Revised September 27, 2000

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 99-31189

____________

FREDERICK H. BROWN,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA; ET AL,

versus

UNIT ED STATES OF AMERICA; UNITED STATES AIR FORCE,

Secretary

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

September 26, 2000

Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Frederick Brown (“Brown”) appeals the district court’s dismissal of his Title VII, 42 U.S.C.

§ 2000e et seq racial discrimination claim against the United States Air Force (“Government”). We

affirm the dismissal of Brown’s claim but for reasons different than those relied upon by the district-2-

court.

This case arose as a result of Brown’s employment as an Air Reserve Technician (“ART”)

for the Government. ARTs, such as Brown, are civilian employees whose positions require that they

also serve in the milit

ary rese rves. As an ART, Brown occupied a full-time civilian position and

served as a Captain in the Air Force Reserve.

While serving as an ART, Brown filed an informal grievance. After the grievance was closed

Brown was transferred from his position. He asserts the transfer was against Air Force regulations.

Almost a year later, Brown was once again transferred to another ART position. During this same

time period Brown’s commanding officer ordered him to active duty and required him to submit to

a psychiatric evaluation. The evaluation revealed that Brown suffered from a severe personality

disorder, but was nonetheless qualified for worldwide duty. Brown, however, asserts that the

evaluation was tainted by discussions between Brown’s c o mmanding officer and the examining

physician.

Subsequently, Brown was charged with misconduct and substandard performance and was

honorably discharged. After Brown’s discharge he was relieved of his civilian ART responsibilities

because he was unable to meet the position’s requirements, namely, maint aining reserve duty status

in the Air Force. Brown sued the Government under Title VII claiming that the events leading up

to his discharge and his discharge were discriminatory and retaliatory.

The district court dismissed Brown’s claim on the grounds that it presented a non-justiciable

question. In order for the claim to proceed, the court concluded that it would be forced to analyze

a milit ary personnel decision. Embarking on this type of analysis, the court determined, would violate

the “incident to service” test. S ee United States v. Stanley

, 483 U.S. 669, 684, 107 S.Ct. 3054, 3064,1 In order to determine whether Brown’s claim arose from activities incident to service, the

district court applied the three-factor, totality of circumstances test enunciated in Parker v. United

States , 611 F.2d 1007 (5th Cir. 1980) (the factors are: (1) “the duty status of the service member,”

(2) “where the injury occurred,” and (3) “what function the service member was performing”). Id

.

at 1013. The district court determined that because Brown was a member of the military and his

claim “involve[d ] military matters which took place on a military site, the P arker factors [we]re

satisfied.”

-3- 97 L.Ed.2d 550 (1987) (holding that “no Bivens remedy is available for injuries that ‘arise out of or

are in the course of activity incident to service’”(quoting Feres v. United States

, 340 U.S. 135, 146,

71 S.Ct. 153, 159, 95 L.Ed. 152 (1950))); see also Parker v. United States

, 611 F.2d 1007 (5th Cir.

1980) (adopting three-factor test used to assist courts in determining whether an activity is incident

to service). 1

We review the questions of law presented by the district court’s dismissal of Brown’s claim

under the de novo standard of review. S ee Randel v. United States Dept. of Navy

, 157 F.3d 392,

395 (5th Cir.1998) citing Stults v. Conoco, Inc. , 76 F.3d 651, 654 (5th C ir. 1996). Furthermore,

“[w]e need not accept the district court’s rationale and may affirm on any grounds supported by the

record.” McGruder v. Will , 204 F.3d 220, 222 (5th Cir. 2000).

The claim presented involves a dual-status empl o yee seeking relief under Title VII. This

particular type of claim is a matter of first impression for our Circuit. The district court dealt with

this issue by applying the three-factor Parker test to determine whether Brown’s claim arose from

an activity incident to service. The dist rict court found that Brown’s claim fell within the military

sphere and, therefore, dismissed the claim. While we agree with the district court that Brown’s claim

arises from his position in the military, we believe that 42 U.S.C. § 2000e–16, and 29 C.F.R.2 For unknown reasons, the district court did not consider thes e provisions. As a

consequence, we review Brown’s claim de novo according to the applicable Title VII provisions.

3 The following circuit courts were faced with interpreting the scope of the term “military

departments,” and determined that the term did not include members of the armed forces for purposes

of a Title VII suit. See Hodge v. Dalton

, 107 F.3d 705, 707-08 (9th Cir. 1997), cert. denied 522 U.S.

815 (1997) (precluding Marine service member’s claim of racial discrimination); Randall v. United

States , 95 F.3d 339, 343–44 (4th Cir. 1996), cert. denied 519 U.S. 1150 (1997) (precluding Army

officer’s claim of racial discrimination); Spain v. Ball

, 928 F.2d 61, 62 (2d Cir. 1 991) (precluding

Navy applicant’s claims of ra ce and gender discrimination); S tinson v. Hornsby

, 821 F.2d 1537,

1539–40 (11th Cir. 1987 ), cert. denied 488 U.S. 959 (1988) (precluding National Guard member’s

claim of racial discrimination); Gonzalez v. Dept. of Army

, 718 F.2d 926, 927–29 (precluding Army

officer’s claims of racial discrimination); Johnson v. Alexander

, 572 F.2d 1219, 1224 (8th Cir. 1978),

cert. denied

439 U.S. 986 (1978) (precluding Army applicant’s claim of racial discrimination).

-4- 1614.103(d)(1) govern this Title VII case. 2

Brown’s claim arises under 42 U.S.C. § 2000e– 16(a), which precludes the military

departments, including the Air Force under 5 U.S.C. § 102, from engaging in acts of employment

discrimination. Although 42 U.S.C. § 2000e–16(a) constitutes a waiver of the Government’s

immunit y from suit, this waiver has been understood to apply only to suits by civilian employees of

the milit ary departments, and not members of the armed forces. This interpretation has been adopted

by bo t h t he Equal Employment Opportunities Commission (“EEOC”), and the circuits that have

addressed this issue. 3 The EEOC, pursuant to its grant of authority under 42 U.S.C. § 2000e–16(b),

issued 29 C.F.R. § 1614.103(d)(1), which provides in relevant part:

(a) Individual and class complaints of employment discrimination and

retaliation prohibited by Title VII...shall be processed in accordance

with this part...

(b) This part applies to:

(1) Military departments as defined in 5 U.S.C. 102; ...

(d) This part does not apply to:

(1) Uniformed members of the military departments referred t o in

paragraph (b)(1) of this section;...

Furthermore, this regulation constitutes a substantive rule based on the Supreme Court’s reasoning4 In 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 again st the government for civilian employees in the military

departments. Therefore, although it may appear as though our decision today is at variance with our

decision in NeSmith v. Fulton , 615 F.2d 196 (5th Cir. Ap. 1980), the cases are distinguishable.

In NeSmith we applied the standard set forth in Mindes v. Seamen

, 453 F.2d 197 (5th Cir.

Dec. 1971), and found that an Air National Guard technician’s 42 U.S.C. § 1983 claim for loss of his

civilian position was not subject to review. We grounded our reasoning in “the extent to which the

ex ercise of military expertise or discretion is involved in the decision to discharge NeSmith from

his...post.” Id

. at 203. We noted in N eSmith that “for mally, a civilian technician is a federal civil

employee outside the competitive civil service. In substance, however, the posit io n is one in a

military organization.” Id . at 201. In NeSmith , however, we were not reviewing a Title VII claim.

The First Circuit has also discussed dual-status employees in Wright v. Park

, 5 F.3d 586 (1st

Cir. 1993). In Wright the court was faced with a claim that involved a National Guard technician’s

dismissal from his civilian position. The court noted that the dual roles occupied by a National Guard

technician “are inextricably intertwined,” and affirmed the district court’s dismissal of the claim on

justiciability grounds. I

d

. at 589. Again, we emphasize that the court in W right was reviewing a

§ 1983 claim, and not a Title VII claim.

-5- in Chrysler Corp. v. Brown

, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), because it “affects

individual rights and obligations.” I d

. at 302, 99 S.Ct. 1717–18. Consequently, because it is a

substantive rule and the EEOC issued the regulation under the auspices of a congressional grant of

po wer, it should be accorded the “force and effect of law.” I d

. at 301–02, 99 S.C t. 1717–18.

Accordingly, we will apply the EEOC’s interpretation of the term military departments. See Hodge

v. Dalton

, 107 F.3d 705 (9th Cir. 1997), cert. denied 522 U.S. 815 (1997) (court provided a similar

analysis of 29 C.F.R. § 1614.103(d)(1)).

ARTs, such as Brown, are required to maintain t wo go vernment positions, one civilian

position and one milit

ary position. As a consequence of the limited scope of the Title VII waiver,

employment discrimination claims by ARTs must be categorized as either arising from their position

as a civilian employee of a milit ary department, or their position as a uniformed service member. 4

Although the Ninth Circuit has taken a slightly different approach in resolving these type of claims,5 In Mier v. Owens

, 57 F.3d 747 (9th Cir. 1995), cert. denied 517 U.S. 1103 (1996) the Ninth

Circuit determined whether a National Guard technician who held both civilian and milit ary positions

could maintain a Title VII action. In Mier the technician asserted that he had been discriminatorily

denied milit

ary promotions, a nd as a consequence suffered suspension from his civilian post. The

court adopted the following standard for resolving the case, “we conclude that Title VII coverage

of civilians employed by the milit ary encompasses actions brought by Guard technicians except when

the challenged conduct is integrally related to the milit ary’s unique structure.” I d

. at 750. Applying

this standard the court held that the Guard member’s claim was not covered by Title VII because it

involved a personnel decision that was “integral to the military’s structure.” Id . at 751.

We do not reach the situation where the classification of a claim is difficult

, in which case we

may have to rely on factors such as whether the conduct is “integrally related to the milit ary’s unique

structure.” The instant case does not pose that level of difficulty.

-6- we choose t o det ermine whether a dual-status employee’s claim is cognizable under Title VII

according to the line s drawn by the EEOC. 5 Accordingly, claims arising purely from an ART’s

civilian position are provided for under Title VII; claims that originate from an ART’s milit ary status,

however, are not cognizable for the reasons provided above.

Although Brown attem

pts to characterize his claim as arising from his civilian position, this

is not the case. Brown seeks review of actions taken by the military that form the basis of his military

discharge. While these actions had a civilian component, in that his discharge made him ineligible for

his civilian position, they nonetheless were actions taken within the milit ary sphere. Claims that

involve this type of intrusion into military personnel decisions are not permissible, even under Title

VII. Consequently, Brown’s discrimination claim constitutes a claim made by a member of the

“uniformed services.”

The district court’s dismissal of Brown’s case is AFFIRMED.-7-