                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2007

Willis v. Roche
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4179




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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 05-4179
                                 ____________

                            CHARLES L. WILLIS,

                                        Appellant

                                        v.

       JAMES G. ROCHE, SECRETARY, DEPARTMENT OF AIR FORCE

                                 ____________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                                (No. 05-cv-00113)
                      District Judge: Hon. John R. Padova

                   Submitted Under Third Circuit LAR 34.1(a)
                              November 8, 2006

       Before: SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.

                                 ___________

                           (Filed November 30, 2007)

                           OPINION OF THE COURT




CHAGARES, Circuit Judge.
Plaintiff/appellant Charles Willis sued his employer, the United States Air Force, alleging

retaliation and discrimination on the basis of race and gender in violation of Title VII.

Defendant/appellee James Roche, the Secretary of the Air Force, moved to dismiss

Willis’ complaint pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Willis’ claims were

barred by the doctrine of intra-military immunity, more commonly known as the Feres

doctrine. The District Court agreed and dismissed Willis’ complaint. We conclude that

Willis’ claims are barred by the Feres doctrine, and will therefore affirm.

                                              I.

       Willis, a black male, is a civilian employee of the United States Air Force. At all

pertinent times, Willis has been stationed at the Willow Grove Air Reserve Station in

Willow Grove, Pennsylvania. Willis is an Air Reserve Technician (ART) and Chief of

the Relocation, Employment, and Training Subdivision, a branch of the Military

Personnel Flight Division. In his capacity as head of this subdivision, Willis is a GS-11

level employee and supervises six people. As a condition of his employment, Willis is

required to be a member of the military reserves. Willis’ direct supervisor, Lt. Col. Jerald

Uber, and his second level supervisor, Lt. Col. Kay Long, are both on active military duty.

       In his complaint, Willis alleges that Lt. Col. Uber subjected him to a variety of

actions that constituted racial and gender-based discrimination. On August 1, 1997,

Willis filed a formal charge of discrimination with the appropriate agency, the Air Force

Review Board. Willis also filed a second discrimination charge on December 12, 1997.



                                              2
These charges were consolidated, and the parties attended a hearing before an EEOC

administrative judge. The administrative judge determined that there was insufficient

evidence to support Willis’ claims of discrimination, and the Air Force Review Board

adopted the administrative law judge’s findings.

       Thereafter, Willis filed suit in federal court, and the District Court dismissed his

complaint pursuant to Rule 12(b)(1). This appeal followed.

                                             II.

       We exercise plenary review over the District Court’s dismissal of this action under

Rule 12(b)(1). In re Cybergenics Corp., 226 F.3d 237, 239 (3d Cir. 2000). “Because the

government’s challenge to the District Court’s jurisdiction was a factual one under Fed.

R. Civ. P. 12(b)(1), we are not confined to the allegations in the complaint (nor was the

District Court) and can look beyond the pleadings . . . .” Cestonaro v. United States, 211

F.3d 749, 752 (3d Cir. 2000). As the plaintiff, Willis bears the burden to show that his

claims are not barred by the Feres doctrine. See Luckett v. Bure, 290 F.3d 493, 497 (2d

Cir. 2002).

                                             III.

                                             A.

       Willis’ claims arise under 42 U.S.C. 2000e-16(a), which, inter alia, prohibits

military departments from engaging in employment discrimination. It is undisputed that




                                              3
Willis is an employee of a military department. See 5 U.S.C. § 102 (defining “military

department” to include the Department of the Air Force).

       The doctrine of intra-military immunity, first recognized in Feres v. United States,

340 U.S. 135 (1950), however, sharply limits the scope of military department employees

who may seek relief under § 2000e-16(a). The issue in this case is whether Willis’ claims

are barred by the so-called Feres doctrine.

       In Feres, the Supreme Court held that uniformed members of the armed forces may

not bring suit against the federal government under the Federal Tort Claims Act (FTCA)

for injuries that “arise out of or are in the course of activity incident to service.” Id. at

146. This holding was based on “[t]he peculiar and special relationship of the soldier to

his superiors, the effects of the maintenance of such suits on discipline, and the extreme

results that might obtain if suits under the [FTCA] were allowed for negligent orders

given or negligent acts committed in the course of military duty. . . .” United States v.

Brown, 348 U.S. 110, 112 (1954).

       The intra-military immunity doctrine has been extended well beyond its original

application to FTCA claims by active duty military personnel, and now applies to a broad

array of constitutional and statutory claims by active duty and non-active duty military

personnel alike. For example, in Chappell v. Wallace, 462 U.S. 296 (1983), the Supreme

Court considered claims of race discrimination brought by five enlisted men serving in

the United States Navy against their supervisors, under Bivens v. Six Unknown Named



                                                4
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court held that the

enlisted men could not maintain their lawsuit. Relying upon the Feres doctrine and its

underlying rationale, the Court explained “[c]ivilian courts must, at the very least, hesitate

long before entertaining a suit which asks the court to tamper with the established

relationship between enlisted military personnel and their superior officers. . . .”

Chappell, 462 U.S. at 300.

       Apparently, every court of appeals considering the issue has held that the Feres

doctrine bars uniformed military personnel from bringing discrimination claims under

Title VII and other discrimination statutes. See, e.g., Stinson v. Hornsby, 821 F.2d 1537,

1541 (11th Cir. 1987) (holding that the Feres doctrine bars Title VII claims by military

personnel on active duty); Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir. 1987)

(same); Gonzalez v. Dep’t of the Army, 718 F.2d 926, 929-30 (9th Cir. 1983) (same);

Johnson v. Alexander, 572 F.2d 1219, 1222-23 (8th Cir. 1978) (same); see also Doe v.

Garrett, 903 F.2d 1455, 1461-62 (11th Cir. 1990) (holding that Rehabilitation Act claims

by active duty military personnel are barred); Baldwin v. United States Army, 223 F.3d

100, 101 (2d Cir. 2000) (“As with Title VII and the ADEA, there is no indication that the

remedies provided in the ADA were to be extended to uniformed members of the

military.”).

       Recently, in Matreale v. New Jersey Dep’t of Military & Veterans Affairs,




                                              5
487 F.3d 150 (3d Cir. 2007), our court considered whether the Feres doctrine barred

employment discrimination claims by a member of the New Jersey Army National Guard

under the New Jersey Law Against Discrimination. We decided that the Feres doctrine

did bar such employment discrimination claims and noted:

       Without exception, in other post- Feres cases, the Court has adhered to the
       compelling necessity of maintaining military discipline as the basis for
       expanding the intra-military immunity doctrine to encompass a variety of
       claims, against an assortment of defendants, brought by a range of
       servicemen, for injuries arising out of, or in the course of activity incident
       to, military service.

Id. at 153.

       The analysis is less straightforward in cases where, as here, the plaintiff is not on

active military duty, but instead holds a position requiring performance of both military

and civilian job duties. As a “military technician,” the hybrid nature of Wills’ job is

explicitly noted by statute. See 10 U.S.C. § 10216(d).1 Willis’ role and responsibilities as


       1
           Congress defined “military technician” as follows:

       For purposes of this section and any other provision of law, a military
       technician (dual status) is a Federal civilian employee who—

       ...

       (B) is required as a condition of that employment to maintain membership
       in the Selected Reserve;

       ...

       (2) Military technicians (dual status) shall be authorized and accounted for
       as a separate category of civilian employees.


                                               6
an ART 2 further confirm that his job is neither fish (totally civilian) nor fowl (totally

military). The question, then, is whether the military aspects of Willis’ job as an ART

preclude him from asserting his claims of discrimination.

                                              B.

       Courts of appeals that have addressed this question have uniformly held that, at a

minimum, Feres precludes claims by hybrid employees if their claims arise in whole or in

part out of the military aspects of the claimant’s job. See, e.g., Luckett, 290 F.3d at 499

(2d Cir. 2002); Brown v. United States, 227 F.3d 295, 298-99 (5th Cir. 2000); Mier v.

Owens, 57 F.3d 747, 750-51 (9th Cir. 1995); see also Fisher v. Peters, 249 F.3d 433, 443

(6th Cir. 2001) (holding that discrimination claims by hybrid employees are “irreducibly



       2
           ARTs are defined as:

       Full time civilian employees who are also members of the Air Force unit in which
       they are employed. In addition to their civilian assignments, they are assigned to
       equivalent positions in the Reserve organization with a Reserve military rank or
       grade. ARTs must maintain active membership in their Reserve unit of assignment
       and keep satisfactory participation in order to keep their ART position.

Appendix (App.) 66.

       The role of an ART is:

       To provide stable, continuous, full-time management, administration, and training
       of the Ready Reserve and [oversee] the transition from a peacetime to a wartime or
       national emergency situation to ensure mobilization readiness is maintained.
       ARTs train reservists, provide continuity within the Reserve unit of assignment,
       and support the unit’s gaining major command.

App. 62.

                                               7
military in nature,” and therefore non-justiciable). We agree with our sister courts of

appeals and, therefore, we must determine whether Willis’ discrimination claims arise

“purely from [his] ART[] civilian position . . . .” Brown, 227 F.3d at 299.

       In this case, it is clear that Willis’ claims do not arise purely from the civilian

aspects of his job as an ART. All of Willis’ claims arise out of his relationship with

Uber, who is Willis’ supervisor in both his military and civilian capacities. It therefore

would be difficult, if not impossible, to partition Willis’ relationship with Uber into

civilian and military components.3 As a result, “[a]ny attempt surgically to dissect and

analyze the civilian relationship between [Willis and Uber], with its military dimensions, .

. . would itself threaten to intrude into their military relationship.” Overton v. New York

State Div. of Military and Naval Affairs, 373 F.3d 83, 96 (2d Cir. 2004). See Wright v.

Park, 5 F.3d 586, 591 (1st Cir. 1993) (dismissing § 1983 claim on Feres grounds, noting

that “a technician’s dual roles are too tightly imbricated to be pried apart at a litigant’s

whim”).

       An affidavit submitted Master Sergeant Timothy A. Martin further demonstrates

that any effort to segregate the military and civilian aspects of Willis’ relationship with

Uber would be futile. Martin’s affidavit supports the government’s contention that the

circumstances giving rise to several of Willis’ claims did not arise exclusively within the




       3
           Indeed, Willis does not even suggest how we could do so.

                                               8
civilian aspects of his employment. We discuss the allegations mentioned in the Martin

affidavit in the order in which they are listed in the complaint.

       Willis first alleges that Uber discriminated against him by requesting personal and

privileged information. Martin states in his affidavit that Uber’s request arose in the

military context, as Uber sought information regarding Willis’ residence to determine

whether Willis was entitled to travel pay in either his civilian or his military capacity, or

whether such pay was limited to travel in connection with Willis’ military reserve status.

       Willis also alleges that Uber improperly removed him as the Test Control Officer

from the Career Development Course. Martin states in his affidavit that the Career

Development Course is a military—not civilian—training requirement, and that the

purpose of this training is to provide individual service members with the skills and

knowledge to perform their duties effectively.

       With respect to Willis’ allegation that Uber illegally discriminated against him

regarding his 5 skill level proficiency, Martin’s affidavit states that skill level

proficiencies are military—not civilian—designations which refer to the performance

level at which the holder can accomplish his or her duties in the Air Force Specialty Code

or career field.

       Willis also alleges that Uber discriminated against him by placing a letter of

reprimand in the form of an Unfavorable Information File into the computerized military

personnel system without cause. In his affidavit, Martin states that an Unfavorable



                                               9
Information File is an official record of censures that a military member has received for

deficient performance. Martin also notes that unlike military employees, civilian

employees do not have Unfavorable Information Files.

       Willis also alleges that Uber discriminated against him by removing him from his

office and placing him among his subordinates as a working supervisor. According to

Martin, Willis’ removal and change of position was the result of a restructuring of the

Military Personnel Flight at the direction of Air Force Reserve Command. As the District

Court properly concluded, this decision to reorganize is “integrally related to the

military’s unique structure,” and is therefore non-justiciable. 6A, 27A-30A; Cf. Mier, 57

F.3d at 750-51 (barring discrimination and retaliation claims arising out of military’s

decision not to promote plaintiff).

       Given the nature of the relationship between Willis and Uber, and given Willis’

failure to offer any evidence to contradict Martin’s affidavit, we conclude that the

circumstances about which Willis complains did not arise wholly in the context of the

civilian aspects of his employment. Accordingly, Willis has failed to carry his burden to

show that his claims are justiciable, and they must therefore be dismissed.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s decision in all

respects.




                                             10
