Case: 12-11928 Date Filed: 04/26/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11928
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D.C. Docket No. 2:11-cv-00018-WKW-SRW
MARY R. NORRIS,
Plaintiff-Appellant,
versus
SECRETARY, US DEPARTMENT OF THE ARMY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
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(April 26, 2013)
Before WILSON and COX, Circuit Judges, and BOWEN,* District Judge.
BOWEN, District Judge:
*
Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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Plaintiff Mary R. Norris, a dual-status National Guard technician, appeals
the district court’s dismissal of her complaint alleging gender and age
discrimination and retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, and the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. The district court
dismissed the case upon concluding that the intra-military immunity doctrine
recognized in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153 (1950), bars her
claims.
The Feres doctrine provides that United States military personnel may not
bring suit against the federal government for injuries that “arise out of or are in the
course of activity incident to service.” Id. at 146, 71 S. Ct. at 159. In its thorough
and well-reasoned opinion, the district court pointed out that other circuits have
developed different approaches in determining whether employment
discrimination claims are non-justiciable under the Feres doctrine. See Norris v.
McHugh, 857 F. Supp. 2d 1229, 1233-34 (M.D. Ala. 2012). For instance, the
Sixth Circuit has held that dual-status military technicians are “irreducibly military
in nature” so that their military and civilian aspects cannot be separated; thus,
employment discrimination suits involving dual-status military technicians are
non-justiciable as a matter of law. See Fisher v. Peters, 249 F.3d 433, 443 (6th
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Cir. 2001). The Ninth Circuit’s approach is less rigid because it considers whether
“the challenged conduct is integrally related to the military’s unique structure.”
Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995). In the Fifth Circuit, only
“claims arising purely from [a plaintiff employee’s] civilian position” are
justiciable, while claims that “originate from [a plaintiff employee’s] military
status” are not. Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000). If the
classification of a claim proves difficult, the Fifth Circuit turns to “factors such as
whether the conduct is ‘integrally related to the military’s unique structure.’” Id. at
299 n.5, quoted in Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 299 (5th
Cir. 2008).
Here, the district court carefully and fully detailed the nature and extent of
Plaintiff’s employment and the challenged employment decisions. The district
court concluded that Plaintiff failed to establish that her claims arise from her
status as a civilian as opposed to her military status. In reviewing this conclusion
de novo,1 we conclude that no matter what approach is taken in applying the Feres
doctrine, the district court correctly determined that Plaintiff’s claims are barred
by the Feres doctrine. Accordingly, the action was properly dismissed for lack of
1
We review de novo the grant of a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Cash v. Barnhart, 327 F.3d 1252,
1255 n.4 (11th Cir. 2003)(per curiam).
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subject matter jurisdiction.
The judgment of the district court is therefore AFFIRMED.
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