343. This con-
struction of § 2000e-16(a), which recognizes that Congress never waived
sovereign immunity with regard to uniformed military personnel, does
not, strictly speaking, constitute an "exception" to the statutory waiver.
6 MIDDLEBROOKS v. LEAVITT
‘military exception’ to Title VII . . . does not apply to a commissioned
officer of the PHS").

Congress responded to this debate by enacting the Health Profes-
sions Education Partnerships Act of 1998, which added subsection (f)
to 42 U.S.C. § 213 (2000). Pub. L. No. 105-392, § 402(a), 112 Stat.
3524, 3587-88 (codified at 42 U.S.C. § 213(f)). That provision states,
in pertinent part, that "[a]ctive service of commissioned officers of the
[PHSCC] shall be deemed to be active military service in the Armed
Forces of the United States for purposes of all laws related to discrim-
ination on the basis of race, color, sex, ethnicity, age, religion, and
disability." Id. (emphasis added). In 2004, interpreting this legislation,
we concluded that Congress intended to bar claims under the anti-
discrimination laws for all PHSCC officers in active service, not
merely those engaged in active military service. Hedin v. Thompson,
355 F.3d 746, 748, 750-51 (4th Cir. 2004).

Together, § 213(f), Randall, and Hedin make clear that Title VII
claims by "commissioned officers of the [PHSCC]" are not cogniza-
ble, because those individuals are "deemed" uniformed officers of the
military for purposes of anti-discrimination laws, and in § 2000e-
16(a) Congress did not waive sovereign immunity for uniformed offi-
cers of the military. In the case at hand, the Government maintains,
and the district court held, that Congress has similarly not waived
sovereign immunity with respect to Title VII claims by PHSCC appli-
cants, and, for this reason, Middlebrooks has no cognizable Title VII
claim. We are the first appellate court to consider this question.

A.

The Government initially contends that the "plain language of the
statutes at issue" supports its view that Title VII remedies are not
available to PHSCC applicants. The Government argues that because
§ 2000e-16(a) addresses both employees and "applicants" to military
departments, § 213(f) must be read to apply to both PHSCC employ-
ees and applicants, as well. If the Government’s reading of § 213(f)
is correct, then, like PHSCC officers, applicants to the PHSCC would
be beyond the scope of § 2000e-16(a). See Randall, 95 F.3d at 343;
Johnson, 572 F.2d at 1223-24.
 MIDDLEBROOKS v. LEAVITT 7
The statutory language simply does not support the Government’s
argument. While § 2000e-16(a) addresses both "employees" and "ap-
plicants for employment" in "military departments" and makes no dis-
tinction between these two groups of individuals, § 213(f) does not
mention PHSCC "applicants." Rather, as we noted in Hedin, 355 F.3d
at 748-51, § 213(f) clearly governs only PHSCC "commissioned offi-
cers" in "[a]ctive service." No plain language transforms mere appli-
cants to the PHSCC into "commissioned officers" of the PHSCC. And
given that PHSCC applicants have not (yet) received commissions,
they certainly have not engaged in "[a]ctive service" in the PHSCC.

Thus, we conclude that, contrary to the Government’s assertion, the
plain language of the statutes at issue here does not mandate the con-
clusion that PHSCC applicants are barred from bringing Title VII
claims. We take Congress at its word and assume, "as we must, that
‘Congress says in a statute what it means and means in a statute what
it says.’" Ayes v. U.S. Dep’t of Veterans Affairs, 473 F.3d 104, 111
(4th Cir. 2006). Accordingly, we "refuse to venture beyond the con-
fines of the statutory language," id., to hold that this language bars
PHSCC applicants from asserting Title VII claims. Rather, we con-
clude that the statute’s silence on this issue means that § 213(f) does
not encompass PHSCC applicants.

B.

Because § 213(f) does not bar Title VII claims by PHSCC appli-
cants, we must return to the question that divided the circuits prior to
the passage of § 213(f) — whether the PHSCC is included within the
scope of the § 2000e-16(a) waiver of sovereign immunity. That is, we
must determine if Congress intended applicants to the PHSCC to be
treated as applicants to "military departments . . . [or] executive agen-
cies," for whom it has waived sovereign immunity. § 2000e-16(a).

In Randall, we noted that "the term ‘military departments’ includes
only civilian employees of the Army, Navy, or Air Force," and
excludes uniformed military personnel. 95 F.3d at 343 (emphasis
added). The PHSCC does not fall neatly within this dichotomy, how-
ever, as its members possess characteristics of both "civilian employ-
ees" and "uniformed military personnel." Compare Salazar, 787 F.2d
at 530 (noting that PHSCC officers receive pay and allowances
8 MIDDLEBROOKS v. LEAVITT
according to the same statutory scheme as members of the armed
forces, that they may purchase supplies from the armed forces at the
same prices, and that the grades, ranks, and titles of commissioned
PHSCC officers are organized in a manner corresponding to those in
the Army), with Milbert, 830 F.2d at 358-59 (observing that, under 42
U.S.C. § 202 (2000), the PHSCC is an agency in HHS rather than a
military department, that PHSCC officers are free to unilaterally ter-
minate their status in the PHSCC, and that PHSCC officers are not
subject to the Code of Military Justice unless the President so
declares, pursuant to 42 U.S.C. § 217 (2000)).

Thus, the very nature of the PHSCC renders it difficult to deter-
mine whether it is an executive agency covered by the § 2000e-16(a)
waiver, whose applicants can bring Title VII claims, or a uniformed
military service not covered by the § 2000e-16(a) waiver, whose
applicants cannot bring Title VII claims. Moreover, although statutory
definitions of the "armed forces" do not include the PHSCC, see, e.g.,
10 U.S.C. § 101(a)(4); 5 U.S.C. § 2101(2) (2000), the PHSCC is con-
sistently included within the slightly broader designation of "uni-
formed services," see, e.g., 10 U.S.C. § 101(a)(5), 5 U.S.C. § 2101(3).

Despite these factors that make it difficult to classify the PHSCC,
several reasons persuade us that Congress did not intend the § 2000e-
16(a) waiver of sovereign immunity to cover the PHSCC, and so
applicants to the PHSCC cannot bring Title VII claims. First,
although the PHSCC shares characteristics of both civilian and mili-
tary personnel, the legislative history of § 2000e-16(a) suggests that,
in passing the amendment to Title VII that added this provision, Con-
gress intended § 2000e-16 to reach only federal employees in the
"civil service" and "competitive service" who were, at that time,
under the authority of the Civil Service Commission. See Salazar, 787
F.2d at 531-33 (explaining that Congress sought to redress "a general
dissatisfaction with the Civil Service Commission’s performance in
implementing the national policy of equal employment opportunity");
see also Gonzalez v. Dep’t of Army, 718 F.2d 926, 928 (9th Cir.
1983). The PHSCC is, however, explicitly excluded from the opera-
tion of the civil service laws, see 42 U.S.C. § 204 (2000), and from
the competitive service, see 5 U.S.C. §§ 2101, 2102 (2000). See Sala-
zar, 787 F.2d at 530-31. Thus, we agree with the Tenth Circuit that
Congress did not intend § 2000e-16(a) to extend Title VII protections
 MIDDLEBROOKS v. LEAVITT 9
"to commissioned officers, or to applicants for commissioned officer
positions, in the [PHSCC]." Id. at 533 (emphasis added).

Second, rules of statutory construction dictate that waivers of sov-
ereign immunity "must be construed strictly in favor of the sovereign
and not enlarged beyond what the language requires." United States
v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992) (internal quotations, alter-
ations, and citations omitted); see also United States v. White Moun-
tain Apache Tribe, 537 U.S. 465, 472 (2003) ("Jurisdiction over any
suit against the Government requires a clear statement from the
United States waiving sovereign immunity . . . . The terms of consent
to be sued may not be inferred, but must be unequivocally expressed."
(internal quotations and citations omitted)). The debate as to whether
§ 2000e-16(a) includes the PHSCC indicates the absence of any "clear
statement . . . waiving sovereign immunity" for claims by PHSCC
officers and applicants. See White Mountain Apache Tribe, 537 U.S.
at 472.

Finally, unlike the courts that initially considered the question of
whether § 2000e-16(a) extended to the PHSCC, e.g., Salazar, 787
F.2d at 533; Milbert, 830 F.2d at 359, we are aided by the passage
of 42 U.S.C. § 213(f); thus, we endeavor to construe § 2000e-16(a) in
light of Congress’s intentions in enacting § 213(f). See Ali v. Fed.
Bureau of Prisons, 128 S. Ct. 831, 837 (2008) (reasoning that,
although an amendment to the statute at issue did not govern the peti-
tioner’s claim, "the amendment is relevant because our construction
[of the statutory text] . . . must, to the extent possible, ensure that the
statutory scheme is coherent and consistent"). Although the plain lan-
guage of § 213(f) speaks only to "active service of commissioned
officers," we believe that it does evince Congress’s general intent to
align the PHSCC with the armed forces rather than with civilian
employment for purposes of employment discrimination remedies.

For these reasons, we conclude that the waiver of sovereign immu-
nity granted by § 2000e-16(a) does not encompass the PHSCC.
Therefore, neither commissioned officers nor applicants to the
PHSCC may bring claims under Title VII.

C.

This legal conclusion does not, however, resolve the question of
whether Middlebrooks may bring a cognizable Title VII claim. This
10 MIDDLEBROOKS v. LEAVITT
is so because of the nature of the unique hiring process for PHSCC
commissioned officers, which requires formal approval by both the
PHSCC and an executive agency. The vagaries in this hiring process
create a factual question as to whether to characterize the application
from which Middlebrooks’ claims arise as one to the PHSCC — in
which case she may not pursue a Title VII claim for the personnel
actions at issue — or one to the NIH — in which case she may pursue
such a remedy against NIH hiring officials, because Congress has
waived sovereign immunity for claims arising from "personnel
actions affecting . . . applicants for employment . . . in executive agen-
cies." § 2000e-16(a) (emphasis added).

For example, the Government has submitted that some executive
agency assignments are designated as PHSCC positions under the
statutory appointing authority provided by Title 5 of the United States
Code. According to the Government, when a PHSCC candidate
applies to a Title 5 position, that individual is exempt from the com-
petitive process required of civilian applicants and automatically
added to the list of eligible candidates for consideration. If not
approved by the PHSCC for commissioning, the individual’s parallel
application to the Title 5 executive agency position apparently is auto-
matically rejected. When applicants seek to fill positions like this,
their executive agency applications are better characterized as merely
one element of the larger PHSCC hiring process, for which no Title
VII remedies are available.

But the Government has additionally submitted that some execu-
tive agency assignments for PHSCC candidates are available under
the very different statutory authority of Title 42. According to the
Government, applicants to Title 42 positions are not exempted from
the competitive process required of civilian applicants; rather, execu-
tive agency officials assess their applications in the same manner that
they assess all other applications. In such cases, the executive agency
and the PHSCC applications may be sufficiently distinct and indepen-
dent to make Title VII remedies available for discriminatory person-
nel actions occurring solely within the executive agency application
process. But, even with respect to these applications, the timing of the
PHSCC approval process and the amount of discretion that process
affords PHSCC hiring authorities may foreclose such remedies. If for
instance (as the Government alleges here), the PHSCC has "pre-
 MIDDLEBROOKS v. LEAVITT 11
approved" an applicant at the time the executive agency considers the
application, then the applicant would essentially be a de facto member
of the PHSCC for purposes of her executive agency application and
thus would not be permitted to pursue Title VII remedies under
§ 2000e-16(a). If, however, the PHSCC does not begin consideration
of an applicant until an executive agency has accepted the applicant,
or the PHSCC retains discretion to reject an applicant regardless of
approval by an executive agency, then the applicant would not be a
de facto member of the PHSCC for purposes of the executive agency
application. Rather, as a civilian applicant, she would be entitled to
pursue Title VII remedies against the executive agency hiring offi-
cials.

Although it is clear in this case that the personnel action Middle-
brooks challenges occurred within the civilian agency, we cannot
determine from the record whether her application to the NIH is better
characterized as merely one element of the larger PHSCC hiring pro-
cess or whether her application to the NIH was truly independent
from the PHSCC hiring process.2 If the nursing positions to which
Middlebrooks applied were designated for commissioned PHSCC
officers, then Middlebrooks’ application is best characterized as one
to the PHSCC. Accordingly, she would lack a Title VII claim under
§ 2000e-16(a) with regard to any hiring decision related to those posi-
tions. But if the NIH vacancies were not designated for commissioned
officers and could be filled by civilians, and if the PHSCC retained
discretion to reject applicants regardless of their approval by the NIH
(that is, if Middlebrooks was not yet a de facto member of the
PHSCC), then Middlebrooks’ application is better characterized as
one to NIH. Under those facts, the decision by NIH officials to reject
Middlebrooks’ application would be sufficiently distinct from the
PHSCC application process that she could be characterized as a civil-
ian applicant to an executive agency for purposes of § 2000e-16(a),
2
At our request, the Government filed a letter with us responding to
certain questions about the facts raised at oral argument. That letter
seems to indicate that the positions for which Middlebrooks applied were
not designated PHSCC positions but rather could be filled by civilians.
The district court, however, has had no opportunity to consider this infor-
mation or other facts relevant to construing Middlebrooks’ application;
thus, remand is appropriate.
12 MIDDLEBROOKS v. LEAVITT
and thus she could assert a Title VII claim against the NIH hiring offi-
cials.

We therefore vacate the judgment of the district court on Middle-
brooks’ Title VII claim and remand for the court to determine how
best to characterize Middlebrooks’ application. Should the court
determine that it is properly viewed as one to the PHSCC, then Mid-
dlebrooks may not assert a claim under § 2000e-16(a). But if the court
determines that the application is better viewed as one to NIH, then
it should deny the Government’s motion to dismiss and permit Mid-
dlebrooks to proceed on her Title VII claim against NIH hiring offi-
cials under § 2000e-16(a).

III.

In addition to her Title VII claim, Middlebrooks also asserts a dis-
crimination claim under 42 U.S.C. § 1981. That statute does not, how-
ever, provide a remedy against federal officials. See § 1981. Amicus,
arguing on behalf of Middlebrooks, urges us to construe Middle-
brooks’ § 1981 claim as a Fifth Amendment claim properly lodged
against NIH officials in their individual capacities or, alternatively, to
instruct the district court to allow Middlebrooks to amend her com-
plaint to assert a Fifth Amendment claim against those officials.
Because neither course would afford Middlebrooks an opportunity for
relief, we adopt neither; instead, we affirm the judgment of the district
court dismissing this claim.3

If the district court should conclude that Middlebrooks has a cogni-
zable claim against NIH officials under Title VII, then Title VII repre-
sents Middlebrooks’ exclusive remedy for any claim against the
United States for intentional discrimination in employment. See Davis
v. Passman, 442 U.S. 228, 247 n.26 (1979); Brown v. Gen. Servs.
Admin., 425 U.S. 820, 835 (1976). Thus, if the district court construes
3
Because we reject on other grounds the contention that Middlebrooks
might succeed on a claim under the Fifth Amendment, we need not
address the Government’s assertion that the PHSCC administrative
review mechanisms afford meaningful redress for Middlebrooks’ claims
and therefore foreclose the need for a new, judicially-crafted cause of
action.
 MIDDLEBROOKS v. LEAVITT 13
Middlebrooks’ application as one to the NIH, and she is therefore per-
mitted to bring a Title VII claim against NIH hiring officials under
§ 2000e-16(a), then she may not also proceed on a Fifth Amendment
claim against those officials based on the same, allegedly discrimina-
tory conduct.

Even if the district court concludes that Middlebrooks’ application
is better characterized as one to the PHSCC, and therefore § 2000e-
16(a) does not waive sovereign immunity for her claims, Middle-
brooks would still lack a cognizable claim under the Fifth Amend-
ment. In Davis, the Supreme Court implied a Fifth Amendment cause
of action for damages when a federal employee claimed gender-based
discrimination in employment. 442 U.S. at 242-44. The Court did so
in reliance on its earlier opinion in Bivens v. Six Unknown Fed. Nar-
cotics Agents, 403 U.S. 388 (1971), in which it held that a citizen who
suffers injury to a constitutionally protected interest at the hands of
federal officials may have a cognizable claim against those officials
in their individual capacities.

The Supreme Court has instructed that a Bivens remedy is not
available, however, when "special factors counsel[ ] hesitation." Id. at
396. The Court has also held that the need to avoid "congressionally
uninvited intrusion into military affairs by the judiciary" constitutes
one of those "special factors." United States v. Stanley, 483 U.S. 669,
683 (1987).4 In this case, should the district court determine that Mid-
dlebrooks’ application is best characterized as one to the PHSCC,
then, because we believe that the statutory scheme evinces congres-
sional intent to align the PHSCC with the armed forces, and members
of the armed forces would lack a Bivens remedy for discrimination
claims arising out of military employment, Middlebrooks also would
have no Bivens remedy against NIH officials. See Chappell v. Wal-
4
The Court first recognized the compelling rationale for protecting the
Government from suits by uniformed members of the military for inju-
ries that "arise out of or are in the course of activity incident to service"
in Feres v. United States, 340 U.S. 135, 146 (1950). As the Court later
suggested, the "peculiar and special relationship of the soldier to his
superiors," and "the effects of the maintenance of such suits on disci-
pline," animate the Feres doctrine. United States v. Brown, 348 U.S. 110,
112 (1954).
14 MIDDLEBROOKS v. LEAVITT
lace, 462 U.S. 296, 298-304 (1983) (holding that recognizing a Bivens
claim against Navy officers would undermine military decisions); see
also Stanley, 483 U.S. at 679-84 (holding that "special factors" coun-
seling against a Bivens remedy may exist even when the claim
asserted is against civilian personnel, so long as military affairs are
implicated). And if Middlebrooks has no cognizable Bivens claim
against NIH officials, then Davis affords no right of action under the
Fifth Amendment.5 See 442 U.S. at 243-44.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART AND VACATED
AND REMANDED IN PART.

5
Amicus argues that even if Middlebrooks may not proceed on her
Title VII or her Fifth Amendment claims, the district court still has juris-
diction over her claim for equitable relief. Because Middlebrooks’ initial
complaint names only the Secretary of HHS as a defendant, Amicus asks
us to direct the district court to permit Middlebrooks to amend her com-
plaint to assert a claim for injunctive relief against the relevant NIH hir-
ing officials in their individual capacities. Our sister circuits have divided
on the question of whether an individual can seek equitable relief for
alleged constitutional violations arising in the context of military person-
nel decisions. Compare Dibble v. Fenimore, 339 F.3d 120, 126-28 (2d
Cir. 2003), with Wigginton v. Centracchio, 205 F.3d 504, 513 (1st Cir.
2000). Since the district court did not address the question and the parties
have not thoroughly briefed it, we do not address the issue now. Of
course, the district court may do so on remand if Middlebrooks presents
the issue.