                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0804n.06
                           Filed: November 1, 2006

                                             No. 06-5001

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


JAMES E. BROWN, SR.,                   )
                                       )
      Plaintiff-Appellant,             )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE MIDDLE
                                       )                   DISTRICT OF TENNESSEE
DR. JAMES G. ROCHE, Secretary,         )
Department of the U.S. Air Force,      )
                                       )                           OPINION
      Defendant-Appellee.              )
_______________________________________)


Before: MOORE, ROGERS, and GIBSON,* Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant James E. Brown, Sr.

(“Brown”) appeals the district court’s dismissal of his claim that the Air Force National Guard’s (the

“National Guard”) failure to promote him violated the Age Discrimination in Employment Act

(“ADEA”). When a younger and allegedly less qualified applicant was chosen over Brown for a

supervisory position, Brown, a National Guard technician, filed a discrimination charge with the

Equal Employment Opportunity Commission (“EEOC”). At the conclusion of the administrative

adjudication process, the agency determined that no discrimination had occurred, and Brown then

filed the instant suit. The district court granted the Air Force’s motion to dismiss for lack of subject




       *
        The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
matter jurisdiction on the ground that, because Brown’s position was a military one, his action is

barred. Brown now appeals that ruling.

                                 I. FACTS AND PROCEDURE

       Brown was employed by the Air Force as a National Guard technician (a “technician”) at

Berry Field in Nashville, Tennessee. Technicians are employed in “(1) the administration and

training of the National Guard; and (2) the maintenance and repair of supplies issued to the National

Guard or the armed forces.” 32 U.S.C. § 709(a). As a technician, Brown was required by statute

to serve in both civilian and military capacities — in, that is, a “dual status.” Id. § 709(b).

       [A] military technician (dual status) is a Federal civilian employee who —
          (A) is employed under . . . section 709(b) of title 32;
          (B) is required as a condition of that employment to maintain
                membership in the Selected Reserve; and
          (C) is assigned to a civilian position as a technician in the administration
                and training of the Selected Reserve or in the maintenance and repair
                of supplies or equipment issued to the Selected Reserve or the armed
                forces.

10 U.S.C. § 10216.

       In December 1998, the National Guard announced that it had a vacancy for a Quality

Assurance Specialist (“QAS”) at Berry Field. Brown, who was then fifty-seven years old, applied

for the position. He was granted an interview, but the job was eventually awarded to Clay Crabtree,

who was in his mid-thirties. In September 1999, Brown filed a pro se age-discrimination complaint

with the National Guard Bureau. Although an administrative law judge (“ALJ”) initially found that

the National Guard had violated the ADEA, the agency later reversed that determination and issued

a Final Agency Decision finding that Brown had not suffered age discrimination. Brown then filed

suit in the United States District Court for the Middle District of Tennessee, which subsequently



                                                  2
granted the National Guard’s motion to dismiss for lack of subject matter jurisdiction, pursuant to

Federal Rule of Civil Procedure 12(b)(1). Brown now appeals that ruling.

                                          II. ANALYSIS

        “We . . . review de novo the district court’s decision to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” Howard v. Whitbeck, 382 F.3d 633,

636 (6th Cir. 2004). In this case, the district court dismissed Brown’s claim on the ground that Feres

v. United States, 340 U.S. 135 (1950), prohibits federal courts from adjudicating employment

discrimination claims brought by employees of the United States armed forces. The district court

reasoned that the federal courts’ repeated refusal to exercise jurisdiction over discrimination claims

brought under other federal statutes indicates that the Feres doctrine applies to ADEA claims as

well.

        In Feres, the Supreme Court held that, because “the relationship of military personnel to the

Government has [historically] been governed exclusively by federal law,” the courts “cannot impute

to Congress . . .[,] in the absence of express congressional command,” the intent to authorize civil

suits against the government by members of the armed services. 340 U.S. at 146; see also Major v.

United States, 835 F.2d 641 (6th Cir. 1987) (applying Feres). Although Feres and Major involved

the Federal Tort Claims Act, 28 U.S.C. § 1346, subsequent cases have expanded the Feres doctrine

to encompass, inter alia, discrimination claims brought under Title VII, 42 U.S.C. §§ 2000e et seq.,

see Fisher v. Peters, 249 F.3d 433, 437-38 (6th Cir. 2001), and claims for the violation of

constitutional rights brought under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), see Chappell v. Wallace, 462 U.S. 296, 304 (1983).




                                                  3
       Brown argues that the Feres doctrine does not apply to his ADEA claim because he asserts

that claim in his civilian, not his military, capacity. As the government points out, however, we have

held that the National Guard technician position is “irreducibly military” for purposes of the Feres

doctrine. Fisher, 249 F.3d at 439 (“The district court was correct in observing that [e]very court

having occasion closely to consider the capacity of National Guard technicians has determined that

capacity to be irreducibly military in nature, and we are satisfied that Col. Leistiko’s technician job

was of this nature.”) (internal quotation marks and citation omitted; alteration in original). We

therefore conclude that the Feres doctrine, as applied in Fisher, bars Brown’s action.

                                        III. CONCLUSION

       Because the Feres doctrine applies to Brown’s ADEA claim, that claim is barred. We

therefore AFFIRM the district court’s dismissal of this action.




                                                  4
