Bowers v. Wynne

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0210p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
JAIMI L. BOWERS,
-
Plaintiff-Appellant,
-
-
No. 09-3566
v.
,
>
Honorable MICHAEL W. WYNNE, Secretary of -
-
Defendant-Appellee. -
the Air Force,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 08-02095—John R. Adams, District Judge.
Argued: March 4, 2010
Decided and Filed: July 21, 2010
*
Before: SILER and ROGERS, Circuit Judges; BELL, District Judge.

_________________

COUNSEL
ARGUED: Geoffrey P. Damon, BUTKOVICH & CROSTHWAITE CO., LPA,
Cincinnati, Ohio, for Appellant. Lisa Hammond Johnson, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Geoffrey P.
Damon, BUTKOVICH & CROSTHWAITE CO., LPA, Cincinnati, Ohio, for Appellant.
Lisa Hammond Johnson, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee.
BELL, J., delivered the opinion of the court, in which SILER, J., joined.
ROGERS, J. (pp. 20-22), delivered a separate opinion concurring in the result.

*
The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.

1
No. 09-3566 Bowers v. Wynne Page 2

_________________

OPINION
_________________

BELL, District Judge. In this action alleging gender and disability discrimination
as well as retaliatory termination, Plaintiff-Appellant Jaimi L. Bowers (“Bowers”)
appeals the district court’s order dismissing her complaint. For the reasons that follow,
we affirm the decision of the district court.

I. BACKGROUND

During the relevant time period, Bowers worked at the Youngstown Air Reserve
Station as a Logistics Support Specialist in the Logistics Readiness Squadron, 910th
Maintenance Support Group. As an Air Reserve Technician (“ART”), she was a federal
civilian employee of the Air Force, but she held the military rank of Staff Sergeant and
was required, as a condition of her employment, to maintain membership in the Air
Force Reserve. Bowers alleges that she suffers from several emotional and medical
disorders, including anxiety, depression, gastroesophageal reflux disease, and gastritis.
She alleges that Major Dawn Sturdevant, her supervisor, and Major Ronald Coburn
interfered with the grant of a security clearance and “went beyond the normal
requirements” in requiring her to substantiate her medical disabilities. (R. at 4.) She
asserts that “Defendant Secretary Michael W. Wynne, acting through Major Sturdevant
and Major Coburn, acted maliciously by disregarding Ms. Bowers’ medical
documentation, and by using a pretext regarding the processing of a security clearance,
to discharge Ms. Bowers.” (Id. at 5.) Bowers filed a fraud, waste, and abuse complaint
alleging that Major Sturdevant was forging signatures on performance recommendations
and engaging in “abuse of power and conduct unbecoming an officer, particularly
fraternization with enlisted.” (Id. at 115, 116.) Bowers was terminated from her
position on August 15, 2005. She contends that she was wrongfully charged with being
absent without leave and discharged on the basis of her gender, her disabilities, and in
No. 09-3566 Bowers v. Wynne Page 3

retaliation for filing the fraud, waste, and abuse complaint. Following a CORE1 fact-
finding proceeding in November of 2007, and a final agency decision in June of 2008,
Bowers filed her complaint in United States District Court for the Northern District of
Ohio, naming as defendant Defendant-Appellee Michael W. Wynne, the Secretary of the
Air Force (the “Secretary”). Bowers’s complaint contains three counts:
(1) discrimination in violation of the Rehabilitation Act of 1973, (2) unlawful retaliatory
discrimination, and (3) gender discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e. On February 12, 2009, the Secretary moved to dismiss
the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, arguing that Bowers’s claims were barred by the
doctrine of Feres v. United States, 340 U.S. 135 (1950). On March 31, 2009, the district
court granted the Secretary’s motion. Bowers now appeals the dismissal of her
complaint.

II. LAW AND ANALYSIS

A. Standard of Review

Because the Secretary attached evidence in support of its motion to dismiss, the
parties and the court construed the Secretary’s motion as an attack on the factual basis
for subject matter jurisdiction. “When a Rule 12(b)(1) motion attacks the factual basis
for jurisdiction, the district court must weigh the evidence and the plaintiff has the
burden of proving that the court has jurisdiction over the subject matter.” Golden v.
Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). The Court reviews the district
court’s application of the law to the facts de novo and its factual determinations for clear
error. Id. The Court reviews de novo a district court’s determination of the applicability
of the Feres doctrine. Lovely v. United States, 570 F.3d 778, 781 (6th Cir. 2009).

1
CORE is an acronym for “Compressed, Orderly, Rapid, Equitable,” and it refers to the Air
Force’s Equal Employment Opportunity dispute resolution procedure. See Air Force Instruction
36-1201, Equal Employment Opportunity Complaints (Feb. 12, 2007), available at
http://www.adr.af.mil/shared/media/document/AFD-070402-075.pdf.
No. 09-3566 Bowers v. Wynne Page 4

B. Feres doctrine

In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that
military personnel could not pursue claims against the government under the Federal
Tort Claims Act for injuries that “arise out of or are in the course of activity incident to
service.” Id. at 146. Because “the relationship of military personnel to the Government
has been governed exclusively by federal law,” the Court did not “think that Congress,
in drafting this Act, created a new cause of action dependent on local law for
service-connected injuries or death due to negligence.” Id.

Thereafter, the Supreme Court applied the analysis in Feres to discrimination
claims brought by naval personnel against their superiors pursuant to the Bivens
doctrine. Chappell v. Wallace, 462 U.S. 296, 299 (1983). The Court explained that “[i]n
the last analysis, Feres seems best explained by the ‘peculiar and special relationship of
the soldier to his superiors, [and] the effects on the maintenance of such suits on
discipline.’” Id. (quoting United States v. Muniz, 374 U.S. 150, 162 (1963)). The Court
determined that the “unique disciplinary structure of the military establishment and
Congress’ activity in the field” constituted “special factors” making it inappropriate to
allow a judicially-created remedy. Id. at 304.

The Supreme Court reiterated its concern to avoid intrusion into military
discipline and military decisionmaking in United States v. Shearer, 473 U.S. 52 (1985).
In that case, the Court held that the mother of an army private could not pursue a FTCA
claim based on the murder of her son by another member of the military. Id. at 59. Her
son was off duty and away from his base when he was killed. Id. at 53. The plaintiff
alleged that the government was negligent in its supervision and control over the killer.
Id. at 54. The Court rejected the appellate court’s heavy reliance on the site of the
murder and the duty status of the army private when the murder occurred because “the
situs of the murder is not nearly as important as whether the suit requires the civilian
court to second-guess military decisions and whether the suit might impair essential
military discipline.” Id. at 57 (internal citations omitted).
No. 09-3566 Bowers v. Wynne Page 5

In United States v. Johnson, 481 U.S. 681 (1987), the Supreme Court invoked
the military discipline rationale underlying the Feres doctrine in a case involving
negligence on the part of civilian employees of the government. Id. at 683. The
plaintiff’s husband, a member of the Coast Guard, was killed when his helicopter
crashed during a rescue mission. Id. at 682-83. The plaintiff alleged that the crash
resulted from the negligent actions of civilian radar controllers. Id. The Court held that
the plaintiff could not pursue her FTCA claim, in part, because:

[M]ilitary discipline involves not only obedience to orders, but more
generally duty and loyalty to one’s service and to one’s country. Suits
brought by service members against the Government for service-related
injuries could undermine the commitment essential to effective service
and thus have the potential to disrupt military discipline in the broadest
sense of the word.

Id. at 691. The Court noted that “[c]ivilian employees of the Government also may play
an integral role in military activities,” and reasoned that, “[e]ven if military negligence
is not specifically alleged in a tort action, a suit based upon service-related activity
necessarily implicates the military judgments and decisions that are inextricably
intertwined with the conduct of the military mission.” Id. at 691 & n.11 (emphasis
added). Because the plaintiff’s husband was engaged in an activity incident to his
service and was acting pursuant to the standard operating procedures of the Coast Guard,
the Court determined that “the potential that [the] suit could implicate military discipline
is substantial.” Id. at 691-92.

In United States v. Stanley, 483 U.S. 669 (1987), the Supreme Court affirmed the
broad “incident to service test” from Feres. The plaintiff was a member of the military
claiming injury as a result of his participation in a military program designed to test the
long-term effects of LSD. Id. at 671-72. The plaintiff argued that his case did not
involve the sort of chain-of-command issues that were at issue in Chappell because he
was not acting under orders from superior officers, and because at least some of the
defendants were not his superior officers. Id. at 679. The Court declined to limit Feres
to claims by officers against their superiors because even an inquiry into whether a suit
No. 09-3566 Bowers v. Wynne Page 6

questions “military discipline and decisionmaking would itself require judicial inquiry
into, and hence intrusion upon, military matters.” Id. at 682-83.

This Court extended the analysis in Feres and Chappell to discrimination claims
brought by military personnel pursuant to Title VII and the Rehabilitation Act in
Coffman v. Michigan, 120 F.3d 57 (6th Cir. 1997). See id. at 59 (“Consistent with the
reasoning in Chappell, courts of appeals have consistently refused to extend statutory
remedies available to civilians to uniformed members of the armed forces absent a clear
direction from Congress to do so.”). By its terms, 42 U.S.C. § 2000e-16(a) applies to
all personnel actions affecting “employees” of the “military departments.” Id. However,
“[t]he Equal Employment Opportunity Commission and the circuits that have considered
this statute have interpreted it to apply only to suits by civilian employees of the military
departments, and not members of the armed forces.” Fisher v. Peters, 249 F.3d 433, 438
(6th Cir. 2001); see Brown v. United States, 227 F.3d 295, 298 n.3 (5th Cir. 2000) (citing
cases); 29 C.F.R. § 1614.103(d)(1).

C. Sixth Circuit Precedent

This Court has never considered claims brought under Title VII or the
Rehabilitation Act by an ART. In Leistiko v. Stone, 134 F.3d 817 (6th Cir. 1998), the
plaintiff alleged that he had been discharged from his position as a National Guard
technician in violation of the Rehabilitation Act. Id. at 818. Like an ART, a National
Guard technician occupies a hybrid civilian/military position. National Guard
technicians are federal civilian employees that must, as a condition of their employment,
be members of the National Guard. 32 U.S.C. § 709(b)(2); 10 U.S.C. § 10216(a)(1)(B).
This Court affirmed the district court’s grant of summary judgment in favor of the
defendant because “‘[e]very court having occasion closely to consider the capacity of
National Guard technicians has determined that capacity to be irreducibly military in
nature.’” Leistiko, 134 F.3d at 821 (quoting Leistiko v. Sec’y of the Army, 922 F. Supp.
66, 73 (N.D. Ohio 1996)); see Wright v. Park, 5 F.3d 586, 588-89 (1st Cir. 1993)
(“[S]ince National Guard technicians’ positions are encompassed within a military
organization and require the performance of work directly related to national defense,
No. 09-3566 Bowers v. Wynne Page 7

such positions are themselves military in nature.”); Stauber v. Cline, 837 F.2d 395, 400
(9th Cir. 1988) (noting that plaintiff and defendant, both National Guard technicians,
were always under the command of active-duty military officers, were subject to military
discipline, and were performing work “integral to routine military activities”); NeSmith
v. Fulton, 615 F.2d 196, 201 (5th Cir. 1980) (“Formally, a civilian technician is a federal
civil employee outside the competitive civil service. In substance, however, the position
is one in a military organization.”).2 This Court has reiterated the holding from Leistiko
on several occasions. See, e.g., Brown v. Roche, 206 F. App’x 430, 432 (6th Cir. 2006)
(unpublished); Fisher v. Peters, 249 F.3d 433, 439 (6th Cir. 2001).

In Fisher v. Peters, the Court considered a Title VII claim by a National Guard
technician who alleged that her supervisors had downgraded her performance appraisal
and denied her requests for promotion. 249 F.3d at 435-36. In her technician position,
the plaintiff was responsible for paying invoices provided to the base and for processing
travel vouchers. Id. at 434. She was also required to wear a military uniform, observe
military courtesies, and participate in unit training activities one weekend per month.
Id. The Court affirmed a grant of summary judgment in favor of the defendant because
the National Guard technician position is irreducibly military in nature:

In the case at hand, Plaintiff attempts to distinguish Leistiko by
emphasizing that Leistiko’s dismissal from his civilian employment was
precipitated by a military decision. While that distinction may be
accurate, Plaintiff ignores the unambiguous statements made in Leistiko
that the positions of National Guard technicians are “irreducibly military
in nature.” In affirming the grant of summary judgment, this court did not
discuss the facts of the underlying employment action taken which
precipitated the suit. Rather, we simply confirmed that National Guard
technician positions are irreducibly military in nature and that the
Rehabilitation Act does not apply to hybrid positions that are irreducibly
military in nature.

2
The Fifth Circuit eschews this Court’s “categorical” approach to Title VII claims by dual-status
technicians, and distinguishes the First Circuit’s opinion in Wright and its own decision in NeSmith
because those cases involved 42 U.S.C. § 1983 claims. Brown v. United States, 227 F.3d 295, 299 n.4 (5th
Cir. 2000). According to Brown, “[i]n Title VII cases, as opposed to 42 U.S.C. § 1983 cases, we are
required to differentiate the civilian and military positions associated with a dual-status job. This is because
Title VII specifically provides for claims against the government for civilian employees in the military
departments.” Id. Notwithstanding the distinction noted in Brown, the conclusion in Wright has been
accepted by this Court and applied to Title VII claims.
No. 09-3566 Bowers v. Wynne Page 8

Id. at 439.

In the case before the Court, the district court determined that Fisher was
controlling because the court could not discern any distinction between an ART and a
National Guard technician. On appeal, Bowers contends that ARTs and National Guard
technicians are governed by different statutes and that, unlike National Guard
technicians, ARTs are not statutorily required to wear a uniform while performing their
civilian functions. See 32 U.S.C. § 709(b) (requiring National Guard technicians to
“wear the uniform appropriate for the member’s grade and component of the armed
forces” while “performing duties as a military technician (dual status)”).3

Courts in some other circuits take a different approach to analyzing Title VII or
Rehabilitation Act claims by dual status technicians. See Fisher, 249 F.3d at 440-43.
Those courts consider the nature of the technician’s claim or the challenged conduct.
Id. For example, in the Ninth Circuit, dual status technicians are barred from bringing
claims where “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 the employee’s civilian status may be brought. Brown v.
United States, 227 F.3d 295, 299 (5th Cir. 2000). If the claim is difficult to characterize,
the court will consider whether the conduct at issue is “integrally related to the military’s
unique structure.” Id. at 299 n.5. The Second and Third Circuits have adopted the
approach used in the Fifth Circuit. Overton v. N.Y. State Div. of Military & Naval
Affairs, 373 F.3d 83, 95 (2d Cir. 2004); Luckett v. Bure, 290 F.3d 493, 499 (2d Cir.
2002); Willis v. Roche, 256 F. App’x 534, 537 (3d Cir. 2007) (unpublished).

In Fisher, this Court determined in the alternative that, even if the plaintiff’s
position was not military in nature, her claims were “in the military sphere” because she

3
Though not dispositive in this matter, it appears that the Air Force changed its rules in August
of 2007 to require ARTs to wear uniforms while performing their civilian duties. See Air Force Instruction
36-703, Civilian Conduct and Responsibility ¶ A.7 (Feb. 17, 2009) (“Air Reserve Technicians will adhere
to the requirements as those prescribed in AFI 36-2903, Dress and Personal Appearance of Air
Force Personnel, when wearing the military uniform in civilian status.”); Air Force Print News
Today, Rules change to require technicians to wear uniforms fulltime (Aug. 8, 2007),
http://www.af.mil/news/story.asp?id=123063842.
No. 09-3566 Bowers v. Wynne Page 9

challenged a performance appraisal during a period in which her supervisors were
military officers who supervised her in both her military and civilian roles, and because
the positions to which she was denied promotion had military components with military
qualifications. Fisher v. Peters, 249 F.3d 433, 443-44 (6th Cir. 2001).

In the instant case, the district court determined, in the alternative, that Bowers’s
claims were military in nature because it was not disputed that Bowers’s claims involved
the conduct of individuals that supervised her in both her civilian and military
capacities.4 The district court also noted that Bowers alleged that she was terminated
in retaliation for filing a fraud, waste, and abuse complaint, which involved military
matters because it included allegations that Major Sturdevant “engaged in conduct
unbecoming an officer and improperly engaged in fraternization.” (R. at 117.)

D. ARTs

Following the Court’s approach in Fisher, at issue is whether an ART constitutes
a civilian employee or a member of the armed forces. See Fisher, 249 F.3d at 438.
ARTs are defined as:

Full-time civilian employees who are also members of the Air Force
Reserve unit in which they are employed. In addition to their civilian
assignments, they are assigned to equivalent positions in the Reserve
organization with a Reserve military rank or grade. ARTs must maintain
active membership in their Reserve unit of assignment and satisfactory
participation in order to keep their ART position.

(R. at 114, Air Force Instruction 36-108, Air Reserve Technician (ART) Program (July
29, 1994), Attachment 1, at 5.) The ART and National Guard technician positions are
both subject to 10 U.S.C. § 10216(a)(1), which provides:

For purposes of this section and any other provision of law, a military
technician (dual status) is a Federal civilian employee who--

4
The Secretary asserted in its brief in support of the motion to dismiss that Majors Coburn and
Sturdevant supervised Bowers in both her civilian and military capacities. Bowers did not respond to this
contention in her response to the motion to dismiss. On appeal, Bowers contends that Majors Coburn and
Sturdevant supervised her only in her civilian capacity.
No. 09-3566 Bowers v. Wynne Page 10

(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; and
(C) is assigned to a civilian position as a technician in the organizing,
administering, instructing, or training of the Selected Reserve or in the
maintenance and repair of supplies or equipment issued to the Selected
Reserve or the armed forces.

Id. The position of National Guard technician has a different history than the ART
position. Congress enacted the National Guard Technicians Act of 1968, as amended,
32 U.S.C. § 709, to regulate National Guard technicians, whereas the ART position is
subject to the general employment authority of the military departments in 5 U.S.C.
§ 3101. One of the authorities cited by the district court in Leistiko for the proposition
that a National Guard technician position is “irreducibly military in nature” examined
the intent of Congress in defining that position, as set forth in the National Guard
Technicians Act. See Wright v. Park, 5 F.3d 586 (1st Cir. 1993). That analysis is
summarized as follows:

Appellant, who remains a colonel in the [Air National Guard], argues
strenuously that, for purposes of this case, his civilian status may be
disentangled from his military status, and that he should be free to sue for
discrimination implicating the former. But this balkanization of
technicians’ work is belied by Congress’s description of the functions
that ANG technicians serve, by the unmistakable intendment of the
Technician Act (the statute that Congress enacted in 1968 to regulate
such personnel), and by the resulting ties that bind technicians’ civilian
and military roles.
[T]he Technician Act evidences Congress’s intention that technicians,
while retaining their positions as civil employees outside the competitive
civil service, will serve simultaneously as employees of the appropriate
military department, subject to its regulation.
It is axiomatic that the National Guard is military in character. . . . We
think it follows that technicians are martial in character. Indeed, under
the Technician Act’s composite regime, technicians are considerably
more than nominal members of the military establishment. . . . Because
National Guard technicians serve as the Guard’s support staff and are,
in fact, those whose job it is to maintain and assure the Guard’s strength
and organization, they are indispensable to this nation’s defense. See,
No. 09-3566 Bowers v. Wynne Page 11

e.g., 32 U.S.C. § 709(a) (assigning to technicians such distinctively
military tasks as “(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”). . . .
[S]ince National Guard technicians’ positions are encompassed within a
military organization and require the performance of work directly
related to national defense, such positions are themselves military in
nature.

Id. at 588-89 (emphasis added). The reasoning in Wright readily applies to the ART
position. Like National Guard technicians, ARTs are encompassed within a military
organization and require the performance of work directly related to national defense.

The functions performed by ARTs and National Guard technicians, as described
in the applicable statutes, are substantially the same. The “distinctively military tasks”
noted by Wright in the National Guard Technicians Act, 32 U.S.C. § 709(a)(1) - (2), are
duplicated in 10 U.S.C. § 10216(a)(1)(C), where they are applicable to both National
Guard technicians and ARTs. See id. (indicating that dual status technicians, including
ARTs employed under 5 U.S.C. § 3101 and National Guard technicians employed under
32 U.S.C. § 709(b), may be assigned to “organizing, administering, instructing, or
training of the Selected Reserve or in the maintenance and repair of supplies or
equipment issued to the Selected Reserve or the armed forces”). The National Guard
Technicians Act also provides that National Guard technicians may be called to perform
the following “additional duties”:

(A) Support of operations or missions undertaken by the
technician’s unit at the request of the President or the Secretary
of Defense.
(B) Support of Federal training operations or Federal training
missions assigned in whole or in part to the technician’s unit.
(C) Instructing or training in the United States or the
Commonwealth of Puerto Rico or possessions of the United
States of--
(i) active-duty members of the armed forces;
No. 09-3566 Bowers v. Wynne Page 12

(ii) members of foreign military forces (under the same
authorities and restrictions applicable to active-duty
members providing such instruction or training);
(iii) Department of Defense contractor personnel; or
(iv) Department of Defense civilian employees.

32 U.S.C. § 709(a)(3). Similarly, 10 U.S.C. § 10216(a)(3) provides that dual status
technicians employed under 5 U.S.C. § 3101 may be assigned the following “additional
duties”:

(A) Supporting operations or missions assigned in whole or in
part to the technician’s unit.
(B) Supporting operations or missions performed or to be
performed by--
(i) a unit composed of elements from more than one
component of the technician’s armed force; or
(ii) a joint forces unit that includes--
(I) one or more units of the technician’s
component; or
(II) a member of the technician’s component
whose reserve component assignment is in a
position in an element of the joint forces unit.
(C) Instructing or training in the United States or the
Commonwealth of Puerto Rico or possessions of the United
States of--
(i) active-duty members of the armed forces;
(ii) members of foreign military forces (under the same
authorities and restrictions applicable to active-duty
members providing such instruction or training);
(iii) Department of Defense contractor personnel; or
(iv) Department of Defense civilian employees.

10 U.S.C. § 10216(a)(3).
No. 09-3566 Bowers v. Wynne Page 13

Furthermore, ARTs fulfill a uniquely military function, even in their civilian
capacity, to ensure the combat readiness of the reserve units in which they are employed:

The ART workforce provides stable, continuous full-time management,
administration, and training of the Ready Reserve and oversees the
transition from peacetime to a wartime or national emergency situation
to ensure mobilization readiness is maintained. ARTs train reservists,
provide continuity within the Reserve unit of assignment, and support the
unit’s gaining major command.

(R. at 110, Air Force Instruction 36-108 (July 26, 1994).); see 10 U.S.C. § 10216(d)(1)
(requiring ARTs and other dual status technicians to maintain membership in the unit
in which they are employed or that they are employed to support). The history of the
ART position provides additional context:

In a letter dated June 25, 1957, the Civil Service Commission (CSC)
authorized the Air Force to proceed with its Air Reserve Technician plan
(hereinafter ART). 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. Prior to ART, the Air Reserve
Flying Centers utilized for training Air Reserve Wings were maintained
and operated by Air Force units which were composed of approximately
half military and half civilian personnel and were organizationally
separate from the reserve wings. ART, by replacing military support
personnel with civil servants and requiring civilian support personnel to
be active reserve members, in effect integrated the support organizations
into the Air Reserve Wings. In their civilian capacity, ART incumbents
were to provide the basic maintenance and supply functions previously
provided by the support organization; in their military capacity, ART
employees were to provide training for the remainder of the wing
personnel, who reported only on weekends and during summer active
duty tours. Since this “hard core” of highly skilled reservists would be
available for immediate mobilization, the Air Force anticipated that
combat readiness would be enhanced.

Am. Fed’n of Gov’t Employees v. Hoffman, 543 F.2d 930, 932-33 (D.C. Cir. 1976).
Hoffman explains the importance of dual status technicians to ensuring the combat
readiness of their unit:

Technicians are an integral part of the Army Reserve and they possess
certain skills essential to the unit if it should be called to active duty.
No. 09-3566 Bowers v. Wynne Page 14

Since the transition from a Reserve status to active duty is critical, dual
status personnel, who have been working for the unit and are familiar
with unit administrative requirements are employed when the unit is
mobilized to enable the critical functions to be performed effectively.
When a substitute must replace a technician who does not accompany his
unit, the function performed will suffer in some degree.

Id. at 939. In other words, an ART is not merely a civilian employee that occupies a
separate military position in the reserve forces. Instead, the ART’s civilian duties and
military role are intricately entwined. The civilian aspect of the ART position exists to
serve the ART’s military role and the military capacity of the ART’s unit. It follows,
then, that an adverse personnel decision regarding an ART, even if that decision is
related solely to the ART’s nominally civilian role, necessarily implicates the ART’s
military role and function. Cf. Wright v. Park, 5 F.3d 586, 589 (1st Cir. 1993)
(observing that because “the [National Guard] technician’s several roles are inextricably
intertwined, it follows that the adverse employment action . . . necessarily implicates his
military as well as his civilian status.” ).

Bowers contends that the district court should have considered that, unlike
National Guard technicians, ARTs are not required to wear uniforms while performing
their civilian duties, ARTs are subject to civil service laws and regulations applicable
to the competitive civil service, and ARTs receive separate military and civilian pay.
See Hoffman, 543 F.2d at 933 n.3, 942-43 (noting that “the CSC has provided for
separation of ART employees’ civilian and military functions to the extent practicable”).

Bowers argues that the uniform requirement is an important distinction because
the EEOC regulations implementing Title VII specifically exclude “[u]niformed
members of the military departments.” 29 C.F.R. § 1614.103(d)(1) (emphasis added).
However, the Court interprets the EEOC regulations to refer to the nature of the position
rather than an individual’s state of dress. There is no dispute that ARTs are “uniformed
members of the military departments” in their capacity as members of the reserve forces.
See Roper v. Dep’t of Army, 832 F.2d 247, 248 (2d Cir. 1987) (determining that Title
VII does not apply to a member of the Army Reserve). Notwithstanding the benefits of
civilian status that are enjoyed by ARTs, but not National Guard technicians, including
No. 09-3566 Bowers v. Wynne Page 15

the absence of a statutory requirement to wear a uniform when performing civilian
duties, and the protections available to employees of the competitive civil service, ARTs
hold a military rank in a military organization and perform work that is essential to the
military capacity of that organization. See 10 U.S.C. § 10216. The distinctions
identified by Bowers do not materially diminish the military nature of the relationship
between an ART and the unit that she is employed to support, or the irreducibly military
nature of the ART position as a whole.

Bowers cites McGinnis v. United States Air Force, 266 F. Supp. 2d 748 (S.D.
Ohio 2003), as evidence that there is nothing intrinsically military about the Logistics
Management Specialist position. In that case, individuals that had been employed by the
United States Air Force as Logistics Management Specialists alleged that the Air Force
had engaged in discriminatory practices in violation of Title VII. Id. However, the court
discussed the plaintiffs’ claims without examining whether they might be barred because
of the military status of the plaintiffs. Moreover, there is no indication that the plaintiffs
in McGinnis were anything other than strictly civilian employees of the Air Force.
Whatever may be the case for other types of military technicians, dual status technicians
are assigned a military rank and serve a distinctly military role in the units that they
support. See 10 U.S.C. §§ 10216(a), (d). When this Court reiterated in Fisher that the
capacity of a National Guard technician is irreducibly military in nature, it did not
question whether the particular tasks performed by the plaintiff in that case, an
Accounting Technician, were more or less intrinsically military; instead, it held that the
position of National Guard technician, as a whole, is irreducibly military in nature. See
Fisher v. Peters, 249 F.3d 433, 443 (6th Cir. 2001).

The Court’s determination is supported by the case law. Though other circuits
take a different approach to Title VII claims by dual status technicians, they have
consistently identified a military nexus sufficient to bar such claims. See, e.g., Williams
v. Wynne, 533 F.3d 360, 368 (5th Cir. 2008) (ART tested positive for cocaine use while
on military status and the decision to discharge him as a result was, therefore, a military
personnel management decision); Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289,
No. 09-3566 Bowers v. Wynne Page 16

292 (5th Cir. 2008) (National Guard technician discharged from his military position in
the Texas Air National Guard); Willis v. Roche, 256 F. App’x 534, 537 (3d Cir. 2007)
(ART challenged conduct by an officer supervising him in both his military and civilian
capacities); Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 96 (2d
Cir. 2004) (National Guard technician alleged misconduct by his supervisor, who was
his immediate military superior, occurring while plaintiff was working on a military
base, in military uniform, to ensure the military’s airlift capacity); Luckett v. Bure, 290
F.3d 493, 499 (2d Cir. 2002) (dual status technician transferred out of his position in the
reserve forces by his military supervisors); Brown v. United States, 227 F.3d 295, 299
(5th Cir. 2000) (ART discharged for failure to maintain his position in the reserve
forces); Hupp v. U.S. Dep’t of the Army, 144 F.3d 1144, 1148 (8th Cir. 1998) (plaintiff
denied a National Guard technician position through an application process involving
consideration of military qualifications); Mier v. Owens, 57 F.3d 747, 748 (9th Cir.
1995) (National Guard technician failed to receive a military promotion).

Even under the tests used in other circuits, Bowers’s claims are barred. In
response to the Secretary’s motion, Bowers did not dispute or otherwise respond to the
contention that Majors Sturdevant and Coburn supervised in both her military and
civilian capacities. See Fisher v. Peters, 249 F.3d 433, 443-44 (noting that the plaintiff
challenged conduct by supervisors who reviewed her in both her military and civilian
positions); Willis v. Roche, 256 F. App’x 534, 537 (3d Cir. 2007) (noting that the ART
challenged conduct by an officer supervising him in both his military and civilian
capacities).

Bowers contends on appeal that Majors Sturdevant and Coburn did not supervise
her in her military capacity and were not in her military side chain of command;
however, it is not disputed that she held a military rank in her reserve unit, and that her
claims challenge the conduct of superior military officers serving at the same military
station, if not within the same unit, in a direct supervisory capacity. Thus, any
investigation into the allegedly discriminatory and retaliatory actions by these officers
necessarily threatens an intrusion into officer-subordinate relationships and the “unique
No. 09-3566 Bowers v. Wynne Page 17

structure” of the military establishment. See Mier, 57 F.3d at 749-50 (“Military
personnel cannot sue superior officers to recover damages for alleged constitutional
violations because the ‘relationship between enlisted military personnel and their
superior officers . . . is at the heart of the necessarily unique structure of the Military
Establishment.’” (quoting Chappell v. Wallace, 462 U.S. 296, 300, 305 (1983))); cf.
Overton, 373 F.3d at 96 (“Any attempt surgically to dissect and analyze the civilian
relationship between Overton and Fletcher, with its military dimensions, moreover,
would itself threaten to intrude into their military relationship.”).

Bowers urges the Court to follow the Federal Circuit’s analysis in Jentoft v.
United States, 450 F.3d 1342 (Fed. Cir. 2006). In that case, a National Guard technician
alleged that she had been discriminated against in violation of the Equal Pay Act,
29 U.S.C. § 206(d). Jentoft, 450 F.3d at 1343. That statute applies to “employees,” a
term that includes a person employed “as a civilian in the military departments.”
29 U.S.C. § 203(e)(2)(A)(i). The Court of Appeals for the Federal Circuit allowed her
claim to proceed based on its reading of 10 U.S.C. § 10216(a)(1), which provides, in
relevant part:

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; and
(C) is assigned to a civilian position as a technician in the organizing,
administering, instructing, or training of the Selected Reserve or in the
maintenance and repair of supplies or equipment issued to the Selected
Reserve or the armed forces.

Id. (emphasis added). The court reasoned that “there is no language in § 10216(a)
limiting the circumstances in which a dual status technician can be considered a federal
civilian employee.” Jentoft, 450 F.3d at 1348. The court distinguished this Court’s
decision in Fisher because Fisher did not consider the language in § 10216(a). Id. at
1349.
No. 09-3566 Bowers v. Wynne Page 18

In two separate opinions, the Fifth Circuit has rejected the holding in Jentoft as
applied to Title VII claims by National Guard technicians and ARTs. In Walch v.
Adjutant General’s Department of Texas, 533 F.3d 289 (5th Cir. 2008), the Fifth Circuit
noted that the enactment and amendment of § 10216 in 1996-97 did not change the status
of National Guard technicians; they were already civilian employees under the National
Guard Technicians Act. Id. at 299-300. In a separate case involving an ART, the Fifth
Circuit concluded:

Title VII claims arising from an ART’s military status constitute an
impermissible “intrusion into military personnel decisions.” Nothing in
the legislative history of § 10216(a)(1)(B) suggests that Congress
intended to intrude on such military personnel decisions. Adopting the
rule implied by appellant’s distinction would create an absolute right of
ARTs, as dual status employees, to assert Title VII claims against the Air
Force, even for claims arising from events falling wholly within “the
military sphere.” Section 10216(a) does not countenance this result, and
based on [the Fifth Circuit’s earlier decision in] Brown we reject it.

Williams v. Wynne, 533 F.3d 360, 367 (5th Cir. 2008) (citations omitted); see also
Zuress v. Donley, 606 F.3d 1249, 1255 (9th Cir. 2010) (disagreeing with Jentoft and
noting that “[t]here is no mention of Title VII in the legislative history of the 1997
Amendments [to § 10216(a)], nor is there any indication that Congress intended to
authorize any cause of action that was previously unavailable to a dual status
technician”).

The Court declines to follow Jentoft in this case. First, the Court notes that
Jentoft is distinguishable because it involved a claim under the Equal Pay Act. Whether
that act should be interpreted to allow claims by dual status technicians is not before the
Court.

Second, as applied to Title VII claims, the reasoning in Jentoft is not persuasive.
In its previous cases, the Court acknowledged, along with every other circuit that has
considered claims by dual status technicians, that National Guard technicians occupy a
position with a civilian component. Fisher v. Peters, 249 F.3d 433, 438 (6th Cir. 2001);
see also Brown v. Roche, 206 F. App’x 430, 431 (6th Cir. 2006) (unpublished) (citing
No. 09-3566 Bowers v. Wynne Page 19

10 U.S.C. § 10216). But § 10216(a)(1) does not end with the statement that dual status
technicians are federal civilian employees. It states that National Guard technicians and
ARTs are “dual status” employees because they are federal civilian employees and
members of the reserve forces. 10 U.S.C. § 10216(a)(1). Thus, like the courts in Walch,
Williams, and Zuress, the Court is not persuaded that the language of § 10216(a)(1)
constitutes clear direction from Congress to extend remedies under Title VII or the
Rehabilitation Act to individuals occupying dual status.

Finally, Bowers urges the Court to adopt the three-factor “incident to service”
test used in Parker v. United States, 611 F.2d 1007 (5th Cir. 1980), to determine whether
an injured service member was barred from bringing an FTCA claim. Those factors
include: (1) the duty status of the service member, (2) the site of the injury, and (3) the
function performed by the service member when the injury occurred. Id. at 1013-14.
However, Bowers offers no authority or rationale for applying this test to claims under
Title VII or the Rehabilitation Act. The Court declines to depart from its approach in
Leistiko and Fisher.

III. CONCLUSION

In short, Bowers’s claims may not be brought because they arise from her
position as an ART. It was not error for the district court to conclude that the Court’s
precedent in Fisher and Leistiko, which held that the National Guard technician position
is irreducibly military in nature, also applies to ARTs. The Court is not persuaded that
the ART position is materially different from the position of National Guard technician
such that ARTs could pursue remedies under Title VII or the Rehabilitation Act that are
not available to National Guard technicians. Moreover, even if the Court were to adopt
the approach used in other circuits, Bowers’s claims would be barred because they
challenge the conduct of supervisory military officers of superior rank, and thereby
threaten intrusion into officer-subordinate relationships. Accordingly, the decision of
the district court is AFFIRMED.
No. 09-3566 Bowers v. Wynne Page 20

_________________________________

CONCURRING IN THE RESULT
_________________________________

ROGERS, Circuit Judge, concurring. I agree entirely with the majority’s
application of the Feres doctrine to Bowers’ case, and I concur in the result. However,
I would affirm based on Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted, rather than based on Rule 12(b)(1) for lack of
subject-matter jurisdiction.

The Supreme Court has refrained from treating the Feres doctrine as
jurisdictional, and this court’s use of justiciability language in one Feres opinion was not
necessary to that case’s outcome. Under Feres v. United States, 340 U.S. 135 (1950),
and its corollaries, no cause of action exists for Bowers’ allegations, and dismissal is
appropriate for failure to state a claim, a result distinct from holding that the court lacks
subject-matter jurisdiction or that the case is not justiciable. As the Supreme Court has
recently noted, “[s]ubject-matter jurisdiction . . . refers to a tribunal’s power to hear a
case. It presents an issue quite separate from the question whether the allegations the
plaintiff makes entitle him to relief.” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. ---,
2010 WL 2518523, at *4 (2010) (internal quotation marks omitted) (citations omitted);
see also Arbaugh v. Y&H Corp., 546 U.S. 500, 510-12 (2006).

In Feres, the Supreme Court explicitly stated that it was not relying on the
jurisdiction-granting portion of the Federal Tort Claims Act:

Jurisdiction is necessary to deny a claim on its merits as a matter of law
as much as to adjudge that liability exists. We interpret this language to
mean all it says, but no more. Jurisdiction of the defendant now exists
where the defendant was immune from suit before; it remains for courts,
in exercise of their jurisdiction, to determine whether any claim is
recognizable in law.

340 U.S. at 141 (emphasis added). The Court concluded not that the district courts
lacked jurisdiction, but that “the Government is not liable.” Id. at 146. The Supreme
No. 09-3566 Bowers v. Wynne Page 21

Court reaffirmed Feres without mentioning jurisdiction or justiciability in United States
v. Shearer, 473 U.S. 52 (1985), and United States v. Johnson, 481 U.S. 681 (1987).

In Chappell v. Wallace, 462 U.S. 296 (1983), while the Supreme Court referred
to some cases involving justiciability to conclude that “the unique disciplinary structure
of the Military Establishment and Congress’ activity in the field constitute ‘special
factors’ which dictate it would be inappropriate to provide . . . a remedy,” the Court’s
actual holding was that “military personnel may not maintain a suit to recover damages
from a superior officer for alleged constitutional violations,” id. at 304-05 (emphasis
added), not that the district court lacked jurisdiction.

In United States v. Stanley, 483 U.S. 669 (1987), in rejecting the applicability of
official immunity precedents, the Supreme Court made clear that the Chappell and
Stanley holdings refer to whether a cause of action exists:

[T]he availability of a damages action under the Constitution for
particular injuries (those incurred in the course of military service) is a
question logically distinct from immunity to such an action on the part
of particular defendants. When liability is asserted under a statute, for
example, no one would suggest that whether a cause of action exists
should be determined by consulting the scope of common-law immunity
enjoyed by actors in the area to which the statute pertains.

Id. at 684 (third emphasis added).

Although we also used “justiciability” language to decide a Feres issue in Fisher
v. Peters, 249 F.3d 433, 445 (6th Cir. 2001), justiciability analysis was not necessary to
that decision and the court should be reluctant to perpetuate the usage if it is not
necessary to do so. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998).
Before Fisher, we treated Feres under Rule 12(b)(6), whether the plaintiff has stated a
claim, rather than under Rule 12(b)(1), whether the court has subject-matter jurisdiction,
Leistiko v. Stone, 134 F.3d 817, 819-20 (6th Cir. 1998); Coffman v. Michigan, 120 F.3d
57, 58-59 (6th Cir. 1997), and after Fisher, we noted uncertainty surrounding whether
the Feres doctrine was jurisdictional and declined to decide the issue, Lovely v. United
States, 570 F.3d 778, 782 n.2 (6th Cir. 2009). Our sister circuits remain divided. See,
No. 09-3566 Bowers v. Wynne Page 22

e.g., Wright v. Park, 5 F.3d 586, 591 (1st Cir. 1993) (using justiciability language);
NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir. 1980) (treating Feres as a question of
whether a claim was stated); Hupp v. U.S. Dep’t of the Army, 144 F.3d 1144, 1145-47
(8th Cir. 1998) (stating that the district court had jurisdiction, but that the case was not
justiciable under Feres); Stauber v. Cline, 837 F.2d 395, 398-99 (9th Cir. 1988) (treating
the Feres doctrine as a limit on the court’s jurisdiction). Because the Supreme Court has
never treated Feres and its progeny as jurisdictional, I would affirm the district court’s
dismissal of this case under Rule 12(b)(6) for failure to state a claim.

Affirmance based on Rule 12(b)(6) is appropriate even though the district court’s
ruling was based on Rule 12(b)(1) because the district court’s analysis did not turn on
the application of Rule 12(b)(1) rather than Rule 12(b)(6). See Morrison, 2010 WL
2518523, at *5 (citing Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 359, 381-
84 (1959)); Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1007-08 (6th Cir. 2009).

The district court’s consideration of documents outside the complaint also does
not preclude affirmance under Rule 12(b)(6). When ruling on a Rule 12(b)(6) motion,
courts consider the complaint as well as “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellabs, Inc v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also J.P. Silverton Indus. L.P. v.
Sohm, 243 F. App’x 82, 86-87 (6th Cir. 2007). In a Rule 12(b)(6) dismissal, the court
may take judicial notice of Air Force Instruction 36-108 because it is “capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b). The court may also consider the fraud, waste, and
abuse complaint because Bowers’ federal complaint refers to the fraud, waste, and abuse
complaint, thereby incorporating it by reference.

Therefore, I would affirm the district court’s decision to dismiss Bowers’
complaint, but I would do so for failure to state a claim upon which relief can be granted.