IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50935
_____________________
LINDA IRENE MEISTER,
Plaintiff-Appellant,
versus
TEXAS ADJUTANT GENERAL’S DEPARTMENT;
DANIEL JAMES, III, Brigadier General,
in his official capacity as Adjutant
General of the State of Texas,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
November 28, 2000
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Linda Meister is a civilian state employee of the Texas
Adjutant General’s Office. She brought several Title VII claims
related to her work, but the district court dismissed all of them.
The district court concluded that her claims were “incident to
military service” and held that they were non-justiciable under
Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152
(1950). We conclude, however, that Feres is inapplicable to
civilian jobs in the state military departments of Texas. Instead
of applying Feres, the court should have dismissed one of Meister’s
claims for failure to allege a prima facie Title VII violation and
evaluated the justiciability of the other two claims under Mindes
v. Seaman, 453 F.2d 197 (5th Cir. 1971). We therefore affirm the
dismissal of the first claim and reverse and remand for a Mindes
evaluation of the other two.
I
Since 1985, Linda Meister has worked as a full-time civilian
state employee for the Texas Adjutant General’s Department of the
Texas National Guard. She also happens to have been a non-
commissioned officer in the Texas Air National Guard, where her
position was Information Management Craftsman.
Between 1993 and the end of 1996, Meister’s civilian position
fell within the general category of Administrative Technician. Her
specific title was “Assistant Schools Program Manager” for the
Texas Army National Guard. Meister’s job was to assist the Schools
Program Manager, Sgt. Major Glen Andrews, an active duty member of
the Texas Army National Guard. The Schools Program Manager has
various responsibilities, including scheduling and coordinating
attendance at U.S. Army training programs by members of the Texas
Army National Guard.
Meister has alleged that Andrews subjected her to a hostile
work environment, although this is not the basis of her claims
2
here. She filed a grievance concerning Andrews’s behavior in
October 1994, which led to an investigation. Four months after the
completion of that investigation, Andrews was transferred to
another department.
Andrews’s transfer vacated the position of Schools Program
Manager. This position, however, was designated as a “federal”
position. This designation requires that the position be filled
only by an active member of the military service. Meister asked
that the position be redesignated as a “state” position, which
would have allowed her to hold the post as a civilian. This
request was denied in early 1996, and an active-duty National Guard
member was hired instead.
In December 1996, Meister was transferred to Assistant
Personnel Manager in the Texas Air National Guard Division.
Meister had not asked for the transfer and was unhappy about it.
The new position involved the management and coordination of Texas
Air National Guard military personnel. Meister’s duties in this
job were the same as or similar to her duties as a non-commissioned
officer in the Texas Air National Guard. As with Meister’s job as
Assistant Schools Program Manager, active military service was not
a prerequisite.
One year after her transfer, in December 1997, Meister filed
suit against the Texas Adjutant General’s Department and the
3
Adjutant General of the State of Texas, Brigadier General Daniel
James, III, in his official capacity. Meister claimed sexual
harassment and discrimination in violation of 42 U.S.C. § 2000e
(“Title VII”) and the Texas Commission on Human Rights Act
(“TCHRA”). Specifically, she complained of the denial of a
promotion to Schools Program Manager and of her transfer to the
position of Assistant Military Personnel Officer.
In February 1998, Meister applied for the position of State
Human Resources Manager, Program Administrator IV. This position
involved the management and coordination of the state personnel
functions of the Adjutant General’s Department. Active military
service was not a requirement, but Meister never received an
interview, and someone else was hired for the job.
In March 1998, the defendants answered Meister’s complaint and
moved to dismiss the state law claims on the grounds of Eleventh
Amendment immunity. The court granted this motion in June 1998.
In November 1998, Meister amended her complaint, adding a
Title VII retaliation claim. Meister alleged that she “was denied
promotion, harassed, and laterally transferred” because she had
complained of unlawful discrimination. This version of the
complaint is the one that is relevant to this appeal, and it raises
claims with respect to the following:
(1) the defendants’ failure to promote Meister to the Schools
Program Manager position;
4
(2) Meister’s involuntary transfer to the position of
Assistant Air Personnel Manager; and
(3) the defendants’ failure to promote Meister to State Human
Resource Manager.
The defendants filed two motions to dismiss. The first, which
was also a motion for summary judgment in the alternative, asserted
that the claims were not justiciable under Feres v. United States,
340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the
Supreme Court had held that military servicemen could not bring
claims against the federal government under the Federal Tort Claims
Act. The second motion addressed the merits. On August 2, 1999,
the two motions were referred to a magistrate judge. He issued his
report and recommendation on August 17 that the first motion to
dismiss be granted, and that the summary judgment motion be denied.
In reaching this conclusion, the magistrate judge considered
evidence beyond the pleadings. The second motion, to dismiss on
the merits, was not mentioned.
On August 27, 1999, Meister filed the following two objections
to the magistrate judge’s report: (1) that the report failed to
address the denial of promotion to the State Human Resources
Director position; and (2) that the magistrate judge failed to
analyze justiciability under Mindes v. Seaman, 453 F.2d 197 (5th
Cir. 1971).
5
After reviewing the case de novo, the district court issued an
order on August 31, 1999, approving and accepting the magistrate
judge’s report and granting the defendants’ motion to dismiss.
Meister then filed this appeal.
II
A
We will review the dismissal in this case as a summary
judgment determination. Under Federal Rule of Civil Procedure
12(b), a district court may treat a 12(b)(6) motion to dismiss as
a summary judgment motion by considering material outside the
pleadings. That is what the magistrate and district court judges
did here. We review a grant of summary judgment de novo.
Threadgill v. Prudential Securities Group, Inc., 145 F.3d 286, 292
(5th Cir. 1998).
B
We begin by observing that the plain language of Title VII
allows civilian employees of state National Guard units to bring
suit against their employers.1 The question in this case, however,
1
The Texas Adjutant General’s Department urges the court to
consider the close analogy between federal and state military
departments. It is true, of course, that the United States armed
forces are not generally subject to Title VII’s anti-discrimination
provisions, but we do not consider this relevant. First, the
United States armed forces are not covered by Title VII because the
United States is excluded from the statutory definition of
“employer.” See 42 U.S.C. § 2000e(b). In this case, Meister is an
employee of a state agency, and Title VII’s definition of
6
is not whether Title VII provides Meister a cause of action but
whether the federal courts are permitted to review the military’s
decision and to grant relief in this case. The issue, in other
words, is simply whether Meister’s claims are justiciable.
C
(1)
The first issue before us is whether the district court was
correct in analyzing justiciability under Feres. The magistrate
judge’s report, which the district court adopted in full, asked
whether the acts forming the basis of Meister’s complaint were
“incident to service in the military.” See United States v.
Stanley, 483 U.S. 669, 681, 107 S.Ct. 3054, 3064, 97 L.Ed.2d 550
(1987)(quoting Feres, 340 U.S. at 146, 71 S.Ct. at 159). The
report first applied this test to Meister’s claim concerning the
denial of promotion to Schools Program Manager. The magistrate
judge recognized that this position has a “tremendous effect on
“employer” would apparently include state governments. Id.
Second, even if we were to treat federal and state military
departments in the same manner, we would note that Title VII allows
civilian employees in federal military departments to bring suit
against the government employer. See Hodge v. Dalton, 107 F.3d
705, 708 (9th Cir. 1997)(§ 2000e-16 applies to non-uniformed
employees). Although this provision is not directly applicable in
the present case because the statutory definition of “military
departments” excludes the state National Guards, see 5 U.S.C.
§ 102, the protection afforded to federal civilian employees may be
further indication that civilian employees of National Guard units
are also protected.
7
military careers because it determines military occupational
specialties” and controlled training, thereby determining
promotability of individual soldiers. For these reasons, the
defendants’ “command decision” to maintain this requirement of
active military service was one “integrally related to the
military’s unique structure.” Thus, the matter of Meister’s
promotion was not justiciable.
As for Meister’s involuntary transfer claim, the magistrate
judge found that Meister’s new position as Assistant Military
Personnel Officer “involve[d] management and coordination” of
military activities. Moreover, Meister’s supervisor was an active
member of the military. Thus, the magistrate judge concluded that
Meister’s civilian position was “inextricably intertwined” with the
National Guard’s military mission and was therefore nonjusticiable.
The magistrate judge did not specifically analyze Meister’s
third claim--retaliation in denying her an opportunity to compete
for the State Human Resources Manager position. But, as the
district court pointed out, the magistrate judge concluded that all
three of Meister’s claims relate to personnel decisions that are
“inextricably intertwined” with the unique structure of the Texas
National Guard.2
2
In conducting its de novo review, the district court
considered the third claim in more detail and concluded that the
position of Assistant Military Personnel Officer, “which exists
8
(2)
Before we can evaluate the district court’s analysis, we need
to determine the standard of review. The defendants contend that
Meister failed to object specifically to the magistrate judge’s
reliance on Feres. That would normally limit our review to one for
plain error. Douglass v. United Services Automobile Assoc., 79
F.3d 1415, 1428-29 (5th Cir. 1996)(en banc). But when the district
court has engaged in de novo review, we do not require these
specific objections to the magistrate judge’s report as a
prerequisite to full review. See Douglass, 79 F.3d at 1429. In
the present case, the district court engaged in such a de novo
review. We therefore will not impose this objection requirement
here and will instead address this legal issue de novo.
(3)
A first step in analyzing the applicability of Feres is to
review that case and its progeny. The holding in Feres itself is
actually quite narrow. In that case, three claimants brought
negligence suits against the United States armed forces on behalf
of deceased servicemen. The issue before the Court was whether
these suits could proceed under the Federal Tort Claims Act. The
solely to manage the state personnel functions of the Adjutant
General’s Department and which is a hybrid state/federal/military
position is ‘integrally related to the military’s unique
structure’” and is within the scope of Feres.
9
Court explained that the FTCA’s impact was limited--it merely
waived immunity, putting the United States government in the same
position as any other defendant. The FTCA had not created a new
cause of action. Thus, the government only faced liability “to the
same extent as a private individual under like circumstances.”
Feres, 340 U.S. at 141, 71 S.Ct. at 157.
In analyzing whether analogous liability would exist under
federal law3 between private individuals, the Court focused on the
plaintiffs’ relationship to the defendant, not the nature of the
claim itself. In other words, the Court tried to find a private
plaintiff-defendant relationship analogous to the soldier-superior
relationship. The Court did not, however, seek a federal analogue
to state negligence law.
Ultimately, the Court concluded that there was no private
relationship similar to that between soldier and government. Thus,
the plaintiffs had failed to establish “liability of a ‘private
individual’ even remotely analogous” to that being asserted by the
plaintiffs. Id., 340 U.S. at 141, 71 S.Ct. at 157. As a result,
soldiers could not recover for injuries that “ar[ose] out of or
3
Though the suits were state law negligence suits, the Court
concluded that federal law applied to suits concerning the
relationship between the government and its soldiers. Feres, 340
U.S. at 143-44, 71 S.Ct. at 158.
10
were in the course of activity incident to service.” Id. 340 U.S.
at 146, 71 S.Ct. at 159.
Little was done with Feres until Chappell v. Wallace, 462 U.S.
296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). By that time, a new
cause of action had been formulated by the courts--a Bivens suit
for violations of constitutional rights. Thus, the Court did not
need to consider available state law provisions and could instead
evaluate the defendant’s conduct for constitutional violations.
The plaintiffs were seeking redress for discrimination in duty
assignments and performance evaluations. But the Court rejected
their claim despite the existence of Bivens:
The special nature of military life, the need for
unhesitating and decisive action by military officers and
equally disciplined responses by enlisted personnel would
be undermined by a judicially created remedy exposing
officers to personal liability at the hands of those they
are charged to command.
Id., 462 U.S. at 304, 103 S.Ct. at 2367. The Court also explained
that the Constitution granted Congress plenary authority to
regulate military life, and that Congress had done so by setting up
a judicial system separate from Article III courts. Id., 462 U.S.
at 302, 103 S.Ct. at 2366-67. This suggested that the courts
lacked the constitutional foundation to enter this field in the
absence of Congressional imprimatur. Taking these factors into
consideration, the Court concluded that “enlisted military
personnel may not maintain a suit to recover damages from a
11
superior officer for alleged constitutional violations.” Id, 462
U.S. at 305, 103 S.Ct. at 2368.
The Court extended this principle to non-constitutional claims
in United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87
L.Ed.2d 38 (1985), where the plaintiff was the administratrix of an
army private who had been murdered by another serviceman. The
private had been off-base and off-duty at the time. The plaintiff
asserted that the Army had been negligent in failing to exert
control over the murderer. The Court rejected this claim as well,
citing Feres and Chappell, and noting that allowing the claim to
proceed would involve the courts in military management, evaluating
“basic choices about discipline, supervision, and control of a
serviceman.” Id., 473 U.S. at 58, 105 S.Ct. at 3043.
In United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97
L.Ed.2d 550 (1987), the Court reestablished the importance of the
“incident-to-service test,” first promulgated in Feres. The
plaintiff was a former serviceman. During his tour of duty, the
military had given him LSD as part of an experiment into the drug’s
effects. He argued that the Feres principle against allowing his
Bivens claims to proceed was limited to suits by a subordinate
against a superior officer. Those would be the only cases where
judicial involvement would interfere with military discipline. But
the Court was concerned that if this were the test, judicial
12
inquiry into the extent that particular decisions involved military
discipline would interject the judiciary into the very role it was
trying to avoid--military management. The Court therefore rejected
all claims that “arise out of or are in the course of activity
incident to [military] service.” Id., 483 U.S. at 684, 107 S.Ct.
at 3064. Its reason for choosing this simple test was that it
“provides a line that is relatively clear and that can be discerned
with less extensive inquiry into military matters.” Id., 483 U.S.
at 683, 107 S.Ct. 3063.
Although several circuits, including ours, have applied Feres
to cases involving plaintiffs who were not members of the federal
armed services, these extensions of the doctrine have been
extremely limited. In Crawford v. Texas Army National Guard, 794
F.2d 1034, 1036 (5th Cir. 1986), we applied Feres to §§ 1983 and
1985 claims brought by members of the Texas National Guard. Doing
otherwise would have involved the courts in military management.
See also, Jorden v. National Guard Bureau, 799 F.2d 99, 106 (3d
Cir. 1986)(claim by state national guard member non-justiciable);
Brown v. United States, 739 F.2d 362, 366-67 (8th Cir. 1984)(same);
Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir. 1984)(same).
Similarly, some circuits have extended the Feres non-
justiciability doctrine to Title VII and other claims brought by
civilian National Guard Technicians. Mier v. Owens, 57 F.3d 747,
13
750 (9th Cir. 1995); Wright v. Park, 5 F.3d 586, 589 (1st Cir.
1993); Wood v. United States, 968 F.2d 738, 739 (8th Cir. 1992).
The National Guard Technician Act created this special type of
position with the military, allowing civilians to serve military
functions, but requiring those civilians to be members of the
National Guard. 32 U.S.C. § 709(b). Thus, the special hybrid
civilian-military nature of these technicians warranted application
of Feres. Mier, 57 F.3d at 750; Wright, 5 F.3d at 589; Wood, 968
F.2d at 739.
(4)
The lesson we draw from these cases is this: Applicability of
Feres’s incident-to-service test depends upon the relationship
between the plaintiff and the government. The Court made that
clear in Feres, and subsequent decisions, especially Chappell, have
explained why this relationship is critical--courts should not
interfere with military discipline and management. These are areas
where we have little competence or authority to proceed. The
circuits that have extended Feres’s incident-to-service test beyond
claims brought by plaintiffs in the federal armed services have
done so in limited and analogous circumstances. Military
discipline is equally important in the state national guards. The
same is also true with respect to the unique role of national guard
14
technicians. We are aware of no decisions, however, extending the
test beyond these limited circumstances.
In the present case, Meister’s jobs as Assistant Schools
Program Manager and Assistant Personnel Manager were civilian
assignments. She was not subject to military discipline or the
military hierarchy. She could quit whenever she wanted. The fact
that she happened to work for the Adjutant General’s office did not
render those roles the same as roles in the military services.4
For that reason, we conclude that the district court’s rejection of
Meister’s claims based upon the incident-to-service test was
erroneous.
4
The fact that Meister happened to be a non-commissioned
officer in the Texas Air National Guard is coincidental and
irrelevant to the issues before us. She was not required to be in
the National Guard to hold either the Assistant Schools Program
Manager job or the Assistant Personnel Manager job. And she is
suing based on her experiences in those civilian jobs, not as a
member of the National Guard.
15
D
Our conclusion that Feres is inapplicable does not necessarily
mean that Meister’s claims may proceed. First, it is well-settled
that we will not reverse a judgment of the district court if it can
be affirmed on any legally sufficient ground, even one not relied
upon by the district court. United States v. Real Property Located
at 14301 Gateway Blvd. West, El Paso County, Texas, 123 F.3d 312,
313 (5th Cir. 1997). Second, Meister’s claims may still be non-
justiciable under other judicially-created doctrines besides Feres.
We turn now to Meister’s claims.
(1)
We begin with Meister’s first claim, that the defendants
improperly failed to promote her to the Schools Program Manager
position.
This claim fails because Meister has failed to establish a
prima facie case of discrimination. One of the elements of a prima
facie case that a plaintiff must establish is that he or she was
qualified for the position sought. Haynes v. Pennzoil Co., 207
F.3d 296, 300-01 (5th Cir. 2000). But Meister does not contest
that the Schools Program Manager position was designated a
“federal” position, and that this designation meant that active
military service was a prerequisite for the job. Nor does Meister
contest that she was not an active member of the service. The
16
defendants had no obligation to alter the qualifications on her
behalf. Thus, her first claim fails.
(2)
With respect to her other two claims, Meister must contend
with another judicial abstention doctrine, this one from Mindes v.
Seaman, 453 F.2d 197 (5th Cir. 1971). These claims challenge
Meister’s involuntary transfer to Assistant Air Personnel Manager
and the rejection of her application to the position of State Human
Resource Manager.
In Mindes, the plaintiff had been moved from active to reserve
status based on alleged errors in a performance report. We
explained that civilian courts must hesitate in reviewing “internal
military affairs” like this one. Id. at 201. We therefore
formulated a test to determine whether such issues would be
justiciable in a particular case. As a threshold matter, the court
must determine that the following two prerequisites to
justiciability are met:
(1) The plaintiff has alleged a deprivation of constitutional
rights or that the military violated statutes or its own
regulations; and
(2) Exhaustion of intra-service measures.
Mindes, 453 F.2d at 201. If both criteria are met, then we weigh
four factors in considering whether the issue is justiciable:
17
(1) The nature and strength of the plaintiff’s challenge.
Constitutional claims are normally more important than
those with a statutory or regulatory base;
(2) The potential injury to the plaintiff if review is
refused;
(3) The type and degree of anticipated interference with the
military function; and
(4) The extent to which the exercise of military expertise or
discretion is involved.
Id. at 201-02.
(3)
There are two threshold issues we must address before we can
consider the application of Mindes to Meister’s two remaining
claims. First, we must determine whether Mindes ever applies to
claims by a civilian plaintiff. Second, we must consider whether
Mindes is still viable in the face of supervening precedent.
(a)
Existing case law provides no clear answer to whether Mindes
applies to claims by non-military personnel. Two district courts
have utilized a Mindes analysis in this situation, though they did
so without discussing the plaintiff’s non-military status. Malone
v. United States, 61 F.Supp.2d 1372, 1381-82 (S.D. Ga. 1999);
Professional Helicopter Pilots Assoc. v. Carlucci, 731 F.Supp. 440,
446-48 (M.D. Ala. 1990). The only other decisions on this point
come from the Ninth Circuit, and they contradict each other. In
Khalsa v. Weinberger, 779 F.2d 1393 (9th Cir. 1985), adhered to,
18
787 F.2d 1288 (9th Cir. 1985), the plaintiff was a member of the
Sikh religion who brought an action against the army for refusing
to process his enlistment application because he could not comply
with army appearance regulations. Though the plaintiff in that
case was a civilian, the Ninth Circuit held that the issue still
involved “internal military decisions” and therefore required
analysis under Mindes to determine justiciability:
[I]f regulations governing soldiers’ appearance are not
“internal,” then no Army regulations are internal.
Almost any regulation may cause a particularly sensitive
civilian to decide that he or she could not take the
statutory enlistment oath to follow all orders.
Id. at 1397. But in Bledsoe v. Webb, 839 F.2d 1357, 1360 (9th Cir.
1988), that same circuit held that Mindes did not apply to a claim
by a female civilian asserting that the Navy violated Title VII by
denying her access to a naval vessel based on her sex.
We find the Khalsa analysis more convincing. Whether the
plaintiff is a civilian or a serviceman does not affect whether the
issue we are reviewing qualifies as an “internal military
decision.” Some decisions, by their nature, are inherently
military, regardless of who the plaintiff is. Thus, we will not
forestall the application of Mindes simply because Meister is suing
as a civilian.
(b)
19
There is also some confusion as to Mindes’s continued
viability. In Wright v. Park, 5 F.3d 586, 590-91 (1st Cir. 1993),
the First Circuit interpreted the breadth of the rule in Stanley to
preempt Mindes. Other circuits have continued to apply the Mindes
doctrine, however. See, e.g., Guerra v. Scruggs, 942 F.2d 270, 275
(4th Cir. 1991); Watkins v. United States Army, 875 F.2d 699, 705
(9th Cir. 1989)(en banc). The Tenth Circuit relied on Mindes in
Lindenau v. Alexander, 663 F.2d 68 (10th Cir. 1981), and a recent
unpublished decision from that circuit suggests that the doctrine
still has force there. See Robertson v. United States, 1998 WL
223159 at **2-3 (10th Cir. 1998). See also Saum v. Widnall, 912
F.Supp. 1384, 1396 (D. Col. 1996)(applying Mindes). In 1993, the
Seventh Circuit demonstrated its belief that Mindes had survived
Stanley by rejecting Mindes on other grounds. See Knutson v.
Wisconsin Air National Guard, 995 F.2d 765, 768 (7th Cir. 1993).5
Our own circuit has not discussed Mindes since NeSmith v.
Fulton, 615 F.2d 196, 201 (5th Cir. 1980), which has led two
district courts within the circuit to opine on its continued
viability. In Udell v. Adjutant General’s Dept. of Texas, 878
F.Supp. 991, 994 (S.D. Tex. 1995), the court concluded that we had
5
The Seventh Circuit panel held that Mindes “erroneously
‘intertwine[d] the concept of justiciability with the standards to
be applied to the merits of the case.’” Knutson, 995 F.2d at 768
(citation omitted).
20
abandoned Mindes in favor of Chappell in Crawford v. Texas Army
National Guard, 794 F.2d 1034 (5th Cir. 1986). And in Hassenfratz
v. Garner, 911 F.Supp. 235, 237 (S.D. Miss. 1995), a Mississippi
district court agreed with the First Circuit’s conclusion that
Stanley preempted Mindes.
We disagree with both district courts. First, Crawford did
not overturn Mindes. The question in that case was whether
Chappell barred the National Guardsmen’s §§ 1983 and 1985 claims.
We concluded that the case did. But we noted that the First
Circuit, which had interpreted Chappell more narrowly, had relied
on Mindes. We did not express any disapproval with this
conclusion, which suggests that the Crawford panel believed Mindes
still had some force.
Second, we do not believe that Stanley entirely preempted
Mindes. It is true that Stanley blocks claims brought by
servicemen incident to their military service, which therefore
preempts Mindes with respect to such claims. But claims still fall
within Mindes that Stanley does not encompass--those involving
“internal military decisions” that are not “incident to [a
serviceman’s] military service.” The question before us,
therefore, is whether Meister’s second two claims concern “internal
military decisions.”
(4)
21
The record before us was not developed with an eye to Mindes.
We are therefore unable to determine whether transferring Meister
and hiring someone else for the State Human Resource Manager
position were “internal military decisions.” This necessitates a
remand. If the district court determines that the decisions were
of this type, then the court should evaluate the justiciability of
these two claims under Mindes. We ultimately leave this
determination to the district court.
All we hold today is that there may be some civilian positions
that are so intertwined with the operation of the military that
courts lack the competence to evaluate hiring and firing. Such
decisions may be “internal to the military,” and a Mindes analysis
is required before proceeding further.
III
For the reasons stated herein, the district court judgment is
AFFIRMED in part, REVERSED and REMANDED.
22