IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50438

TINA NEVILLE, 

 Plaintiff - Appellant

v.

VICTORIA LIPNIC, Acting Chair of the U.S. Equal Employment Opportunity 

Commission; PATRICK M. SHANAHAN, ACTING SECRETARY, U.S. 

DEPARTMENT OF DEFENSE; HEATHER WILSON, Secretary of the Air 

Force; GENERAL JOSEPH L. LENGYEL, Chief, National Guard Bureau; 

JOHN F. NICHOLS, Major, Adjutant General-Texas Military, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:16-CV-1231

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM:*

Tina Neville appeals the district court’s grant of motions to dismiss and, 

alternatively, for summary judgment in favor of federal and state entities after 

the dismissal of her petition for writ of mandamus seeking military agency 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 28, 2019

Lyle W. Cayce

Clerk

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compliance with Equal Employment Opportunity Commission (EEOC) orders 

finding discrimination. For the reasons set forth below, we AFFIRM.

FACTS AND PROCEDURAL HISTORY

Tina Neville was employed as a Dual-Status National Guard Technician 

at Lackland Air Force Base in San Antonio. Dual-Status Technicians (DST) 

are by statute both employees of the Department of the Air Force and civilian 

employees of the United States. See 32 U.S.C. § 709(e). As a condition to the 

civilian portion of the employment, a DST must become and remain a 

uniformed member of the National Guard. See 32 U.S.C. §§ 709(b), (d)-(e). 

Neville was employed in a civilian capacity as a WG-12 Aircraft Mechanic and 

in a military capacity as an Air Force Master Sergeant in the 149th Fighter 

Wing at Lackland. Her status as a DST involved servicing F-16 fighter jets in 

both her civilian and military capacities.

In March 2006, Neville had a hysterectomy. Subsequently, she 

developed complications related to endometriosis and submitted 

documentation from her physicians ordering her to work on light duty. Neville 

maintains that her supervisor, Pedro Soriano, refused to allow her “light duty” 

because “guys don’t have hysterectomies,” and, as a result, she suffered a right 

knee injury and lower back sprain. Neville took a medical leave of absence 

from June 25 or 26, 2007, to May 12, 2008. On June 26, 2007, Neville received 

a performance evaluation from Soriano with a rating of “Fully Successful” 

rather than her previous rating of “Outstanding.” Neville maintains that 

Soriano said he would not give an “Outstanding” rating to someone he and “the 

guys did not respect.” 

As a result of her injury, Neville filed a claim with the Department of 

Labor’s Office of Workers’ Compensation Program (OWCP). Although she 

received her regular base salary for the requisite 45 days after she was injured, 

Neville maintains she did not begin to receive workers’ compensation benefits 

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until January 2008. On May 12, 2008, Neville returned to work on light duty 

status. However, Neville believed the modified position exceeded her physical 

limitations. As a result, Neville stopped reporting to work on August 26, 2008. 

On November 6, 2008, the OWCP terminated Neville’s benefits on the grounds 

that she had abandoned suitable work offered by her employer without any 

justification. In January 2009, Neville took disability retirement and retired 

from both her military and civilian positions.

Meanwhile, on November 13, 2007, Neville filed an EEOC complaint 

alleging that the United States Air Force (USAF) and the National Guard 

Bureau (NGB) discriminated against her on the bases of sex (female) and 

disability (complications from her hysterectomy). 

On January 26, 2011, after various hearings, an EEOC Administrative 

Law Judge (ALJ) issued a decision finding that Neville established she had 

been subjected to gender discrimination when Soriano refused to assign her 

light duty and when he issued an annual performance rating of “Fully 

Successful” rather than “Outstanding.” The ALJ also noted numerous 

incidents of various crew members calling Neville offensive names and 

subjecting Neville to other harassment. 

As a result of the discrimination, the ALJ ordered relief in the form of (1) 

back pay with interest and benefits; (2) non-pecuniary compensatory damages 

for the emotional and physical harm Neville suffered as a result of the 

discrimination; (3) attorneys’ fees and costs of $63,675.03; and (4) an 

amendment to Neville’s 2006-07 performance appraisal. The ALJ also ordered 

NGB to provide EEO training, post a notice of discrimination for 12 months, 

and recommended that disciplinary action be taken against Soriano.

Thereafter, the federal and state defendants declined to implement the 

ruling on jurisdictional grounds, asserting the actions arose out of Neville’s 

service as a military technician, were barred by the Feres doctrine, and also 

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that the ALJ ordered relief in contravention of the Eleventh Amendment 

because the Texas Military Department is a state entity and did not waive its 

sovereign immunity. The USAF and NGB appealed the ALJ’s decision and 

Neville counter-appealed. On August 1, 2013, the EEOC’s Office of Federal 

Operations (OFO) issued a final decision. The 2013 OFO decision: (1) upheld 

the ALJ’s decision finding sex discrimination; (2) ordered an increased nonpecuniary award of $150,000 be paid to Neville within 60 days; (3) ordered the 

NGB to provide Neville back pay for the period between June 25, 2007, and 

August 26, 2008, as well as attorneys’ fees and other remedial action within 60 

days; (4) ordered the NGB to amend Neville’s 2006-07 performance rating 

within 60 days; (5) ordered the NGB to provide Title VII training to all 

management officials at Lackland; (6) ordered the NGB to take disciplinary 

action against responsible management officials; and (7) ordered the NGB to 

post a notice of discrimination.

On December 17, 2013, Neville filed a petition for enforcement (PFE) of 

the order with the EEOC, claiming that the USAF, NGB and Texas Air 

National Guard (TXANG) had disregarded the 2013 OFO decision.

On July 2, 2015, the EEOC issued its 2015 PFE decision finding: (1) at 

the time of Neville’s claim, she was acting as a federal civilian employee under 

the protection of Title VII; (2) the TXANG is a federal executive agency for the 

purposes of Title VII; and the TXANG discriminated against Neville based on 

her sex. In addition to the above-listed requirements of the 2013 OFO decision, 

the 2015 PFE decision ordered the TXANG to: (1) pay Neville $150,000 in nonpecuniary compensatory damages, as well as $63,675.03 in attorneys’ fees and 

costs, within 30 days; (2) compensate Neville for all back pay, with interest and 

benefits between June 25, 2007 and August 26, 2008, within 30 days; calculate 

and compensate Neville for any overtime; (4) amend Neville’s 2006-07 

performance appraisal; and (7) provide at least 16 hours of in-person training 

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to all management officials and employees at Lackland, 149th Fighter Wing, 

Flight Line Section, regarding Title VII responsibilities. The 2015 PFE 

decision also ordered the Department of Defense, as head of the NGB and 

USAF, to consider taking appropriate disciplinary measures against the 

responsible employees and to post notice of discrimination. Additionally, the 

2015 PFE decision said that, if the agencies failed to comply, then Neville had 

the right to file a civil action to force compliance under 29 C.F.R. §§ 1614.407, 

1614.408 and 1614.503(g).

On March 18, 2016, Neville filed an Amended Petition for Writ of 

Mandamus in the U.S. District Court for the District of Columbia seeking to 

compel the EEOC to enforce the final decision on her PFE or, alternatively, to 

force the defendants to comply with the PFE.1 In December 2016, Neville’s 

amended petition was transferred to the Western District of Texas. 

Thereafter, the defendants filed motions to dismiss and, alternatively, for 

summary judgment. Neville filed a motion for summary judgment and, 

alternatively, for a directed verdict. On November 20, 2017, the district court 

granted the defendants’ motions and denied Neville’s. The court dismissed 

Neville’s petition for writ of mandamus. Neville subsequently filed this appeal. 

STANDARD OF REVIEW

Under federal law, “[t]he district courts shall have original jurisdiction 

of any action in the nature of mandamus to compel an officer or employee of 

the United States or any agency thereof to perform a duty owed to the 

plaintiff.” See 28 U.S.C. §1361. A district court awards mandamus “in the 

exercise of a sound judicial discretion.” Newsome v. E.E.O.C., 301 F.3d 227, 

231 (5th Cir. 2002) (quoting Duncan Townsite Co. v. Lane, 245 U.S. 308, 311 

 

1 Neville filed her original petition for writ of mandamus on July 1, 2015, one day 

before the EEOC issued its 2015 PFE Decision.

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(1917)). A district court’s decision not to exercise jurisdiction under the 

mandamus statute is reviewed for an abuse of discretion. Newsome, 301 F.3d 

at 231. Further:

A writ of mandamus is an “extraordinary remedy.” Adams v. 

Georgia Gulf Corp., 237 F.3d 538, 542 (5th Cir.2001). “Mandamus 

is not available to review discretionary acts of agency officials.” 

Green v. Heckler, 742 F.2d 237, 241 (5th Cir.1984). Further, in 

order to be granted a writ of mandamus, “[a] plaintiff must show a 

clear right to the relief sought, a clear duty by the defendant to do 

the particular act, and that no other adequate remedy is 

available.” U.S. v. O'Neil, 767 F.2d 1111, 1112 (5th Cir.1985) 

(quoting Green, 742 F.2d at 241).

Id.

We review de novo a district court’s dismissal under Rule 12(b)(1) for 

lack of subject matter jurisdiction. Randall D. Wolcott, M.D., P.A. v. Sebelius, 

635 F.3d 757, 762 (5th Cir. 2011). The district court must dismiss the action if 

it finds that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). “A 

trial court may find that subject matter jurisdiction is lacking based on (1) the 

complaint alone; (2) the complaint supplemented by undisputed facts 

evidenced in the record; or (3) the complaint supplemented by undisputed facts 

plus the court’s resolution of disputed facts.” Wolcott, 635 F.3d at 762 (internal 

marks and citations omitted).

A district court’s dismissal under Rule 12(b)(6) is reviewed de novo, 

accepting all well-pleaded facts as true and viewing them in the light most 

favorable to the plaintiff. Id. at 763. We likewise review questions of law de 

novo. Szwak v. Earwood, 592 F.3d 664, 668 (5th Cir. 2009). Reversal is not 

appropriate where the district court can be affirmed on any grounds. Wolcott, 

635 F.3d at 763.

We review de novo a district court’s grant of summary judgment, viewing 

all evidence in the light most favorable to the nonmoving party and drawing 

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all reasonable inferences in that party’s favor. Dediol v. Best Chevrolet, 655 

F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper when “the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

issue of material fact exists “if the evidence is such that a reasonable jury could 

return a verdict for the non-moving party.” Crawford v. Formosa Plastics 

Corp., 234 F.3d 899, 902 (5th Cir.2000) (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242 (1986)).

DISCUSSION

I. Whether the district court erred in finding the EEOC did not owe 

Tina Neville a duty to enforce its judgments against its co-defendants.

After Neville’s case was transferred to the Western District of Texas, due 

to the complexity of the case and the multiple parties involved, the district 

court dismissed all then-pending motions without prejudice to re-filing in the 

interests of efficient case management. Subsequently, the EEOC, federal 

defendants, and the state defendant separately filed motions to dismiss 

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure 

and, alternatively, for summary judgment. Neville filed a motion for summary 

judgment and, alternatively, for directed verdict.

The district court found that it did not have jurisdiction over Neville’s 

mandamus claims and granted the defendants’ motions to dismiss and 

alternative motions for summary judgment. In doing so, the district court 

agreed with the EEOC that it did not have a nondiscretionary duty to attempt 

to obtain an agency’s compliance with a final EEOC order after the employee 

commenced a civil action in federal court.

Neville asserts that the EEOC owed her a duty to take all necessary 

action to enforce its order and that the district court erred. Neville also asserts 

that the EEOC reassumed any obligation it may have waived when it acted on 

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her case again. The action to which Neville refers was merely a letter sent on 

January 25, 2017, from the EEOC to various defendants “reminding them the 

NDAA [National Defense Authorization Act] of 2017 clarifies that federal 

employment discrimination claims arising from activities occurring when 

National Guard members are in civilian pay status are indeed covered by Title 

VII.” 

Under 29 C.F.R. § 1614.503, “[a] complainant may petition the 

Commission for enforcement of a decision issued under the Commission’s 

appellate jurisdiction” setting forth “the reasons that lead the complainant to 

believe that the agency is not complying with the decision.” 29 C.F.R. §

1614.503(a). The EEOC is then required to undertake the necessary steps to 

gain compliance. 29 C.F.R. § 1614.503(b).

Further, Neville had the option of filing a civil action to enforce 

compliance or filing a de novo civil action on the underlying discrimination 

claim. See Massingill v. Nicholson, 496 F.3d 382, 384 (5th Cir. 2007).

The EEOC regulations state:

A complainant who has filed an individual complaint, an 

agent who has filed a class complaint or a claimant who has filed 

a claim for individual relief pursuant to a class complaint is 

authorized under title VII, the ADEA and the Rehabilitation Act 

to file a civil action in an appropriate United States District Court:

(a) Within 90 days of receipt of the final action on an 

individual or class complaint if no appeal has been filed;

(b) After 180 days from the date of filing an individual or 

class complaint if an appeal has not been filed and final 

action has not been taken;

(c) Within 90 days of receipt of the Commission's final 

decision on an appeal; or

(d) After 180 days from the date of filing an appeal with the 

Commission if there has been no final decision by the 

Commission.

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29 C.F.R. § 1614.407.

Additionally, pursuant to employment by the federal government:

Within 90 days of receipt of notice of final action taken by a 

department, agency, or unit referred to in subsection (a), or by the 

Equal Employment Opportunity Commission upon an appeal from 

a decision or order of such department, agency, or unit on a 

complaint of discrimination based on race, color, religion, sex or 

national origin, brought pursuant to subsection (a) of this section, 

Executive Order 11478 or any succeeding Executive orders, or 

after one hundred and eighty days from the filing of the initial 

charge with the department, agency, or unit or with the Equal 

Employment Opportunity Commission on appeal from a decision 

or order of such department, agency, or unit until such time as 

final action may be taken by a department, agency, or unit, an 

employee or applicant for employment, if aggrieved by the final 

disposition of his complaint, or by the failure to take final action 

on his complaint, may file a civil action as provided in section 

2000e-5 of this title, in which civil action the head of the 

department, agency, or unit, as appropriate, shall be the 

defendant.

42 U.S.C. § 2000e-16(c).

Neville filed a petition for enforcement with the EEOC. But, when the 

EEOC failed to issue a decision within 180 days, Neville filed her petition for 

writ of mandamus. This court has said that an employee’s decision to pursue 

Title VII claims in federal court typically mandates dismissal of the EEOC 

complaint and “precludes the EEOC from entertaining an appeal of that 

dismissal.” Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 304 n.7 (5th 

Cir. 2008); see also 29 C.F.R. §§ 1614.107(a)(3), 1614.409.

Based on this authority, we conclude that the district court correctly 

granted the EEOC’s motion to dismiss and, alternatively, for summary 

judgment.

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II. Whether the district court erred in finding that the federal 

defendants and state defendant were immune from prosecution based 

on the Feres doctrine.

The Feres doctrine of intra-military immunity precludes members of the 

military from pursuing claims against the military or the United States for 

injuries that arise out of or in the course of military service. See Feres v. United 

States, 340 U.S. 135, 146 (1950). Here, the federal defendants argued, and the 

district court agreed, that Neville’s mandamus claims arose out of or in the 

course of activity incident to her military service. Thus, judicial review was 

precluded. Further, they assert on appeal that, even if the Title VII claims 

arose purely from Neville’s civilian position, they would still be barred by the 

Feres doctrine. 

Neville asserts that the Feres doctrine does not apply because her 

mandamus claims arose from her position as a civilian employee. Neville 

acknowledges that “the reach of Feres is uncertain in cases regarding national 

guard technicians.” (Appellant’s Brief at 27). Neville cites Overton v. New 

York State Div. of Military and Naval Affairs, 373 F.3d 83, 92 (2d Cir. 2004).

Overton states that “[t]here are at least two persuasive reasons to 

conclude that the Feres doctrine may apply to a lawsuit based on alleged 

actions taken while the Guard Technician is being paid as a civilian employee.” 

Id. at 92. Those reasons are: (1) “a Guard Technician’s employment as a 

civilian is usually in support of a mission that is ultimately military in nature;” 

and (2) “there are concerns about the intrusive nature of the inquiry that would 

be necessary for a federal court to disentangle a plaintiff's civilian and military 

duties . . . . The mere process of arriving at correct conclusions would disrupt 

the military regime.” Id., 373 F.3d at 92. (internal marks and citation omitted). 

The Overton court then explained that the application of the Feres doctrine to 

certain Title VII actions is not entirely straightforward, as Feres leaves

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matters incident to service to the military “in the absence of congressional 

direction to the contrary.” Id. at 93. 

In Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000), this court 

stated that a Guard technician’s Title VII racial discrimination claim would be 

permissible if it involved only actions taken purely in a civilian capacity. 

However, this court noted that categorizing such a claim may be difficult and 

that a civilian claim might be military if it challenged conduct that was 

“integrally related to the military’s unique structure.” Id. at 299 n.5 (citing 

Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995)). Further, in Brown, the 

actions were considered military and the court was not required to determine 

which cases would be purely civilian.

In 2008, this court considered whether Feres barred the discrimination 

and retaliation claims of a DST. See Walch, 533 F.3d 289. In a situation where 

the classification of a claim is difficult, the court said it “might turn to factors 

such as whether the conduct is integrally related to the military’s unique 

structure.” Id. at 299 (internal marks and citations omitted). Further, the 

court said, “we find in the Federal Circuit's opinion a useful listing of the claims 

that dual-status employees could not pursue as those that relate to enlistment, 

transfer, promotion, suspension and discharge or that otherwise involve the 

military hierarchy.” Id. at 300 (internal marks and citations omitted). This 

court then concluded:

Under these precedents, a court may not reconsider what a 

claimant's superiors did in the name of personnel management—

demotions, determining performance level, reassignments to 

different jobs—because such decisions are integral to the military 

structure. Some of those decisions might on occasion be infected 

with the kinds of discrimination that Title VII seeks to correct, but 

in the military context the disruption of judicially examining each 

claim in each case has been held to undermine other important 

concerns.

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Walch, 533 F.3d at 301.

This court also addressed this matter in Williams v. Wynne, 533 F.3d 360 

(5th Cir. 2008) and Filer v. Donley, 690 F.3d 643 (5th Cir. 2012). Specifically, 

in Filer, this court concluded:

Filer challenges as inadequate the Air Force's response to the 

noose incident. The Air Force conducted two separate 

investigations of the incident, one of which adjudged its impact on 

unit cohesion, while the other resulted in decisions about military 

promotion, awarding military honors, and appropriate training for 

military personnel. Lt. Col. Kountz had to clear his decision on

Roark's military discipline with the FW Commander, Col. 

Pottinger. A session of squadron-wide EEO training was ordered. 

These decisions are integrally related to the military's unique 

structure. Judicial re-examination of such decisions would be 

disruptive to the military. 

Id. at 649 (internal marks and citations omitted). Further, the court said:

[B]ecause Title VII hostile environment claims often criticize the 

conduct of co-workers as well as supervisors, they are at least as 

likely as individual discharge claims to require close review of 

military structure, discipline, and cohesion. Feres broadly 

prohibits tort suits where a service person's injuries “arise out of 

or are in the course of activity incident to service.” Feres, 340 U.S. 

at 146, 71 S.Ct. at 159. It is the military environment, not the 

nature of the claim, that is controlling.

Id., at 649-50.

As stated by the district court, the events giving rise to Neville’s claims 

occurred on Lackland Air Force Base. Neville performed the same mechanic 

tasks of servicing F-16 fighter jets in both her civilian and military capacities 

as a DST. The district court correctly concluded that those tasks are military 

in nature and integral to the military mission. Neville’s petition for writ of 

mandamus sought to compel the defendants to, among other things, revise her 

performance appraisal, provide personnel training at Lackland, take 

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disciplinary action against various military personnel, and restore benefits 

including in-grade steps and promotions. Based on all of that, the district court 

correctly concluded that adjudicating Neville’s claims would require the court 

to review questions of military decision-making barred by the Feres doctrine.

III. Whether the district court erred when it did not order separate 

counsel for the EEOC given the alleged inherent conflict of interest.

Neville asserts that the district court abused its discretion by not 

ordering separate counsel for the EEOC because the EEOC and the other 

agencies involved had differing positions. The federal defendants, including 

the EECO, dispute the claim that the Department of Justice or the Attorney 

General cannot represent multiple federal agencies simultaneously and assert 

that there is no conflict of interest.

Neville cites Rule 1.06 of the Texas Disciplinary Rules of Professional 

Conduct for the proposition that an attorney cannot represent two parties 

whose interests are materially and directly adverse to each other. She asserts 

that the EEOC is seeking to enforce its judgment against defendants who 

argue the EEOC never had jurisdiction to decide it in the first place. However, 

the EEOC argues that once she filed her petition, it no longer had an obligation 

to attempt enforcement. 

The Attorney General has “plenary power over all litigation to which the 

United States or one of its agencies is a party.” Marshall v. Gibson’s Prod., 

Inc. of Plano, 584 F.2d 668, 676 n.11 (5th Cir. 1978). Neville has failed to 

provide any evidence that the Texas rules somehow override this. Thus, 

Neville has failed to demonstrate any abuse of discretion on this issue.

Accordingly, for the reasons set out herein, we AFFIRM.

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