Norris v. McHugh
MEMORANDUM OPINION AND ORDER directing that the Defendant's 15 motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is GRANTED, as further set out. Signed by Chief Judge William Keith Watkins on 3/9/12. (Attachments: # 1 Civil Appeals Checklist)(scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MARY R. NORRIS,
JOHN McHUGH, SECRETARY,
DEPARTMENT OF THE ARMY,
) CASE NO. 2:11-CV-18-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Mary R. Norris (“Colonel Norris”) brings this action against Defendant
John McHugh, Secretary of the Department of the Army, for age and gender
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. Before the court is Defendant’s
Motion to Dismiss, which is accompanied by evidentiary submissions and a
supporting brief. (Docs. # 15, 16.) Colonel Norris filed a response in opposition
(Doc. # 20), to which Defendant replied (Doc. # 24). Defendant maintains that the
intra-military immunity doctrine renders Colonel Norris’s claims non-justiciable, and
that the court, therefore, lacks subject matter jurisdiction. Upon careful consideration
of counsel’s briefs, the relevant law, and the record as a whole, the court finds that
Defendant’s motion to dismiss for lack of subject matter jurisdiction is due to be
I. JURISDICTION AND VENUE
The parties do not contest personal jurisdiction or venue, and the court finds
adequate allegations in support of both. Subject matter jurisdiction is discussed
II. STANDARD OF REVIEW
Challenges to the justiciability of a claim are properly raised in a Rule 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction. See Morrison v. Amway
Corp., 323 F.3d 920, 924–25 (11th Cir. 2003). Such motions take the form of either
a “facial” or “factual attack.” Id. at 924 n.5. Facial challenges to subject matter
jurisdiction are based solely on the complaint’s allegations, which are taken as true for
the purposes of the motion. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990). However, where, as here, the defendant relies on evidence outside the
pleadings, no such presumption of truth exists, and the court “may hear conflicting
evidence and decide the factual issues that determine jurisdiction.” Gilmore v. Day,
125 F. Supp. 2d 468, 470–71 (M.D. Ala. 2000) (citing Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991)), aff’d, 273 F.3d 1121 (11th Cir. 2001);
Lawrence, 919 F.2d at 1529 (“Because at issue in a factual 12(b)(1) motion is the trial
court’s jurisdiction – its very power to hear the case – there is substantial authority
that the trial court is free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case.”). The Eleventh Circuit has cautioned, however, that
district courts should only rely on Rule 12(b)(1) where the “facts necessary to sustain
jurisdiction do not implicate the merits of plaintiff’s cause of action.” Garcia v.
Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997).
“The party commencing suit in federal court . . . has the burden of establishing, by a
preponderance of the evidence, facts supporting the existence of federal jurisdiction.”
Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir.
Here, Defendant relies on mostly undisputed extrinsic evidence in challenging
subject matter jurisdiction. The court considers only evidence not subject to dispute.
Structural Overview of Colonel Norris’s Employment
In 1989, Colonel Norris became a full-time member of the Alabama Army
National Guard (“ALNG”). From 2001 to 2005, Colonel Norris held the position of
Recruiting and Retention Officer for the ALNG. (Stephenson’s Decl. ¶ 2 (Ex. B to
Def.’s Mot. to Dismiss).) As the Recruiting and Retention Officer, Colonel Norris
was a “dual status” technician, which meant that she was a full-time civilian employee
who was “required as a condition of that employment to maintain a membership in the
[Army] Reserve.” 10 U.S.C. § 10216(a). Additionally, dual-status technicians are
required to “hold the military grade specified for their authorized positions,” “wear
the uniforms appropriate for the members’ grade and component of the armed forces,”
and “maintain proper military membership for the position occupied.” (Technician
Personnel Regulations 303 (Ex. A to Def.’s Mot. to Dismiss)); see also 32 U.S.C.
As a dual-status technician, Colonel Norris’s first-level supervisor was the
Deputy Chief of Staff for Personnel, her second-level supervisor was the Chief of
Staff for the ALNG, and her third-level supervisor was the Adjutant General.
(Stephenson’s Decl. ¶ 3.) In April 2005, Colonel Norris was promoted to the rank of
Colonel and a year later, she received a promotion for an Active Duty Special Work
position as the Counter-Drug Coordinator for the ALNG. In this position, Colonel
Norris was a full-time active duty member of the ALNG and reported directly to
Major General Creighton Bowen, the Adjutant General. (Stephenson’s Decl. ¶ 5.)
Colonel Norris Is Removed from Her Counter-Drug Coordinator Position
On June 5, 2006, the Department of the Army Inspector General (“DAIG”)
received a complaint from the Inspector General of the ALNG, alleging that Colonel
Norris had an improper relationship with General Bowen.1 (DAIG Report 1 (Ex. E
to Def.’s Mot. to Dismiss).) On April 13, 2007, the DAIG released a report of its
investigation and concluded that there was an improper relationship between Colonel
Norris and General Bowen, in violation of army regulations.2 The DAIG Report
stated that “[t]he evidence indicated that [General] Bowen and [Colonel] Norris
established a close personal relationship that negatively affected the chain of
[command] and the ALNG,” and that “[t]here was evidence of widespread perception
within the ALNG that their relationship was improper.” (DAIG Report 2.)
After the DAIG report was issued, General Bowen resigned and Major General
Abner C. Blalock became the new Adjutant General. On September 17, 2007,
Colonel Scott F. Gedling, the Deputy Chief of Staff for Operations and Colonel
Norris’s first-level supervisor, issued a Notice of Intent to separate Colonel Norris for
cause from her active-duty position as Counter-Drug Coordinator. (Ex. H to Def.’s
Mot. to Dismiss.) The Notice stated that the separation was due to the “inappropriate
Army Regulation 600-20, Army Command Policy, prohibits relationships between
Soldiers of different rank if they “[c]ompromise, or appear to compromise, the integrity of
supervisory authority or the chain of command,” or if they “[c]ause actual or perceived partiality
or unfairness.” (Ex. F to Def.’s Mot. to Dismiss.) Furthermore, Army Regulation 600-10, Army
Leadership, states that all leaders are responsible for “[s]etting and exemplifying the highest
professional and ethical standards.” (Ex. G to Def.’s Mot. to Dismiss.) The DAIG report
specifically relied on these regulations. (DAIG Report 1.)
The DAIG report also stated that Colonel Norris did not seek out preferential treatment
from General Bowen and that there was no direct evidence of any sexual relationship between
the two. (DAIG Report 4.)
personal and professional relationship” Colonel Norris had with General Bowen and
referenced the DAIG Report’s findings. (Ex. H.) The Notice further stated that
Colonel Norris’s “continued retention . . . has an effect on military discipline, good
order, and the morale of the unit.” (Ex. H.) On September 25, 2007, General Blalock,
Colonel Norris’s third-level supervisor, approved the termination of Colonel Norris
from her position as Counter-Drug Coordinator, which became effective on October
2, 2007. (Ex. H.)
Colonel Norris Is Removed from Her Civilian Technician Position
After she was terminated as Counter-Drug Coordinator, Colonel Norris resumed
her previous technician position. Colonel Norris’s chain of command in both her
military and civilian capacities included the Deputy Chief of Staff for Operations
(Colonel Gedling), the Chief of Staff (Colonel James C. Suttle), and the Adjutant
General (General Blalock). (Stephenson’s Decl. ¶ 6.) Then, on September 28, 2007,
Colonel Norris received a Notice for Proposed Removal, in which Colonel Gedling
proposed to remove Colonel Norris from her technician position. (Ex. I to Def.’s Mot.
to Dismiss.) The Notice stated that the improper relationship with General Bowen
was “unbecoming [of] a Military Technician and unacceptable” in the ALNG. (Ex.
I.) On October 19, 2007, Colonel Norris received notice of Colonel Suttle’s decision
to accept Colonel Gedling’s proposal and to remove her from her full-time technician
position. Her civilian technician position was terminated on November 5, 2007. (Ex.
J to Def.’s Mot. to Dismiss.) Colonel Norris appealed this decision, but General
Blalock denied her appeal. (Ex. K to Def.’s Mot. to Dismiss.) Colonel Norris only
lost her civilian position; she maintained her military position in the ALNG and kept
her rank as Colonel. (Pl.’s Ex. 1 to Doc. # 21, at 7–8.)
Colonel Norris Is Not Removed from the ALNG
On November 6, 2007, General Blalock submitted a Request for Withdrawal
of Federal Recognition to the Federal Recognition Board to determine whether
Colonel Norris should be removed from the ALNG based on her improper relationship
with General Bowen. (Ex. L to Def.’s Mot. to Dismiss.) That same day, General
Blalock also issued an administrative reprimand to Colonel Norris for failing to take
actions “to resist or stop” her improper relationship with General Bowen “from
developing and continuing.” (Ex. O to Def.’s Mot. to Dismiss.) The Federal
Recognition Board found that Colonel Norris’s conduct did not rise to the level of
conduct unbecoming of an officer and recommended that she retain her federal
recognition status. (Pl.’s Ex. 1, at 9–10.) Colonel Gedling and Colonel Suttle did not
take part in the determination of whether to remove Colonel Norris from the ALNG;
they only had authority to rule on the technician side of Colonel Norris’s employment.
(Pl.’s Ex. 1, at 12, 14–15, 21.) The Federal Recognition Board has the final say on
whether to terminate military positions, while the Adjutant General is the final
authority on whether to terminate a civilian technician position. (Pl.’s Ex. 1, at 20.)
Colonel Norris filed suit under Title VII and the ADEA, which both contain
provisions waiving federal sovereign immunity for military departments.
§ 2000e-16(a); § 633a(a). However, in accord with the intra-military immunity
doctrine discussed below, the vast majority of circuit courts to interpret these waivers
have held that they “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 also Stinson v. Hornsby, 821 F.2d 1537, 1539–40 (11th Cir.
1987) (holding that a member of the National Guard was “military personnel” and
could not bring suit under Title VII). Thus, the justiciability of this case first depends
on whether a military technician such as Colonel Norris – one who maintains dual
status as a civilian and reservist – may bring suit under Title VII and the ADEA.
General Principles of the Intra-Military Immunity Doctrine
It has long been established that United States military personnel may not bring
actions based on injuries suffered incident to their service in the armed forces. Walch
v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 294 (5th Cir. 2008) (citing Feres v.
United States, 340 U.S. 135, 146 (1950)). This rule – the Feres doctrine or the intra8
military immunity doctrine – is “premised on the disruptive nature of judicial
second-guessing of military decisions.”3 Walch, 533 F.3d at 296 (citing United States
v. Brown, 348 U.S. 110, 112 (1954)). In particular, courts must be “[concerned] with
the disruption of [t]he peculiar and special relationship of the soldier to his superiors
that might result if the soldier were allowed to hale his superiors into court.” Chappell
v. Wallace, 462 U.S. 296, 304 (1983) (alterations in original) (internal quotation
marks and citations omitted).
Although Feres arose in the context of the Federal Tort Claims Act, it has since
been expanded to apply to Bivens claims, see Chappell, 462 U.S. at 304, § 1983
claims, see, e.g., Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035–36 (5th
Cir. 1986), Title VII claims, see, e.g., Brown v. United States, 227 F.3d 295, 299 (5th
Cir. 2000), and ADEA claims, see, e.g., Frey v. California, 982 F.2d 399, 404 (9th
Cir. 1993). However, while the intra-military immunity doctrine bars Title VII and
ADEA suits by military personnel, courts outside the Eleventh Circuit are split as to
whether a dual-status military technician may, at least in theory, bring suit under Title
VII or the ADEA for claims arising out of his or her civilian status.
The intra-military immunity doctrine was also developed to appropriately
accommodate separation of powers. “[Judges] are not given the task of running the Army. The
responsibility for setting up channels through which . . . grievances can be considered and fairly
settled rests upon the Congress and upon the President of the United States and his
subordinates.” Chappell, 462 U.S. at 301 (alterations in original) (quoting Orloff v. Willoughby,
345 U.S. 83, 93–94 (1953)).
Intra-Military Immunity Doctrine and Dual-Status Military Technicians
The parties have not argued or cited, and this court has not found, any
controlling Eleventh Circuit authority addressing whether a dual-status military
technician may bring suit under Title VII or the ADEA for claims arising out of his
or her civilian status. However, there are two main approaches adopted by other
circuits to determine whether these employment discrimination claims4 are nonjusticiable under the intra-military immunity doctrine. The first approach, adopted by
the Sixth Circuit, holds that dual-status military technician positions are “irreducibly
military in nature” such that their military and civilian aspects cannot be dissected.
See Fisher, 249 F.3d at 443–44; see also Bowers v. Wynne, 615 F.3d 455, 461 (6th
Cir. 2010). The court is not aware of any other circuit that follows the Sixth Circuit’s
bright-line rule that an employment discrimination suit by a dual-status technician is
“irreducibly military in nature” and, thus, non-justiciable as a matter of law. By
contrast, the vast majority of circuits to address the issue have distinguished suits
arising from a technician’s status as a member of the military from suits arising from
For purposes of this opinion, “employment discrimination claims” refers to claims
brought under Title VII or the ADEA, as both statutes contain limited waivers of sovereign
immunity that are at issue here. Furthermore, while most of the cited cases discuss dual-status
technician’s claims in the context of Title VII, the same reasoning and analysis employed by
these courts apply to ADEA claims brought by dual-status technicians. See Frey, 982 F.2d at
404 (comparing the statutory langauge of the ADEA to Title VII to find that the ADEA is not
applicable to a member of the state National Guard).
his or her status as a civilian federal employee. This second approach foresees the
theoretical possibility that a dual-status technician may pursue employment
discrimination claims if the claims arise only from the civilian aspect of his or her job.
See, e.g., Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 95–96
(2d Cir. 2004).
The Ninth Circuit, for example, allows Title VII suits by dual-status technicians
for claims that do not challenge conduct “integrally related to the military’s unique
structure.” Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (noting that “personnel
actions are not always integrally related to the military’s unique structure”); see
Zuress v. Donley, 606 F.3d 1249, 1255 (9th Cir. 2010) (reaffirming Mier). The
Second Circuit adopted a slightly modified variation of the Ninth Circuit’s approach.
In Overton, the Second Circuit held that the intra-military immunity doctrine “does
not permit” a Title VII claim by a dual-status technician if the claim “(1) challenges
conduct integrally related to the military’s unique structure or (2) is not purely
civilian” in nature. 373 F.3d at 95 (internal citations and quotations omitted). Along
these lines, the Fifth Circuit held that “claims arising purely from [a dual-status
technician’s] civilian position are provided for under Title VII; claims that originate
from [a dual-status technician’s] military status, however, are not cognizable . . . .”
Brown, 227 F.3d at 299; see also Willis v. Roche, 256 F. App’x 534, 537 (3d Cir.
2007) (“We agree with our sister courts of appeals and, therefore, we must determine
whether [the plaintiff’s] discrimination claims arise ‘purely from [his dual-status
technician] civilian position.’” (quoting Brown, 227 F.3d at 299)).
The court finds this second approach persuasive. Title VII and the ADEA
“specifically provide[ ] for claims against the government for civilian employees in
the military departments.” Brown, 227 F.3d at 299 n.4; see § 2000e-16(a); § 633a(a).
Thus, as the Fifth Circuit in Brown held, courts must “differentiate the civilian and
military positions associated with a dual-status job.” Brown, 227 F.3d at 299 n.4.
Therefore, a dual-status military technician may bring suit under Title VII or the
ADEA, but only for claims arising out of his or her status as a civilian.5
Colonel Norris’s Claims
Colonel Norris challenges the decision by her military and civilian supervisors,
Colonel Gedling, Colonel Suttle, and General Blalock, to remove her from her civilian
technician position.6 Colonel Norris argues that because her claims do not arise from
However, what exists in theory may not always exist in practicality. In all of the cases
cited above that follow an approach similar to that of the Fifth Circuit, none found the dualstatus technician’s claim to be justiciable.
Colonel Norris abandons all other challenges to decisions made by her superior
military officers after the issuance of the DAIG Report. Colonel Norris also specifically
abandons her challenge to the decision by General Blalock to refer her to the Federal
Recognition Board for dismissal from the Army. (Pl.’s Resp. Br. 8.) Cf. Resolution Trust Corp.
v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (holding that “grounds alleged in the
complaint but not relied upon in [opposition to] summary judgment are deemed abandoned”).
the military aspects of her employment, the intra-military immunity doctrine does not
bar her employment discrimination claims. (Pl.’s Resp. Br. 11.) As evidence that her
claim arises from her civilian status, Colonel Norris points to the fact that she was
only removed from her civilian technician position, that her military status and rank
were not affected, and that she was not on active duty. (Pl.’s Resp. Br. 13.) Finally,
Colonel Norris argues that she does not “challenge an action involving military
officers serving in the same military station in a direct supervisory chain” because
Colonel Gedling and Colonel Suttle could only affect her civilian status and not her
military status, which was governed by the Federal Recognition Board. (Pl.’s Resp.
The facts pointed to by Colonel Norris distinguish her claims from those of
Mier and Brown. In Mier and Brown, the plaintiffs challenged decisions directly
related to their military rank and/or status. See Mier, 57 F.3d 747 (Title VII claim
arising from the plaintiff’s failure to receive a military promotion); Brown, 227 F.3d
295 (Title VII claim arising from the plaintiff’s military discharge). In so doing, those
plaintiffs challenged decisions “central to maintenance of the military’s hierarchy.”
Mier, 57 F.3d at 751. However, while Mier and Brown are factually distinguishable
from the case at bar, the courts’ reasoning – and the policy behind that reasoning – is
An employment decision can affect the “maintenance of the military’s
hierarchy” without directly affecting military rank. Here, Colonel Norris challenges
a decision made by civilian supervisors who also served as her military supervisors.
The Second Circuit, in Overton, addressed a similar situation. There, the plaintiff
challenged the alleged discriminatory behavior of his supervisor during business hours
when both he and his supervisor “were performing what [the plaintiff] assert[ed] were
purely civilian duties.” 373 F.3d at 95. Recognizing that at the “time the conduct of
which [the plaintiff] complain[ed], his status was ‘civilian,’” the Second Circuit
nonetheless concluded that because the plaintiff’s supervisor served the dual role of
civilian and military superior, the plaintiff’s suit, “if permitted to proceed, would
likely affect his military relationship with” his supervisor. Id. at 96. This, according
to the court, would impermissibly intrude into the affairs of the military. Id.
Likewise, here, those who made the decision to remove Colonel Norris from her
civilian position served the dual roles of military and civilian supervisors. These
supervisors considered Colonel Norris’s conduct during her active military duty in
making the decision to terminate her civilian employment. As in Overton, the court’s
interference in these decisions would undoubtedly affect Colonel Norris’s military
relationship with these same supervisors, as Colonel Norris maintained her military
status in the ALNG after her civilian position was terminated. See DiGirogio v. New
Jersey, No. 08-2444, 2009 WL 1883913, at *4 (D.N.J. June 29, 2009) (explaining that
because the plaintiff’s supervisor served as his civilian and military supervisor, “[i]t
is impossible to argue that [the] allegedly discriminatory conduct only arose in the
course of their civilian relationship”). This would result in an impermissible intrusion
into the affairs of the military.
Accordingly, Colonel Norris’s attempts to argue that her claims are purely
civilian in nature fall short. The decision Colonel Norris challenges does not exist in
a distinct civilian realm; instead, the decision to remove Colonel Norris from her
civilian position is directly related to Colonel Norris’s behavior that occurred in her
military realm. Colonel Norris’s claims that her “military status and rank were
unaffected” do not accurately account for the events that transpired. (Pl.’s Resp. Br.
8.) It is true that Colonel Norris did not lose her rank as Colonel and did not lose her
federal recognition. However, Colonel Norris’s supervisors terminated her from the
active-duty military position of the Counter-Drug Coordinator, issued a formal
reprimand, and referred her to the Federal Recognition Board.
Moreover, in their decision to remove Colonel Norris from her civilian
technician position, Colonel Gedling, Colonel Suttle, and General Blalock relied on
the DAIG Report and its findings that Colonel Norris violated army regulations while
she was on active military duty. That the Federal Recognition Board had the final
decision-making authority to remove Colonel Norris from the Army does not
necessarily lead to the conclusion that her status – therefore her claim – is strictly
civilian. It is impossible to deconstruct Colonel Norris’s dual position in a way that
leaves the challenged decisions purely civilian in nature. Thus, Colonel Norris fails
to meet her burden of establishing that her claims are justiciable because they arise
from her status as a civilian.
For the foregoing reasons, the court finds that Colonel Norris’s Title VII and
ADEA claims do not arise from her status as a civilian and, therefore, are not
justiciable. Accordingly, it is ORDERED that Defendant’s motion to dismiss for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure (Doc. # 15) is GRANTED. A separate judgment will be entered.
DONE this 9th day of March, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?