Civil procedure--intra-military immunity doctrine applies to dual status technicians--Zuress v. Donley, 606 F.3d 1249 (9th Cir. 2010).

• Author: Baker, J.T.

Due to the sensitive nature of military activities, the intra-military immunity doctrine has long prevented members of the military from bringing actions against the government or military personnel. (1) In recent years, courts have considered whether the intra-military immunity doctrine will apply with the same force to dual status technicians ("DSTs") as members of the military who do not hold a civilian position, following the enactment of the National Defense Authorization Act for Fiscal Year 1998 ("1997 Amendments"). (2) In Zuress v. Donley, (3) the Court of Appeals for the Ninth Circuit considered whether the 1997 Amendments granted DSTs standing to bring Title VII claims against the government and other military personnel. (4) The Ninth Circuit held that the 1997 Amendments did not change the application of the intra-military immunity doctrine as applied to DSTs when the challenged personnel actions are "integrally related" to the unique structure of the military. (5)

Lisa M. Zuress served as a dual status Air Force Reserve Technician at Luke Air Force Base in Glendale, Arizona. (6) As a DST, Zuress held two positions while being employed at Luke Air Force Base, one position in a civilian capacity and another position in a military capacity. (7) In 2003, Zuress sent a letter to Defense Department officials alleging inappropriate sexual behavior by other members of her group. (8) After sending the letter and agreeing to serve as a character witness, Zuress's superiors began to treat her unfairly. (9) Following two "average" performance reports, Zuress realized that she would not be promoted and was therefore forced into retirement. (10)

After retiring, Zuress claimed that the Air Force violated her rights under Title VII of the Civil Rights Act of 1964 ("Title VII"). (11) The United States District Court of Arizona dismissed her complaint for lack of subject matter jurisdiction. (12) On appeal, the Ninth Circuit affirmed, finding that the 1997 Amendments were not the "clear statement ... required from Congress to override [the] settled judicial doctrine of intra-military immunity." (13)

In Feres v. United States, (14) the Court held members of the Armed Forces could not sue the government for injuries arising from their military duty. (15) Courts have routinely denied suits against government and military personnel that would force the judiciary to examine the "established relationship between enlisted military personnel and their superior officers." (16) This result is true despite some harsh and unfair results because lower courts are bound by the Court's precedent. (17) Both the sensitive nature of military personnel relationships and the unique structure of the military require courts to uphold this time-honored doctrine. (18) Additionally, courts have pointed to alternative remedies available to plaintiffs provided by Congress and within the structure of the military itself. (19)

In O'Brien v. United States (20) the Court of Appeals for the Eighth Circuit held that the doctrine of intra-military immunity applies to members of the military reserves ("reservists"). (21) However, courts have established outer limits to the doctrine, emphasizing that the tortious conduct at issue must be incident to military service; when this is not the case, the claim should move forward. (22) The key question courts ask when deciding whether to apply the doctrine of intra-military immunity is if the judiciary would have to second-guess military decisions? (23)

In Mier v. Owens, (24) the Ninth Circuit held that military promotion is a personnel action which is "integrally related" to the military's unique structure and, therefore, the doctrine applies, barring suit. (25) In 1997, Congress amended the National Defense Authorization Act to clarify the previous definition of DSTs. (26) Although most courts have held that the 1997 Amendments did not change the application of the intra-military immunity doctrine to DSTs, the Federal Circuit in Jentoft v. United States (27) interpreted the amendments to grant DSTs standing to bring any action against the government as civilian employees. (28) The key issue facing the courts in interpreting the 1997 Amendments is whether it was the "unmistakable terms" necessary from Congress to grant DSTs standing as federal civilian employees for "any other provision of law," including those times when serving in their military capacity. (29)

In Zuress, the Ninth Circuit faced the question of whether the 1997 Amendments superseded the doctrine of intra-military immunity and granted DSTs unequivocal civilian status to bring suits against the government. (30) The Zuress court examined the statutory provisions giving consideration to the pre-existing intra-military immunity precedent. (31) The Ninth Circuit highlighted the long history of protecting the intra-military immunity doctrine from statutory and common law challenges. (32) Next, the court explained that under the "unmistakable terms" test, "'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.'" (33)

The Ninth Circuit next considered whether the phrase "any other provision of law" demonstrated "clear Congressional intent" for DSTs to be regarded as civilian employees when filing any claim against the military. (34) The court reasoned that nothing had changed about the DST position after the 1997 Amendments, explaining DSTs still held hybrid positions. (35) The Ninth Circuit relied heavily on the legislative history of the 1997 Amendments to show that Congress intended that the amendments only clarify the inconsistencies used to refer to DSTs, not to affect settled case law. (36) The Ninth Circuit held that the 1997 Amendments did not require a reexamination of prior precedent and Zuress was therefore barred from bringing the action against the military. (37)

The Ninth Circuit correctly determined that the plain meaning of the statute was ambiguous and therefore required further analysis. (38) Due to the ambiguity of the text contained in the 1997 Amendments, the statute must be examined in light of prior case law and its legislative history. (39) The Ninth Circuit gave immense weight to the long history of courts protecting the intra-military immunity doctrine. (40) Supporting its decision to bar Zuress's suit, the Ninth Circuit went on to note that numerous cases have expanded upon the doctrine since its judicial inception in Feres. (41)

The Ninth Circuit focused mainly on cases that have expanded on the doctrine, but the court did not abandon precedent in which the conduct at issue was not incident to the injured service member's military service. (42) While many of the lawsuits barred by the doctrine appear to lead to harsh and unjust results, the Ninth Circuit reinforced that these results are necessary to preserve the most efficient and effective military. (43) Furthermore, there are many remedies for injured service members within the military system itself that lead to very similar outcomes or may even exceed those remedies which are available in the civilian court system. (44) Judges are given a wealth of responsibility and power in the American court system, but within this power should not be the...