FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LISA M. ZURESS, 

Plaintiff-Appellant, No. 08-17559

v. D.C. No.

MICHAEL B. DONLEY, Acting  2:08-cv-00606-HRH

Secretary, United States OPINION Department of the Air Force,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

H. Russel Holland, District Judge, Presiding

Argued and Submitted

March 10, 2010—San Francisco, California

Filed June 8, 2010

Before: Cynthia Holcomb Hall, John T. Noonan and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

8293
COUNSEL

John A. Conley; Phoenix, Arizona; James Burr Shields II;

Phoenix, Arizona; W. Blake Simms; Phoenix, Arizona, for the

appellant.

Suzanne M. Chynoweth; Phoenix, Arizona; Marleigh Dover;

Washington, D.C.; Lowell Sturgill, Jr., Washington, D.C., for

the appellee.

OPINION

THOMAS, Circuit Judge:

This appeal presents the question of whether the intramilitary 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Mier v. Owens, 57 F.3d 747 (9th Cir. 1995), was superseded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

ZURESS v. DONLEY 8295
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 (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 miliary in providing national defense. United

States v. Brown, 348 U.S. 110, 112 (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 intramilitary 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 reserv8296 ZURESS v. DONLEY
ists 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

ZURESS v. DONLEY 8297
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:

8298 ZURESS v. DONLEY
(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

ZURESS v. DONLEY 8299
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 the sole defendant. On the Secretary’s motion, the district court dismissed Zuress’s amended

complaint for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1). This appeal followed. 

We review de novo dismissal for lack of subject matter

jurisdiction, Atwood v. Fort Peck Tribal Court Assiniboine,

513 F.3d 943, 946 (9th Cir. 2008), and may affirm on any

8300 ZURESS v. DONLEY
basis supported by the record, Hall v. N. Am. Van Lines, Inc.,

476 F.3d 683, 686 (9th Cir. 2007).

II

When interpreting a statute, “ ‘we look first to the plain language of the statute, construing the provisions of the entire

law, including its object and policy, to ascertain the intent of

Congress.’ ” United States v. Mohrbacher, 182 F.3d 1041,

1048 (9th Cir. 1999) (quoting Northwest Forest Res. Council

v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)). If the plain

meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid

to interpretation unless “the legislative history clearly indicates that Congress meant something other than what it said.”

Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863,

877 (9th Cir. 2001) (en banc) (quotation omitted). If the statutory language is ambiguous, we consult legislative history.

United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).

In the present context, we must also examine the relevant

statutory provisions in light of case law that pre-existed adoption of the 1997 Amendments. We presume that Congress is

familiar with controlling precedent and expects that its enactments will be interpreted accordingly. United States v. Wells,

519 U.S. 482, 495 (1997). For this reason, we must consider

the 1997 Amendments against the backdrop of our intramilitary immunity precedent.

[1] Beginning with Feres, the Supreme Court has been

quite careful in guarding the doctrine of intra-military immunity against statutory and common law challenges. 340 U.S.

at 146 (holding that the doctrine applied to suits brought

under the Federal Tort Claims Act); see also Chappell v. Wallace, 462 U.S. 296, 305 (1983) (enlisted military personnel

may not maintain a suit to recover damages from a superior

officer for alleged constitutional violations). Our Circuit has

followed suit. See Hodge, 107 F.3d at 710 (intra-military

ZURESS v. DONLEY 8301
immunity doctrine precludes suit brought by active-duty military personnel pursuant to 42 U.S.C. § 2000e-16(e)); Mier, 57

F.3d at 751 (intra-military immunity doctrine preludes suits

by dual status employees under Title VII); Stauber, 837 F.2d

at 401 (intra-military immunity precludes common law tort

suit by dual status employee); Gonzalez v. Department of

Army, 718 F.2d 926, 929 (9th Cir. 1983) (intra-military

immunity doctrine precludes suit under Title VII); Mollnow v.

Carlton, 716 F.2d 627, 631 (9th Cir. 1983) (intra-military

immunity precludes military officers from suing fellow military officers under 42 U.S.C. § 1985(1) or common law tort

theories); Mattos v. United States, 412 F.2d 793, 794 (9th Cir.

1969) (intra-military immunity doctrine precludes suits by

reservists against fellow reservists for injuries received while

on reserve training).

In Gonzalez and Mier, we quoted with approval the Eighth

Circuit’s observation that “if Congress had intended for [Title

VII] to apply to the uniformed personnel of the various armed

services, it would have said so in unmistakable terms.” Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir. 1978)

(quoted in Gonzalez, 718 F.2d at 928 and in Mier, 57 F.3d at

749).

[2] In Mier, we began our statutory analysis by applying

the “unmistakable terms” test and determined that Congress

had not — either through the National Guard Technicians Act

or Title VII itself — “stated in ‘unmistakable terms’ ” that

Title VII applies to dual status National Guard technicians. Id.

at 749 (quoting Gonzalez, 718 F.2d at 928). We clarified that

under the doctrine of intra-military immunity, courts “decline

to hear lawsuits involving personnel actions integrally related

to the military’s unique structure.” Id. at 749. We held that

“Title VII . . . encompasses actions brought by Guard technicians except when the challenged conduct is integrally related

to the military’s unique structure.” Id. at 750. Finally, we

declined to entertain the plaintiff’s claims — which alleged

discriminatory denial of military promotions and suspension

8302 ZURESS v. DONLEY
from civilian employment, as well as retaliation — because

they challenged personnel actions integrally related to the military’s unique structure. See id. at 750-51.

[3] Zuress concedes that the personnel actions that she

challenges are integrally related to the military’s unique structure, and thus that her claim is foreclosed under the analysis

in Mier. However, she argues that the 1997 Amendments

undermine Mier. We disagree.

The critical portion of § 10216(a), as amended in 1997,

states:

(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. 

Zuress points to the phrase “any other provision of law,” and

argues that the plain language of amended § 10216(a) indicates that Congress intends for dual status Air Force Reserve

Technicians to be treated as civilian employees for the purpose of filing Title VII claims. The Federal Circuit recently

adopted this position in Jentoft v. United States, 450 F.3d

1342 (Fed. Cir. 2006), in which it held, based on the 1997

amendment, that a dual status National Guard technician

ZURESS v. DONLEY 8303
could bring an Equal Pay Act claim against the military. 450

F.3d at 1348-49. The Jentoft court reasoned:

Section 10216(a) provides that ‘for purposes of this

section and any other provision of law, a military

technician (dual status) is a Federal civilian employee.’ Notably, there is no language in

§ 10216(a) limiting the circumstances in which a

dual status technician can be considered a federal civilian employee. Thus, the plain language of

§ 10216(a) makes clear that Jentoft has a justiciable

claim under the Equal Pay Act.

Id. (emphasis removed).

[4] We respectfully disagree with the Federal Circuit.

Rather, we agree with the Fifth Circuit that the 1997 Amendments did not effect such a substantive change, as dual status

technicians have long been recognized as “ ‘civilian employees whose positions require that they also serve in the military

reserves.’ ” Williams v. Wynne, 533 F.3d 360, 367 (5th Cir.

2008) (quoting Brown v. United States, 227 F.3d 295, 297

(5th Cir. 2000)) (emphasis removed); accord Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 299 (5th Cir. 2008)

(noting that “there was nothing new in 1996 about considering these technicians to be federal civilian employees,” since

they had already been described as such in prior case law).

Both before and after the 1997 Amendments, dual-status Air

Force Reserve Technicians held “a hybrid job entailing both

civilian and military aspects.” See Mier, 57 F.3d at 749; see

also AFRCI 36-114, ¶ 2 (Aug. 10, 2001) (recognizing that

dual status Air Force Reserve Technicians “are full-time civilian employees who are also active members of the Air Force

Reserve unit in which they are employed”). As we suggested

in Mier and Gonzalez, a clear statement is required from Congress to override our settled judicial doctrine of intra-military

immunity. See Mier, 57 F.3d at 749; Gonzalez, 718 F.2d at

8304 ZURESS v. DONLEY
928. The text of the 1997 Amendments does not satisfy that

standard.

[5] Moreover, the legislative history of the 1997 Amendments demonstrates that Congress employed the phrase “for

any provision of law” to eliminate inconsistencies in the

nomenclature used to refer to dual status technicians, rather

than to override settled case law on intra-military immunity.

Prior to the amendment, congressional enactments referred to

military technicians under three different titles: “military

(civilian) technicians,” see Department of Defense Appropriations Act, 1996, Pub. L. No. 104-61, § 8087, 109 Stat. 636,

668 (1995), “military technicians,” see National Defense

Authorization Act for Fiscal Year 1996, § 513(c), 110 Stat. at

305, and “dual-status military technicians,” see id. at 306. A

House Report for the bill explained:

The National Defense Appropriations Act for Fiscal

Year 1996 (Public Law 104-61) and the National

Defense Authorization Act for Fiscal Year 1996

(Public Law 104-106) enacted provisions defining

the term “military technician” which were not completely consistent with one another. This section

would remove the inconsistencies by defining a military technician (dual status) as a federal civilian

employee who is hired in accord with titles 5 or 32,

United States Code, and who, as a condition of federal civilian employment, must maintain military

membership in the selected reserve, and who also

must be assigned to a position as a technician in the

administration and training of the selected reserve, or

to a position in the maintenance and repair of supplies or equipment issued to the selective reserve or

armed forces.

H.R. Rep. No. 105-132, National Security Committee, at 358

(1997). Indeed, Zuress points to nothing in the legislative history of the amendment that suggests Congress intended to

ZURESS v. DONLEY 8305
waive the United States’s sovereign immunity for Title VII

suits by dual status military technicians. There is no mention

of Title VII in the legislative history of the 1997 Amendments, nor is there any indication that Congress intended to

authorize any cause of action that was previously unavailable

to a dual status technician. Accord Williams, 533 F.3d at 367

(“Nothing in the legislative history of § 10216(a)(1)(B) suggests that Congress intended to intrude on such military personnel decisions.”). Instead, the provisions at issue appear to

have been primarily concerned with distinguishing between

dual status and non-dual status technicians and with annual

requests to Congress for authorization of different categories

of technicians. See Walch, 533 F.3d at 299; H.R. Rep. No.

105-132, at 348, 358.

Zuress contends that we should refuse to consider the legislative history of amended § 10216 given its plain meaning.

However, “[t]he purpose of statutory construction is to discern the intent of Congress in enacting a particular statute.”

Daas, 198 F.3d at 1174. If a statute is ambiguous, we “may

look to its legislative history for evidence of congressional

intent.” Id. at 1174.

[6] We conclude that the 1997 Amendments do not justify

a reexamination of Mier. See 57 F.3d at 748. We therefore

affirm the judgment of the district court. We do not, and need

not, address any other issue raised by the parties. 

AFFIRMED.

8306 ZURESS v. DONLEY