United States v. 2010-06-08 | 08-17559 | LISA ZURESS V. MICHAEL DONLEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LISA M. ZURESS,
Plaintiff-Appellant, No. 08-17559
v. D.C. No.
 MICHAEL B. DONLEY, Acting 2:08-cv-00606-HRH
Secretary, United States OPINION
Department of the Air Force,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Arizona
H. Russel Holland, District Judge, Presiding
Argued and Submitted
March 10, 2010—San Francisco, California
Filed June 8, 2010
Before: Cynthia Holcomb Hall, John T. Noonan and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
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COUNSEL
John A. Conley; Phoenix, Arizona; James Burr Shields II;
Phoenix, Arizona; W. Blake Simms; Phoenix, Arizona, for the
appellant.
Suzanne M. Chynoweth; Phoenix, Arizona; Marleigh Dover;
Washington, D.C.; Lowell Sturgill, Jr., Washington, D.C., for
the appellee.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether the intra-
military immunity doctrine, as embraced by our circuit in
Mier v. Owens, 57 F.3d 747 (9th Cir. 1995), was superseded
by the National Defense Authorization Act for Fiscal Year
1998 (“1997 Amendments”), Pub. L. No. 105-85, § 522(a),
111 Stat. 1629, 1734 (1997), codified at 10 U.S.C.
§ 10216(a). We conclude that the 1997 Amendments did not
repeal the intra-military immunity doctrine, and we affirm the
district court’s dismissal of the action.
I
Pursuant to the doctrine of intra-military immunity, “mem-
bers of the armed forces may not bring an action against the
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Government or armed service personnel for injuries during
activity under the control or supervision of a commanding
officer.” Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir. 1997)
(citation omitted). The doctrine applies “whenever a legal
action would require a civilian court to examine decisions
regarding management, discipline, supervision, and control of
members of the armed forces of the United States.” Id. at 710
(quotation omitted); see also Stauber v. Cline, 837 F.2d 395,
397-99 (9th Cir. 1988); see generally Feres v. United States,
340 U.S. 135 (1950) (origin of the doctrine). The doctrine
arises out of the sensitive nature of military operations, the
unique relationship of the soldier to his superiors, and the spe-
cial role of the miliary in providing national defense. United
States v. Brown, 348 U.S. 110, 112 (1954).
But what of the circumstance when a civilian is employed
by the military? Or, more relevant to our analysis, when an
individual serves in the dual role of civilian and military
employee? In Mier v. Owens, we applied the doctrine of intra-
military immunity to hold that we could not entertain a Title
VII claim brought by a dual status technician in the Army
National Guard. 57 F.3d at 750. If no events had intervened,
the result in this case would be clear. Mier would dictate that
we apply the doctrine of intra-military immunity and affirm
the dismissal of the suit. However, Zuress argues that the
1997 Amendments have altered the legal landscape, and two
of our sister circuits have disagreed on that question. Com-
pare Williams v. Wynne, 533 F.3d 360, 367 (5th Cir. 2008)
(holding that the 1997 Amendments did not affect prior doc-
trine) with Jentoft v. United States, 450 F.3d 1342, 1348-49
(Fed. Cir. 2006) (holding that the 1997 Amendments allowed
a dual status National Guard technician to bring an Equal Pay
Act claim against the military).
But first to the background of our controversy. Lisa Zuress
was a dual status Air Force Reserve Technician at the Luke
Air Force Base in Arizona. Air Force Reserve Technicians
provide management, administration, and training of reserv-
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ists and oversee the transition of their units from peacetime to
wartime or national emergency. Air Force Instruction (“AFI”)
36-108, ¶ 1 (July 26, 1994).
The Air Force Reserve Technician program was initiated in
1957 after authorization by letter from the Civil Service Com-
mission. Am. Fed’n of Gov’t Employees v. Hoffman, 543 F.2d
930, 932 (D.C. Cir. 1976); Ridgway v. Aldrige, 709 F. Supp.
265, 267 (D. Mass. 1989). Prior to that time, Air Reserve Fly-
ing Centers were maintained and operated by units composed
of military and civilian personnel that were organizationally
separate from the Air Reserve Wings. Am. Fed’n of Gov’t
Employees, 543 F.2d at 933. “[B]y replacing military support
personnel with civil servants and requiring civilian support
personnel to be active reserve members,” the Air Force
Reserve Technician program “in effect integrated the support
organizations into the Air Reserve Wings.” Id. “The primary
goal of the plan was to increase the combat readiness of Air
Force Reserve units, as well as their effectiveness in the event
of mobilization.” Id. at 932-33; see also Air Force Reserve
Command Instruction (“AFRCI”) 36-114, ¶ 2 (Aug. 10,
2001).
Congress provided express statutory authority for the Air
Force Reserve Technician program in 1996. See National
Defense Authorization Act for Fiscal Year 1996, Pub. L. No.
104-106, § 513, 110 Stat. 186, 305-07 (1996), codified at 10
U.S.C. § 10216. That law required, among other things, that
all Air Force and Army technicians hired after the statute’s
enactment date maintain membership in the Air Force or
Army Reserve as a condition of their employment. Id.
In a separate law enacted later in 1996, Congress added a
statutory definition for the position of Air Force and Army
technician which provided:
IN GENERAL.—Military technicians are Federal
civilian employees hired under title 5 and title 32
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who are required to maintain dual-status as drilling
reserve component members as a condition of their
Federal civilian employment. Such employees shall
be authorized and accounted for as a separate cate-
gory of dual-status civilian employees, exempt as
specified in subsection (b)(3) from any general or
regulatory requirement for adjustments in Depart-
ment of Defense civilian personnel.
National Defense Authorization Act for Fiscal Year 1997,
Pub. L. No. 104-201, § 1214, 110 Stat. 2422, 2695 (1996),
codified at 10 U.S.C. § 10216.
In 1997, Congress amended that definition and distin-
guished between “dual status” and “non-dual status” military
technicians. Amended § 10216(a) provided:
In general.—(1) For purposes of this section and any
other provision of law, a military technician (dual
status) is a Federal civilian employee who—
(A) is employed under section 3101 of title 5 or sec-
tion 709(b) of title 32;
(B) is required as a condition of that employment to
maintain membership in the Selected Reserve;
(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.
(2) Military technicians (dual status) shall be autho-
rized and accounted for as a separate category of
civilian employees.
1997 Amendments, codified at 10 U.S.C. § 10216(a). The
newly enacted § 10217(a) provided:
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(a) Definition.—For the purposes of this section and
any other provision of law, a non-dual status techni-
cian is a civilian employee of the Department of
Defense serving in a military technician position
who—
(1) was hired as a technician before November 18,
1997 . . . and as of that date is not a member of the
Selected Reserve or after such date has ceased to be
a member of the Selected Reserve; or
(2) is employed under section 709 of title 32 in a
position designated under subsection (c) of that sec-
tion and when hired was not required to maintain
membership in the Selected Reserve.
National Defense Authorization Act for Fiscal Year 1998,
§ 523(a), 111 Stat. at 1736, codified at 10 U.S.C. § 10217(a).
Air Force Technicians are required to wear their military uni-
forms while acting in both their civilian and military capaci-
ties. See AFI 36-2903, tbls. 1.3, 6.1 (Aug. 2, 2006).
Zuress was employed as a dual status Air Force Reserve
Technician at Luke Air Force Base from July 2000 to June
2005. She served in a civilian capacity as a GS-12 Operations
Staff Specialist for the 944th Operations Group and in a mili-
tary capacity as an Air Force Reserve Captain in the 944th
Operations Group.
Zuress alleges that the Air Force violated her rights under
Title VII by failing to promote her; failing to extend her mili-
tary retirement date as long as she had requested; temporarily
detailing her to a lower-grade position; and forcing her retire-
ment. She contends that this unfair treatment began in Sep-
tember 2003 after she wrote a letter to senior Defense
Department officials describing inappropriate sexual behavior
following a Fighter Squadron “naming” ceremony and that it
escalated when she agreed to serve as a character witness in
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a coworker’s discrimination case. Zuress alleges that, in retal-
iation, her former military commander refused to return her
salute and her supervisors gave her two “average” perfor-
mance reports, eliminating her chance for promotion. Because
military officers twice passed up for promotion must separate
from the military, Zuress’s performance reports guaranteed
her forced retirement.
According to her complaint, Zuress realized upon receiving
her second performance report that she would not be pro-
moted and would be ineligible to remain in the Air Force
Reserves. The denial of promotion meant losing her civilian
position as well.
She submitted military retirement paperwork in January
2005, went on leave, and requested a one-year leave of
absence to search for another position. Allegedly in a retalia-
tory gesture, her supervisor denied her request for a one-year
leave of absence and granted a four-month leave instead.
Zuress then cancelled her request for leave and returned to
work. When she returned, she was detailed to a lower grade
GS-7 position. In March 2005, Zuress learned that she had not
been promoted and would be forced to retire. Three months
later, she retired from the Air Force Reserve and was sepa-
rated as a civilian employee.
Zuress filed a complaint in district court alleging that the
Air Force had violated her rights under Title VII, naming the
Secretary of the Air Force as the sole defendant. On the Sec-
retary’s motion, the district court dismissed Zuress’s amended
complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). This appeal fol-
lowed.
We review de novo dismissal for lack of subject matter
jurisdiction, Atwood v. Fort Peck Tribal Court Assiniboine,
513 F.3d 943, 946 (9th Cir. 2008), and may affirm on any
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basis supported by the record, Hall v. N. Am. Van Lines, Inc.,
476 F.3d 683, 686 (9th Cir. 2007).
II
When interpreting a statute, “ ‘we look first to the plain lan-
guage of the statute, construing the provisions of the entire
law, including its object and policy, to ascertain the intent of
Congress.’ ” United States v. Mohrbacher, 182 F.3d 1041,
1048 (9th Cir. 1999) (quoting Northwest Forest Res. Council
v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)). If the plain
meaning of the statute is unambiguous, that meaning is con-
trolling and we need not examine legislative history as an aid
to interpretation unless “the legislative history clearly indi-
cates that Congress meant something other than what it said.”
Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863,
877 (9th Cir. 2001) (en banc) (quotation omitted). If the statu-
tory language is ambiguous, we consult legislative history.
United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).
In the present context, we must also examine the relevant
statutory provisions in light of case law that pre-existed adop-
tion of the 1997 Amendments. We presume that Congress is
familiar with controlling precedent and expects that its enact-
ments will be interpreted accordingly. United States v. Wells,
519 U.S. 482, 495 (1997). For this reason, we must consider
the 1997 Amendments against the backdrop of our intra-
military immunity precedent.
[1] Beginning with Feres, the Supreme Court has been
quite careful in guarding the doctrine of intra-military immu-
nity against statutory and common law challenges. 340 U.S.
at 146 (holding that the doctrine applied to suits brought
under the Federal Tort Claims Act); see also Chappell v. Wal-
lace, 462 U.S. 296, 305 (1983) (enlisted military personnel
may not maintain a suit to recover damages from a superior
officer for alleged constitutional violations). Our Circuit has
followed suit. See Hodge, 107 F.3d at 710 (intra-military
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immunity doctrine precludes suit brought by active-duty mili-
tary personnel pursuant to 42 U.S.C. § 2000e-16(e)); Mier, 57
F.3d at 751 (intra-military immunity doctrine preludes suits
by dual status employees under Title VII); Stauber, 837 F.2d
at 401 (intra-military immunity precludes common law tort
suit by dual status employee); Gonzalez v. Department of
Army, 718 F.2d 926, 929 (9th Cir. 1983) (intra-military
immunity doctrine precludes suit under Title VII); Mollnow v.
Carlton, 716 F.2d 627, 631 (9th Cir. 1983) (intra-military
immunity precludes military officers from suing fellow mili-
tary officers under 42 U.S.C. § 1985(1) or common law tort
theories); Mattos v. United States, 412 F.2d 793, 794 (9th Cir.
1969) (intra-military immunity doctrine precludes suits by
reservists against fellow reservists for injuries received while
on reserve training).
In Gonzalez and Mier, we quoted with approval the Eighth
Circuit’s observation that “if Congress had intended for [Title
VII] to apply to the uniformed personnel of the various armed
services, it would have said so in unmistakable terms.” John-
son v. Alexander, 572 F.2d 1219, 1224 (8th Cir. 1978)
(quoted in Gonzalez, 718 F.2d at 928 and in Mier, 57 F.3d at
749).
[2] In Mier, we began our statutory analysis by applying
the “unmistakable terms” test and determined that Congress
had not — either through the National Guard Technicians Act
or Title VII itself — “stated in ‘unmistakable terms’ ” that
Title VII applies to dual status National Guard technicians. Id.
at 749 (quoting Gonzalez, 718 F.2d at 928). We clarified that
under the doctrine of intra-military immunity, courts “decline
to hear lawsuits involving personnel actions integrally related
to the military’s unique structure.” Id. at 749. We held that
“Title VII . . . encompasses actions brought by Guard techni-
cians except when the challenged conduct is integrally related
to the military’s unique structure.” Id. at 750. Finally, we
declined to entertain the plaintiff’s claims — which alleged
discriminatory denial of military promotions and suspension
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from civilian employment, as well as retaliation — because
they challenged personnel actions integrally related to the mil-
itary’s unique structure. See id. at 750-51.
[3] Zuress concedes that the personnel actions that she
challenges are integrally related to the military’s unique struc-
ture, and thus that her claim is foreclosed under the analysis
in Mier. However, she argues that the 1997 Amendments
undermine Mier. We disagree.
The critical portion of § 10216(a), as amended in 1997,
states:
(1) For purposes of this section and any other provi-
sion of law, a military technician (dual status) is a
Federal civilian employee who—
(A) is employed under section 3101 of title 5 or sec-
tion 709(b) of title 32;
(B) is required as a condition of that employment to
maintain membership in the Selected Reserve;
(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.
Zuress points to the phrase “any other provision of law,” and
argues that the plain language of amended § 10216(a) indi-
cates that Congress intends for dual status Air Force Reserve
Technicians to be treated as civilian employees for the pur-
pose of filing Title VII claims. The Federal Circuit recently
adopted this position in Jentoft v. United States, 450 F.3d
1342 (Fed. Cir. 2006), in which it held, based on the 1997
amendment, that a dual status National Guard technician
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could bring an Equal Pay Act claim against the military. 450
F.3d at 1348-49. The Jentoft court reasoned:
Section 10216(a) provides that ‘for purposes of this
section and any other provision of law, a military
technician (dual status) is a Federal civil-
ian employee.’ Notably, there is no language in
§ 10216(a) limiting the circumstances in which a
dual status technician can be considered a feder-
al civilian employee. Thus, the plain language of
§ 10216(a) makes clear that Jentoft has a justiciable
claim under the Equal Pay Act.
Id. (emphasis removed).
[4] We respectfully disagree with the Federal Circuit.
Rather, we agree with the Fifth Circuit that the 1997 Amend-
ments did not effect such a substantive change, as dual status
technicians have long been recognized as “ ‘civilian employ-
ees whose positions require that they also serve in the military
reserves.’ ” Williams v. Wynne, 533 F.3d 360, 367 (5th Cir.
2008) (quoting Brown v. United States, 227 F.3d 295, 297
(5th Cir. 2000)) (emphasis removed); accord Walch v. Adju-
tant Gen.’s Dep’t of Tex., 533 F.3d 289, 299 (5th Cir. 2008)
(noting that “there was nothing new in 1996 about consider-
ing these technicians to be federal civilian employees,” since
they had already been described as such in prior case law).
Both before and after the 1997 Amendments, dual-status Air
Force Reserve Technicians held “a hybrid job entailing both
civilian and military aspects.” See Mier, 57 F.3d at 749; see
also AFRCI 36-114, ¶ 2 (Aug. 10, 2001) (recognizing that
dual status Air Force Reserve Technicians “are full-time civil-
ian employees who are also active members of the Air Force
Reserve unit in which they are employed”). As we suggested
in Mier and Gonzalez, a clear statement is required from Con-
gress to override our settled judicial doctrine of intra-military
immunity. See Mier, 57 F.3d at 749; Gonzalez, 718 F.2d at
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928. The text of the 1997 Amendments does not satisfy that
standard.
[5] Moreover, the legislative history of the 1997 Amend-
ments demonstrates that Congress employed the phrase “for
any provision of law” to eliminate inconsistencies in the
nomenclature used to refer to dual status technicians, rather
than to override settled case law on intra-military immunity.
Prior to the amendment, congressional enactments referred to
military technicians under three different titles: “military
(civilian) technicians,” see Department of Defense Appropria-
tions Act, 1996, Pub. L. No. 104-61, § 8087, 109 Stat. 636,
668 (1995), “military technicians,” see National Defense
Authorization Act for Fiscal Year 1996, § 513(c), 110 Stat. at
305, and “dual-status military technicians,” see id. at 306. A
House Report for the bill explained:
The National Defense Appropriations Act for Fiscal
Year 1996 (Public Law 104-61) and the National
Defense Authorization Act for Fiscal Year 1996
(Public Law 104-106) enacted provisions defining
the term “military technician” which were not com-
pletely consistent with one another. This section
would remove the inconsistencies by defining a mili-
tary technician (dual status) as a federal civilian
employee who is hired in accord with titles 5 or 32,
United States Code, and who, as a condition of fed-
eral civilian employment, must maintain military
membership in the selected reserve, and who also
must be assigned to a position as a technician in the
administration and training of the selected reserve, or
to a position in the maintenance and repair of sup-
plies or equipment issued to the selective reserve or
armed forces.
H.R. Rep. No. 105-132, National Security Committee, at 358
(1997). Indeed, Zuress points to nothing in the legislative his-
tory of the amendment that suggests Congress intended to
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waive the United States’s sovereign immunity for Title VII
suits by dual status military technicians. There is no mention
of Title VII in the legislative history of the 1997 Amend-
ments, nor is there any indication that Congress intended to
authorize any cause of action that was previously unavailable
to a dual status technician. Accord Williams, 533 F.3d at 367
(“Nothing in the legislative history of § 10216(a)(1)(B) sug-
gests that Congress intended to intrude on such military per-
sonnel decisions.”). Instead, the provisions at issue appear to
have been primarily concerned with distinguishing between
dual status and non-dual status technicians and with annual
requests to Congress for authorization of different categories
of technicians. See Walch, 533 F.3d at 299; H.R. Rep. No.
105-132, at 348, 358.
Zuress contends that we should refuse to consider the legis-
lative history of amended § 10216 given its plain meaning.
However, “[t]he purpose of statutory construction is to dis-
cern the intent of Congress in enacting a particular statute.”
Daas, 198 F.3d at 1174. If a statute is ambiguous, we “may
look to its legislative history for evidence of congressional
intent.” Id. at 1174.
[6] We conclude that the 1997 Amendments do not justify
a reexamination of Mier. See 57 F.3d at 748. We therefore
affirm the judgment of the district court. We do not, and need
not, address any other issue raised by the parties.
AFFIRMED.
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