Willis v. Roche

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-30-2007
Willis v. Roche
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4179
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Willis v. Roche" (2007). 2007 Decisions. Paper 172.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/172
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-4179
____________
CHARLES L. WILLIS,
Appellant
v.
JAMES G. ROCHE, SECRETARY, DEPARTMENT OF AIR FORCE
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 05-cv-00113)
District Judge: Hon. John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
November 8, 2006
Before: SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.
___________
(Filed November 30, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Plaintiff/appellant Charles Willis sued his employer, the United States Air Force, alleging
retaliation and discrimination on the basis of race and gender in violation of Title VII.
Defendant/appellee James Roche, the Secretary of the Air Force, moved to dismiss
Willis’ complaint pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Willis’ claims were
barred by the doctrine of intra-military immunity, more commonly known as the Feres
doctrine. The District Court agreed and dismissed Willis’ complaint. We conclude that
Willis’ claims are barred by the Feres doctrine, and will therefore affirm.
I.
Willis, a black male, is a civilian employee of the United States Air Force. At all
pertinent times, Willis has been stationed at the Willow Grove Air Reserve Station in
Willow Grove, Pennsylvania. Willis is an Air Reserve Technician (ART) and Chief of
the Relocation, Employment, and Training Subdivision, a branch of the Military
Personnel Flight Division. In his capacity as head of this subdivision, Willis is a GS-11
level employee and supervises six people. As a condition of his employment, Willis is
required to be a member of the military reserves. Willis’ direct supervisor, Lt. Col. Jerald
Uber, and his second level supervisor, Lt. Col. Kay Long, are both on active military duty.
In his complaint, Willis alleges that Lt. Col. Uber subjected him to a variety of
actions that constituted racial and gender-based discrimination. On August 1, 1997,
Willis filed a formal charge of discrimination with the appropriate agency, the Air Force
Review Board. Willis also filed a second discrimination charge on December 12, 1997.
2
These charges were consolidated, and the parties attended a hearing before an EEOC
administrative judge. The administrative judge determined that there was insufficient
evidence to support Willis’ claims of discrimination, and the Air Force Review Board
adopted the administrative law judge’s findings.
Thereafter, Willis filed suit in federal court, and the District Court dismissed his
complaint pursuant to Rule 12(b)(1). This appeal followed.
II.
We exercise plenary review over the District Court’s dismissal of this action under
Rule 12(b)(1). In re Cybergenics Corp., 226 F.3d 237, 239 (3d Cir. 2000). “Because the
government’s challenge to the District Court’s jurisdiction was a factual one under Fed.
R. Civ. P. 12(b)(1), we are not confined to the allegations in the complaint (nor was the
District Court) and can look beyond the pleadings . . . .” Cestonaro v. United States, 211
F.3d 749, 752 (3d Cir. 2000). As the plaintiff, Willis bears the burden to show that his
claims are not barred by the Feres doctrine. See Luckett v. Bure, 290 F.3d 493, 497 (2d
Cir. 2002).
III.
A.
Willis’ claims arise under 42 U.S.C. 2000e-16(a), which, inter alia, prohibits
military departments from engaging in employment discrimination. It is undisputed that
3
Willis is an employee of a military department. See 5 U.S.C. § 102 (defining “military
department” to include the Department of the Air Force).
The doctrine of intra-military immunity, first recognized in Feres v. United States,
340 U.S. 135 (1950), however, sharply limits the scope of military department employees
who may seek relief under § 2000e-16(a). The issue in this case is whether Willis’ claims
are barred by the so-called Feres doctrine.
In Feres, the Supreme Court held that uniformed members of the armed forces may
not bring suit against the federal government under the Federal Tort Claims Act (FTCA)
for injuries that “arise out of or are in the course of activity incident to service.” Id. at
146. This holding was based on “[t]he peculiar and special relationship of the soldier to
his superiors, the effects of the maintenance of such suits on discipline, and the extreme
results that might obtain if suits under the [FTCA] were allowed for negligent orders
given or negligent acts committed in the course of military duty. . . .” United States v.
Brown, 348 U.S. 110, 112 (1954).
The intra-military immunity doctrine has been extended well beyond its original
application to FTCA claims by active duty military personnel, and now applies to a broad
array of constitutional and statutory claims by active duty and non-active duty military
personnel alike. For example, in Chappell v. Wallace, 462 U.S. 296 (1983), the Supreme
Court considered claims of race discrimination brought by five enlisted men serving in
the United States Navy against their supervisors, under Bivens v. Six Unknown Named
4
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court held that the
enlisted men could not maintain their lawsuit. Relying upon the Feres doctrine and its
underlying rationale, the Court explained “[c]ivilian courts must, at the very least, hesitate
long before entertaining a suit which asks the court to tamper with the established
relationship between enlisted military personnel and their superior officers. . . .”
Chappell, 462 U.S. at 300.
Apparently, every court of appeals considering the issue has held that the Feres
doctrine bars uniformed military personnel from bringing discrimination claims under
Title VII and other discrimination statutes. See, e.g., Stinson v. Hornsby, 821 F.2d 1537,
1541 (11th Cir. 1987) (holding that the Feres doctrine bars Title VII claims by military
personnel on active duty); Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir. 1987)
(same); Gonzalez v. Dep’t of the Army, 718 F.2d 926, 929-30 (9th Cir. 1983) (same);
Johnson v. Alexander, 572 F.2d 1219, 1222-23 (8th Cir. 1978) (same); see also Doe v.
Garrett, 903 F.2d 1455, 1461-62 (11th Cir. 1990) (holding that Rehabilitation Act claims
by active duty military personnel are barred); Baldwin v. United States Army, 223 F.3d
100, 101 (2d Cir. 2000) (“As with Title VII and the ADEA, there is no indication that the
remedies provided in the ADA were to be extended to uniformed members of the
military.”).
Recently, in Matreale v. New Jersey Dep’t of Military & Veterans Affairs,
5
487 F.3d 150 (3d Cir. 2007), our court considered whether the Feres doctrine barred
employment discrimination claims by a member of the New Jersey Army National Guard
under the New Jersey Law Against Discrimination. We decided that the Feres doctrine
did bar such employment discrimination claims and noted:
Without exception, in other post- Feres cases, the Court has adhered to the
compelling necessity of maintaining military discipline as the basis for
expanding the intra-military immunity doctrine to encompass a variety of
claims, against an assortment of defendants, brought by a range of
servicemen, for injuries arising out of, or in the course of activity incident
to, military service.
Id. at 153.
The analysis is less straightforward in cases where, as here, the plaintiff is not on
active military duty, but instead holds a position requiring performance of both military
and civilian job duties. As a “military technician,” the hybrid nature of Wills’ job is
explicitly noted by statute. See 10 U.S.C. § 10216(d).1 Willis’ role and responsibilities as
1
Congress defined “military technician” as follows:
For purposes of this section and any other provision of law, a military
technician (dual status) is a Federal civilian employee who—
...
(B) is required as a condition of that employment to maintain membership
in the Selected Reserve;
...
(2) Military technicians (dual status) shall be authorized and accounted for
as a separate category of civilian employees.
6
an ART 2 further confirm that his job is neither fish (totally civilian) nor fowl (totally
military). The question, then, is whether the military aspects of Willis’ job as an ART
preclude him from asserting his claims of discrimination.
B.
Courts of appeals that have addressed this question have uniformly held that, at a
minimum, Feres precludes claims by hybrid employees if their claims arise in whole or in
part out of the military aspects of the claimant’s job. See, e.g., Luckett, 290 F.3d at 499
(2d Cir. 2002); Brown v. United States, 227 F.3d 295, 298-99 (5th Cir. 2000); Mier v.
Owens, 57 F.3d 747, 750-51 (9th Cir. 1995); see also Fisher v. Peters, 249 F.3d 433, 443
(6th Cir. 2001) (holding that discrimination claims by hybrid employees are “irreducibly
2
ARTs are defined as:
Full time civilian employees who are also members of the Air Force unit in which
they are employed. In addition to their civilian assignments, they are assigned to
equivalent positions in the Reserve organization with a Reserve military rank or
grade. ARTs must maintain active membership in their Reserve unit of assignment
and keep satisfactory participation in order to keep their ART position.
Appendix (App.) 66.
The role of an ART is:
To provide stable, continuous, full-time management, administration, and training
of the Ready Reserve and [oversee] the transition from a peacetime to a wartime or
national emergency situation to ensure mobilization readiness is maintained.
ARTs train reservists, provide continuity within the Reserve unit of assignment,
and support the unit’s gaining major command.
App. 62.
7
military in nature,” and therefore non-justiciable). We agree with our sister courts of
appeals and, therefore, we must determine whether Willis’ discrimination claims arise
“purely from [his] ART[] civilian position . . . .” Brown, 227 F.3d at 299.
In this case, it is clear that Willis’ claims do not arise purely from the civilian
aspects of his job as an ART. All of Willis’ claims arise out of his relationship with
Uber, who is Willis’ supervisor in both his military and civilian capacities. It therefore
would be difficult, if not impossible, to partition Willis’ relationship with Uber into
civilian and military components.3 As a result, “[a]ny attempt surgically to dissect and
analyze the civilian relationship between [Willis and Uber], with its military dimensions, .
. . would itself threaten to intrude into their military relationship.” Overton v. New York
State Div. of Military and Naval Affairs, 373 F.3d 83, 96 (2d Cir. 2004). See Wright v.
Park, 5 F.3d 586, 591 (1st Cir. 1993) (dismissing § 1983 claim on Feres grounds, noting
that “a technician’s dual roles are too tightly imbricated to be pried apart at a litigant’s
whim”).
An affidavit submitted Master Sergeant Timothy A. Martin further demonstrates
that any effort to segregate the military and civilian aspects of Willis’ relationship with
Uber would be futile. Martin’s affidavit supports the government’s contention that the
circumstances giving rise to several of Willis’ claims did not arise exclusively within the
3
Indeed, Willis does not even suggest how we could do so.
8
civilian aspects of his employment. We discuss the allegations mentioned in the Martin
affidavit in the order in which they are listed in the complaint.
Willis first alleges that Uber discriminated against him by requesting personal and
privileged information. Martin states in his affidavit that Uber’s request arose in the
military context, as Uber sought information regarding Willis’ residence to determine
whether Willis was entitled to travel pay in either his civilian or his military capacity, or
whether such pay was limited to travel in connection with Willis’ military reserve status.
Willis also alleges that Uber improperly removed him as the Test Control Officer
from the Career Development Course. Martin states in his affidavit that the Career
Development Course is a military—not civilian—training requirement, and that the
purpose of this training is to provide individual service members with the skills and
knowledge to perform their duties effectively.
With respect to Willis’ allegation that Uber illegally discriminated against him
regarding his 5 skill level proficiency, Martin’s affidavit states that skill level
proficiencies are military—not civilian—designations which refer to the performance
level at which the holder can accomplish his or her duties in the Air Force Specialty Code
or career field.
Willis also alleges that Uber discriminated against him by placing a letter of
reprimand in the form of an Unfavorable Information File into the computerized military
personnel system without cause. In his affidavit, Martin states that an Unfavorable
9
Information File is an official record of censures that a military member has received for
deficient performance. Martin also notes that unlike military employees, civilian
employees do not have Unfavorable Information Files.
Willis also alleges that Uber discriminated against him by removing him from his
office and placing him among his subordinates as a working supervisor. According to
Martin, Willis’ removal and change of position was the result of a restructuring of the
Military Personnel Flight at the direction of Air Force Reserve Command. As the District
Court properly concluded, this decision to reorganize is “integrally related to the
military’s unique structure,” and is therefore non-justiciable. 6A, 27A-30A; Cf. Mier, 57
F.3d at 750-51 (barring discrimination and retaliation claims arising out of military’s
decision not to promote plaintiff).
Given the nature of the relationship between Willis and Uber, and given Willis’
failure to offer any evidence to contradict Martin’s affidavit, we conclude that the
circumstances about which Willis complains did not arise wholly in the context of the
civilian aspects of his employment. Accordingly, Willis has failed to carry his burden to
show that his claims are justiciable, and they must therefore be dismissed.
IV.
For the foregoing reasons, we will affirm the District Court’s decision in all
respects.
10