Walch v. Adjutant General's Department

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

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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

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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).

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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.

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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-

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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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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).

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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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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).

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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

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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

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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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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

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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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(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

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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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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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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

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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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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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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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