# Petition — Chappell v. Wallace

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 462 U.S. 296

## Text

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

23a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0510%3A01. Public record. Not legal advice.