Walch v. Adjutant Gen Dept TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2008
No. 07-20175 Charles R. Fulbruge III
Clerk
GRAYLON L. WALCH
Plaintiff - Appellant
v.
ADJUTANT GENERAL’S DEPARTMENT OF TEXAS; STATE OF TEXAS;
MICHAEL W. WYNNE, Secretary of Air Force of the United States
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
SOUTHWICK, Circuit Judge:
The opinion issued in this case on June 6, 2008 is withdrawn and this
revised opinion is substituted.
Graylon L. Walch brought suit based on his discharge from the Texas Air
National Guard and the loss of his position as a full-time National Guard civilian
employee. The district court found the claims to be non-justiciable. We agree
and affirm. Our decision does not affect any right Walch may have to return to
the interrupted administrative processing of some of his claims under Title VII.
No. 07-20175
I. FACTS AND PROCEDURAL HISTORY
The district court dismissed the complaint on two grounds: no subject
matter jurisdiction and failure to state a claim. The court accepted the
allegations in the complaint as true for purposes of the dismissal but concluded
that all the claims were barred by a doctrine that prevents members of the
armed services from bringing claims that arise incident to their military service.
Graylon L. Walch is an African-American who was a Major in the Texas
Air National Guard. He was also employed as a National Guard Technician with
the Texas Air National Guard. This means that Walch had a traditional
National Guard position – what is often colloquially but somewhat inaccurately
thought of as an obligation simply to drill for a weekend every month and then
to train for two weeks in the summer. In addition, he had a full-time civilian
position with the Guard, a Monday through Friday job if you will, as a “federal
technician.” Later we will explore the relevant details about federal technicians.
The Defendants include the State of Texas and that state’s military
department. Since passage of the federal Militia Act of 1792, each state has
been required to have an Adjutant General to serve as the administrative head
of that state’s militia or, in more modern terms, the state’s National Guard.1
The executive branch department for the Texas state military is headed by and
named for The Adjutant General. Tex. Gov’t Code Ann. § 431.022 (Vernon 2005).
The Plaintiff brought this suit against the State and its Adjutant General’s
Department, and also against the head of his employing agency as a federal
technician, the Secretary of the Air Force of the United States.
1
Militia Act of 1792, Ch. XXXIII, § 6, 1 Stat. 271, 273 (1792); Simeon E. Baldwin,
Absolute Power, An American Institution, 7 YALE L. J. 1, 6 (1897).
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No. 07-20175
Major Walch became the subject of what is called a “command-directed
inquiry” in February 2002. A commissioned officer was appointed by the
Assistant Adjutant General for the Texas Air Guard to investigate allegations
about the Air Guard unit located in Nederland, which Major Walch commanded.
The final report from the investigator is dated March 26, 2002. In a letter dated
April 11, 2002, the Special Assistant to The Adjutant General of Texas informed
Major Walch that his removal from this command was being recommended
because of offenses substantiated by the investigation. This letter did not
recommend his discharge from the Air National Guard; that recommendation
was made in 2004. Because the district court accepted Major Walch’s allegations
of discrimination as true for purposes of ruling on jurisdiction, the details of the
charges against him are largely irrelevant.
According to his amended complaint, Major Walch filed several
administrative claims of discrimination based on race and sex, and also for
retaliation resulting from his earlier claims. The claim that has been referenced
in Major Walch’s record excerpts on appeal was for race discrimination, filed
with the State Equal Employment Manager. No resolution appears in the record
on any of the equal employment administrative claims.
The military discharge procedures moved slowly, as did the state equal
employment investigation. In a letter dated July 18, 2004, the Texas Air
National Guard commander informed Walch that a recommendation was being
sent to The Adjutant General that Walch be involuntarily discharged as an Air
National Guardsman. The letter referred to “substandard performance”
generally, with five specifications, including Major Walch’s alleged failure to
meet standards of leadership, professionalism, and judgment; that he did not
follow established leave procedures; that he engaged in sexual harassment of
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No. 07-20175
junior female airmen under his command; and that he had lost the respect of
subordinates. The procedure for him to respond to the recommendation was
described in the letter. Major Walch’s response was dated August 10, 2004.
No hearing was held. In a letter dated October 5, 2004, The Adjutant
General of Texas, Lieutenant General Wayne Marty, informed Major Walch of
the acceptance of the recommendation for Walch’s dismissal. Marty informed
Walch that his service would be characterized as honorable. Once Walch was
discharged as a Texas Air National Guardsman, he was ineligible to be a civilian
National Guard technician – ineligibility that we will discuss below.
As of late 2004, Major Walch was neither an airman in the Texas Air
National Guard nor a federal technician. We will nonetheless refer to him using
his final military rank as a matter of usual practice and common courtesy.
In November 2005, Major Walch filed a complaint, pro se, in the federal
district court for the Southern District of Texas. The Texas Adjutant General’s
Department and the State were the initial defendants. After retaining counsel,
Walch amended his complaint to add Michael Wynne, Secretary of the Air Force
of the United States. The amended complaint made claims for deprivation of
constitutional due process, conspiracy, failure to prevent conspiracy, intentional
infliction of emotional distress, and retaliation.
Both the state and the federal Defendants filed motions to dismiss under
Civil Procedure Rules 12(b)(1) and 12(b)(6). The district court granted the
motions, determining Major Walch’s claims were non-justiciable because all were
incident to his military service. Walch timely appealed that decision.
II. DISCUSSION
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No. 07-20175
Major Walch divides his brief into three arguments: (1) the case should be
remanded to the United States Air Force for exhaustion of remedies; (2) instead
of dismissing with prejudice, the trial court should have dismissed without
prejudice so that he could “continue the uncompleted administrative remedies”;
and (3) the procedures followed as well as the evidence to support his dismissal
from his civilian job and from the Air Guard were inadequate. Weaving its way
through other issues is the argument that the district court erroneously
concluded that his claims were non-justiciable.
Though certainly acceptable for setting out his challenges to the district
court action, that division of issues is not the most useful for our explanation.
The best structure for our review is to identify the claims made, to determine
whether any are justiciable, and to analyze whether anything further may occur
administratively even if this civil action was properly dismissed.
Our first requirement, though, is to address the review standard.
The district court determined that Major Walch’s claims were non-
justiciable because all were incident to his military service, citing Feres v. United
States, 340 U.S. 135 (1950). The court also held that dismissal was warranted
because Major Walch “fail[ed] to state a claim upon which relief may be
granted.” While the district court invoked the language of Federal Rule of Civil
procedure 12(b)(6), it did not explicitly cite that rule as the grounds for
dismissal. The district court’s judgment did not rely on a particular rule either.
Our precedents do not always identify whether Title VII claims that are found
to be barred by Feres should be dismissed under Rule 12(b)(1), for lack of subject
matter jurisdiction, or Rule 12(b)(6), for failure to state a claim. In other kinds
of suits barred by Feres, the appropriate ground for dismissal varies. See
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No. 07-20175
Gaspard v. United States, 713 F.2d 1097, 1105-06 n.20 (5th Cir. 1983) (“The
court was correct in dismissing the action for lack of subject matter jurisdiction,
Fed. R. Civ. P. 12(b)(1), regarding the [Federal Tort Claims Act] claims and for
failure to state a claim on which relief can be granted, Fed. R. Civ. P. 12(b)(6),
on the Bivens claims . . . .”). We have applied the summary judgment standard
to review a district court’s Rule 12(b)(6) dismissal of a civilian employee’s Title
VII claim against her military employer because the district court considered
matters outside of the pleadings. Meister v. Tex. Adjutant Gen’s. Dep’t, 233 F.3d
332, 335 (5th Cir. 2000). While Meister seems to suggest that this Circuit would
apply Rule 12(b)(6) to determine whether a Title VII claim should be dismissed
pursuant to Feres, it does not command this approach.2
Major Walch has raised both statutory claims (under Title VII) and
constitutional claims (under Bivens and Sections 1983 and 1985). Our standard
of review for a Feres dismissal would be de novo under either Rule 12(b)(1) or
12(b)(6). See Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 701-02
(5th Cir. 2007). The choice of rules does hold the potential, however, to affect the
materials in the record that may be considered when conducting our review. The
Rule 12(b)(6) analysis is generally confined to a review of the complaint and its
proper attachments, Fin. Acquisition Partners v. Blackwell, 440 F.3d 278, 286
(5th Cir. 2006), while under Rule 12(b)(1), the court may consider any of the
following: “(1) the complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the complaint supplemented by
2
Other courts have applied Rule 12(b)(1) to dismiss Title VII suits under the Feres
doctrine. See, e.g., Baldwin v. U.S. Army, 223 F.3d 100, 101 (2d Cir. 2000); Randall v. United
States, 95 F.3d 339, 343-46 (4th Cir. 1996).
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No. 07-20175
undisputed facts plus the court’s resolution of disputed facts.” Robinson v.
TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997).
Major Walch attached numerous exhibits to his response in opposition to
the Defendants’ motions to dismiss. Both Defendants referenced some of these
same documents in their motions to dismiss. We have drawn from these exhibits
for some of our factual discussion. In our later legal analysis, though, we rely
on only two of these documents. These are letters relating to Major Walch’s
discharge that were explicitly referenced in the complaint, acknowledged in the
answers, and attached to Major Walch’s opposition to the Defendants’ motions
to dismiss. We will call them the “discharge letters.”
Relying upon the discharge letters is consistent with our precedents. This
is because both documents may be considered even under a Rule 12(b)(6)
analysis. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007); 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357 (3d ed. 2004). No party questions the authenticity of these
two documents and both were sufficiently referenced in the complaint to permit
their consideration on a motion to dismiss. See WRIGHT & MILLER § 1357.
A. The claims
The amended complaint states these jurisdictional predicates:
This is an action alleging retaliation for opposing racial
discrimination, denial of the constitutionally protected right of due
process, and protection from unconstitutional conspiracy and failure
to prevent conspiracy. The Court has jurisdiction under 42 U.S.C.
§ 2000e-16, et seq. and 2000e-5, et seq. Jurisdiction is also invoked
under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and
for Fifth and Thirteenth Amendment violations. Walch filed his
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No. 07-20175
charge with the EEOC in a timely manner. After receiving the right
to sue letter from the EEOC, Walch filed the instant lawsuit within
the statute of limitations.
In summary, Major Walch alleged race and sex discrimination while a
federal technician and a member of the Texas National Guard, that he was the
victim of retaliation, and that his dismissal from the Guard and the loss of his
civilian position were similarly motivated. The amended complaint identifies
Title VII of the 1964 Civil Rights Act as one source of rights. 42 U.S.C.§§ 2000e-
5 & 2000e-16. In addition, the complaint refers to Bivens claims for violations
of the Fifth and Thirteenth Amendments to the United States Constitution. In
his opposition to the Air Force’s later motion to dismiss, Major Walch asserted
that he had inaccurately used the Bivens label to refer to claims against the
Texas Adjutant General actually under 42 United States Code, Sections 1983,
1985, and 1988. He never sought to amend his complaint on that basis.
The relief that is sought includes reinstatement, back pay, money damages
for the discrimination, and attorneys’ fees.
Understanding the claims, we examine whether they are justiciable.
B. Justiciability of Guardsman’s claims of discrimination
The district judge found these claims to run afoul of the doctrine that
“United States military personnel may not bring actions based on injuries
suffered incident to their service in the armed forces.” See Feres, 340 U.S. 135.
Feres was a Federal Torts Claims Act suit. Id. at 138. In 1987, the
Supreme Court also applied Feres to block Bivens claims by service members
whose injuries were incident to service. United States v. Stanley, 483 U.S. 669,
684 (1987). Further, this Circuit applied the Feres doctrine to Section 1983
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No. 07-20175
claims that are incident to military service, in a case brought by a Texas
National Guardsman. Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035-
36 (5th Cir. 1986). Finally, we also have held that Title VII claims that originate
from military status are barred by Feres. Brown v. United States, 227 F.3d 295,
299 (5th Cir. 2000).
In summary, then, each category of claim brought by Major Walch has
been held subject to Feres in certain circumstances. Walch argues his
circumstances are distinguishable primarily because he is a dual-status
Guardsman and a federal technician. The discrimination against him allegedly
occurred during his civilian work. Consequently, we find this an appropriate
point to discuss the details of his employment.
The National Guard Technician Act, Pub. L. No. 90-486, 82 Stat. 755 (Aug.
13, 1968), created an unusual status, mixing state command with federal
employment, combining civilian job positions with military leadership:
Congress has authorized the use of National Guard
technicians since the National Defense Act of 1916. Previously
defined as “caretakers and clerks” with duties limited to
maintenance of National Guard supplies and equipment,
technicians gradually expanded their role “to provide support in the
administration and training of the National Guard military
organization and for the day-to-day maintenance and repair of
equipment which cannot be accomplished during normal military
training periods.”
Prior to 1968, all technicians, except those in the District of
Columbia, were state employees paid with federal funds;
approximately ninety-five percent of the technicians held dual
status as members of the National Guard. In the National Guard
Technicians Act of 1968, Congress converted technicians to federal
employee status to provide them a uniform system of federal
salaries, retirement, fringe benefits, and to clarify their status
under the Federal Tort Claims Act (FTCA). Further, this legislation
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No. 07-20175
sought to recognize both the military and state characteristics of the
National Guard by providing administrative authority to the states
over the technicians.
In Perpich v. Department of Defense, [496 U.S. 334, 348
(1990),] the Supreme Court noted that National Guard personnel
“must keep three hats in their closets – a civilian hat, a state militia
hat, and an army hat – only one of which is worn at any particular
time.” Similarly, Congress intended that National Guard
technicians wear one of three different hats at any given moment.
First, National Guard technicians wear a civilian hat as federal
civilian employees. Specifically, technicians are “excepted service”
civil servants employed under 32 United States Code § 709.
Second, as a condition precedent to the civilian position, the
technician must separately obtain and maintain military
membership in a state National Guard. Section 709(a) of [Title 32,
U.S. Code] provides that individuals “may be employed as
technicians only ‘under regulations prescribed by the Secretary of
the relevant military branch.’” Each technician “shall, while so
employed, be a member of the National Guard and hold the military
grade specified by the secretary concerned for that position.” A
technician must maintain membership in the National Guard or be
terminated from the civilian technician position.
Third, the technician wears a “federal hat” as a member of
either the Army National Guard of the United States or the Air
National Guard of the United States, which are Reserve
Components of the United States Army and Air Force. Because they
are, respectively, components of the United States Army and United
States Air Force, the Army and Air National Guard of the United
States are part of the “Armed Forces” of the United States.
State adjutant generals administer the National Guard
Technician Act. Although normally state officers, when
administering the National Guard Technician Act, they are
considered agents of the federal government.3
3
Maj. Michael J. Davidson & Maj. Steve Walters, Neither Man Nor Beast: The National
Guard Technician, Modern Day Military Minotaur, ARMY LAW. 49, 51-52 (Dec. 1995) (footnotes
and internal quotation omitted). Most of the 1968 Act was codified as 32 U.S.C. § 709.
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No. 07-20175
Having set out these nuances of the dual status of a federal technician, we
turn to Major Walch’s claims. One cause of action is under Bivens, for violations
of the Fifth and Thirteenth Amendment due to racial discrimination. As noted,
the United States Supreme Court has determined that because of Feres, the
Bivens remedy is unavailable to someone whose claims arise incident to military
service. Stanley, 483 U.S. at 683-84. The plaintiff in that suit was a United
States Army active duty master sergeant. Id. at 671.
How the Feres rules apply to claims arising from the service of a member
of a state’s National Guard, and specifically, a dual-status federal technician, is
our issue. The Feres doctrine was premised on the disruptive nature of judicial
second-guessing of military decisions:
The 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 Tort Claims Act
were allowed for negligent orders given or negligent acts committed
in the course of military duty, led the Court to read that Act as
excluding claims of that character.
United States v. Brown, 348 U.S. 110, 112 (1954).
We find the Feres concerns to be as justified for today’s National Guard as
they were for the active duty military when the doctrine was first announced.
This court in 1986 applied Feres to bar Bivens as well as Section 1983 and
Section 1985 claims by Texas National Guardsmen. Crawford, 794 F.2d at 1035-
36. The factual recitations in Crawford do not refer to the claimants as having
a dual status, so we assume they were not federal technicians. The court said
it could “perceive no basis upon which to distinguish” claims brought by National
Guardsman under the civil rights statutes from those brought by active duty
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No. 07-20175
members of a military service, as both kinds of claims “invite judicial second-
guessing of military actions . . . .” Id. at 1036.
Applying these concerns to National Guard technicians, we find that the
military character of their service is extensive. They are nominal federal
employees commanded by the state Adjutants General. The technician “position
is one in a military organization.” NeSmith v. Fulton, 615 F.2d 196, 201 (5th
Cir. 1980). It is true that “a military technician (dual status) is a Federal
civilian employee.” 10 U.S.C. § 10216(a). As civilians, these technicians are not
while in that status subject to military discipline such as under the Uniform
Code of Military Justice.4 Even so, Major Walch was statutorily required while
“performing duties as a military technician (dual status), [to] wear the uniform
appropriate for the member’s grade and component of the armed forces.” 32
U.S.C. § 709(b)(4). As a technician, Major Walch was considered an employee
of the Department of the Air Force. Id. at § 709(e).
We compare the details of National Guard technician employment with the
factors that prevent Bivens claims from being brought by service members. Such
claims are barred when they are incident to military service. Stanley, 483 U.S.
at 684. Whether an activity is incident to military service is analyzed under a
three-part test: (1) duty status, (2) site of injury, and (3) activity being
performed. Parker v. United States, 611 F.2d 1007, 1013-15 (5th Cir. 1980).
Under that test, Major Walch’s claims all relate to his dual-status service, all
arose on Air Force bases or other military locations, and all involve dual-status
activities. Consequently, the Bivens claims are barred.
4
Michael E. Smith, Federal Representation of National Guard Members in Civil
Litigation, ARMY LAW. 41, 45 n.49 (Dec. 1995).
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No. 07-20175
Major Walch also alleges that he made a claim under Sections 1983, 1985,
and 1988 against the Texas Adjutant General but errantly labeled the claim as
one under Bivens. We have already discussed a precedent in which we found
that such claims brought by traditional Guardsmen are barred by Feres.
Crawford, 794 F.2d at 1035-36. We were concerned that allowing such suits
would require military commanders to justify their actions in civilian courts, an
inappropriate invitation to judicial second-guessing of the military. Id. at 1035.
A National Guard technician’s employment is sufficiently intertwined with the
military that litigation would cause the same improper intrusion.
We conclude that allowing claims pursuant to Bivens or Sections 1983 and
1985 to be brought by a National Guard technician against his chain of military
command – even if some in that command also are technicians in addition to
being Guardsmen – is contrary to the principles announced in the precedents we
have cited. Technicians have a dual status. It is not possible to disentangle for
these purposes their military role and command structure from their civilian
employment, such that suits under Sections 1983 and 1985 or Bivens may
proceed without raising the same concerns as when those claims are brought by
traditional Guardsmen. Major Walch’s inability to succeed under Section 1983
or 1985 also prevents any claim for attorneys’ fees under Section 1988.
Major Walch’s Title VII claims have to be analyzed separately. The reason
is largely but not exclusively statutory, as Congress has permitted Title VII
claims to be brought by National Guard technicians. Feres is still a bar to many
of the claims, as we will discuss.
We start with one of our precedents in order to place it in the proper
context. A Title VII claim by a civilian employee of the Texas Adjutant General’s
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No. 07-20175
Department was valid despite Feres. Meister, 233 F.3d at 333. Though Linda
Meister, as the court put it, “happens to have been a non-commissioned officer
in the Texas Air National Guard,” and had a weekday civilian position in the
Adjutant General’s Department that was called “Administrative Technician,” the
civilian position was not under the National Guard Technician Act. Id. at 334.
The Meister opinion notes that the plaintiff did not need to be in the Guard to
have her civilian employment; thus, she did not have dual status. Id. at 338 n4.
The Meister case reveals another corner of the complicated world of the
modern military’s interaction with state “militias.” The states and Congress use
a variety of positions to perform the day-to-day operations of a state military
department. A decision of this court addressed whether National Guard federal
technicians could engage in collective bargaining. Lipscomb v. Fed. Labor
Relations Auth., 333 F.3d 611 (5th Cir. 2003). The brief filed by Mississippi
Adjutant General James H. Lipscomb, III, provides a useful description of the
kinds of personnel who may be employed at a state military department:
Active Guard/Reserve personnel (“AGR”) under 10 U.S.C. §
101(d)(6)(A) and 32 U.S.C. § 502(f) [& Army Reg. 135-18]; civilian
technicians; military technicians [under the National Guard
Technicians Act]; state military employees; state civilian employees;
[U.S. Code] Title 5 federal employees; contract employees; and
[traditional] guardsmen, under Title 32 U.S.C. [and under the
relevant state’s own statutes regarding the military.]
Brief of Mississippi Adjutant General, Lipscomb, at *8-9, 333 F.3d 611 (No. 02-
60060), 2002 WL 32255919.
We have no need to decide whether the list is completely accurate, but it
is sufficient for our purposes to note that there are categories of employees of a
state military department other than those involved in the precedents we have
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No. 07-20175
discussed. In Meister, the plaintiff was not a dual-status federal technician.
Though she separately also served as a traditional Guard member, it was during
her week-day civilian job at the Adjutant General’s Department that events
occurred for which she brought suit.
The Title VII precedent from this court that is most relevant involved a
dual-status employee. Brown, 227 F.3d 295. Captain Frederick Brown was in
the United State Air Force Reserves and was also an Air Reserve technician.
Such technicians, similar to National Guard technicians, are civilian employees
who must maintain membership in the U.S. Air Force Reserves. Id. at 297-98.
Captain Brown was apparently employed on an Air Force base. He was charged
with misconduct as an airman, was discharged from the Air Force Reserves on
that basis, and accordingly lost his Air Force technician position. He brought
suit under Title VII for racial discrimination. Id. As here, the military defended
on the basis that Feres barred the suit. Id.
The court discussed that by a specific waiver of immunity in Title VII,
military departments could be sued for employment discrimination. Id. at 298;
42 U.S.C. § 2000e-16(a). We quoted the relevant regulation:
(a) Individual and class complaints of employment discrimination
and retaliation prohibited by Title VII . . . shall be processed in
accordance with this part . . .
(b) This part applies to:
(1) Military departments as defined in 5 U.S.C. 102 [these are
limited to the Departments of the Army, Navy, and Air Force];
...
(d) This part does not apply to:
(1) Uniformed members of the military departments referred to in
paragraph (b)(1) of this section; . . .
29 C.F.R. § 1614.103.
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Though Captain Brown claimed that his discharge from the Air Force
Reserves was discriminatory, the stated reason was that his performance was
substandard. We found that the discharge was based on “actions taken within
the military sphere” and were beyond the scope of what Title VII permitted to
be challenged. Brown, 227 F.3d at 299. The distinction we made was that
claims that were solely a result of the civilian position would be justiciable, but
those that “originate from . . . military status” would not be. Id.
If the classification of a claim is difficult, we might turn to “factors such
as whether the conduct is ‘integrally related to the military’s unique structure.’”
Id. at 299 n.5. That “integral relation” phrase is from a case involving an
Arizona National Guardsman who was a federal technician. Mier v. Owens, 57
F.3d 747, 751 (9th Cir. 1995). The claims concerned the Guard’s failure to
promote Captain Mier, which eventually caused him to be discharged. Id. at
750. There were three opinions from the three-judge Ninth Circuit panel. Two
of the judges agreed that Title VII claims by a National Guard technician were
justiciable unless they were integrally related to the military; the third judge did
not believe it necessary to reach that holding, as it was sufficient just to conclude
that Mier’s claims could not be brought. Id. at 751 (Reinhardt, J., concurring
and dissenting); id. at 752 (Rymer, J., concurring). Feres was found applicable.
The Ninth Circuit in Mier stated that personnel decisions are sufficiently
related to military structure if they raise concerns about “military hierarchy and
discipline” as opposed to “discriminatory conduct on the part of peers or
subordinates.” Id. at 750. Similarly, this court in Brown found that no
justiciable claim could arise from the Air Force’s decision that Captain Brown’s
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No. 07-20175
performance was substandard and that he should be discharged from the Air
Force Reserves, resulting in the termination of his employment as a technician.
Taking a somewhat different approach, the Federal Circuit concluded that
a 1996 statute, which said a technician was a “Federal civilian employee,”
affected the applicability of Feres to statutory claims of discrimination. Jentoft
v. United States, 450 F.3d 1342, 1346 (Fed. Cir. 2006) (quoting 10 U.S.C.
§10216(a)). Having respect for another circuit’s views, we examine them closely.
As background, we note that the military technicians statute on which the
Federal Circuit relied was adopted in 1996 and then amended twice by the end
of 1997. The final version referred to technicians’ civilian status as an
introduction to provisions primarily concerned with the annual requests to
Congress for authorizing specific numbers of technician positions; the language
important for us is this: “For purposes of this section and any other provision of
law, a military technician (dual status) is a Federal civilian employee . . . .” Pub.
L. No. 105-85, 111 Stat. 1629 (Nov, 18, 1997), codified as 10 U.S.C. §10216(a)
(historical and statutory notes).
Our principal concern about Jentoft’s focus is that there was nothing new
in 1996 about considering these technicians to be federal civilian employees.5
This Circuit had before 1996 often referred to such employees as federal civilian
ones. E.g., Walker v. Alexander, 569 F.2d 291, 292 (5th Cir. 1978) (technicians
5
Davidson & Walters, supra note 3, at 51-52. Even prior to the 1968 Act, these
positions were civilian ones. “The technicians, now [in 1968] numbering about 42,000, are full-
time civilian employees of the National Guard whose salaries are paid in full by the Federal
Government and who must meet all the mental and physical standards as well as professional
qualifications prescribed by the military departments.” H.R.Rep. No. 1823, 90th Cong. 2d
Sess., reprinted in 1968 U.S.C.C.A.N. 3318, 3319. The 1968 Act converted these largely state
employees into federal ones; they had been and remained civilians.
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No. 07-20175
have “a full-time civilian position, salaried by the federal government”); Davis
v. Vandiver, 494 F.2d 830, 832 (5th Cir. 1974) (National Guard Technician Act
was intended “to confer federal status on civilian technicians”).
Importantly, then, the 1996-97 enactments did not make these technicians
federal civilian employees. The 1968 National Guard Technician Act did that.
We acknowledge that Section 10216 states that a technician is a federal civilian
employee for “purposes of this section and any other provision of law . . . .” The
Jentoft court found that the italicized phrase caused the Equal Pay Act to reach
technicians because the latter Act applies to "any individual employed by the
Government of the United States . . . as a civilian in the military departments.
. . ." Jentoft, 450 F.3d at 1348-49 (quoting 29 U.S.C. § 203(e)(2)(A)(i)).
However, technicians’ federal civilian employee status has since 1968 been
an all-purpose one. We are not convinced that Congress, by noting that status
in Section 10216(a), affected technicians’ Title VII claims under the Feres
doctrine. Title VII applies to “[a]ll personnel actions affecting employees or
applicants for employment (except with regard to aliens employed outside the
limits of the United States) in military departments . . . .” 42 U.S.C. § 2000e-
16(a). Our principal Title VII precedent involving these technicians called them
federal civilian employees and considered that Title VII applies to a military
department; still, the court concluded that technicians’ dual status and military
command structure caused Feres to be relevant. Brown, 227 F.3d at 299.
Applying the Jentoft analysis broadly would remove the Feres doctrine as a bar
to any federal statutory claims brought by National Guard technicians when the
statute applies to federal civilian employees. Such a doctrinal revolution has not
been noticed by other circuit courts. Feres remains relevant.
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No. 07-20175
Ironically, we find in the Federal Circuit’s opinion a useful listing of the
claims that dual-status employees could not pursue as those “that relate to
enlistment, transfer, promotion, suspension and discharge or that otherwise
involve the military ‘hierarchy.’” Jentoft, 450 F.3d at 1345 (quoting, then
reversing, Jentoft v. United States, 64 Fed. Cl. 549, 554 (2005)).6 Even if the
Federal Circuit was correct that Feres is inapplicable to a dual-status
technician’s claim under the Equal Pay Act – an issue not before us today – the
list is a valid one for understanding Feres in the Title VII context.
Under these precedents, a court may not reconsider what a claimant’s
superiors did in the name of personnel management – demotions, determining
performance level, reassignments to different jobs – because such decisions are
integral to the military structure. Some of those decisions might on occasion be
infected with the kinds of discrimination that Title VII seeks to correct, but in
the military context the disruption of judicially examining each claim in each
case has been held to undermine other important concerns.
6
Feres has been applied to bar a National Guard technician’s claim of a hostile civilian
work environment created by frequent racially offensive remarks. Overton v. New York State
Div. of Military & Naval Affairs, 373 F.3d 83, 95-96 (2d Cir. 2004). Under Brown, the reach
of Feres to that claim is unclear. Regardless, some Title VII claims are outside the Feres bar.
One respected commentator finds these rules indefensible: “courts inexplicably have
treated [National Guard technician] positions as triggering Feres. . . . [I]t remains a mystery
why Title VII claims should be barred under Feres, even in cases involving service members
. . . . There is no reason why a judge-made doctrine like Feres should be viewed as trumping
a federal statute like Title VII.” Jonathan Turley, Pax Militaris: The Feres Doctrine and the
Retention of Sovereign Immunity in the Military System of Governance, 71 GEO. WASH. L. REV.
1, 83 n.565 (2003). Of course, Feres trumped use of the Federal Tort Claims Act by an active
duty soldier, though not by technicians. Not until Brown in 2000 did this Circuit apply Feres
to Title VII claims brought by technicians. Claim by claim, claimant by claimant, we must
decide whether the military trump card has to be used under the general rules from the
Supreme Court. Congress may discard the Feres trump entirely or partially. We find that
Congress only partially did so as to Title VII claims by National Guard technicians.
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No. 07-20175
We apply these principles to a review of each of Major Walch’s Title VII
claims, which arose solely from his work as a technician for the U.S. Air Force:
(1) In May 2002, an improper one pay-grade demotion in his technician
position occurred. That is said to be in retaliation for Walch’s filing grievances.
The demotion is a subjective personnel decision that we may not review.
(2) The complaint states that prior to his discharge, Walch had filed
charges of race discrimination and a similar-based complaint with an Inspector
General. The argument that these events led in 2004 to his discharge and
termination involve personnel decisions by superiors which we may not review.
(3) Major Walch also alleged that retaliation for his complaints of
discrimination led to a failure to refer him to a Medical Examination Board,
failure to follow progressive discipline rules, wrongful demotion, and other
defaults. Whether the Adjutant General’s Department was retaliating against
him by discipline and demotions are matters integrally related to the military
hierarchy. Major Walch does not include this claim among the adverse actions
we discuss below that need to be redone because of procedural errors.
(4) Major Walch claims a conspiracy by various members of the Texas
National Guard. The alleged injuries all involve exempt personnel decisions.
After reviewing each claim – under Bivens, Sections 1983 and 1985, and
Title VII – we have determined that none are justiciable. Because courts may
not be the only tribunals available, though, we now examine certain non-judicial
remedies that Major Walch insists he should be allowed to pursue.
C. Administrative procedure arguments
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No. 07-20175
We discern two separate issues regarding the relevant administrative
procedures, one involving Major Walch’s discharge as an airman from the Texas
National Guard and the other affecting his Title VII claim as a civilian
technician. We discuss the issues in that order.
1. Procedures for discharge from Texas National Guard
Major Walch did not initially assert that there were further administrative
remedies that needed to be pursued. His amended complaint had a section
entitled “Violation of Due Process,” in which he alleged procedural and
evidentiary defects in his discharge from the Texas Air National Guard. The
defects included not being discharged “until his term has expired,” but he cites
a federal statute applicable to enlisted soldiers (not officers), who have contracts
for specific terms of service. 10 U.S.C. § 1169. That is irrelevant here. He also
asserted that he needed to receive a “Board Review” in order to be discharged,
which he did not receive, and also a Certificate of Discharge. The amended
complaint also reviews in detail the allegations against him that underlay his
discharge, and sets out challenges to those. His requested remedies were
reinstatement to the Texas National Guard and money damages.
The administrative process that Major Walch challenged in his amended
complaint was the discharge from the Guard. An internal military decision such
as this may be reviewed, once the service member has exhausted his
administrative remedies, to determine if an official exceeded his authority or if
the decision violated constitutional, statutory, or regulatory right. Mindes v.
Seaman, 453 F.2d 197, 199-201 (5th Cir. 1971). The claim here is that certain
procedural protections were not provided. Because we ultimately find no facially
21
No. 07-20175
viable claim that the Guard ignored its own procedures, we will not analyze the
balancing factors that would then become relevant. Id. at 201-202.
To understand this claim, we examine the two previously mentioned
discharge letters that Major Walch attached to his opposition to dismissal. One
letter, dated July 18, 2004, notified him of a recommendation that he be
discharged pursuant to “Adjutant General of Texas Regulation 635-100 (15 Jan
1998).” Substandard performance of duty and conduct were the general grounds
stated, and specifications of those defects were stated. He was told the name of
his appointed counsel and of his right to submit a written response. On October
5, 2004, a letter from the Texas Adjutant General stated that Major Walch was
discharged as a member of the Texas Air National Guard. His termination as
a technician followed in necessary course.
On appeal, Major Walch argues that he was entitled to a board hearing,
citing Cole v. Tex. Army Nat’l Guard, 909 S.W.2d 535 (Tex. App. 1995). That
court found that a Guardsman had to have either a board or a court-martial
determine that there was cause for discharge. Id. at 539. However, the Texas
statute that the court relied upon was amended in 1997, removing the language
that referred to the need for a board or court-martial. Compare Cole, 909 S.W.2d
at 537 with Tex. Gov’t Code Ann. § 431.042 (Vernon 2005). The principal statute
now simply states that discharges shall be “according to regulations adopted by
the adjutant general or to federal law or regulations.” Tex. Gov’t Code Ann. §
431.809. The version of the regulation cited in the notice sent about the
recommended discharge, was upheld in a state court decision despite that no
hearing was required. Gough v. State, 2002 WL 90930 (Tex. App. Jan. 25, 2002)
(unpublished) (citing Tex. Adjutant Gen’l Reg. 635-100). We find the Gough
22
No. 07-20175
analysis convincing even if it is not a precedential explanation of Texas law. The
Texas Adjutant General had authority without a hearing being provided, to
discharge Major Walch for poor performance.
Major Walch argues that the discharge also was defective because he
never received a discharge certificate. Such a document apparently provides
information that can be useful in civilian employment and for other purposes,
such as the dates of service, rank, and whether the discharge was honorable or
not. It is also required to be given a discharged officer. 32 U.S.C. § 324.
However, if in fact no certificate has yet been sent him, a largely ministerial act
it would appear that may have been delayed pending the outcome of this suit,
and if Major Walch’s requests at this stage with the Texas National Guard fail
to produce such a certificate, then there are administrative channels for him to
follow, both at the state level and potentially at the federal. See Crawford, 794
F.2d at 1036. We affirm the district court as to the allegedly missing discharge
certificate, but without prejudice to Major Walch’s right to renew his effort to pry
one away from the military once this litigation ends.
2. Exhaustion of Title VII administrative procedures
We conclude by considering Major Walch’s argument that if we uphold the
dismissal, we should do so without prejudice to his returning to the
administrative procedures that he abandoned when filing suit. He alleges that
the State Equal Employment Manager informed him that his Title VII
administrative claim remains pending, awaiting resolution of this litigation.
These Title VII claims were processed within the Civilian Discrimination
Complaint System. Nat’l Guard Reg. (Army) 690-600/Nat’l Guard Reg. (Air
Force) 40-1614. This regulation, separately numbered for the Army and Air
Force, implements Title VII for National Guard technicians. Id. at Applicability
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No. 07-20175
& ¶ 1-1. Final agency resolution of complaints is at the National Guard Bureau
(NGB); an appeal may be taken to the Equal Opportunity Employment
Commission or a civil action may be filed in district court. Id. at ¶ 8-2.
Major Walch invoked this process but then abandoned it. It was not until
the Secretary of the Air Force moved to dismiss for failure to exhaust
administrative remedies, that Major Walch on September 20, 2006, himself
argued that he still needed to exhaust these remedies. He sought to have the
district court “remand the case sub judice for exhaustion of administrative
remedies.” In a reversal of position, the Secretary argued that Major Walch had
exhausted his remedies and, therefore, remand was unnecessary. The district
judge proceeded to final judgment without any remand.
Major Walch asserts a “remand” was needed because the NGB was
required to take “final agency action” on his complaint before he could proceed
in federal court. See 29 C.F.R. § 1614.102–.110. That is not what the cited
regulations mean. Two methods are statutorily provided for a federal employee
to invoke the jurisdiction of a federal court: (1) file suit within 90 days of
receiving notice of an agency’s final action or (2) file suit after 180 days from the
filing of the initial charge if the agency has failed to take final action. 42 U.S.C.
§ 2000e-16(c). The passage of 180 days from the filing of Walch’s administrative
claim permitted the bringing of this civil action despite uncompleted
administrative procedures. The date of November 10, 2004 for Major Walch’s
initial contact with his EEO office is found in a memorandum from the NGB that
was attached to Walch’s opposition to dismissal. If that date is correct, the 180-
day period expired on about May 10, 2005. His suit was filed on November 11,
2005 – almost exactly a year after the internal filing. Because the memo is not
mentioned in other pleadings, we rely on the fact an EEO complaint must be
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No. 07-20175
brought within 45 days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1).
Major Walch’s termination as a technician was effective in November 2004,
making January 2005, the latest that a timely EEO claim could have been filed.
No one alleges Major Walch’s EEO claim was untimely. Thus, the agency
procedures were sufficiently utilized even if not exhausted before suit.
Though the previously cited regulation governing technician’s Title VII
claims provides for judicial review after agency processes are concluded, the
Feres caselaw we have discussed controls what claims actually may receive that
review. Brown, 227 F.3d at 299 (claims are justiciable unless they “originate
from . . . military status”). Consequently, for some Title VII claims, the
administrative results cannot be reviewed by a court. That may be lamentable
in some cases. However, the Feres bar does not frustrate Title VII’s goals so
much as it procedurally limits them – what a court cannot review in no way
limits what the agency can decide. We find the words of our late colleague Irving
Goldberg, writing in a different era but still persuasively for us, to be
appropriate: “courts must – at least initially – indulge the optimistic
presumption that the military will afford its members the protections vouchsafed
by the Constitution, by the statutes, and by its own regulations.” Hodges v.
Callaway, 499 F.2d 417, 424 (5th Cir. 1974). Insofar as Feres is the force
generating the presumption, though, it is not one that applies only initially.
Even so, Feres is a doctrine that protects the military against judicial
interference in certain situations. It does not bar administrative processing of
the same claims within a military department. Nothing in this opinion prevents
Major Walch’s return to that process. Governing EEO regulations and
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No. 07-20175
procedures also appear to allow a return.7 Restarting agency action on a claim
is particularly appropriate when the statutorily encouraged resort to a civil
action after lengthy agency delay becomes futile, not because of a plaintiff’s
procedural default but because of a judicially created doctrine such as Feres.
The judgment of the district court is AFFIRMED. If additional
administrative action occurs, the Title VII claims will remain non-justiciable no
matter the final agency action on them.
7
A federal employee’s election to pursue Title VII claims in federal court after the
passage of 180 days with no final agency action usually mandates the dismissal of his EEO
complaint, see 29 C.F.R. § 1614.107(a)(3), and precludes the EEOC from entertaining an
appeal of that dismissal. 29 C.F.R. § 1614.409. The National Guard Bureau’s regulation
governing civilian discrimination complaint processing reflects this mandate: “When a civil
action is filed before NGB has issued a final decision on the complaint, NGB will dismiss the
complaint, providing that 180 days have passed since the formal filing of the complaint.” Nat’l
Guard Reg. (Army) 690-600/Nat’l Guard Reg. (Air Force) 40-1614, ¶ 8-14(b). If the NGB has
not formally dismissed Major Walch’s claim, he may appeal to the EEOC once final action is
taken. 29 C.F.R. § 1614.402. On the other hand, if the NGB has formally dismissed Major
Walch’s claims and the time for appeal has passed, the time periods for appeal are subject to
equitable tolling. 29 C.F.R. § 1614.604; Wilson v. Dep’t of Veterans Affairs, 65 F.3d 402, 404-05
(5th Cir. 1995). “Generally, where a civil action is dismissed without prejudice and the
Commission has not issued a final ruling, the Commission has allowed a complaint to be
reinstated in the administrative process.” Garcia v. Dep’t of the Navy, E.E.O.C. Appeal No.
01930356, 1997 WL 411290, at *3 (July 9, 1997); see also Jones v. Dep’t of the Navy, E.E.O.C.
Appeal No. 01971942, 2000 WL 1090017, at *3 (July 14, 2000).
26