James E. Brown, Sr. v. DR. JAMES G. ROCHE, Secretary, Department of the U.S. Air Force

The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the*
Eighth Circuit, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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,
v.
DR. JAMES G. ROCHE, Secretary,
Department of the U.S. Air Force,
Defendant-Appellee.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
O P I N I O N
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

-- 1 of 4 --

2
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 of 4 --

3
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 of 4 --

4
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 of 4 --