prescriptions against racial discrimination gender discrimination other discrimination apply to the uniform military so i'm focused on that issue for many years courts and other circuits have failed to apply title seven as written they've unanimous it is not but it has settled on its own statutory language that was in the original statute which was that  well i think we should be we have well i think we the congress is aware of that of the language it put in the statute is aware of circuit this is it's aware of supreme court decisions but the supreme court has never decided this issue and not every circuit has decided the issue and frankly this court's decisions actually what given the other circuits decisions this court's decisions actually point the other way and there is no there's no direct precedent on point within this circuit and the two precedents that we've cited repeatedly spirity s on the definition of employee and judge henderson's majority opinion incomings both point in the direction of the military being covered by a statute like this so i i certainly understand and can see that the other circuits to have addressed this have gone the opposite direction but this circuit hasn't addressed it the supreme court has in addresses the two precedents that are closest to this issue in this circuit go in our direction and so we would ask the court to let me say this you cause me to pull down cummings and look at it again and all we held there and i'm reading from it we hope that the doctrine of faeries does not extend to the privacy act lawsuits that's our actual holding so i don't know how you go from that to title seldom because the the lead because the court before it got to fair as it has to it had to st analyze the plain language of the privacy act and the privacy act use the term military depart all these are the decisions the judge sent all mentioned already actually focused on what does military department and in the st part of the decision incomings the courts and military department includes the uniform military and in all these other circuit decisions from the other circuits they availability of privacy claims brought by uniformed members of the military well that this statute talks about employees of an employer and then the employers or employers are described as those anyone engaged in interest in commerce and then in the statute commerce is defined as any governmental activity and when the statute in the definition of employer specifically except persons it only exception one type of person and that is  for purposes of this title which would cover this military departments and employee is someone appointed in the civil service and the civil service consists of all this is twen term employ specifically for clothes and it says we're not to look to title five for the definition of employee because that's too narrow congress didn't didn't invoke that definition and instead invoked broader language you simply said could look at title five as the guy consistent with spirit he's in addition congress regularly has used the term employed in a number of statutes the fairly standard sacked in the civil service reform act that anti slayer statute we mentioned in briefs and in each instance it uses the term employee broadly and then if it wants to limit it limit the statute to only civilian employees in the military it specifically says no and in fact president johnson's executive order right before and that meant of the amendments to title seven that cover the government specifically said it shall only cover civilian employees that was an executive order when congress had that in front of it it didn't use that same terminology in fact every time in the government's brief when they mention employee they they always say it was intended to cover civilian employees they have to put that moniker in front of it because employee is a broad term and under just practical standards the military are employed by the government they receive wages they receive benefits they pay taxes like wage taxes like everyone else they're recruited on campuses like other do i entirely agree in that sense but that only helps prove employment status under a decision like spirit these because spirit he says would you look to is the extent to which the superior can control the work and obligations of th of the of the in feed the inferior and in that situation would judge then tell you just described is the fact that the military personnel subject themselves to even greater control right disappear your a master servant relationship which is what the employer employee relationship is based on but that's a different question that contractor  employee comes in the definition section of title ten excuse me title seven in the definition section says any individual imp loyd by an employer and employer is then defined as any entity in gauge in co and then commerce is defined as a governmental activity but specifically in the definition of employee it says any individual employed by an employer except elected officials has one exception elected officials congress clearly could have said and the military and in fact in all these other statutes i mentioned fair labor standards act federal tort claims act all these statutes the court when congress did not want the term employee to include military uniform military it it used only the broad term here and included only one exception for elected officials it could have easily said but not the military using they accepted the military or they they said we were talking about civil service and i just can't remember fair seven only says employee asked except for those elected and the other ones you are contracting say fair labor standards act the civil service reform act they say this covers employees except it only covers civilian employees and they will good morning my piece the court title seven covers employees and applicants for employment in the military branches but as the board has been discussing this morning employment is separate and distinct from military service definition of military departments that is incorporated into title five so i think the elegant maybe the missing link from my brief is five u s code section twenty one of five which defines an employee to be someone who is appointed to the civil service that's just one of the requirements so in that way it's an elegant way to answer the question that the military uniform military is not covered by title seven but beyond that  last night also brought to mind that a couple of things that the court went beyond the definition from the civil service world in that case in part because of a desire for a liberal interpretation of the statute and its remedial purposes but that has to be weighed against the supreme court's decision in chappell versus wallace and this court's decision of voice versus marsh and chappell versus wallace that the supreme court recognized the special status of the military requiring two parallel systems that the uniform military are covered by titles but that the remedial and administrative scheme is different i think yeah in rereading it i was less precise than i hoped i think it might be possible to construe the statute as covering uniform military insofar as it prohibits on lawful discrimination on the basis of the statute but there's no real need to reach that issue because  context of construing statutes as applied to the military to have some hesitation and also recognizing that this congress and the military have existing systems for review and remedy of these types grievances and complaints they are robust they are they include criminal penalties it's a very different world that soldiers live in so just to answer my question page thirteen your summary are you use a title seven precludes military departments including the navy from gauging an accident point to discrimination by title seven it's implemented regulations prevent litigation of the claims presented in this case in a civilian court so i'm mis reading that if i think that what you're saying is ten to seven substantive standards apply but the remedial and administrative mechanisms are different that's not your position that's correct that that it to the extent it could be read that what i apologize  that being said i am in no way shape or form denying here this morning that the military indulges any type of unlawful great i mean just to be struck or hit it it's just up to them and are different sorts of law yes i mean for example the military was was desegregate an executive order president harry truman did that in the fifty's before title seven even existed so if we're not real if we were to not rely on paris to pal but just the statute we want to be curious things is the doctor in this in this area seems somewhat under explanatory i mean the statute says military departments and as opposing counsel pointed out very easily could have said all the civilian employees  military department doesn't say that in fact elsewhere the military targets are already defined to include forces so we don't even i mean in a nutshell your statutory language argument is equivalent to military service and i trace that to chop versus wallace and and voice versus marshall and you know long lines of precedent isn't that a very broad way of defining it to say military service is not employment and i'm just worried about well i guess that's what title five says are there are there not other employment statutes that do apply to the military not really and actually that's what that's what the tenor of the argument this morning made me think about is that i'm for example we're going to have unions in the military if we define employment to be an available option i mean that would seem to have an arc that argument seems to have virtually no limit i mean military service wind but it sounds like at least under our which is why an agent just reading the statute not to reach these employees this would be a twenty six dollars i think that may be correct or i think that because the claim fails for a cause of just make a couple of points one is that spirit uses nine hundred and seventy nine in the amendments we're talking about that included federal employment within title seven came in one thousand and seventy two some spirit he's clearly was dealing with the definition that exists in the statute currently nd the chapelle case is actually we think helpful to our side because what it says is that judges can't create causes of action or liability it's congress's out legation to do so and you look to the plain language of the statute to see so and the court specifically said there are a p a actions that can be brought against the military involving things like racial discrimination under the the challenge correction board just asians and if their argument if the government's argument were correct that civilian courts can never get involved in these types of issues involving subordinates and inferiors of the military and that that situation then even the a p a would be trumped by a doct like farrah's which schapelle specifically says is not the case and the last thing i point out is that the statute plays not just to employees but to applicants for employment so if someone goes into a recruiting office of the of the marines and attempts to join the marines and is denied admission because of racial discrimination there and they have no remedy anywhere seemingly under the under the auspices of employee and you know employee or service members who are already accepted that's not a political to those who simply walking in the door and again the tie in a situation where the government admits statute maven b and begin with the top should go to mr jackson because of the statute which should be