Zuress v. Donley, 08-17559.

• Decision Date: 08 June 2010
• Docket Number: No. 08-17559.,08-17559.
• Citation: 606 F.3d 1249
• Parties: Lisa M. ZURESS, Plaintiff-Appellant,v.Michael B. DONLEY, Acting Secretary, United States Department of the Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

606 F.3d 1249

Lisa M. ZURESS, Plaintiff-Appellant,v.Michael B. DONLEY, Acting Secretary, United States Department of the Air Force, Defendant-Appellee.

No. 08-17559.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2010.

Filed June 8, 2010.

John A. Conley; James Burr Shields II; Phoenix, AZ; W. Blake Simms; Phoenix, AZ, for the appellant.

Suzanne M. Chynoweth; Phoenix, AZ; Marleigh Dover; Washington, D.C.; Lowell Sturgill, Jr., Washington, D.C., for the appellee.

Appeal from the United States District Court for the District of Arizona, H. Russel Holland, District Judge, Presiding. D.C. No. 2:08-cv-00606-HRH.

Before: CYNTHIA HOLCOMB HALL, JOHN T. NOONAN and SIDNEY R. THOMAS, Circuit Judges.

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the intra-military immunity doctrine, as embraced by our circuit in Mier v. Owens, 57 F.3d 747 (9th Cir.1995), was superseded by the National Defense Authorization Act for Fiscal Year 1998 (“1997 Amendments”), Pub.L. No. 105-85, § 522(a), 111 Stat. 1629, 1734 (1997), codified at 10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, “members of the armed forces may not bring an action against the 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, 71 S.Ct. 153, 95 L.Ed. 152 (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 special role of the military in providing national defense. United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (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. Compare Williams v. Wynne, 533 F.3d 360, 367 (5th Cir.2008) (holding that the 1997 Amendments did not affect prior doctrine) 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 reservists 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 Commission. 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 Flying 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 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 category of dual-status civilian employees, exempt as specified in subsection (b)(3) from any general or regulatory requirement for adjustments in Department 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 distinguished 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 section 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 authorized 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:

(a) Definition.-For the purposes of this section and any other provision of law, a non-dual status technician 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 section 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 uniforms while acting in both their civilian and military capacities. 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 military 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 military retirement date as long as she had requested; temporarily detailing her to a lower-grade position; and forcing her retirement. She contends that this unfair treatment began in September 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 a coworker's discrimination case. Zuress alleges that, in retaliation, her former military commander refused to return her salute and her supervisors gave her two “average” performance 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 promoted 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 retaliatory 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 separated 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...