Walch v. Adjutant General's Dept. of Texas

• Decision Date: 24 June 2008
• Docket Number: No. 07-20175.,07-20175.
• Citation: 533 F.3d 289
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

533 F.3d 289

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.

No. 07-20175.

United States Court of Appeals, Fifth Circuit.

June 24, 2008.

Patrick J. Gilpin (argued), Gilpin Law Firm, Houston, TX, for Walch.

Jack Christian O'Donnell, Madeleine B. Connor (argued), Craig H. Russell, Austin,

TX, for Adjutant General and State of Texas.

Vernon Lydell Lewis, Asst. U.S. Atty. (argued), Houston, TX, for Wynne.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, DeMOSS and SOUTHWICK, Circuit Judges.

SOUTHWICK, Circuit Judge:

The opinion issued in this case on June 6, 2008 is withdrawn and this revised opinion is substituted.

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 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 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. 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 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.

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 — ineligibility that we will discuss below.

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 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 non-justiciable.

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, 71 S.Ct. 153, 95 L.Ed. 152 (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 ...."). We have applied the summary judgment standard to review a 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. Meister v. Tex. Adjutant Gen's. Dep't, 233 F.3d 332, 335 (5th Cir. 2000). 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). 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...