                Case: 12-11928       Date Filed: 04/26/2013      Page: 1 of 4


                                                                    [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             __________________________

                                    No. 12-11928
                             __________________________

                     D.C. Docket No. 2:11-cv-00018-WKW-SRW


MARY R. NORRIS,

                                                                  Plaintiff-Appellant,

                                            versus

SECRETARY, US DEPARTMENT OF THE ARMY,

                                                                  Defendant-Appellee.

                             __________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                           ___________________________

                                      (April 26, 2013)

Before WILSON and COX, Circuit Judges, and BOWEN,* District Judge.


BOWEN, District Judge:

       *
         Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
              Case: 12-11928     Date Filed: 04/26/2013    Page: 2 of 4


      Plaintiff Mary R. Norris, a dual-status National Guard technician, appeals

the district court’s dismissal of her complaint alleging gender and age

discrimination and retaliation under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, and the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. The district court

dismissed the case upon concluding that the intra-military immunity doctrine

recognized in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153 (1950), bars her

claims.

      The Feres doctrine provides that United States military personnel may not

bring suit against the federal government for injuries that “arise out of or are in the

course of activity incident to service.” Id. at 146, 71 S. Ct. at 159. In its thorough

and well-reasoned opinion, the district court pointed out that other circuits have

developed different approaches in determining whether employment

discrimination claims are non-justiciable under the Feres doctrine. See Norris v.

McHugh, 857 F. Supp. 2d 1229, 1233-34 (M.D. Ala. 2012). For instance, the

Sixth Circuit has held that dual-status military technicians are “irreducibly military

in nature” so that their military and civilian aspects cannot be separated; thus,

employment discrimination suits involving dual-status military technicians are

non-justiciable as a matter of law. See Fisher v. Peters, 249 F.3d 433, 443 (6th

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Cir. 2001). The Ninth Circuit’s approach is less rigid because it considers whether

“the challenged conduct is integrally related to the military’s unique structure.”

Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995). In the Fifth Circuit, only

“claims arising purely from [a plaintiff employee’s] civilian position” are

justiciable, while claims that “originate from [a plaintiff employee’s] military

status” are not. Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000). If the

classification of a claim proves difficult, the Fifth Circuit turns to “factors such as

whether the conduct is ‘integrally related to the military’s unique structure.’” Id. at

299 n.5, quoted in Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 299 (5th

Cir. 2008).

       Here, the district court carefully and fully detailed the nature and extent of

Plaintiff’s employment and the challenged employment decisions. The district

court concluded that Plaintiff failed to establish that her claims arise from her

status as a civilian as opposed to her military status. In reviewing this conclusion

de novo,1 we conclude that no matter what approach is taken in applying the Feres

doctrine, the district court correctly determined that Plaintiff’s claims are barred

by the Feres doctrine. Accordingly, the action was properly dismissed for lack of


       1
          We review de novo the grant of a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Cash v. Barnhart, 327 F.3d 1252,
1255 n.4 (11th Cir. 2003)(per curiam).

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subject matter jurisdiction.

      The judgment of the district court is therefore AFFIRMED.




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