Sergeant Perry Watkins v. United States Army

CYNTHIA HOLCOMB HALL, Circuit Judge,

dissenting.

Sergeant Perry Watkins has proven himself to be a loyal, talented, and honest soldier. . The majority is rightly impressed by Watkins’ uniformly outstanding performance evaluations and the persistent efforts of his immediate superiors to insure his continued advancement in the United States Army. I share the majority’s admiration of Watkins’ fine service to his country. Watkins’ record has but one blemish under Army regulations: his homosexuality. Watkins brought this lawsuit seeking to enjoin the Army from considering his homosexuality in passing upon the merits of his reenlistment application.

During Watkins’ tenure, Army regulations have always precluded the enlistment of homosexuals. The gravamen of Watkins’ claim is that such discrimination against homosexuals constitutes a violation of his right to equal protection under the fifth amendment. The en banc majority shies away from this issue, however, and grants Watkins the relief he seeks on an alternative rationale. 1 The majority holds *732 that the Army is equitably estopped from refusing to reenlist him due to the Army’s long-standing knowledge of his homosexuality. I dissent from this holding as an unwarranted application of common law principles to matters within the military’s expertise.

I

The original panel in this case held that courts should not review internal military affairs absent “an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations.” Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983) (“Watkins I”). The Watkins I court took this prerequisite to judicial review of internal military decisions verbatim from the test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for determining the justiciability 2 of claims concerning internal military affairs.

The first prong of the Mindes test requires “(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” Mindes, 453 F.2d at 201 . If these prerequisites are met, a court proceeds to the second prong, which requires weighing four factors. 3 Most circuits have adopted the Fifth Circuit’s Mindes test. 4 Furthermore, Mindes is well-established in the Ninth Circuit. 5

*733 In a straightforward application of Mindes’ first prong, the Watkins I panel found a claim of equitable estoppel to be nonjusticiable because this type of common law claim is not premised on the deprivation of constitutional rights or the violation of applicable statutes or regulations. These prerequisites to judicial scrutiny of military affairs serve to advance a widely recognized goal: minimizing “judicial inquiry into, and hence intrusion upon, military matters.” United States v. Stanley, 483 U.S. 669 , 107 S.Ct. 3054, 3063 , 97 L.Ed.2d 550 (1987). While the majority acknowledges that our cases have accepted the limited nature of judicial regulation of military affairs, it fails to explore how the Mindes prerequisites further this objective. Indeed, the majority does not argue that limiting judicial review to federal constitutional, statutory, and regulatory claims is a bad idea. The majority simply concludes— in ad hoc fashion — that the Mindes prerequisites should be ignored in this case. 6

II

The Supreme Court held in Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950), that the government has no Federal Tort Claims Act liability for injuries to military service members arising out of or in the course of activity incident to military service. The Court’s holding in Feres teaches that these are the “type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” United States v. Shearer, 473 U.S. 52, 59 , 105 S.Ct. 3039, 3043-44 , 87 L.Ed.2d 38 (1985). “Feres seems to be best explained by the ‘peculiar and special relationship of the soldier to his superiors, [and] the effects of the maintenance of such suits on discipline....’” United States v. Muniz, 374 U.S. 150, 162 , 83 S.Ct. 1850, 1857-58 , 10 L.Ed.2d 805 (1963) (quoting United States v. Brown, 348 U.S. 110, 112 , 75 S.Ct. 141, 143 , 99 L.Ed. 139 (1954)).

The Court recently has held that the military discipline rationale of the Feres doctrine precludes a tort action by a military service member even when a civilian government employee is alleged to be the tortfeasor. United States v. Johnson, 481 U.S. 681 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987). The Court emphasized that “military discipline involves not only obedience to orders, but more generally duty and loyalty to one’s service and to one’s country.” Id. 107 S.Ct. at 2069. The Court concluded that the mere pendency of a suit against the government by a service member “could undermine the commitment essential to effective service and thus have the potential to disrupt military discipline in the broadest sense of the word.” Id. While the suit before the Court involved service-related injuries, the Court’s reasoning underscores that all suits by active military personnel against the government they serve have the potential to undermine discipline.

The Supreme Court’s decision in Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983), relied upon Feres’ military discipline rationale to conclude that enlisted military personnel cannot maintain a Bivens 7 suit to recover damages from a superior officer for alleged constitutional violations. In Chap-pell, five Navy enlisted men alleged that certain officers discriminated against them on the basis of race in making duty assignments and performance evaluations. Id. at *734 297 , 103 S.Ct. at 2364 . But the Court opined that “[civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superi- or officers; that relationship is at the very heart of the necessarily unique structure of the Military Establishment.” Id. at 300 , 103 S.Ct. at 2365-66 .

While the Court in Chappell identified the officer-subordinate relationship as especially important, the Court also noted that “[i]t is clear that the Constitution contemplated that the Legislative Branch have plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline_” Id. at 301 , 103 S.Ct. at 2366 . This presumption against “eongres-sionally uninvited intrusion into military affairs by the judiciary” explains why the Court has recently expanded upon Chap-pell to hold that a damages remedy is unavailable even though the defendants were not plaintiff’s superior officers and may well have been civilian personnel. Stanley, 107 S.Ct. at 3061, 3063 . The Court recognizes that military discipline is adversely affected whenever a service member brings suit in connection with injuries incident to military service.

A

The Court’s decision in Chappell reversed the Ninth Circuit's ruling that the Navy men had alleged a sufficient claim for damages. Finding Mindes ’ first prong satisfied, the Ninth Circuit had remanded the case to the district court for consideration of the second prong of Mindes : the weighing of four factors to determine the case’s appropriateness for judicial resolution. Chappell, 661 F.2d at 734. While this circuit expressed some initial uncertainty over the continued efficacy of the Mindes test in the wake of the Supreme Court’s decision in Chappell , courts subsequently have applied the Mindes jurisdictional test to claims not directly precluded by the Supreme Court’s Chappell decision. 8

Broadly speaking, Mindes applies to two types of claims which Chappell does not expressly foreclose: (1) claims strictly seeking injunctive or declaratory relief, 9 and (2) damages claims based upon an explicit statute, such as 42 U.S.C. § 1983 or § 1985(3). 10 As Watkins’ suit solely seeks *735 declaratory and injunctive relief, it does not run afoul of Chappell’s express holding.

B

The Court’s rejection of a damages remedy against military officials in Chappell , and its implied acceptance of claims seeking only declaratory or injunctive relief, highlight the Court’s appreciation of the differing nature of these two types of claims. The Court has held that federal executive officials are entitled to qualified immunity against damages claims because damages threaten to undermine “the vigorous exercise of official authority.” Butz v. Economou, 438 U.S. 478, 506 , 98 S.Ct. 2894, 2910-11 , 57 L.Ed.2d 895 (1978); see also Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). 11 But an absolute immunity from suits seeking damages “would seriously erode the protection provided by basic constitutional guarantees.” Butz, 438 U.S. at 505 , 98 S.Ct. at 2910 . Similarly, the availability of certain types of injunctive suits against the military assures “that all individuals, whatever their position in government, are subject to federal law_” Butz, 438 U.S. at 506 , 98 S.Ct. at 2910-11 (emphasis added).

While suits seeking injunctive relief against military officers are a critical means of assuring the rule of law, claims for injunctive relief do require the courts to second-guess the “considered professional judgment” of military authorities. Goldman v. Weinberger, 475 U.S. 503, 508 , 106 S.Ct. 1310, 1313-14 , 89 L.Ed.2d 478 (1986) (rejecting first amendment suit seeking to enjoin the Air Force from enforcing a regulation which prohibited plaintiff from wearing yarmulke). Indeed the Mindes decision itself arose solely in the context of a claim for injunctive and declaratory relief in connection with plaintiff’s forced separation from active duty. Mindes, 453 F.2d at 198 .

As suits for injunctive relief interfere with the military mission, albeit to a lesser extent than suits seeking damages, Chap-pell cannot be read as holding that all injunctive suits are equally well-taken. Accordingly, Mindes appropriately limits the types of claims which may be asserted to those raising federal constitutional, statutory or regulatory matters. “However broad a federal court’s discretion concerning equitable remedies, it is absolutely clear ... that in a nondiversity suit a federal court’s power to grant even equitable relief depends on the presence of a substantive right derived from federal law.” Bivens, 403 U.S. at 400, 91 S.Ct. at 2006-007 (Harlan, J., concurring) (emphasis added).

For similar reasons, the Supreme Court has declined to erect the eleventh amendment as a complete bar to federal court jurisdiction of claims alleging unconstitutional conduct by a state actor. See Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908). “[T]he Young doctrine rests on the need to promote the vindication of federal rights.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 105 , 104 S.Ct. 900, 910 , 79 L.Ed.2d 67 (1984). “Young’s applicability has been tailored to conform as precisely as possible to those specific situations in which it is ‘necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’ ” Papasan v. Allain, 478 U.S. 265, 277 , 106 S.Ct. 2932, 2939-40 , 92 L.Ed.2d 209 (1986) (quoting Pennhurst, 465 U.S. at 105 , 104 S.Ct. at 910 ).

The eleventh amendment analogy is apt because it also requires balancing the need to vindicate federal rights with the obligation not to intrude excessively upon an *736 area presumptively off-limits to the federal courts. A state’s “constitutional immunity” can be likened to the military’s “specialized society separate from civilian society.” Compare Pennhurst, 465 U.S. at 105 , 104 S.Ct. at 910 , with Parker v. Levy, 417 U.S. 733, 743 , 94 S.Ct. 2547, 2555 , 41 L.Ed.2d 439 (1974). But in the eleventh amendment area, a state’s immunity stands impenetrable where a plaintiff fails to allege that state officials have violated federal law. “A federal court’s grant of relief against state officials on the basis of state law ... does not vindicate the supreme authority of federal law.” Pennhurst, 465 U.S. at 106 , 104 S.Ct. at 911 . In a like manner, the Mindes test insures that judicial intrusions into military matters are limited to the vindication of federal interests.

C

There is no doubt that the majority’s intrusion into military affairs, unjustified by important federal interests, will have a disruptive effect upon military discipline. The Watkins I panel stated that “[i]t is clear that a court using its equitable powers to compel superior officers to disobey regulations at the instance of a subordinate is a serious threat to military discipline.” Watkins I, 721 F.2d at 690 . The majority attempts to downplay its disruption of military discipline by emphasizing the “stringent requirements that must be satisfied before the government will be estopped.” Opinion at 706. But the majority fundamentally fails to understand the nature of military discipine as articulated by the Supreme Court.

As noted above, the Court’s decisions in Stanley and Johnson reveal that the mere pendency of a lawsuit by a service member against the government he serves has an adverse impact on military discipline in the “broadest sense of the word.” Johnson, 107 S.Ct. at 2069 . Stanley cautioned against the dangers of “compelled depositions and trial testimony by military officers concerning the details of their military commands.” Stanley, 107 S.Ct. at 3063 ; see also Khalsa, 779 F.2d at 1395 n. 1 (litigation “could interfere with military discipline and efficient operations by requiring superior officers to submit to examinations”). Litigation is inherently disruptive, and entails the risk of “erroneous judicial conclusions (which would becloud military decision-making).” Stanley, 107 S.Ct. at 3063 . Litigation has certain “social costs[, which] include the expenses of litigation, [and] the diversion of official energy from pressing public issues.... ” Harlow, 457 U.S. at 814 , 102 S.Ct. at 2736 . Thus, the majority’s prediction that the United States military generally will be successful in estoppel suits does not carry the day.

Ill

The majority fails to marshal any case law in support of its holding that a common law estoppel claim is justiciable against the military. In fact, the majority distorts our prior case law to make it appear as if its holding is uncontroversial. The majority’s steadfast desire to avoid constitutional adjudication does not support its destruction of a valuable justiciability doctrine.

A

The majority begrudgingly acknowledges that this court has adopted the Mindes test “in part,” citing our decision in Chappell in support of this characterization. Opinion at 705-706. The court in Chappell did state in a footnote that “[w]e express no view as to whether the Mindes test should govern federal nonconstitutional claims,” 661 F.2d at 733 n. 5, but this hardly supports minimizing this court’s faithfulness to Mindes’ first prong.

First, the majority itself concedes that “[s]ome of our cases following Wallace v. Chappell have used language indicating that an internal military decision is reviewable only when the plaintiff alleges a constitutional, statutory, or regulatory violation.” Opinion at 705 n. 10. In fact, all our cases following Chappell have insisted that plaintiff's claims allege a federal constitutional, statutory, or regulatory violation. Second, the majority takes Chap-pell’s footnote completely out of context. *737 In context, Chappell’s caveat strongly supports the dissent's position.

The Ninth Circuit in Chappell was greatly concerned that unnecessary judicial review of military matters would adversely affect discipline. Consequently, the court did indeed limit its adoption of Mindes’ first prong, permitting a narrower group of claims raising only “recognized” constitutional rights. 661 F.2d at 734. In explaining why it limited itself to recognized constitutional claims, the court stated: “We mean only that the allegations must amount to more than a traditional state law claim.” Id. (emphasis added). This complete presentation of our decision in Chappell demonstrates that that court’s adoption “in part” of Mindes is of no solace to the majority. 12

B

The majority states that it eschews the Mindes test in this case because “[sjuch an extension of the Mindes reviewability doctrine to bar equitable relief would improperly require cases against the military to be decided on the broadest possible grounds rather than on the narrowest.” Opinion at 706. But the majority’s desire to avoid the difficult equal protection question presented in this case is no reason to dispense with well-established case law.

This type of policy concern does not override the established limitations of the federal courts. Plaintiffs in the Pennhurst case similarly argued that the Court’s eventual disposition would conflict with “the policy of avoiding unnecessary constitutional deci-sions_” Pennhurst, 465 U.S. at 121 , 104 S.Ct. at 919 . In that area of the law, the Court held that “such considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary_” Id. at 123 , 104 S.Ct. at 920 . Likewise, this policy consideration cannot override the established policy against judicial regulation of military matters absent pressing federal interests.

IV

The majority’s holding on the merits of Watkins’ equitable estoppel claim is also entirely unpersuasive. While the Supreme Court has declined to accept a government invitation to adopt a rule that equitable estoppel may never be invoked against the government, Heckler v. Community Health Services, 467 U.S. 51, 60-61 , 104 S.Ct. 2218, 2224 , 81 L.Ed.2d 42 (1984), the Court has yet to uphold even one such claim. Notably, the Court has reversed this court’s invocation of equitable estoppel many times, on facts no less sympathetic than Watkins’. See, e.g., INS v. Miranda, 459 U.S. 14, 17-19 , 103 S.Ct. 281, 282-84 , 74 L.Ed.2d 12 (1982) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying resident status to alien spouse of citizen when petitioner became ineligible during INS delay in processing application); INS v. Hibi, 414 U.S. 5 , 94 S.Ct. 19 , 38 L.Ed.2d 7 (1973) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying citizenship to Filipino war veteran); see also Montana v. Kennedy, 366 U.S. 308, 314-15 , 81 S.Ct. 1336, 1340-41 , 6 L.Ed.2d 313 (1961) (government not estopped to deny citizenship to child of U.S. citizen born while his mother was living abroad, even though government official advised her that she could not return to the U.S. to have her baby).

The majority’s assessment that the Army’s treatment of Watkins amounts to “affirmative misconduct” is especially unconvincing and demands refutation. The Supreme Court stated in Heckler that *738 “[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined.” 467 U.S. at 60 , 104 S.Ct. at 2224. For this reason, “the Government may not be es-topped on the same terms as any other litigant.” Id. Accordingly, the courts require that “[a] party seeking to raise estop-pel against the government must establish ‘affirmative misconduct going beyond mere negligence’.... ” Wagner v. Director, Federal Emergency Mgmt. Agency, 847 F.2d 515 , 519 (9th Cir.1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir.1985)).

The affirmative misconduct prerequisite to governmental estoppel insures that the citizenry’s justifiable expectation that the government will enforce the laws uniformly will not be lightly disrupted. The majority fails to appreciate that its failure to give genuine substance to the affirmative misconduct element disrupts this expectation.

The majority concludes that “the Army affirmatively misrepresented in its official records throughout Watkins’ fourteen-year military career that he was qualified for reenlistment.” Maj. op. at 707. The misconduct the majority identifies is the Army’s failure to enforce its long-standing policy against the enlistment of homosexuals.

The Army’s prior practice of excusing Watkins’ homosexuality, despite regulations precluding his reenlistment, simply was not affirmative misconduct. Equitable estoppel is triggered by “a definite misrepresentation of fact to another person....” Heckler, 467 U.S. at 59 , 104 S.Ct. at 2223 (quoting the Restatement (Second) of Torts § 894(1) (1979)). In the context of governmental estoppel, therefore, the key issue is whether the government’s definite misrepresentation of fact constitutes affirmative misconduct. The term affirmative suggests a distinction between misfeasance and nonfeasance, though these are “slippery terms.” Santiago v. Immigration & Naturalization Service, 526 F.2d 488, 493 (9th Cir.1975) (en banc), cert. denied, 425 U.S. 971 , 96 S.Ct. 2167 , 48 L.Ed.2d 794 (1976).

The Army’s prior leniency and understanding in permitting Watkins to reenlist was not a promise or active representation by the Army that its regulation prohibiting homosexuals was a nullity. At most, the Army’s conduct in reenlisting Watkins in the past created, by inference, a representation that the Army would overlook its regulation as to a particular enlistment period. Such apparent acquiescence or ambivalence does not meet the threshhold level of misfeasance needed to trigger equitable estoppel against the military.

Although the majority strives mightily to distance itself from the facts of Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981), that effort is ultimately unsuccessful. In La-vin, Army Reserve recruiters induced the plaintiff to enlist by emphasizing pension benefits, and the Reserve subsequently “led Lavin to believe he was working toward pension benefits.” Id. at 1382 . Nevertheless, the court held that the Army was not equitably estopped from enforcing a years-of-service regulation which required Lavin’s removal from the service before he was eligible for pension benefits.

In this case, Watkins does not argue that the Army affirmatively informed him that he was not subject to its regulation against the enlistment of homosexuals. As Lavin demonstrates, however, even such a direct misrepresentation can fail to constitute affirmative misconduct. If the word “affirmative” is to have any meaning, the Army must do more than choose not to enforce strictly a regulation on its books.

The majority’s confusion over the meaning of “affirmative misconduct” is evident. For example, the majority states that the Army “plainly acted affirmatively in admitting, reclassifying, reenlisting, retaining, and promoting Watkins.” Opinion at 708. Does the majority really mean to suggest that the Army’s reenlistment of Watkins was an act of misconduct? Surely not. Finally, the majority fails to assure that Watkins relied to his detriment on all cited *739 acts of affirmative misconduct. 13

The Lavin decision is also especially instructive as to the reasonableness of Watkins’ reliance upon his inferential understanding that his homosexuality would not impede his career in the Army. “Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation.” Lavin, 644 F.2d at 1383 . Watkins simply was not justified in assuming that the Army’s decision to accept a particular application for reenlistment would insure such acceptance for all time. New administrations must be allowed to pursue new policies so long as these policies do not run afoul of statutory or constitutional provisions. The majority greatly undermines the prerogative of executive officials to implement new programs and policies.

Finally, the majority concedes that the government may be estopped only where “the public’s interest will not suffer undue damage by imposition of the liability.” Opinion at 706-707 (quoting Wagner, 847 F.2d at 519). The majority attempts to finesse this issue by stating that the “harm to the public interest if reenlistment is not prevented is nonexistent.... [because] [pjlaintiff has demonstrated that he is an excellent soldier.” Opinion at 709. In other words, reenlisting Watkins will not harm the public interest because the majority thinks that the Army is better off with Watkins, even though he is a homosexual, than it would be without him.

The majority does not justify the ability of judges to substitute their assessment of a homosexual’s impact on military preparedness for the Army’s absent substantial federal interests. Courts are not particularly well-suited to determine whether individual homosexual servicemen bring more to the Army than they take from it. In any event, the majority fails even to undertake this task, relying solely upon the undisputed fact that Watkins is an excellent soldier. The Army has concluded that having homosexual soldiers in the Army, even good soldiers like Watkins, interferes with the Army’s mission. The majority does not challenge this assessment.

Furthermore, the majority fails to acknowledge the ramifications of its holding. We simply have no idea how many “known” homosexuals the Army has reenlisted in years past. By ignoring the ability of other homosexuals to invoke the equitable estoppel rationale advanced by the majority, it greatly minimizes the probable damage to the public interest, as judged by the Army.

V

This dissent has explored the well-established case law which counsels against unnecessary judicial oversight of and intrusion into military matters. In so doing, I have explained how the Mindes doctrine serves as a necessary and logical way to avoid inappropriate inquiry into matters properly within the military’s judgment. In my view, Mindes absolutely forecloses Watkins’ claim that the Army is equitably estopped from refusing to reenlist him.

The majority’s disposition of Watkins’ equitable estoppel claim is essentially unprecedented. The majority’s shallow treatment of precedent presents a misleading account of governing law. Finally, an examination of the merits of Watkins’ estoppel claim proves that the majority has failed to heed the Supreme Court’s admonition that the government is to be estopped only upon a showing of affirmative misconduct. Based upon the foregoing, I dissent.

TROTT, J., concurs in the dissent; BEEZER, J., concurs in parts I, II, III, and the first paragraph of part V; GOODWIN, C.J., concurs in parts I and III.

. A majority of the active judges on this court voted to consider en banc whether equal protec *732 tion doctrine prohibits the Army's discrimination against homosexuals. While I do not dispute the court’s en banc power to address the equitable estoppel claim, I do not interpret the court’s decision to do so as meaning that the Watkins I decision conflicts with prior decisions of this court. Watkins argues that Watkins I conflicts with three Ninth Circuit decisions. His contention is frivolous. In Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981), the court rejected on the merits an Army reservist’s argument that the Army Reserve was equitably estopped from enforcing an age-based years-of-service limitation. As the justiciability issue was neither raised nor addressed, Lavin is of no prece-dential value on this point. Neither is Watkins I in conflict with Jablon v. United States, 657 F.2d 1064 (9th Cir.1981). Jablon held that the government had not waived its sovereign immunity with regard to a promissory estoppel claim by a service member. How this case advances Watkins' argument is incomprehensible. Finally, Watkins is wrong in arguing that Watkins / conflicts with Cortese v. United States, 782 F.2d 845 (9th Cir.1986). As the Army notes, the plaintiff in that case was a private contractor, so it did not raise the military discipline concerns at the heart of the justiciability doctrine. The Mindes doctrine does not present an obstacle to civilian claims against the military. Bledsoe v. Webb, 839 F.2d 1357, 1359 (9th Cir.1988).

.The Mindes doctrine is analogous to the political question doctrine in limiting the types of disputes which courts are competent to resolve. See Khalsa v. Weinberger, 779 F.2d 1393 , 1395 n. 1 (9th Cir.), prior judgment reaff'd, 787 F.2d 1288 (9th Cir.1985). Consequently, the doctrine refers "to 'reviewability' rather than to ‘subject matter jurisdiction.’” Id. at 1396 n. 2. This dissent will use the term "justiciability" synono-mously with "reviewability.”

. The factors weighed in the second prong include: the nature and strength of plaintiffs claim; the potential injury to plaintiff; the type and degree of anticipated interference with the military function; and the level of military expertise and discretion. As Watkins’ equitable estoppel claim fails to satisfy the first prong of the Mindes test, the dissent does not analyze these four factors. In addition, this case does not require us to decide whether the cases rejecting constitutional claims under Mindes' second prong do so on the merits or on a justicia-bility basis. Compare Khalsa, 779 F.2d at 1400 (rejecting suit bringing first amendment challenge to Army appearance regulations under Mindes’ second prong), with Goldman v. Weinberger, 475 U.S. 503, 508 , 106 S.Ct. 1310, 1313-14 , 89 L.Ed.2d 478 (1986) (rejecting suit bringing first amendment challenge to Air Force’s appearance regulations on the merits).

. See, e.g., Costner v. Oklahoma Army Nat'l Guard, 833 F.2d 905 , 907 (10th Cir.1987) (per curiam); Stinson v. Hornsby, 821 F.2d 1537, 1540 (11th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 402 , 102 L.Ed.2d 390 (1988); Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Ogden v. United States, 758 F.2d 1168 , 1179 n. 7 (7th Cir.1985); Penagaricano v. Lienza, 747 F.2d 55, 60-61 (1st Cir.1984); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir.1982), ce rt. denied, 460 U.S. 1022 , 103 S.Ct. 1273 , 75 L.Ed.2d 494 (1983); cf. Bois v. Marsh, 801 F.2d 462, 468 (D.C.Cir.1986); Schultz v. Wellman, 111 F.2d 301, 306-07 (6th Cir.1983); Crawford v. Cushman, 531 F.2d 1114, 1120 (2d Cir.1976). But see Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.1981).

. Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437 , 1440-45 (9th Cir.1988); Sandidge v. State of Wash., 813 F.2d 1025, 1026 (9th Cir.1987); Sebra v. Neville, 801 F.2d 1135, *733 1141 (9th Cir.1986); Khalsa, 779 F.2d at 1398 ; Gonzalez v. Department of Army, 718 F.2d 926, 929 (9th Cir.1983); Wallace v. Chappell, 661 F.2d 729, 732-33 (9th Cir.1981), rev’d on other grounds, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983); Schlanger v. United States, 586 F.2d 667, 671 (9th Cir.1978), cert. denied, 441 U.S. 943 , 99 S.Ct. 2161 , 60 L.Ed.2d 1045 (1979).

. It is ironic that the majority concludes that it "must determine the preliminary question whether Watkins has exhausted available intra-service remedies.” Opinion at 705. Exhaustion of intraservice remedies is, of course, the other half of Mindes’ first prong. As with the limitation to federal claims, exhaustion serves to limit judicial interference with military matters.

. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971).

. In Mollnow v. Carlton, 716 F.2d 627 (9th Cir.1983), ce rt. denied, 465 U.S. 1100 , 104 S.Ct. 1595 , 80 L.Ed.2d 126 (1984), the court found that the "precise holding" of Chappell did not dictate rejection of plaintiffs claim that defendants had violated 42 U.S.C. § 1985 (1). Plaintiff, a former pilot and officer in the Air Force Reserve, sued commanding officers and attending medical personnel. The court noted that Chappell had merely rejected an implied damages remedy, but that section 1985(1) expressly authorized a damages award. Id. Nonetheless, the court held that plaintiffs section 1985(1) claim was properly dismissed because such liability would conflict with Chappell’s underlying rationales. Given this disposition, the court did not address whether Mindes "survived” Chappell. Mollnow, 716 F.2d at 630 n. 5.

. Chappell noted that service members are not precluded from obtaining any relief whatsoever for constitutional violations, citing to three cases which involved injunctive or declaratory relief. Chappell, 462 U.S. at 304 , 103 S.Ct. at 2367-68 . The Ninth Circuit in Mollnow noted that none of the cited cases was a “suit for damages." Mollnow, 716 F.2d at 629 n. 4. The Supreme Court has subsequently acknowledged that these citations “referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages." Stanley, 107 S.Ct. at 3063 . See Ogden, 758 F.2d at 1175 ("We hold that Chappell does not preclude an equitable remedy”).

.[T]he [Chappell ] Court’s rationale has left the field open for Congress to enact legislation authorizing servicemen’s constitutional [damages] claims against their superiors.” Christoffersen, 855 F.2d at 1441. As suits against a state’s National Guard involve state action, section 1983 provides a potential basis for a statutory damages claim. The Christoffersen court declined to decide “whether Chappell bars any or all section 1983 claims for alleged civil rights violations by military personnel." Id. This circuit has also left open the question of whether Chappell is inconsistent with a damages suit pursuant to section 1985(3). See Miller v. Newbauer, 862 F.2d 771, 775 (9th Cir.1988).

Other circuits have concluded that Chappell’s reasoning is inconsistent with a damages action under section 1983 against state National Guard officials. See Holdiness v. Stroud, 808 F.2d 417, 423 (5th Cir.1987); Jorden v. National Guard Bureau, 799 F.2d 99, 108 (3d Cir.1986), cert. *735 denied, — U.S. -, 108 S.Ct. 66 , 98 L.Ed.2d 30 (1987); Brown v. United States, 739 F.2d 362, 366-67 (8th Cir.1984), cert. denied, 473 U.S. 904 , 105 S.Ct. 3524 , 87 L.Ed.2d 650 (1985); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), ce rt. denied, 471 U.S. 1135 , 105 S.Ct. 2675 , 86 L.Ed.2d 694 (1985). As Watkins' suit does not seek damages pursuant to section 1983, this case does not raise the question of whether obtaining such damages against state National Guard officers is inconsistent with the Chappell decision's underlying rationales.

. Cf. Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974) (interpreting the eleventh amendment as precluding the retroactive award of monetary benefits, while allowing prospective injunctive relief).

. The majority’s citation to our decision in Helm v. State of Cal., 722 F.2d 507, 509-10 (9th Cir.1983), is entirely unpersuasive. The majority cites Helm as having applied the Mindes test to a constitutional claim against the military but not to an equitable estoppel claim, the inference apparently being that Helm supports the proposition that Mindes is no bar to an equitable estoppel claim. Helm provides scant support for this proposition. The Helm court noted that the estoppel claim was not properly before it because plaintiff first raised that claim on appeal. Id. at 510 . The court did state that "[e]ven had the issue been presented below, it is effectively precluded by Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981).” Id. As noted, supra, note 1, the parties did not raise the Mindes issue in Lavin , and the court did not address it.

. The majority quite rightly expresses its indignation and outrage at the Army’s forged entry on Watkins’ 1982 Reenlistment Data Card. The card indicated that the Army had informed Watkins of his ineligibility for reenlistment at an interview on July 29, 1981. The interview never occurred. The Army’s conduct is inexcusable, but its misconduct in this regard has no causal connection to Watkins’ equitable estoppel claim. His claim actually centers on the Army’s benign "misconduct” in certifying him qualified for reenlistment throughout his career.