Petition — Chappell v. Wallace

COMMANDER GO C. CHAPPELL, ET AL.,

PETITIONERS

V.

VERNON WALLACE, BT AL.

PETITION FOR A WRIT OF CERTIORARI 10 THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

if

QUESTION PRESENTED

Whether servicemen may sue their superior officers

for damages for alleged constitutional violations in-

cident to military service.

PARTIES TO THE PROCEEDING

The petitioners are Commander George C. Chap-

pell, Lieutenant Commander Kenneth Viafore, Lieu-

tenant Clarence Schultz, Lieutenant Barron Bianco,

Lieutenant Kenneth Jordan, Engine Man Chief Rich-

ard MeCannon, Internal Communications Chief David

Lamser, and Mess Management Specialist Chiet Lum-

berto Papa. The respondents are Vernon Wallace,

Robert Lemons, Cornelius Hickey, James Richardson,

and George Shannon,

(1)

Page

3 1

8 ——.' . 1

— 2

Reasons for — re 5

888 —— 17

88 4 ————————————— la

Be 111üͤc A 21a

88 6—ñññ—ñ— 22a

885 28a

TABLE OF AUTHORITIES

Canen:

Alvarez v. Wilson, 481 F. Supp. 186, appeal pend-

ing, No. 81-2606 (7th Cif.) ))) 16, 16

Bailey v. DeQuevedo, ä —

889 U.S. 928 E

Bailey v. Van Buskirk, 346 F.2d 208 | » — — 16

Birdwell v. Schlesinger, 408 F. Supp. 710 16

Bivens v. Sia Unknown Named Agente of Federal

Bureau of Narcotics, 408 U.S, 366 J, 4, 6, 9, 10, 11,

= and 14, 16, 16, 17

Brown v. Glinea, 444 U.S, 948 .. —

Burna v. Wilaon, 846 UB. 17 11

Buah v. Lucas, 647 F.2d 678, cert. granted, No. 81

11 LKK — 16, 17

Butz v. Economou, 488 US. 478 A, 11. 14, 16

Cathoun v. United States, 604 F.2d 647, aff’ and

adopting 476 F. Supp. .

＋Ä—ͥ̈EA!l.⁊ 8 ae 8 5 15

Cartoon v. Green, 446 US. 14 r 6, 6, 9, 10, 14

Davia v. Pasaman, 442 U.S. 228 8 6, 9, 14

Feres v. United States, $40 U.S, 186 ....... — 7

(m)

Cases—Continued Page

Gilligan v. Morgan, 418 UBD co re 10

Gregoire v. Biddle, 177 F.2d 679, cert. denied, 339

a 16

Grimley, In re, 187 U.S. rb

Harlow v. Fitegerald, No, 80-045 (June 24, 1982) 14, 15,

16

Mass v. United States, 618 F.2d 1188 ...... 14, 16

Henninger v. United States, 478 F.2d 14 16

Jaffee v. United States, 668 F.2d 1226, cert, de-

nied, No, 81-1846 (May 17, 1962) 6 16

Johnson v. Alexander, 672 F.2d 1219, cert. denied,

Se x

Knehanea v. Alexander, 566 F.2d $12, cert. denied,

485 U.S. 096 ........ 10

Laawell v. Brown, No. #1. 1768 (eth ¢ Cir. + duly 21,

= 6 16

Mindea v. Seaman, 458 F. ad 7 4

Misko v. United States, 463 F. Supp. 615, aff'd, 598

. » 14, 16

Nixon v. Fitegerald, No, 79-1788 (June 24, — 5-6, 20

Orloff v. Willoughby, 846 U.S, 68 ; 12

Owen v. City of Independence, 446 U.S. 0% — *

Parker v. Levy, 417 UB. 7998 — 11

Roach v. Shielda, 871 F. Supp, 1892 — 15

Roatker v. Goldberg, 468 U8. 67 9, 10

Rotko v. 2 4566 F.2d 992, aft x and adopting

IXI. 15

Schlesinger v. Councilman, 420 6. 8. 788. 1 11

Sigler v. Le Van, 45 F. Supp. 185, appoal din-

missed, Nos, 80-1160 and 80-1202 (4th Cir, Apr.

20, 1960) . e 15

Stenoel Aero Engineering Corp. v. United States,

F . 1

Thornton v. Coffey, 618 F.2d 606 * 10

Thornwell v. United States, 471 F. Supp. 344 14, 16

Toth v. Quarles, BHO U.S. 111 11

United States v. Brown, 348 US. 110 5

United States v. Munia, 74 U.S, 160 1 7

United States v. O'Brien, 891 U. 8. 6 9

Statutes and regulation :

1˙ GED ——r —

10 U.S.C, 988 PTTTLL LILI eeeeeeeeeeeace 256636

10 U.S. 0. 1662 6 „„ „6 „ „ 6464664666666 4 4 6 6 66 „%„%„ „ „ 6 ie „„ „ „ „ 466666666

10 U.. C. 188 () — ——

28 U.S.C. 1840 (b) — — —

BB U.S. C. 2% 1 et BOG. ũmne W

42 U.S.C, (Supp. III) 1986 (8) — —

12 1....KK 2

82 C. F. R. Part 72 1664436444444 46666

Miscellaneous

H.R. 17 No, 07-384 (Pt. Dn, 07th Cong. lat

i f ——V————

—

Iu the Supreme Court of the United States

OcToBER THRM, 1982

No.

COMMANDER GrorGe C. CHAPPELL, BT AU,,

PETITIONERS

.

VERNON WALLACH, BT AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of Commander

George C. Chappell, „ al., petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Cireuit in this case,

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-20a) is reported at 661 F.2d 729. The order of

the district court (App. C, infra, 22a) is unreported,

JURISDICTION

The judgment of the court of appeals was entered

on November 2, 1981, and a petition for rehearing

was denied on March 2, 1982 (App. B, infra, 21a).

(1)

On May 24, 1982, Justice Rehnquist extended the

time in which to file a petition for a writ of certiorari

to and including July 16, 1982, and on July 2, 1982,

Justice Rehnquist further extended the time in which

to file a petition for a writ of certiorari to and in-

cluding July 30, 1982. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Respondents, black enlisted men in the Navy serv-

ing on board the U.S.S. Decatur, brought this suit

against petitioners, their superior officers on the De-

catur, in 1978.' Respondents claimed that because of

their race, petitioners “assigned them the least de-

sirable duties, excluded them from training programs,

[gave] them low performance evaluations, and pun-

ished them with unusual severity for minor trans-

gressions” (App. A, infra, 2a). Respondents based

their claims directly on the Constitution (id. at 2a

n.1).2 They sought $10 million in compensatory and

punitive damages from petitioners, as well as declara-

tory and injunctive relief (E.D. 17).

1 Petitioner Chappell was the Commanding Officer of the

Decatur; petitioner Schultz, the Engineering Officer; peti-

tioner Viafore, the Executive Officer; petitioner Jordan, the

Operations Officer; petitioner Bianco, the Supply Officer; peti-

tioner McCannon, the Chief of the Engineering Department;

petitioner Lamser, the Chief of the Electrical Division; and

petitioner Papa, the Chief of the Supply Department. E.D.

3-4. (“E.D.” refers to the Excerpt of Documents filed in the

court of appeals.)

2 Respondents’ claims also rested on 42 U.S.C. (Supp. III)

1985(3), and the court of appeals ruled that its analysis of

1985 (3) claims

4

?

:

E

The United States District Court for the Southern

District of California dismissed the complaint, rul-

ing that respondents’ damages action was barred by

an “intra-service immunity” (App. C, infra, 22a).

The district court also ruled that the actions of which

respondents complained were “nonreviewable mili-

tary decisions” and that respondents had failed to

exhaust their administrative remedies (ibid.).

The court of appeals reversed (App. A, in fro, la-

20a). It noted at the outset (id. at 2a n.1) that

respondents, in bringing a damages action directly

under the Constitution, were relying on Bivens v.

Six Unknown Named Agents of Federal Bureau of

Nercotics, 403 U.S. 388 (1971). But the court of

appeals merely stated that “Bivens has been extended

to fifth amendment equal protection claims” (App.

A, infra, 2a n. I, citing Davis v. Passmon, 442 U.S.

228 (1979) ) and did not address the question whether

Bivens empowered the court to confer on servicemen

an implied cause of action for damages against their

superior officers.

Instead, the court of appeals discussed the “review-

ability” of respondents’ claims and whether petition-

ers were absolutely immune from damages liability

for suits arising from their military duties. The

court stated that the “reviewability” question—which

it defined as “whether a court may review [the chal-

lenged] military decision[s] to determine whether

a substantive wrong has been committed” (App. A,

infra, 4a)—could “arise regardless of the identity

of the defendant, i.e., whether the defendant is the

United States or an individual federal official, and

regardless of whether the remedy sought is damages

or some form of nonmonetary relief” (ibid.). me

1

“a ‘recognized’ constitutional right“ and amount to

more than a traditional state law claim” (id. at

10a); the court concluded that respondents’ claims

fulfilled this criterion (id. at 19a). Beyond that,

the court held that the reviewability of military

decisions would depend on four factors (id. at 7a;

emphasis omitted) :

(1) The nature and strength of the plaintiff's

claim * * *. (2) The potential injury to the

plaintiff if review is refused. (3) The extent

of interference with military functions[,] * * *

[although] interference per se should not pre-

clude review because some degree of interfer-

ence will always exist. (4) The extent to which

military discretion or expertise is involved.

The court of appeals derived these factors from

Mindes v. Seaman, 453 F.2d 197, 201-202 (5th Cir.

1971), which was not a Bivens action but a suit by

a serviceman seeking declaratcry and injunctive relief

in connection with an allegedly erroneous performance

evaluation. See 453 F.2d at 198. The court of ap-

peals ordered the district court, on remand, to balance

the four Mindes factors in deciding whether respond-

ents’ claims were reviewable (App. A, infra, 20a).“

The court of appeals then considered “whether

[petitioners] possess[] official immunity” (App. A,

infra, 12a). Relying principally on Butz v. Econo-

mou, 438 U.S. 478 (1978), the court held that “ex-

cept in unusual circumstances”—such as, possibly,

when a suit challenged a military decision made in

combat, or by an officer acting in a judicial or prose-

»The court of appeals also held that respondents were re-

quired to exhaust their administrative remedies, but it over-

turned the district court’s decision that they had not done so

here and instructed the ‘istrict court to reconsider the issue

(App. A, infra, 3a n.2, 20a).

cutorial role—military officers would be accorded only

a qualified, not an absolute, immunity from suit

(App. A, infra, 14a, 16a-18a & n.10). The court

acknowledged that absolute immunity would avoid

the “threat to discipline” posed by military officers’

potential monetary liability, but it considered this a

“marginal benefit” insufficient to “offset the substan-

tial policies opposing absolute immunity” (id. at 15a).

REASONS FOR GRANTING THE PETITION

The court of appeals—alone among the appellate

courts that have considered the issue—has held that

a serviceman may sue his superior officers for dam-

ages for alleged constitutional violations incident to

military service. This unwarranted extension of

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), presents

a significant potential threat to military discipline.

It is also inconsistent with this Court’s recognition,

in related contexts, that permitting a serviceman to

hale his superiors into court and hold them account-

able in damages crucially undermines the hierarchical

relationships that are unique, and essential, to the

military. Because the court of appeals has incorrectly

resolved an issue of great practical importance to the

armed services, review by this Court is warranted.

1. This Court held in Bivens that a person whose

constitutional rights are violated by a federal official

may, in some circumstances, seek damages from the

official in federal court. But Bivens and subsequent

cases have emphasized that a constitutional damages

remedy will not be implied if there are “ ‘special

factors counselling hesitation in the absence of af-

firmative action by Congress.“ 403 U.S. at 396,

quoted in Carlson v. Green, 446 U.S. 14, 18-19

(1980); see Nixon v. Fitzgerald, No. 79-1738

(June 24, 1982), slip op. 22 n.37; Davis v. Passman,

442 U.S. 228, 245-247 (1979).

The “peculiar and special relationship of the

soldier to his superiors” (United States v. Brown,

348 U.S. 110, 112 (1954)) is such a special factor.

As this Court has remarked of the military context,

“the right to command and the duty to obey ordi-

narily must go unquestioned” (Brown v. Glines, 444

U.S. 348, 357 (1980)). The court of appeals’ ap-

proach—by allowing a serviceman to threaten his

superior officers with personal damages liability, and

to impose on them the burdens of litigation, for every

real or imagined grievance—will undermine the com-

mand relationship, forcing officers to hesitate before

ordering actions that military discipline requires, but

that a serviceman might resent.‘

For example, according to the complaint in this case, re-

spondent Wallace was dissatisfied with his duty assignment

(E.D. 5-6) ; respondent Lemons urged that his work load was

excessive and that he should not have been fined $50 for leav-

ing his work clothes in his work area instead of a locker

(E.D. 8); respondent Hickey asserted that he was unjustly

denied a recommendation for a promotion (E.D. 10-11); re-

spondent Richardson alleged that a white serviceman with

less experience was given greater training opportunities (E.D.

13) ; and respondent Shannon objected to, among other things,

being ordered, together with other servicemen, to clean a

stove with a toothbrush (E.D. 15). Respondents made the

conclusory assertion that these actions by petitioners deprived

them of their “rights under the Constitution and laws of the

United States, including the right not to be discriminated

against because of [their] race, color or previous condition of

servitude, the right not to be deprived of rights and privileges

of the United States Navy without due process, the right not

to be limited in the rights and privileges guaranteed by the

statutes of the United States, and the right to obtain equal

employment opportunities while in the United States Navy”

(E.D. 6; see E.D. 9, 11, 18, 15). The suit was not joined by

7

For similar reasons, this Court has held, even in

less compelling contexts, that the importance of avoid-

ing judicial intrusion into the relationship between

a serviceman and his superiors overcomes even an

apparently strong presumption in favor of granting

relief. The Federal Tort Claims Act, for example,

permits tort suits against the United States in a wide

range of cases, and contains no express exemption for

the military. See 28 U.S.C. 1346 (b) and 2671 et seg.

But in Feres v. United States, 340 U.S. 135 (1950),

the Court ruled that the FTCA does not permit

servicemen to sue the United States for service-

related injuries; the Court reached this conclusion

despite several indications, which it acknowledged,

that Congress intended to permit servicemen to re-

cover against the United States. See id. at 138-139.

The “basis of Feres was the Court’s concern with

the disruption of It he peculiar and special relation-

ship of the soldier to his superiors’ that might result

if the soldier were allowed to hale his superiors into

court.” Stencel Aero Engineering Corp. v. United

States, 431 U.S. 666, 676 (1977) (Marshall, J., dis-

senting), quoting United States v. Brown, supra, 348

U.S. at 112. See United States v. Muniz, 374 U.S.

150, 162 (1963). The Court was specifically con-

cerned that “[t]he trial [of such a claim] would

involve second-guessing military orders, and

would often require members of the Armed Services

to testify in court as to each other’s decisions and

actions.” Stencel Aero Engineering Corp. v. United

States, supra, 431 U.S. at 673. These concerns are

all the black servicemen on board the Decatur; several, in-

cluding the ship’s equal employment opportunity adviser, filed

affidavits in the district court supporting petitioners. See

E.D. 40-45.

vastly greater when a serviceman, instead of seeking

damages from the United States, “hale[s] his supe-

riors into court” as defendants and threatens them

with massive personal liability. See Carlson v. Green,

supra, 446 U.S. at 21 (threat of personal liability

has a greater impact on officials’ behavior than

the possibility that the government will be held

liable); Owens v. City of Independence, 445 U.S.

622, 653 n.37, 655-656 (1980) (same). If “the ef-

fect of [an FTCA] action upon military discipline“

(Stencel Aoro Engineering Corp. v. United States,

supra, 431 U.S. at 673) justified the Court in find-

ing an implied exception to the FTCA," surely the

court of appeals should have hesitated before grant-

ing respondents a personal damages remedy directly

against their superior officers—especially when Con-

has given no indication that it favors such a

remedy.’ See Jaffee v. United States, 663 F.2d 1226,

1235 (3d Cir. 1981) (en banc), cert. denied, No. 81-

1346 (May 17, 1982) (“suits based on service in-

juries involve, as a general matter, ‘special factors

counseling hesitation’ ’’).

2. As the court of appeals recognized (App. A,

infra, 19a n.11), Congress has provided alternative

remedies that servicemen such as respondents may

invoke to redress their grievances. These remedies

are significant for two related reasons. First, the

5 Congress has, however, endorsed the Feres principle. See,

e.g., H.R. Rep. No. 97-884 (Pt. I), 97th Cong., Ist Sess. 5

(1981).

Indeed, Congress did not extend Title VII of the Civil

Rights Act of 1964, which provides administrative and judi-

cial remedies for racial discrimination in federal employment

(see 42 U.S.C. 2000e-16), to the military. Johnson v. Alex-

ander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986

(1978).

Court has stated that it will not find an implied dam-

ages remedy for a constitutional violation if Congress

has provided a substitute remedy that is equally ef-

fective, Carlson v. Green, supra, 446 U.S, at 18-19;

see Davia v. Passman, supra, 442 U.S, at 245-247;

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, supra, 408 U.S, at 897, Second,

the contrast between the remedies Congress has pro-

vided for aggrieved servicemen and the Bivens remedy

granted by the court of appeals demonstrates the

inappropriateness of the court’s augmenting Con-

gress’ remedial design in this fashion, See Rostker

v. Goldberg, 458 U.S. 57, 65, 68 (1981), quoting

United States v. O’Brien, 391 U.S, 867, 877 (1968)

(Congress’ power over military affairs is “ ‘broad and

sweeping’ and courts “must be particularly careful

not to substitute [their own] judgment of what is

desirable for that of Congress“).

By statute, any serviceman “who believes himself

wronged by his commanding officer” has the right to

invoke the review of an officer superior in rank to

the commanding officer; the superior officer is au-

thorized to “take proper measures for redressing the

wrong complained of.” 10 U.S.C, 938. To the extent

respondents complain of discriminatory nonjudicial

punishment, they may similarly seek relief by ap-

pealing up the chain of command. See 10 U.S.C.

815(e). Congress has also provided for the Board

for the Correction of Naval Records, a forum in

which respondents may challenge allegedly discrimi-

natory performance evaluations or promotion deci-

sions. See 10 U.S.C, 1552; 82 C. F. R. Part 723. Con-

gress vested the Secretary of the Navy, acting through

the Board, with plenary power to “correct an error or

remove an injustice” (10 U.S.C, 1552(a)), and in

appropriate cases the Board may issue orders leading

10

to retroactive promotions and back pay. See generally

Thornton v. Coffey, 618 F.2d 686, 692 (10th Cir.

1980); Knehans v. Alewander, 566 F.2d 312, 315

(D.C, Cir, 1977), cert. denied, 435 U.S. 995 (1978).

These remedies established by Congress, unlike the

Bivens remedy inferred by the court of appeals, pre-

serve the military chain of command. If officers act

wrongfully toward servicemen, they are subject to

discipline imposed by their military superiors, But

in a Bivens action, servicemen would call their supe-

riors to account, Courts and juries (see Carlson v.

Green, supra, 446 U.S, at 22-28), acting at the behest

of servicemen and enforcing the judicially-created

Bivens remedy, would be able to determine the cir-

cumstances in which superior officers are subject

to sanctions for their behavior toward those they

command, In addition, courts and juries would deter-

mine the nature and amount of the sanctions; here,

for example, respondents seek punitive damages (see

Carlson v. Green, supra, 446 U.S, at 21-22).

Judgments about the measure of discipline to im-

pose on a military officer for acting improperly to-

ward a subordinate are principal examples of the

“ ‘complex, subtle, and professional decisions as to the

composition, training, * * * and control of a military

force’” about which this Court has said,“ [it is

difficult to conceive of an area of governmental activ-

ity in which the courts have less competence.’ Rost-

ker v. Goldberg, supra, 458 U.S. at 65-66, quoting

Gilligan ». Morgan, 418 U.S. 1, 10 (1973). These

judgments are properly made by the officials desig-

In addition, as the court of appeals noted, the Navy has

established “comprehensive” internal equal opportunity pro-

cedures “for reporting incidents and processing complaints”

of racial discrimination. App. A, infra, 19a n. 11.

11

nated by Congress and the executive branch, But

under the court of appeals’ approach, courts and

juries would make these judgments. See Puts v.

Economou, 488 U.S, 478, 508 (1978), citing Bivens

v. Siw Unknown Named Agents of Federal Bureau of

Narcotics, supra, 408 U.S, at 409 (Harlan, J., con-

curring) (in deciding whether to infer a Bivens rem-

edy, a court must consider “whether the courts are

qualified to handle the types of questions raised by

the plaintiff's claim“).

The tensions inherent in military life make it par-

ticularly inadvisable to accord servicemen a judicially-

created damages remedy against their superior oh-

cers. Because “ ‘it is the primary business of armies

and navies to fight or be ready to fight wars should

the occasion arise,’ * the military must insist

upon a respect for duty and a discipline without

counterpart in civilian life.” Schlesinger v. Council

man, 420 U.S, 738, 757 (1975), quoting Toth v.

Quarles, 3560 U.S, 11, 17 (1955). And “ ‘the rights

of men in the armed forces must perforce be condi-

tioned to meet [these] overriding demands of dis-

cipline and duty * * *.’" Parker v. Levy, 417 US.

738, 744 (1974), quoting Burns v. Wilson, 346 U.S.

187, 140 (1953) (plurality opinion). In order to

maintain this extraordinary discipline, commanding

officers will necessarily and frequently make decisions

that servicemen or civilians—perhaps unaccustomed

to the military’s “specialized society * * * [with]

laws and traditions of its own” (Parker v. Levy,

supra, 417 U.S. at 748)—may consider unjust.

If, in these circumstances, a commanding officer

must constantly consider the possibility that he will

be sued for damages, his ability to lead effectively—

“the right to command in the officer, [and] the duty

of obedience in the soldier” (In re Grimley, 187 U.S.

12

147, 153 (1890))—will be undermined, Moreover,

courts administering a judicially-created remedy are

not the proper forum for resolving the grievances that

arise in such a context. As this Court explained in

another case in which a serviceman challenged a mili-

tary personnel decision he thought was unfair:

We know that from top to bottom of the Arm

the complaint is often made, and sometimes wit

ustification, that there is discrimination, favorit-

am or other objectionable handling of men, But

judges are not given the task of running the

Army. The responsibility for setting up channels

through which such grievances can be considered

and fairly settled rests upon the Congress and

upon the President of the United States and his

subordinates,

Orloff v. Willoughby, 345 U.S. 88, 93-94 (1953),

8. The court of appeals did not take adequate ne-

count of these concerns. The court simply assumed

that a Bivens action was available to respondents; at

no point did it specifically consider whether the fac-

tors that counsel hesitation in the military context,

or the alternative remedies available to servicemen,

should preclude servicemen from seeking a Bivens

remedy against military officials."

In addition, the court of appeals appears to have assumed

(see, ¢.9., App. A, infra, IIa, 16a n.10) that a distinction can

be drawn between military decisions related to preparation

for combat and those decisions somehow unconnected to com-

bat. But as this Court has explained, no such distinction can

be applied

[Restrictions necessary for the inculcation and mainte-

nance of basic discipline and preparedness are as justi-

fied on a regular base in the United States * * as on a

training base * * * or a combat-ready installation in the

Pacific * * *. Loyalty, morale, and discipline are essential

13

Instead, the court discussed whether petitioners

would have a “nonreviewability” or an immunity de-

tense. But the court of appeals’ reviewability criteria

do not differentiate between suits for declaratory and

injunctive relief, on the one hand, and suits that

threaten officials with personal damages liability, on

the other, Indeed, the court made it clear that these

criteria were to apply in the same way irrespective of

the remedy; commenting on “the possibility that mili-

tary operations will be disrupted [by suits like re-

spondents’], and the possibility of courts usurping

military functions that they lack the competence to

perform,” the court of appeals said simply: “Once a

claim has been found reviewable, allowing a damages

remedy would not exacerbate either the disruption or

the usurpation” (App. A, infra, 16a n.9). For obvi-

ous reasons, however, the threat of a suit for personal

damages will have a far more inhibiting effect on

commanding officers than the possibility that their

actions may be set aside if found invalid, The court

of appeals’ decision to apply one set of “reviewability”

criteria to both categories of cases, therefore, is an

inadequate treatment of the question whether service-

men should have a Bivens action against their su-

perior officers.

The court of appeals’ discussion of the immunity

issue is also not an adequate response to the question

whether Bivens actions by servicemen should be al-

lowed, The court did not distinguish, in its discussion

of military officials’ immunity, between damages suits

attributes of all military service. Combat service obvi-

ously requires them. And members of the Armed Serv-

ices, wherever they are assigned, may be transferred to

combat duty or called to deal with civil disorder or nat-

ural disaster.

Brown v. Glines, supra, 444 U.S. at 866-867 n. 14.

14

brought by servicemen and damages suits brought by

civilians, But as we have explained, the reasons for

not permitting a serviceman to bring a Bivens action

against his superiors are particularly strong. The

military's “special functions” (Butz v. Heonomon,

supra, 488 U.S. at 507) are central to the protection

of the national security (see Harlow v. Fitegerald,

No, 80-945 (June 24, 1982), slip op. 11 & nn. 18, 19)

and it is therefore particularly important to protect

military officials “from undue interference with their

duties and from potentially disabling threats of lia-

bility” so as to ensure “the unhesitating performance

of functions vital to the national interest” (slip op.

Whatever the strength of these arguments in

the context of suits by civilians challenging actions

taken by military officers within the scope of their

official duties, the policy considerations underlying

the absolute immunity defense are compelling in the

context of suits by servicemen.’ Some courts have ac-

cordingly ruled—reaching the correct result, in our

view—that an “intra-military immunity” bars serv-

icemen’s suite against their superior officers, See,

¢.g., Thornwell vy, United States, 471 F. Supp, 344,

347-348 (D.D.C, 1979); Misko v. United States, 453

F. Supp. 513, 515 (D. D.C. 1978), aff'd, 598 F.2d

1871 (D.C, Cir, 1979). See also Hass v. United

States, 518 F.2d 1188, 1142-1148 (4th Cir, 1975);

Bailey v. DeQuevedo, 875 F.2d 72 (8d Cir.), cert. de-

nied, 389 U.S. 925 (1967). Whether the question is

framed as one of immunity or of the appropriateness

of a Bivens remedy, however, the court of appeals

AL

* Consequently, this is not a case like Carlson v. Green,

supra, or Davis Vv. Pasaman, supra, where the Court ruled

that the special factors counseling hesitation were “coexten-

sive” with the defendants’ official immunity, 442 U.S, at

246; see 446 U.S. at 19.

15

erred by failing to recognize that respondents’ suit

should be precluded because it is a damages action

brought by servicemen against their superiors,'’

4, This appears to be the first case in which serv-

icemen have been allowed to seek damages from mili-

tary officials for alleged constitutional violations inei-

dent to military service, See, ., Jaffee v. United

States, supra; Rotko v. Abrams, 455 F.2d 992 (2d

Cir, 1972), aff'g and adopting 338 F. Supp, 46, 48

(D. Conn, 1971); Laswell v. Brown, No, 81-1768

(8th Cir, July 21, 1982), slip op. 16; Bailey v. De-

Quevedo, supra; Sigler v. LeVan, 485 F. Supp. 185,

189-192 (D. Md. 1980), appeal dismissed, Nos, 80-

1160 and 80-1202 (4th Cir, Apr. 29, 1980); Thorn-

well v. United States, supra; Misko v. United States,

supra; Birdwell v Schlesinger, 408 F. Supp. 710,

718 (D. Colo, 1975); Roach vy. Shields, 371 F. Supp.

1392, 1393 (B.D, Pa. 1974), See also Calhoun .

United States, 604 F.2d 647 (9th Cir, 1979), aff’g

and adopting 475 F. Supp. 1, 4 (8.D, Cal, 1977),

cert, denied, 444 U.S, 1078 (1980); Hasse v United

States, supra; Bailey v. Van Buskirk, 345 F.2d

298 (9th Cir, 1965), But see Alvarez v. Wilson,

431 F. Supp. 136 (N. D. Ill, 1977), appeal pending,

No, 81-2696 (7th Cir.). The impact of the court of

appeals’ decision is therefore heightened because it is

a departure from the uniform rule that military offi-

% In our view, the proper analysis would distinguish bo-

tween the question whether a Bivens remedy should be con-

ferred on a party and the question whether the defendant

official ia immune from suit. See, ¢.g., Harlow v. Fitegerald,

No, 80-946 (June 24, 1982), slip op. 6 n.10, 19 n.86; Bute v.

Heonomou, supra, 488 U.S. at 486, 608, Since the Court has

not suggested that the scope of an official’s immunity depends

on the identity of the plaintiff, an “intra-military immunity”

would be another way to express the conclusion that service-

men do not have an implied damages remedy against their

superiors.

16

cers may not be subject to personal damages suits by

those they command. Of course, petitioners have not

yet been found liable; but the court of appeals’ deci-

sion leaves no doubt that in some circumstances offi-

cers may be held liable for damages in their personal

capacities, and it is the “potentially disabling threat]

of liability” and litigation (Harlow v. Fitzgerald,

supra, slip op. 5), not the recovery from particular

defendants, “that [is] disruptive of discipline and

the orderly conduct of military affairs” (Henninger

v. United States, 473 F.2d 814, 816 (9th Cir. 1973) ).

See also Nixon v. Fitzgerald, supra, slip op. 20 n.32,

quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d

Cir. 1949), cert. denied, 339 U.S. 949 (1950)."

5. Finally, the Court has granted certiorari in

Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981), cert.

granted, No. 81-469 (June 28, 1982), which raises

related issues. Bush is a Bivens action by a federal

civilian employee against his supervisor for alleged

injuries incident to his employment. The United

"It also appears that servicemen are bringing damages

actions against their superiors with increasing frequency. We

know of 18 such suits pending, seven of which are in the

Ninth Circuit. Alvarez v. Wilson, supra; Jones v. Reagan, No.

81-2918 (7th Cir.) ; Elliott v. Secretary of the Army, Nos. 82-

5144 and 82-5145 (9th Cir.) ; Poe v. Kuyk, Nos. 81-4017 and

81-4018 (9th Cir.) ; Todd v. Brown, No. 77-0725 (D. Ariz.) ;

Ramsey v. Lehman, No. 81-1706 (S.D. Cal.) ; Martin v. Olm-

stead, No. 80-2041-N (S.D. Cal.); Turner v. United States,

No. CV 79-1972-ALS (C.D. Cal.) ; Benvenuti v. Department

of Defense, No. 81-1808 (D. D.C.); Bois v. United States, No.

80-1030 (D.D.C.); Ogden v. United States, No. 82-C-2680

(N. D. III.); Morrow v. United States, No. 81-C-2479 (N.D.

III.); Trerice v. United States, No. 81-71392 (E.D. Mich.) ;

Cender v. Johnson, Nos. 80-180-Civ.-8, 81-40-Civ.-3 (E.D.

N.C.) ; Vasquez v. Maslowski, No. 81-59-Civ.-3 (E. D. N. C.);

Tufts v. Bishop, Civ. No. 80-1890 (D. Kan.) ; Jacobs v. United

States, No. 80-108 (D. Ore.) ; Graham v. Ma , No. 80-1321

(S. D. Tex.).

17

States Court of Appeals for the Fifth Circuit held

that special factors deriving from the federal employ-

ment relationship, and the alternative civil service

remedies available, made it inappropriate to infer a

Bivens remedy in favor of the plaintiff. Because

Bush presents an issue analogous to that involved

here, there would be little point in the lower courts’

conducting further proceedings in this case until

Bush is decided.

At the same time, we stress that the issues in Bush

v. Lucas are only analogous. Because of the special

needs of military discipline, different concerns attend

military suits and strongly counsel against allowing

a serviceman to pursue a constitutional damages rem-

edy against his superior officers. For this reason, we

believe that, regardless of the outcome of Bush, this

case warrants further review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. Lee

Solicitor General

J. PAUL McGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

Davip A. STRAUSS

Assistant to the Solicitor General

RosBert E. Kopp

JOHN F. CorpDEs

Attorneys

JULY 1982

la

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 79-3172

VERNON WALLACE, ROBER? LEMONS, CORNELIUS

HICKEY, JAMES RICHARDSON, and GEORGE SHAN-

NON, PLAINTIFFS-APPELLANTS

U.

COMMANDER GEORGE C. CHAPPELL, LIEUTENANT

COMMANDER KENNETH VIAFORE, LIEUTENANT

CLARENCE SCHULTZ, LIEUTENANT BARRON BIANCO,

LIEUTENANT KENNETH JORDAN, EMC RICHARD

McCANNON, ICC Davip LAMSER, and MSC Lus-

BERTO PAPA, DEFENDANTS-APPELLEES

Argued and Submitted Dec. 6, 1979

Submission Vacated Aug. 19, 1980

Ordered Resubmitted Feb. 2, 1981

Decided Nov. 2, 1981

Rehearing and Rehearing En Banc

Denied March 2, 1982

Before GOODWIN, HUG, and FLETCHER, Cir-

cuit Judges.

FLETCHER, Circuit Judge:

This action was brought by several black Navy

enlisted men claiming discrimination on the basis of

race. The complaint alleged that plaintiffs’ superior

officers had assigned them the least desirable duties,

excluded them from training programs, given them

low performance evaluations, and punished them with

unusual severity for minor transgressions. It was

further alleged that this discriminatory treatment

would retard their present and future career develop-

ment. Plaintiffs claimed violations of both the equal

protection elause and 42 U.S.C. § 1985 (3) (1976).

They sought money damages and declaratory and in-

junctive relief.

Defendants moved for dismissal or, alternatively,

for summary judgment. The district court granted

defendants’ motion on three grounds: that internal

military decisions were not reviewable, that defend-

ants were immune from liability, and that plaintiffs

had failed to exhaust their administrative remedies.*

The complaint refers only generally to constitutional vio-

lations. Because the allegations of racial discrimination are

93, 94 n.1, 99 S.Ct. 939, 941, 59 L.Ed.2d 171 (1979) ; Buckley

v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659

(1976).

Although the complaint might have been drafted with

it is apparent that the first claim advanced

plaintiff is in the nature of a Bivens action. See

Six Unknown Named Agents, 403 U.S. 388, 91

29 L.Ed.2d 619 (1971) (aggrieved party may

bring damages action against federal official based directly

Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

2 We cannot tell from the record whether the district court

treated the defendants’ motion as one for dismissal under

Fed.R.Civ.P. 12(b) (6) or summary judgment under Fed.R.

8a

Plaintiffs appeal.“

Civ.P. 56. The plaintiffs, in opposing the defendants’ motion,

submitted a memorandum of law accompanied by documents

evidencing exhaustion of various military remedies. The de-

fendants’ reply memorandum disputed the adequacy of the

administrative steps taken by the plaintiffs. Since matters

outside the pleadings were apparently presented to and not

excluded by the court, the defendants’ motion should have

been treated as one for summary judgment. Fed.R.Civ.P.

12(b).

There are indications in the record that the court did not

treat the motion as one for summary judgment. First, al-

though the defendants moved for either dismissal or summary

judgment, both the order granting the motion and the cor-

responding judgment referred exclusively to the “motion to

dismiss.” Second, although the order stated that the court

had “reviewed the pleadings herein [and] the motion and

memoranda of points and authorities filed by the parties,”

the order made no reference to plaintiffs’ documentary evi-

dence. Third, the court did not allude to rule 56, mention

summary judgment, or purport to find an absence of factual

disputes.

We must conclude that the district court erred in dismissing

for failure to exhaust administrative remedies. Dismissal on

the pleadings would have been improper, for the complaint

expressly alleges exhaustion of administrative remedies.

Summary judgment would also have been improper, as the

record reveals an apparent factual dispute as to whether the

administrative remedies were fully pursued. On remand, the

district court may invite the parties to submit additional

evidence on this issue before passing on the summary judg-

ment motion.

® Defendants moved to d“ this appeal on the ground

that the notice of appeal, meu 35 days after entry of final

judgment, was untimely. Fed.R.App.P. 4(a)(1) establishes

a 30-day period for filing notices of appeal in civil cases.

An exception, however, allows 60 days when “the United

States or an officer or agency thereof is a party.” Id. Sitting

en banc, this court held that the 60-day period governs the

present appeal. See Wallace v. Chappell, 687 F.2d 1845 (9th

4a

At the outset, we distinguish between the two sub-

stantive grounds for the district court’s decision: non-

reviewability and immunity. Nonreviewability, in the

present context, involves the question of whether a

court may review a military decision to determine

whether a substantive wrong has been committed.

This question can arise regardless of the identity of

the defendant, i.e., whether the defendant is the

United States or an individual federal official, and

regardless of whether the remedy sought is damages

or some form of non-monetary relief.

The official immunity question, in contrast, arises

only when an individual official is sued for damages.

If the underlying substantive claims are reviewable,

the issue becomes whether the official can be held

liable for damages for claims arising out of military

service and, if so, under what circumstances.

We are thus presented with two difficult questions:

whether constitutional claims by military personnel

against their superior officers are subject to judicial

review and whether the officers enjoy immunity from

liability for money damages in connection with such

claims. Because we conclude that some military de-

cisions are reviewable and may give rise to liability

for damages, we remand to the district court for

reconsideration.

I

REVIEWABILITY

We begin by noting numerous cases in which

courts have reviewed internal military decisions. See,

Cir. 1981) (en banc). The motion to dismiss the appeal was

denied, and the case was resubmitted to this panel to address

the merits. Id. at 1348.

5a

e.g., Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594,

62 L.Ed.2d 540 (1980) (reviewing requirement that

prior approval be obtained before circulating netition

on hase) ; Dinsman v. Wilkes, 53 U.S. (12 Hes.) 390,

13 L.Ed. 1036 (1851) (reviewing damages claim by

enlisted man against superior officer for assault and

false imprisonment); Tigue v. Swaim, 585 F.2d 909

(8th Cir. 1978) (reviewing exclusion of plaintiff

from program involving access to nuclear weapons) ;

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)

(reviewing claim for injunctive and declaratory re-

lief to void erroneous evaluation report); cf. Schle-

singer . Ballard, 419 U.S. 498, 95 S.Ct. 572, 42

L.Ed.2d 610 (1975) (reviewing equal protection chal-

lenge to discharge statute); Scheuer v. Rhodes, 416

U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (re-

viewing decision by Adjutant General of Ohio Na-

tional Guard to deploy Guard units on university

campus); Harmon v. Brucker, 355 U.S. 579, 78 S.Ct.

433, 2 L.Ed.2d 503 (1958) (reviewing less than

honorable discharge); Denton v. Secretary of Air

Force, 483 F.2d. 21 (9th Cir. 1973), cert. denied,

414 U.S. 1146, 94 S.Ct. 900, 39 L. Ed.2d 102 (1974)

(reviewing honorable discharge).

In other cases, we have refused to review various

military decisions. See, e.g., Schlanger v. United

States, 586 F.2d 667 (9th Cir. 1978), cert. denied,

441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979);

Arnheiter v. Chafee, 435 F.2d 691 (9th Cir. 1970);

Covington v. Anderson, 487 F. 2d 660 (9th Cir. 1973).

Our cases do not, however, make clear which military

decisions are reviewable and which are not. The task

we face today is that of clarifying this difficult area

of the law.

Any test governing the reviewability of claims aris-

ing incident to military service must reflect a careful

6a

balancing of conflicting policy considerations, Mili-

tating in favor of review is the plaintiff's strong in-

terest in obtaining adequate redress for harm caused

by the unconstitutional conduct of a federal official.

In addition, society as a whole has an interest in de-

terring federal officials from knowingly violating in-

dividuals’ constitutional rights.

In the military context, however, several counter-

vailing policy considerations are present. A member

of the armed forces is at a disadvantage in litigation

because he or she often lacks time, money, and the

means to procure witnesses, Cf. Feres v. United

States, 340 U.S, 185, 145, 71 S.Ct. 153, 159, 95 L. Ed.

152 (1950) (articulating rationales favoring immuni-

ty from damages). Litigation is potentially disrup-

tive to military operations. See United States v.

Brown, 348 U.S, 110, 112, 75 S.Ct, 141, 145, 99 L. Ed.

189 (1954); Calhoun v. United States, 475 F.Supp.

1, 8 (S.D. Cal. 1977), aff'd, 604 F.2d 647 (9th Cir,

1979), cert, denied, 444 U.S. 1078, 100 S.Ct. 1029,

62 L.Ed.2d 761 (1980). Permitting litigation can

make it difficult to maintain discipline. See, ¢.g.,

Stencel Aero Engineering Corp. v. United States,

431 U.S, 666, 671-72, 97 S.Ct. 2054, 2057-2058, 52

L.Ed.2d 665 (1977) ; Brown, 348 U.S. at 112, 75 S.Ct.

at 143 (1954); Calhoun, 475 F.Supp. at 3. Finally,

the Supreme Court has voiced a general objection

to judges “running the army,” Orloff v. Willoughby,

345 U.S, 83, 93-94, 73 S.Ct. 534, 539-540, 97 L.Ed.

842 (1953), the implication being either that judicial

review might usurp a military function or that the

courts lack the competence to weigh the factors that

might enter into a military decision. Under the

Constitution, regulation of military affairs is within

the special province of Congress rather than the

courts, U.S. Const. art. I, § 8, el. 14.

7a

The Fifth Circuit has given careful thought to

the problem of reconciling certain of these competing

policies, In Mindes v. Seaman, 453 F.2d 197 (5th

Cir, 1971), the court identified several categories of

internal military decisions that have been held re-

viewable and several categories that have not. Id. at

199-201. It then articulated a test, to be applied by

the trial court, for ascertaining whether a particular

military decision should be reviewed. Id. at 201-02.

The Mindes court held that an internal military

decision is unreviewable unless the plaintiff alleges

(a) a violation of the Constitution, a federal statute,

or military regulations; and (b) exhaustion of avail-

able intraservice remedies, If the plaintiff meets both

prerequisites, the trial court must weigh four factors

to determine whether review should be granted:

(1) The nature and strength of the plaintiff's

claim. The Mindes court recognized that constitu-

tional claims ordinarily carry greater weight than

those resting on a statutory or regulatory base, but

acknowledged that, within the class of constitutional

claims, the nature and strength of the claim can vary

widely.

(2) The potential injury to the plaintiff if review

is refused,

(3) The extent of interference with military func-

tions. The court observed that interference per se

should not preclude review because some degree of

interference will always exist.

(4) The extent to which military discretion or

expertise is involved,

In Schlanger v. United States, 586 F.2d 667, 671

(9th Cir. 1978), cert. denied, 441 U.S, 943, 99 S.Ct.

8a

2161, 60 L.Ed.2d 1045 (1979), we affirmed a district

court decision applying the Mindes test.“ Without dis-

cussion, we then applied the Mindes test to find a mili-

tary decision reviewable in Glines v. Wade, 586 F.2d

675, 678 n.4 (9th Cir, 1978), rev'd on other grounds

sub nom. Brown v. Glines, 444 U.S, 348, 100 8.Ct.

594, 62 L.Ed.2d 540 (1980). We agree that, at least

when constitutional claims are asserted,’ the Mindes

The district court in Schlanger had found the particular

decision unreviewable. After determining that the district

court had properly applied Mindes, this court added in dictum

that the same result could be reached in “a simpler and per-

haps sounder manner” by denying review of all military de-

cisions involving duty assignments, Id. at 671-72. For the

reasons given in the text, we prefer the Mindes approach as a

test for reviewability, at least when recognized constitutional

claims are alleged.

On two occasions prior to Schlanger, we similarly refused

to review military decisions involving duty assignments. See

Covington v. Anderson, 487 F.2d 660 (9th Cir. 1973) Arn-

heiter v. Chafee, 486 F.2d 691 (9th Cir. 1970). Insofar as

those decisions suggest a per se rule that all military duty

assignments are unreviewable, they have been superseded

by Brown v. Glines, 444 U.S, 348, 100 S.Ct. 594, 62 L.Bd.2d

540 (1980), where the Supreme Court in fact reviewed a

military duty assignment, see Glines v. Wade, 586 F.2d 675,

677 (9th Cir, 1978).

Our conclusion that there is no per se rule precluding

review of duty assignments is bolstered by Mir v. Fosburg,

646 F.2d 342 (9th Cir. 1980), decided several months after

the Supreme Court decision in Glines. In Mir, the district

court had dismissed a state law claim challenging a military

duty assignment. We reversed and remanded for a deter-

mination of whether the plaintiff should be given leave to

amend to allege a federal claim. Our remand order would

have been futile if all military decisions involving duty assign-

ments were unreviewable.

* We include within this category those statutory claims

based on constitutional violations. Consequently, the test we

test is an appropriate means of deciding when mili-

tary decisions are reviewable. With respect to such

constitutional claims, however, we add a qualification

that can be articulated only after describing the deci-

sion in Calhoun v. United States, 475 F.Supp. 1 (8.D.

Cal. 1977), aff'd 604 F.2d 647 (9th Cir. 1979) (adopt-

ing opinion of district court), cert. denied, 444 U.S.

1078, 100 S.Ct. 1029, 62 L. Ed.2d 761 (1980).

In Calhoun, the parents of a marine killed during

training brought a wrongful death action against the

United States anu individual officers under the Fed-

eral Tort Claims Act. The parents also asserted nu-

merous constitutional claims. The court held that the

doctrine of Feres v. United States, 340 U.S, 135, 71

8. Ct. 153, 95 L.Ed. 152 (1950) (Government not

liable under FTCA for negligence claims arising out

of military service), barred recovery, even for the al-

leged constitutional violations. This holding was based

on a conclusion that the constitutional claims were

“essentially a restatement of the cause of action in

tort.” 475 F.Supp. at 5. The court explained:

Absent the deprivation of a recognized constitu-

tional right, it would subvert the application of

the Federal Tort Claims Act and its defined ex-

ceptions to allow a litigant to superimpose over

We express no view as to whether the Mindes test should

govern federal nonconstitutional claims. Cf. Brown v. Glines,

444 U.S. 848, 100 S.Ct. 594, 62 L.Bd.2d 540 (1980) (review-

ability) ; Dineman v. Wilkes, 68 U.S. (12 How.) 390, 18 L.Ed.

1086 (1851) (reviewing common law claims of assault,

battery, and false imprisonment).

10a

that body of law extensions of constitutional

rights which were never intended to apply in this

context.

Id. (emphasis in original). We distill from Calhoun

the principle that an allegation of wrongdoing does

not assume constitutional dimensions simply because

the plaintiff states that it does.

With respect to constitutional claims, therefore, our

adoption of the Mindes test is limited to cases in which

the plaintiff has alleged what the Calhoun court de-

scribed as a “recognized” constitutional right. We do

not mean by this term to eliminate from consideration

those constitutional claims that have not yet been ac-

cepted by the courts. We mean only that the allega-

tions must amount to more than a traditional state

law claim.

The Mindes approach, as qualified, fairly accommo-

dates the competing policy considerations discussed

earlier. By limiting our holding to allegations of “‘ree-

ognized” constitutional violations, we hope to aileviate

the understandable concern that a clever pleader can

often transform the most innocuous state tort action

into a claim of constitutional stature. See, e. g., Everett

v. United States, 492 F.Supp. 318, 322 (S.D.Ohio

1980) ; Schmid v. Rumsfeld, 481 F.Supp. 19, 21 (N.D.

Cal. 1979); Misko v. United States, 453 F.Supp. 513,

515 (D.D.C.1978). See also Calhoun, 475 F.Supp.

at 5.

The exhaustion requirement likewise furthers sev-

eral purposes.’ When the injured party obtains satis-

* We need not delineate which intraservice remedies must

be exhausted in all cases. The availability and usefulness of

a particular remedy will vary with the branch of the armed

forces involved and with the nature of the grievance. See

footnote 11 for citation to the principal intraservice remedies.

lla

faction through military channels, there will of course

be no need for litigation, Even if the claimant’s efforts

prove unavailing, the initiation of an administrative

complaint might encourage the defendant officers to

cease their allegedly illegal activity, thus mitigating

any harm that would otherwise accrue. Perhaps most

important, exhaustion of administrative remedies en-

ables the reviewing court to benefit from the views

and factfinding of the military authorities. In this

way, the exhaustion requirement helps to minimize the

objections to reviewability based on judicial usurpa-

tion of military discretion and the need for military

expertise.

The first two factors that must be balanced under

the Mindes test—the nature of the plaintiff's interest

and the potential injury to the plaintiff if review is

withheld—ensure that the plaintiff's interest in re-

dressing the deprivation of constitutional rights is

automatically taken into account. The same factors

also guarantee that the likelihood of deterring official

misconduct will be greatest in those situations in

which the interest served by such deterrence is

greatest.

The third Mindes factor—the extent of interference

with military functions—enables the trial court to

consider at least three of the policies militating

against reviewability: the avoidance of disruption, the

potential adverse effect on discipline, and the logistic

constraints on a soldier’s capacity to defend a lawsuit.

The fourth factor—the extent to which resolution of

the claim requires military expertise—further reduces

the possibility of judicial usurpation of military dis-

cretion

We conclude that the Mindes test, as qualified

above, provides an appropriate framework for deter-

12a

mining which military decisions are reviewable and

which are not,

II

IMMUNITY

If the trial court determines that a particular claim

is nonreviewable, the immunity question becomes

moot. If the court elects to review the claim, how-

ever, and the plaintiff seeks to recover money damages,

the issue becomes whether the defendant possesses of-

ficial immunity.

The district court held that military officials are

absolutely immune from liability for money damages

for acts committed incident to military service, For

the reasons given below, we cannot agree.

In Butz v. Economou, 438 U.S, 478, 98 S.Ct, 2894,

57 L.Ed.2d 895 (1978), the Supreme Court held that

federal officials exercising discretion possess only a

qualified immunity from liability for damages in

Bivens-type ' actions alleging constitutional violations.

Qualified immunity insulates an official who acts rea-

sonably and in good faith. See Scheuer v. Rhodes, 416

U.S, 232, 247-48, 94 S.Ct. 1688, 1691-1692, 40 L.Ed.

2d 90 (1974). The Court created an exception, how-

ever, for cases in which absolute immunity “is essen-

tial for the conduct of the public business.” 438 U.S.

at 507, 98 S.Ct. at 2911. It recognized that some offi-

cials, such as judges, prosecutors, and their adminis-

trative agency counterparts, perform “special fune-

tions” requiring absolute immunity. Id. at 508-17, 98

S.Ct. at 2911-2916. The question presented here is

’ See note 1 supra, The Court in Heonomou was extending

Scheuer v. Rhodes, 416 U.S. 282, 247-48, 94 8.Ct. 1683, 1691-

1692, 40 L. Ed. 2d 90 (1974), which recognized only qualified

immunity in section 1988 actions against state officials, to

Bivens-type actions against federal officials.

13a

under what circumstances, if any, a military officer

comes within the Economou exception.

Defendants contend that Feres v. United States,

340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) gives

military officials absolute immunity. The plaintiffs in

Feres sought money damages under the Federal Tort

Claims Act for either personal injury or wrongful

death aliegedly caused by the negligence of military

officials. Relying on the language of the FTCA, on

related statutory provisions, and on the legislative

history, the Court interpreted the FTCA not to au-

thorize recovery of damages from the United States

for injuries incurred incident to military service. /d.

at 146, 71 S.Ct. at 159.

Defendants maintain that Feres applies to constitu-

tional violations. We disagree. Even if Feres were

applicable to intentional torts, a question which has

not yet been answered, all that would follow is that

the plaintiffs cannot recover under the FTCA. Feres

says nothing about Bivens-type actions, which are

based on constitutional violations.

We approach the absolute immunity question, then,

with several considerations in mind. In Dinsman v.

Wilkes, 53 U.S. (12 How.) 390, 13 L.Ed. 1036

(1851), the Supreme Court allowed only qualified im-

munity from liability in connection with an internal

military decision. More recently, in Economou, the

Supreme Court held that in actions alleging constitu-

tional violations, federal officials generally are en-

titled only to qualified immunity. The reference in

Economou to Dinsman, 438 U.S. at 492-94, 98 S.Ct.

at 2903-2904,“ indicates that the fact that the consti-

The reference in Economou was actually to the Supreme

Court’s first opinion in Dinsman. See Wilkes v. Dinsman, 48

U.S. (7 How.) 89, 12 L.Ed. 618 (1849). In that first opinion,

14a

tutional claim was incident to military service would

not necessarily preclude recovery.

In deciding whether the present case merits creat-

ing an exception to those two holdings, we observe

that the rationales favoring reviewability, discussed

above, likewise favor allowing recovery of money

damages. The plaintiff’s interest in redressing a con-

stitutional grievance can often be served only by an

award of money damages, which will restore the

plaintiff as nearly as possible to the position he or she

would have occupied but for the violation. Although

society’s interest in deterring unconstitutional con-

duct is furthered in some cases by the prospect of in-

junctive or declaratory relief, the deterrent effect is

enhanced by the possibility of personal liability for

money damages. The question before us, however, is

whether countervailing considerations justify abso-

lute immunity in the military context.

Many of the reasons that have prompted the courts

to apply absolute immunity to other officials have no

precise analogue in the military context. Judges and

their administrative agency counterparts, for exam-

ple, enjoy absolute immunity primarily because the

adjudication function requires an unusual degree of

impartiality, which would be lost if judges were con-

tinually in fear of personal liability in issuing de-

cisions. See, e.g., Butz v. Economou, 438 U.S. 478,

512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978);

Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213,

1217, 18 L.Ed.2d 288 (1967); Sellars v. Procunier,

641 F.2d 1295, 1299, 1300 (9th Cir. 1981). In addi-

the Court held that a seaman is liable if he inflicts injury

out id. at 123, but ordered a new trial because the

trial court had erroneously placed on the defendant the

burden of showing genuine motives, id. at 132.

15a

tion, judges insulation from political influence, their

use of precedent in resolving disputes, and the avail-

ability of appellate review have been thought to re-

duce the need for private damages actions. See Econ-

omou, 438 U.S. at 512, 98 S.Ct. at 2913; Sellars, 641

F.2d at 1300 n.9. See also Imbler v. Pachtman, 424

U.S. 409, 422-23, 96 S.Ct. 984, 991-992, 47 L.Ed.2d

128 (1976) (immunity of prosecutor based on con-

siderations analogous to those supporting immunity

of judge); Beard v. Udall, 648 F.2d 1264, 1270-71

(9th Cir. 1981) (same). These rationales do not

apply to most routine military decisions made in a

noncombat setting during peacetime.

Thus, unless some other consideration warrants

a grant of absolute immunity to military officials, we

must hold that only qualified immunity applies. We

see two such possibilities. First, as we have discussed

in connection with reviewability, the soldier is handi-

capped in defending a civil suit. The need for a

strenuous defense might be accentuated if the soldier

is potentially liable for money damages. Second, the

threat to discipline might be aggravated by the threat

of liability for money damages. On balance, how-

ever, although we recognize that a grant of absolute

immunity might conceivably further those two ra-

* The rationales advanced by Feres v. United States, 340

U.S. 135, 71 S.Ct. 158, 95 L.Ed. 152 (1950), construing the

Federal Tort Claims Act to bar liability of the United States

for certain actions incident to military service,

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5

16a

We therefore hold that once a constitutional elaim

against a military official has been found reviewable,

the official will generally enjoy only a qualified im-

munity for acts performed in good faith. We rec-

ognize, however, that the considerations favoring ab-

solute immunity might be sufficiently strong to war-

rant exceptions to this rule in certain contexts.” We

armed services to varying standards of liability depending

on the law of the place where they are stationed. 340 U.S. at

142-43, 71 S.Ct. at 157-158. This “nonuniformity” rationale

is inapplicable to claims based on the Constitution. Second,

the Feres Court noted that the United States is liable under

the FTCA in the same manner that a private individual

would be liable under the circumstances. Because military

activities lack private counterparts, the Court concluded that

Congress could not have contemplated recovery for claims

arising out of military service. Jd. at 141-42, 71 S.Ct. at

156-157. This rationale, of course, is entirely inapplicable

to constitutional claims. Third, the Court noted that alterna-

tive statutory compensation schemes are available for mili-

tary personnel receiving physical injuries. Jd. at 144, 71

S.Ct. at 158. No such statutory compensation is available

here.

Similarly inapplicable are two of the rationales previously

considered in the context of the reviewability question—the

possibility that military operations will be disrupted, and the

possibility of courts usurping military functions that they

lack the competence to perform. Once a claim has been found

0 Possible exceptions, for example, might relate o military

officials who perform functions analogous to those of judges

and prosecutors. We note also that absolute immunity might

attach when decisions are made in a combat setting. Cf.

Tigue v. Swaim, 585 F.2d 909, 914 (8th Cir. 1978) (military

officers sometimes enjoy absolute immunity even during

17a

leave to future courts the task of articulating excep-

tions when the need arises.

We also note the availability of the summary judg-

ment procedure for heading off a trial when there is

no genuine issue as to bad faith. Although a sum-

mary judgment motion must be evaluated in the

light most favorable to the party opposing the mo-

tion, see Poller v. Columbia Broadcasting System,

Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d

458 (1962); Cermetek, Inc. v. Butler Avpak, Inc.,

573 F.2d 1370, 1377 (9th Cir. 1978), any supporting

and opposing affidavits submitted in connection with

the motion must be based on personal knowledge,

Fed.R.Civ.P. 56(e); Cermetek, 573 F.2d at 1376.

Assertions based solely on information or belief are

insufficient to withstand a motion for summary judg-

ment. Id. at 1377; cf. Automatic Radio Manufactur-

ing Co. v. Hazeltine Research, Inc., 339 U.S. 827,

831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (such

assertions insufficient to support motion for summary

judgment), overruled on other grounds, Lear, Inc. v.

Adkins, 395 U.S. 653, 671, 89 S.Ct. 1902, 1911, 23

L.Ed.2d 610 (1969). In determining whether there

are genuine issues of material fact for summary

judgment purposes, we see nothing to prevent the

trial court from considering one of the most import-

ant objectives of the summary judgment procedure:

“the elimination of waste of the time and resources of

both litigants and the courts in cases where a trial

would be a useless formality.” Zweig v. Hearst Corp.,

521 F.2d 1129, 1135-36 (9th Cir.), cert. denied, 423

U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). This

policy assumes special significance in the military

context because of the threat posed by a damages

action to military discipline and because of the incon-

18a

venience suffered by a soldier in defending a civilian

lawsuit.

III

SUMMARY AND APPLICATION

Our holding may be summarized as follows: If a

complaint alleges a “recognized” constitutional claim

based on injuries incident to military service, and

alleges exhaustion of intraservice remedies, the trial

court is to apply the four Mindes factors to deter-

mine whether the claim should be reviewed. If the

claim is found reviewable, and the plaintiff is seeking

money damages, military officials will have only quali-

fied immunity except in unusual circumstances that

we need not delineate here. When qualified immunity

applies, the usual procedures for summary judgment

are of course available. A court’s ruling on summary

judgment may reflect the strong policy against dis-

ruption of military functions.

A ruling barring judicial review or establishing

absolute immunity is an extreme measure. In the

present context, either type of rule would shield

from responsibility even an official who knowingly and

in bad faith violates an individual’s constitutional

rights. So drastic a ruling could be justified only by

policy concerns of extraordinary magnitude. Our

holding today recognizes that precisely such con-

cerns frequently exist in the military context. When

they do, nonreviewability or possibly absolute im-

munity will result. Even when they do not, the mili-

tary officer will still be entitled to a qualified immuni-

ty for acts performed in good faith.

To adopt a per se rule of either nonreviewability

or absolute immunity as to all injuries arising out of

military service would open the door to a range of

19a

unredressable wrongs bounded only by the limits of

one’s imagination. Conversely, too assertive a judicial

role would potentially implicate many of the legiti-

mate policy considerations examined in this opinion.

The intermediate course we adopt today is designed

to enable the district courts to balance the concerns

discussed above under the circumstances of the cases

before them.

In the present case, the plaintiffs allege racial dis-

crimination in duty assignments, selection of person-

nel for training programs, performance evaluations,

and level of punishment for minor offenses, Those

allegations, if true, would constitute a denial of equal

protection. Plaintiffs thus allege a “recognized” con-

stitutional violation, rather than a traditional state

law claim couched in constitutional rhetoric.

Plaintiffs have also alleged exhaustion of adminis-

trative remedies." This being the case, the district

11 Two principal intraservice remedies are available here.

The first, provided by 10 U.S.C. § 988 (1976), authorizes a

complaint to any superior commissioned officer. Art. 138, in

particular, provides:

Complaints of Wrongs. Any member of the armed

forces who believes himself wronged by his commanding

officer, and who, upon due application to that command-

ing officer, is refused redress, may complain to any

superior commissioned officer, who shall forward the

Second, OPNAV Instructions 5354. 1a (1978) (United

States Navy Equal Opportunity Manual), prohibits racial,

ethnic, cultural, or sexual bias in the administration of jus-

tice, work assignments, career planning, off-base housing

and the like and establishes a comprehensive procedure for

reporting incidents and processing complaints. As indicated

earlier, see note 2 supra, the present state of the record does

not permit summary judgment on exhaustion grounds. On

remand the court is free to invite submission of further evi-

dence on this issue.

court on remand must consider the four Mindes

factors bearing on reviewability. The district court

must exercise its discretion in balancing these factors,

and we express no view as to what the outcome

should be. If the claims are found reviewable, the

defendants will possess qualified immunity from li-

ability for money damages. The plaintiffs will of

course have to demonstrate exhaustion of administra-

tive remedies before actually going to trial. Summary

judgment might be appropriate if the plaintiffs are

unable to demonstrate exhaustion.

The judgment of the district court is reversed,

and the case remanded for further proceedings con-

sistent with this opinion.

REVERSED AND REMANDED.

2la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-3172

VERNON WALLACE, ROBERT LEMONS,

CORNELIUS HICKEY, JAMES RICHARDSON, and

GEORGE SHANNON, PLAINTIFFS-APPELLANTS

v.

COMMANDER GEORGE C. CHAPPELL, LIEUTENANT CoM-

MANDER KENNETH VIAFORE, LIEUTENANT CLAR-

ENCE SCHULTZ, LIEUTENANT BARRON BIANCO, LIEU-

TENANT KENNETH JORDAN, EMC RICHARD Mc-

CANNON, ICC DAVm LAMSER, and MSC LUMBERTO

PAPA, DEFENDANTS-APPELLEES

[Filed Mar. 2, 1982]

Before: GOODWIN, HUG, and FLETCHER, Cir-

cuit Judges.

ORDER

The panel as constituted in the above case has

voted to deny the petition for rehearing and to reject

the suggestion for a rehearing en banc.

The full court has been advised of the suggestion

for en banc hearing, and no judge of the court has

requested a vote on the suggestion for rehearing en

bane. Fed. R. App. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en banc is rejected.

22a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 78-0579-N

VERNON WALLACE, EL AL., PLAINTIFFS

V.

COMMANDER GEORGE C. CHAPPELL, ET AL.,

DEFENDANTS

[Filed Jan. 30, 1979]

ORDER OF DISMISSAL

Defendants’ motion to dismiss came on for hear-

ing before the court on January 8, 1979. Having re-

viewed the pleadings herein, the motion and memo-

randa of points and authorities filed by the parties,

and having heard the argument of counsel, it is the

opinion of the court that the motion to dismiss should

be granted on the following grounds:

1. That the actions complained of are nonreview-

able military decisions;

2. That public policy compels that the defendants

be entitled to intra-service immunity;

3. That the plaintiffs have failed to exhaust their

administrative remedies.

Accordingly, defendants’ motion to dismiss is

granted without leave to amend.

DATED: January 29, 1979.

/s/ Leland C. Nielsen

United States District Judge

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APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 78-0579-N

VERNON WALLACE, ET AL., PLAINTIFFS

V.

COMMANDER GEORGE C. CHAPPELL, Er AL.,

DEFENDANTS

[Filed Jan. 30, 1979]

JUDGMENT

Defendants’ motion to dismiss came on for hear-

ing before the court, Honorable Leland C. Nielsen,

United States District Judge presiding, and the is-

sues having been duly heard and a decision having

been duly rendered,

IT IS ORDERED AND ADJUDGED that the

complaint be dismissed.

DATED at San Diego, California this 30 of Jan-

uary, 1979.

/s/ Leland C. Nielsen

United States District Judge

® wv. S. covernmanr paimtine orrice; 1962 s77e66 1029