             United States Court of Appeals
                   FOR THE EIGHTH CIRCUIT
                        ___________

                      No. 97-2466
                      ___________

Marty A. Hupp,               *
                             *
           Appellant,        *
                             *
     v.                      * Appeal from the United
                                States
                             * District Court for the
U n i t e d States Department of the                *
                                                    Sout
                                                    hern
                                                    Dist
                                                    rict
                                                    o f
                                                    Iowa
Army; agent Togo D. West, Jr.,                      *
Secretary,                      *
                             *
           Appellee.         *
                        ___________

                            Submitted:      December 11, 1997

                                      Filed:    May 21, 1998
                      ___________

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit
    Judges.
                     ___________

McMILLIAN, Circuit Judge.
    Plaintiff, Marty A. Hupp, appeals from a final
judgment entered in the United States District Court1 for
the Southern District of Iowa upon a grant of summary




      1
       The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
                                        -2-
judgment in favor of defendant, Togo D. West, Jr.,
Secretary of the Army, on plaintiff’s claim of gender
discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et
seq. For reversal, plaintiff argues that the district
court erred in holding that her claim is non-justiciable
under the Feres2 doctrine.    For the reasons discussed
below, we affirm the district court’s holding, modify the
judgment, and affirm the judgment as modified.

                                   Jurisdiction

    Jurisdiction was proper in the district court based
upon 28 U.S.C. §§ 1331, 1343(a)(4).     Jurisdiction is
proper in this court based upon 28 U.S.C. § 1291. The
notice of appeal was timely filed pursuant to Rule 4(a)
of the Federal Rules of Appellate Procedure.

                                    Background

    Plaintiff is a female Master Sergeant in the Iowa
National Guard. In April 1995, plaintiff applied for the
posted position of Support Services Supervisor at the
State Area Command Armory at Camp Dodge in Johnston,
Iowa.    At the time, plaintiff was serving as the
Detachment Sergeant for the 1088th Personnel Services
Company which is also located at Camp Dodge.          The
Detachment Sergeant position is a National Guard position
which requires the traditional reserve service commitment

      2
        Feres v. United States, 340 U.S. 135 (1950) (holding that “the Government is
not liable under the Federal Tort Claims Act for injuries to service [members] where
the injuries arise out of or are in the course of activity incident to military service”).
                                           -3-
of one weekend of training per month plus two consecutive
weeks of training per year. In addition to her National
Guard position, plaintiff maintained full-time civilian
employment with the University of Iowa.       The Support
Services Supervisor position, however, is a full-time
National Guard civilian technician billet.      Under the
National Guard Technicians Act




                           -4-
of 1968 (NGTA), 32 U.S.C. § 709, an individual cannot
hold employment as a National Guard civilian technician
unless that individual is a member of the National Guard
and holds the military grade which the Secretary has
specified for the position.

      During the first phase of the selection process,
Sergeant Major Gary M. Heuertz reviewed the military
records of every applicant and certified plaintiff as
well as two male soldiers as militarily qualified to hold
the technician position.     In the second phase of the
selection process, all three militarily qualified
candidates appeared before a panel of three male military
personnel for an interview.        The panel’s prepared
questions were intended to focus on the candidates’
fitness for the civilian technician position. During the
interview process, however, the panel also made an
inquiry, which was not part of the prepared questions,
regarding plaintiff’s family situation and child care
arrangements.3

    The panel selected one of the male applicants for the
position.   Although it is undisputed that plaintiff’s
military qualifications exceeded those of the male
soldier selected for the position, the senior panel


      3
       The evidence indicates that the same inquiry was made to the candidate who
was eventually hired, Jeffrey L. Craven. Joint Appendix at 85-86 (sworn statement of
Sergeant Major Edward D. Gabbard). Defendant contends that questions regarding
family status and child care arrangements are appropriate because Army Regulation
600-20 requires soldiers to make plans “to ensure dependent family members are
properly and adequately cared for when the soldier is deployed, on [temporary duty],
or otherwise not available due to military requirements.”
                                        -5-
member, Lieutenant Colonel Robert C. King, asserted that
he made the ultimate hiring decision and that he chose
the male candidate based on his familiarity with the male
candidate’s abilities and a “gut feeling . . . that [the
male candidate] was the best suited to conduct the
business in the unit.”     Joint Appendix at 69 (sworn
statement of Lieutenant Colonel Robert C. King). On May
23, 1995, plaintiff was informed that she was not
selected for the position.




                           -6-
    Plaintiff filed a formal complaint with the Iowa
National Guard asserting that she was denied the position
because of her gender.       Following a review of her
complaint by both the Iowa National Guard and the
National Guard Bureau in Washington, D.C., plaintiff
received a letter advising her that the panel’s hiring
decision was final and that she could file a civil action
under Title VII in federal district court.

    On September 16, 1997, plaintiff filed the present
action, alleging that the Iowa Army National Guard
discriminated against her with respect to employment
because of her sex, in violation of Title VII.      Joint
Appendix at 7 (amended complaint and jury demand). She
seeks compensatory and punitive damages, attorneys fees,
and costs.    Id. at 7-8.   Defendant moved for summary
judgment and the district court granted the motion upon
holding that plaintiff’s claim is non-justiciable. The
district court noted that the Eighth Circuit has not
specifically addressed the application of Title VII to
National Guard civilian technicians. The district court
assumed without deciding that plaintiff’s claim could be
raised under Title VII. However, the district court held
that plaintiff’s claim was non-justiciable, even assuming
Title VII is applicable, because the hiring decision
necessarily involved an assessment of the candidates’
military qualifications. Hupp v. West, No. 4-96-70698,
slip op. at 4-5 (N.D. Iowa Mar. 12, 1997) (memorandum
opinion and order) (citing cases). This appeal followed.

                       Discussion

    We review a grant of summary judgment de novo. The
question before the district court, and this court on
                           -7-
appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986); Get Away Club,
Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St.
Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699
(8th Cir. 1992).      Where the unresolved issues are
primarily




                           -8-
legal   rather  than   factual,   summary  judgment is
particularly appropriate.    Crain v. Board of Police
Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990).

    The issue before us is whether the district court,
viewing the facts in a light most favorable to plaintiff
as the non-moving party, correctly held that plaintiff’s
claim is non-justiciable under Feres and its progeny.
See, e.g., Uhl v. Swanstrom, 79 F.3d 751 (8th Cir. 1996)
(Uhl); Wood v. United States, 968 F.2d 738 (8th Cir.
1992) (Wood); Watson v. Arkansas Nat’l Guard, 886 F.2d
1004 (8th Cir. 1989) (Watson). In Wood, 968 F.2d at 739-
40, for example, a National Guard technician brought an
action for compensatory and punitive damages, and other
forms of relief, upon the allegation that the state
adjutant general violated the plaintiff’s due process
rights by denying him the opportunity to serve as a
military commander.     The plaintiff argued that “the
military justiciability doctrine, as summarized by this
court in Watson, [did] not apply to his case because he
was a civilian technician for the National Guard and . .
. the position for which he sought appointment [was] a
civilian technician position.” Id. at 739. The district
court held that the plaintiff’s claim was non-justiciable
and dismissed it with prejudice.        Upon review, we
observed that “[t]he hybrid nature of the [civilian
technician] position renders it susceptible to the
doctrine restricting review of military decision-making.”
Id. (citing cases). It was undisputed in Wood that “a
determination     of    [the    plaintiff’s]     military
qualifications [was] a necessary step in determining
whether he should have been assigned as alleged.” Id.
Therefore, upon construing the plaintiff’s claim as a
challenge on the merits to the constitutionality and
                           -9-
fairness of a personnel decision, which necessarily
involved an assessment of the plaintiff’s military
qualifications, we agreed with the district court that
his claim was non-justiciable under our prior opinion in
Watson.4   Id. at 40.     Accordingly, we affirmed the
district court’s




      4
       In Watson v. Arkansas Nat’l Guard, 886 F.2d 1004, 1008-11 (8th Cir. 1989), the
Eighth Circuit ordered the dismissal with prejudice, on non-justiciability grounds, of a
discharged former National Guard member’s § 1983 claim seeking injunctive relief in the
form of reinstatement.
                                          -10-
holding, but vacated the judgment and remanded the case
to the district court with instructions to dismiss
without prejudice. Id.

     In the present case, plaintiff acknowledges that
Title VII generally does not apply to uniformed members
of the armed services. Taylor v. Jones, 653 F.2d 1193,
1200 (8th Cir. 1981); Johnson v. Alexander, 572 F.2d
1219, 1224 (8th Cir.), cert. denied, 439 U.S. 986 (1978).
  Plaintiff also acknowledges that employment decisions
concerning a National Guard civilian technician’s
military qualifications are non-justiciable under the
Feres doctrine. See, e.g., Uhl, 79 F.3d at 755; Wood,
968 F.2d at 739-40; Watson, 886 F.2d at 1005-08.
Plaintiff argues, however, that Title VII may – in some
circumstances – be the basis for a justiciable claim
brought by a civilian who is employed by, or seeking
employment with, the National Guard.     For example, in
Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995), cert.
denied, 517 U.S. 1103 (1996), the Ninth Circuit held
that, because National Guard civilian technicians are in
a    billet  requiring   both   civilian   and   military
responsibilities, Title VII covers “actions brought by
Guard technicians except when the challenged conduct is
integrally related to the military’s unique structure.”
In the present case, plaintiff contends, defendant
employed a two-stage hiring process which separated
consideration of her military qualifications and her
civilian qualifications.     Plaintiff asserts that her
military qualifications, and thus any implication of the
military’s unique structure, ceased to be a factor once
she and the two male candidates were pre-certified as
militarily qualified. For this reason, she argues, not
only can she bring a claim under Title VII alleging
                           -11-
discrimination in the “civilian” phase of the hiring
process, but also her Title VII claim is distinguishable
from the claims in Uhl, Wood, and Watson and is not
subject to the Feres doctrine.

    In response, defendant argues that the dual civilian
and military aspects of a National Guard technician’s
position are inseparable.     Brief for Appellee at 6
(citing Wright v. Park, 5 F.3d 586, 589 (1st Cir. 1993)
(Wright) (“while a technician’s job is a composite,
containing both civilian and military pieces, the job’s
dual aspects are




                          -12-
inseparable”)). Moreover, defendant argues, this court
cannot separate the hiring process into various stages
for review, as plaintiff suggests. Id. (citing Wood, 968
F.2d at 739). Defendant also notes that, under the NGTA,
National Guard civilian technicians are subject to the
state adjutant general’s administration and must maintain
membership in the National Guard, hold the military grade
specified by the Secretary, and meet the security
standards established by the Secretary.      32 U.S.C. §
709(b), (c), (e)(2). Because the military and civilian
aspects are intertwined, defendant concludes, a hiring
decision involving a National Guard technician billet
necessarily implicates the candidates’ civilian and
military qualifications. See, e.g., Wright, 5 F.3d at
589.

    For purpose of our analysis, we assume that Title VII
applies to National Guard civilian technicians. Although
neither Uhl, Wood, nor Watson involved a claim pursuant
to Title VII, we held in each case that a claim
challenging the merits of an internal National Guard
personnel decision, where that decision involved an
assessment of a technician’s military qualifications, is
non-justiciable.   Uhl, 79 F.3d at 755; Wood, 968 F.2d at
739-40; Watson, 886 F.2d at 1008-11.      In the present
case, we hold that it is beyond genuine dispute that the
hiring process for the Support Services Supervisor
position included consideration of both military and
civilian qualifications. Although the initial phase of
the process reviewed only the applicants’ military
qualifications, consideration of military qualifications
did not end once the three candidates passed this initial
phase.   Lieutenant Colonel King stated that, although
military qualifications were already pre-certified, he
                           -13-
himself “weighed those back and forth.” Joint Appendix
at 70 (sworn statement of Lieutenant Colonel Robert C.
King). He considered the facts that

    [t]here was a rank inversion, there was an MOS[5]
    inversion or difference. . . . [Y]ou’ve got a
    staff sergeant versus a master sergeant . . .
    one that’s qualified MOS-wise, school trained
    and certified, but yet at the same




    5
     “MOS” refers to “military occupational specialty.”
                                     -14-
    time, I’ve got the other one who I have observed
    during the first [] months of my command, from
    the time I took commander until the time we
    conducted the interviews, that I had watched
    during every single weekend drill.

Id. at 70-71. Similarly, another member of the panel,
Major John Grote, indicated that, although he was more
focused on the candidates’ personal attributes as
revealed in the interviews, the candidates’ military
qualifications were nevertheless “tied in” with the
interview process. Id. at 79 (sworn statement of Major
John Grote). Because these statements, and the record
taken as a whole, demonstrate beyond genuine controversy
that the hiring decision at issue in the present case did
involve an assessment    of military qualifications, we
affirm the district court’s holding that plaintiff’s
claim is non-justiciable under the Feres doctrine.

    We note that the district court did not indicate in
its final order or judgment whether the dismissal in the
present case is with or without prejudice.     Consistent
with our disposition in Wood, 968 F.2d at 740, we modify
the judgment of the district court to specify that the
dismissal of plaintiff’s complaint is without prejudice.



                      Conclusion

    For the reasons stated, the judgment of the district
court is modified, and the judgment of the district
court, as modified, is affirmed.

    A true copy.


                           -15-
           Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.




                            -16-
