        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                    FILED
                                                                    June 6, 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



               On 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:
      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.
                  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
                                     No. 07-20175

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 chief 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.
      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.



      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

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 with the Texas
National Guard 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
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.



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      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.
      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
      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

                                        4
                                   No. 07-20175

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 nonjusticiable.
      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
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 . . . .”). In Meister v. Tex. Adjutant Gen’s. Dep’t, 233 F.3d


                                         5
                                       No. 07-20175

332 (5th Cir. 2000), this court applied the summary judgment standard to review
the 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. Id. at 335. 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) against the
Defendants. 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 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).
       In this case, Major Walch made reference to certain documents in his
complaint and attached numerous exhibits to his responses in opposition to the
Defendants’ motions to dismiss. Both Defendants referenced some of these same

       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).

                                              6
                                 No. 07-20175

documents in their motions to dismiss. In order to portray accurately the nature
of Major Walch’s claims and the procedural posture of his case, we later refer in
our analysis to 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.”
      Our reference to 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 filed in this case describes the jurisdictional basis
for the claims in this way:
            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
      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.



                                       7
                                  No. 07-20175

      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 turn to the jurisdictional issues.


      B. Jurisdiction over 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
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-


                                        8
                                  No. 07-20175

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 1968 National Guard Technician Act created an unusual status,
mixing state command authority with federal employment, combining civilian
employment with a military aspect.
            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
      sought to recognize both the military and state characteristics of the
      National Guard by providing administrative authority to the states
      over the technicians.

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                                     No. 07-20175

             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 the FTCA
      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

      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


      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).

                                           10
                                   No. 07-20175

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 conclude that the Feres concerns are 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 members of a military service, as
both kinds of claims “invite judicial second-guessing of military actions . . . .” Id.
at 1036.

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                                   No. 07-20175

      Applying these concerns to National Guard technicians, we find that the
military character of their service is extensive. They are nominal federal
employees but are 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 even though commanded by soldiers, “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 or its
state equivalent.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).

                                        12
                                     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


                                         13
                                  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’s 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, 333 F.3d 611 (No. 02-60060),
2002 WL 32255919 at *8-9.
      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


                                       14
                                  No. 07-20175

discussed.   In Meister, the plaintiff was not a National Guard technician.
Despite her separate service as a traditional Guard member, it was during her
week-day civilian job (not a dual status one) 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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                                   No. 07-20175

      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
performance was substandard and that he should be discharged from the Air


                                         16
                                        No. 07-20175

Force Reserves, resulting in the termination of his employment as a technician.
Another circuit court cogently described the claims that dual-status employees
could not pursue as being those “that relate to enlistment, transfer, promotion,
suspension and discharge or that otherwise involve the military ‘hierarchy.’”
Jentoff v. United States, 450 F.3d 1342, 1345 (Fed. Cir. 2006) (quoting Jentoff v.
United States, 64 Fed. Cl. 549, 554 (2005)).5
       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 generally 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.
       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:




       5
          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 and the
instructive Jentoff listing, the reach of Feres to that claim is unclear. Regardless, some kinds
of 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 itself trumped the Federal Tort Claims Act. Case by case,
we must decide whether the military trump card has to be used, following the general rules
from the Supreme Court.

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                                  No. 07-20175

      (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 are personnel decisions by superiors which we may not review.
      (3)   More generally, Major Walch 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.       These steps that the Adjutant General’s
Department took to discipline and demote him are integrally related to the
military hierarchy.
      (4) Major Walch’s claims of a conspiracy by various members of the Texas
National Guard do not separately constitute grounds for a claim, except to the
extent they caused specific harm. The injuries which he has alleged all are
personnel decisions that were integrally related to the military.
      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
      We discern two separate issues regarding the relevant administrative
procedures, one involving Major Walch’s discharge as an airman from the Texas


                                        18
                                  No. 07-20175

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
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.




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                                 No. 07-20175

      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
analysis convincing even if it is not a precedential explanation of Texas law.




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                                  No. 07-20175

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 has significance, as
apparently it provides information that can be useful in civilian employment and
for other purposes, and provides 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 administrative act it would appear, 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.
Similarly, we will affirm the district court as to the allegedly missing discharge
certificate, but without prejudice to Major Walch’s right to continue his effort to
pry one away from the military and seek necessary administrative relief.
            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.
      Title VII claims are processed at the NGB within the Civilian
Discrimination Complaint System. See 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 specifically for National Guard


                                        21
                                  No. 07-20175

Technicians. Id. at Applicability & ¶ 1-1. Final agency resolution of complaints
is at the 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 have
passed 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 created the
right for the district court to consider any justiciable claim despite uncompleted
administrative procedures. Though the record is incomplete, the best evidence
of the date that Major Walch filed an internal EEO complaint is found in a
memorandum from the NGB. Using the date of November 10, 2004 that appears
there, 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. Thus, the
agency procedures were sufficiently utilized even if not exhausted before suit.

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                                       No. 07-20175

       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
procedures also appear to allow that to occur.6 Restarting agency action on a


       6
         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

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                                        No. 07-20175

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.




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 (July 9, 1997); see also Jones v. Dep’t of the Navy, E.E.O.C. Appeal
No. 01971942, 2000 WL 1090017 (July 14, 2000).

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