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United States Court of Appeals, Second Circuit.

Darlene MARTINEZ, Plaintiff-Appellant, v. Ryan D. MCCARTHY, Acting Secretary, Department of the Army, Charles Michels, and Jonathan Weisbrod, Defendants-Appellees.


Decided: December 22, 2020

PRESENT: José A. Cabranes, Susan L. Carney, Michael H. Park, Circuit Judges. FOR PLAINTIFF-APPELLANT: Stephen Ciotoli, Gattuso & Ciotoli, Fayetteville, NY. FOR DEFENDANTS-APPELLEES: Karen Folster Lesperance, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney, Northern District of New York, Albany, NY.


Plaintiff-Appellant Darlene Martinez (“Martinez”) appeals from the dismissal of her August 6, 2019 complaint, which alleged sex- and race-based discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and New York State Human Rights Law. The District Court dismissed the complaint as barred by the doctrine of intra-military immunity, as set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (the “Feres doctrine”). The principal issue on appeal is whether the District Court erred when it concluded that the Feres doctrine barred Martinez's Title VII employment discrimination claims against the U.S. Army arising out of her employment as a “dual status” employee of the Army, a position she took in September 2014 when she left active duty and assumed reserve status. In her final civilian-military assignment, a position she held from June 2016 to January 2019, Martinez was a “unit administrator” (also known as a “military technician”) for her reserve unit. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In Feres, the Supreme Court held that uniformed members of the armed services may not bring suit under the Federal Tort Claims Act for “injuries that ‘arise out of or are in the course of activity incident to service.’ ” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Feres, 340 U.S. at 146, 71 S.Ct. 153). Since then, the courts have expanded the doctrine to apply broadly to bar suits against the government for injuries arising from “ ‘activit[ies] incident to [military] service.’ ” Id. (quoting United States v. Stanley, 483 U.S. 669, 681, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (alterations original)). As relevant here, we have held, “Title VII creates a limited exception to the Feres doctrine that allows some lawsuits to be brought pursuant to the provisions of Title VII if the plaintiff is a civilian employee of the military.” Id. at 95 (citing Roper v. Dep't of Army, 832 F.2d 247, 248 (2d Cir. 1987)). We have twice considered whether the Feres doctrine bars suits brought under Title VII by dual-status employees like Martinez. Under our precedent, the Feres doctrine bars such suits brought by such employees if the challenged conduct is: (1) integrally related to the military's unique structure; or (2) is not purely civilian. Luckett v. Bure, 290 F.3d 493, 498-99 (2d Cir. 2002).

On appeal, Martinez argues that the Feres doctrine does not serve to bar her suit as a “dual status” employee. We disagree.

A dismissal pursuant to the Feres doctrine goes to a court's subject matter jurisdiction, id. at 496,1 and we thus “review the district court's factual findings for clear error and its legal conclusions de novo.” Id. (“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” (internal quotation marks and citation omitted)).

Applying the two-part test we set forth in Luckett, we agree with the District Court that Martinez's “allegations of harassment, discrimination and retaliation are too tightly intertwined with her military role in her dual employment and with the command structures and personnel to be ‘purely civilian.’ ” Joint App'x 71 (quoting Overton, 373 F.3d at 86). Plaintiff's complaint describes harassment by other reserve members, not civilian co-workers. Her complaint also describes hostilities she experienced while engaged in military activities, such as during a “Field Exercise Training” in which Defendant-Appellee Weisbrod, a fellow reservist, allegedly left behind active duty orders “on purpose to set up [Martinez] to fail.” Joint App'x 16. Following this incident, Defendant-Appellee Michels allegedly scolded and humiliated her in front of dozens of soldiers who, according to Martinez's complaint, laughed at her and “elevat[ed] [her] trauma.” Id. She also alleges that Weisbrod and Michels failed her on a mandatory military test even when she passed, while they would pass her male counterparts, even when they failed. Id. at 19. She further describes how she reported these, and other incidents, to both her civilian and military supervisors, and alleges that her military supervisors then failed to “prevent continuing discrimination, harassment, retaliation, and physical bullying in the workplace.” Id. at 20.

As in Overton, another Title VII case involving a dual-status employee where we found that “[a]ny attempt surgically to dissect and analyze” the line between the civilian and the military “would itself threaten to intrude into [military affairs],” so too would an attempt at wielding a scalpel fail here. 373 F.3d at 96. We therefore conclude that because Martinez's suit “challenges conduct that is integrally related to the military's unique structure,” including the military's reporting processes, and that also because the challenged conduct is not “purely civilian,” the Feres doctrine bars her suit.


We have reviewed all of the arguments raised by Martinez on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the May 5, 2020 judgment of the District Court.


1.   The District Court dismissed Martinez's complaint under Federal Rule 12(b)(6), rather than Rule 12(b)(1), but we find no error because Martinez's claims satisfy neither standard.

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