Jorden v. National Guard Bureau

GIBBONS, Circuit Judge,

dissenting.

I join the opinion of the court to the extent that it reverses the district court’s dismissal of Jorden’s claims for injunctive relief. However, I disagree with the majority’s disposition of the damage claims, and I dissent on this point.

The issue presented by Jorden’s appeal of the district court’s dismissal of his damage claims is whether a state national guard official is immune from a section 1983 suit brought by another member of the national guard unit. The Supreme Court frequently has addressed claims bearing on immunities available to section 1983 defendants and in doing so has deline *112 ated a relatively straightforward analysis for assessing such claims. Resort to that controlling analysis in this case makes quite clear that the defendants here are not immune from damage liability under section 1983.

In assessing immunity claims by 1983 defendants, the Court first has looked to see if any relevant immunity existed prior to the enactment of section 1983. If such immunity did exist, the Court has then looked at the legislative history that accompanied enactment of section 1983 to see if it reveals any congressional intent to abolish that immunity. Should no such intent manifest itself, the Court finally has weighed policy considerations relevant to the asserted immunity. Only when all three conditions have been satisfied — the existence of preexisting immunity, the absence of congressional intent to abolish that immunity, and the absence of policies disfavoring immunity — has the Court held the defendant to be immune. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-71 , 101 S.Ct. 2748, 2755-62 , 69 L.Ed.2d 616 (1981) (“Because absolute immunity from such damages obtained at common law and was undisturbed by the 42d Congress, and because that immunity is compatible with both the purposes of § 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983 .”); Imbler v. Pachtman, 424 U.S. 409, 417-29 , 96 S.Ct. 984, 988-94 , 47 L.Ed.2d 128 (1976) (employing same analysis in holding that state prosecutors are immune from section 1983 damage suits in certain circumstances); Schueur v. Rhodes, 416 U.S. 232, 238-49 , 94 S.Ct. 1683, 1687-93 , 40 L.Ed.2d 90 (1974) (employing same analysis in holding that a state governor, senior state national guard officers, and the president of a state-controlled university were not absolutely immune from section 1983 damage suits in certain circumstances); Pierson v. Ray, 386 U.S. 547, 553-57 , 87 S.Ct. 1213, 1217-19 , 18 L.Ed.2d 288 (1967) (employing same analysis in holding that a state judicial officer was absolutely immune and state police officers had good-faith immunity from section 1983 damage suits in certain circumstances); cf. Tenney v. Brandhove, 341 U.S. 367, 372-76 , 71 S.Ct. 783, 786-88 , 95 L.Ed. 1019 (1951) (employing similar analysis in holding that immunity-like privilege accorded legislators immunized state legislators from section 1983 damage suits in certain circumstances).

In this case, in which state national guard officers contend that they are absolutely immune from a damage suit brought by a subordinate, one cannot progress past the first step of the analysis. Not only were military officers not immune from such damage actions prior to enactment of section 1983, the Supreme Court, in a case decided shortly before the passage of section 1983, held expressly that they were liable in such actions. See Wilkes v. Dinsman, 48 U.S. 93 , 135-37, 7 How. 88 , 128-30, 12 L.Ed. 618 (1849) (reversing trial court dismissal of enlisted man’s suit against superior officer and holding that defendant officer was not absolutely immune from damage action). 1 Thus, unless Judge Becker is prepared to argue that in enacting section 1983 Congress created a new immunity available to the defendants in this case, controlling precedent precludes any holding that the defendants in this case are immune to the section 1983 damage claim.

To his credit, Judge Becker acknowledges the Supreme Court’s methodology for evaluating immunity claims asserted by state officials defending section 1983 suits, at 106, and notes that prior to the enactment of section 1983 military officials were not immune from damage suits, at 105. However, other than to note that his holding is “troublesome in one respect,” at 103, he offers no explanation of how the holding squares with the acknowledged *113 methodology or with the noted immunity law.

What Judge Becker does offer in defense of his holding is Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), and Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983). More specifically, he asserts first that Butz stands for the proposition that the immunity available to section 1983 defendants is the same as that available to similar defendants sued under a Bivens theory. From this he argues that, because, according to him, the Supreme Court held in Chappell that federal military officers are immune from Bivens’ suits, state national guard officers are thus immune from section 1983 damage suits. At 105-106. This argument is without merit.

First, Judge Becker mischaracterizes the holding of Butz . In that case the plaintiffs brought a Bivens action against officials of the executive branch of the federal government. The district court and the court of appeals had rejected the defendants’ assertions that they were absolutely immune, and the defendants had appealed. In assessing the defendants’ claim to absolute immunity, the Court canvassed one hundred and fifty years of Supreme Court case law that had held federal executive branch officials to be liable in damage suits in various circumstances, see id. 438 U.S. at 486-89 , 98 S.Ct. at 2900-02 , and also reviewed cases that had held that state officials were not absolutely immune from section 1983 damage actions, see id. at 496-504 , 98 S.Ct. at 2905-09 . Relying on these two lines of cases, the Court held that the defendants were not absolutely immune from Bivens damage liability. In so holding the Court, using the language quoted by Judge Becker, at 106, rejected the defendants’ assertion that they were entitled to greater immunity than were their state counterparts.

Judge Becker reads Butz to stand for the “unequivocal command ... that Bivens’ claims and § 1983 suits are to be treated as identical for the purpose of immunity.” At 106. To the extent that statement suggests — as Judge Becker’s analysis indicates — that Butz holds that any state defendant sued for damages under section 1983 is absolutely immune if that defendant’s federal counterpart would be absolutely immune to a Bivens claim, he is distorting Butz . Furthermore, implicit in such a suggestion is the assertion that Butz modifies the cases in which the Court has delineated pellucidly the analysis — discussed above — appropriate for determining when state officials are immune from section 1983 damage actions. Nothing in Butz , or in Fact Concerts, which was decided after Butz , supports such a novel assertion.

Even if one were to assume for the purposes of argument that Butz establishes the proposition for which Judge Becker cites it, the reasoning underlying his resolution of the immunity issue is still flawed. Judge Becker argues that in light of Butz the state national guard defendants are immune from this section 1983 suit because, he asserts, the Supreme Court held in Chappell that federal military officials are immune to Bivens suits. Yet this argument is unavailing, for Chappell does not hold what Judge Becker suggests it does.

In Chappell enlisted naval men filed a Bivens suit against their superior officers, seeking damages for alleged constitutional violations. The district court dismissed the plaintiffs’ complaint on the grounds that the underlying military actions could not be reviewed by a civilian court, that the defendants were immune, and that the plaintiffs had failed to exhaust administrative remedies. 462 U.S. at 298 , 103 S.Ct. at 2364-65 . The Court of Appeals for the Ninth Circuit reversed, holding that the district court had incorrectly assessed the jus-ticiability and immunity claims. Id. The defendants then appealed to the Supreme Court.

In a unanimous decision the Court reversed the Ninth Circuit. However, contrary to the necessary implication of Judge Becker's argument, that reversal was not predicated on the conclusion that the defendants were immune from suit. Indeed, *114 it is quite clear that the Court did not address the issue of the defendants’ immunity. Rather, the decision dealt only with the propriety of extending the judicially-created Bivens remedy to the plaintiffs, as the Court focused exclusively on whether the “special factors counselling hesitation” were present. See id. at 298-304 , 103 S.Ct. at 2364-68 . This reading of Chappell is corroborated by the Court’s express reference to Wilkes, which it distinguished on the grounds that “it involved a well-recognized common-law cause of action ... and did not ask the Court to imply a new kind of cause of action.” Id. at 305 n. 2, 103 S.Ct. at 2368 n. 2.

Finally, the issue remains whether the state national guard officials whose liability we consider here are the same as the federal naval officers whose liability the Court considered in Chappell . Resolution of this issue is critical because, even if Judge Becker’s interpretation of Butz and Chappell were correct, that interpretation would allow one to conclude that the defendants here are immune from suit only if one concluded that they are state equivalents of the federal officials who were the defendants in Chappell .

Judge Becker does not attempt to argue that for the purposes of his analysis state national guard officials are the same as federal military officers. Rather, he sidesteps the issue by asserting blithely that we cannot “evade the command of Butz by stating that, as a matter of policy, immunity for federal military officers is more important than immunity for state military officers.” At 106. This position is contrary to Supreme Court precedent. In Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), the Court, in considering the President’s immunity to civil liability, faced the argument that, because it had held in Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), that governors were not absolutely immune from civil liability, the President, by virtue of the similarity of his position to that of a governor, also was not absolutely immune. The Court expressly rejected this argument, choosing instead to assess the propriety of absolute immunity in light of the President’s specific constitutional responsibilities. Id. 457 U.S. at 749-50 , 102 S.Ct. at 2701 . The Court’s resort to this analysis makes clear that the Courts of Appeals, when considering granting to state officials immunities conferred upon their federal analogues, should not, as Judge Becker does, automatically immunize the state officials.

Turning to the substance of the matter, the federal military and state national guards differ in obvious and significant ways. As the Court explained in Chappell , the principal rationale for barring intramili-tary damage actions by federal personnel is the concern for “disruption of the peculiar and special relationship of the soldier to his superiors that might result if the soldier were allowed to hale his superiors into court.” 462 U.S. at 304 , 103 S.Ct. at 2637 (citations and internal punctuation omitted). Whatever one might think of the validity of this reasoning as it pertains to the federal military, it simply is not relevant to state national guards. While those organizations have their military aspects, they are principally civilian in character, and the interrelationships of their members are principally civilian in character. The specifics of this case highlight these facts. Jorden was hired by the PaANG as a civilian technician, and he enlisted only because membership in the guard was a prerequisite to civilian employment. As a member he was required to serve in a military capacity for only fifteen days out of the year. During the rest of the time he served as a civilian employee and was not subject to military command. Thus it is quite clear that the attenuated concern for military discipline in this context bears no resemblance to the concern for such in the federal context. Consequently, the rationale for shielding federal military officers from damage suits does not support shielding state national guard officials from similar suits. 2

*115 Judge Becker’s argument that the Supreme Court’s holdings in Butz and Chap-pell compel the conclusion that the state national guard officers who are the defendants in the case before us are immune to a section 1983 damage suit is indefensible. Further, controlling Supreme Court precedent governing the recognition of immunities available to section 1983 defendants makes clear that these defendants are not absolutely immune from a section 1983 suit for damages. I therefore dissent from the majority opinion to the extent it holds otherwise.

. The Court subsequently affirmed this holding in Dinsman v. Wilkes, 53 U.S. 414, 428, 430 , 12 How. 402 -03, 404-05, 13 L.Ed. 1036 (1851).

. Judge Becker attempts to equate state national guards with the federal military by pointing out *115 that national guards are federal reserve components and by noting that they might be involved in hostilities in case of a “surprise attack” on this country. At 106-107. By this reasoning, the military-discipline rationale of Chappell would bar conscriptable male civilians from suing military officials for damages, for they are as likely to be involved in hostilities as is any member of a state national guard.

Furthermore, Judge Becker’s effort to equate state national guards with the federal military ignores the important differences in the roles of those two organizations. State national guards serve to protect the states from domestic, civil disorder. By contrast the federal military — and the national guards, when federalized — serve to protect the country from external threats. Indeed, federal law prohibits the federal military from participating in domestic security operations. See Posse Comitatus Act, 18 U.S.C. § 1385 (1982).