Amicus Brief — Chappell v. Wallace

eS ee

Office Supreme Court, U.S

FILED

FEB 7 1983

No. 82-167

a a A

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

>

COMMANDER GEORGE CHAPPELL, ef ai.

Petitioners,

—_Vi—

VERNON WALLACE, ef ai.

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

“OR THE NINTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL

LIBERTIES UNION AS AMICUS CURIAE

——<—<—_ — -— —_ -———

$$ ——

NANETTE DEMBITZ,

Counsel of Record

BURT NEUBORNE

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......-++-+++-iii

INTEREST OF AMICUS CURIAE ....... 1

STATEMENT OF THE CASE AND

PROCEEDINGS BELOW. eenerneeeneneeeeeeete 2

SUMMARY OF DRSEE cocceceecceeess 7

}\ PPT Trrrrrererrirrer 8

I. ARTICLE III COURTS MAY

GRANT TRADITIONAL COM-

PENSATORY DAMAGE REME-

DIES IN CONSTITUTIONAL

CASES WITHIN THEIR JURIS-

DICTION IN THE ABSENCE

OF A CONGRESSIONAL IN-

TENTION TO DEPRIVE THEM

OF A PARTICULAR REMEDY .... 11

II. MILITARY OFFICIALS ARE

NOT ENTITLED TO ABSO-

LUTE IMMUNITY FROM

DAMAGE ACTIONS BY SUB-

ORDINATES FOR THE

WILLFUL VIOLATION OF

ESTABLISHED CONSTITU-

TIONAL RIGHTS ....2-eeeee++ 30

A. History Rejects the

Grant of Absolute

Immunity to Military

Superiors for Will-

fully Unlawful Acts .....

B. Public Policy and

Analogous Recent

Precedent Reject the

Grant of Absolute

Immunity to Military

OEFSIcCialLS cccccccccseces

Re

The Effect of Quali-

fied Immunity on the

Issuance of Military

OEGOES cccccccccccces

The Burden of Defend-

ing in a Qualified

Immunity Setting ....

The Effect of Quali-

fied Immunity on a

Serviceman's Obedi-

ance to Orders and

the Morale and Trust

of the Armed Forces...

Qualified Immunity

and the Function of

a Military Superior...

CONCLUSION *eeeeeeeeeeeneeeeeeneeneeee

o 44 «

34

35

37

39

42

48

TABLE OF AUTHORITIES

Cases: Page

Alvarez v. Wilson, 431 F. Supp.

136 (N.D. Ill. 1977), app.

pending, No. 81-2696 (

Cir. $66 ee666066 666606666c000 00 08s 44

Barr v. Mateo, 360 U.S. 564

TP 66666666666 60000666600 06000060608

Bates v. Clark, 95 U.S. 204

+ pgs PPP TTITITiITiririfriire+st tt oy 46

Birdwell v. Schlesinger, 402

F. Supp. 710 (D. Colo. 1975).........21

Bissell v. McElligott, 369 F.2d

115 (8th Cir. 1966), cert.

denied 387 U.S. 917 (1967)...........28

Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971)......passim

Brown v. Glines, 444 U.S. 348

ERO P coetecocecececeeaceeeeceeceate 19

Burns v. Wilson, 346 U.S. 137

Pt 66666066666 0066066666000060000 6008

Butz v. Economou, 438 U.S. 478

CIDTE) cccccccccccccccceccccoccc c cPaSSiIn

Calhoun v. United States, 475 F.

Supp. 1 (S.D. Cal. 1977), aff'd,

609 F.2d 647 (9th Cir. 1979),

cert. denied, 444 U.S. 1078

DT cimdvhedsdéctvcoatensddewevesceolll

Carlson v. Green, 446 U.S. 14

(1980) .cccccccccccccccccccccccce oPOSSim

Davis v. Passman, 442 U.S. 228

(1979) .ccccccccccccccccccccccces Passim

iii

Dinsman v. Wilkes, 48 U.S. (7

How.) 83 (1849), on writ of

error after new trial, 53 U.S.

(12 How.) 390 (1851)............passim

Doe v. McMillan, 412 U.S.306

bp PPT TTTTTTC TTT TTT TTeT TT

Ex Parte Milligan, 71 U.S. (4

Wall.) 2 | PP ererrTrrTirTrcrTTe?

Ex Parte Young, 209 U.S. 123

ER 6666660600666 C66b be Ca Cee CEC Ceee

Feres v. United States, 340 U.S.

A3S (I9SO) ccccccccccecececcccs cPaROin

Flower v. United States, 407 U.S.

197 TAO TSD coccccccceccceeesoeceene 19

French v. Weeks, 259 U.S. 326

Pt 6+ 606608660600660660666000006008

Gilligan v. Morgan, 413 U.S. ll

CO a

Greer v. Spock, 424 U.S. 828

of | rT TTiTrTrTTrT TrTTirtT: | on 19

Harlow v. Fitzgerald, U.S.

, 73 L.Ed.2d 396 (1982).....passim

Harmon v. Bruckner, 355 U.S. 519

Ti 6<tenees eee e860006006066600608

Hatzlachh Supply Co. v. United

States, 444 U.S. 460 (1980) Te

Henderson v. Bluemink, 51ll F.2d

399 iC. Gab. Beh cececeene

Hiatt v. Brown, 339 U.S. 103

0 FS eT ee re ee

iv

Page

Hirabayashi v. United States, 320

U.S. 81 EROS ao 66066 6606600 60806608R

Howard v. Lyons, 360 U.S. 593

TR cceeesesé eee eeeeeseeeeeeseeeseun

Imbler v. Pachtman, 424 U.S. 409

TRUS coecoeeeeeeeeesoeeceeeeuseeure 48

Jaffee v. United States, 663 F.2d

S226 (OSG CAB. AGE) covecccesevceceeas

Laird v. Tatum, 408 U.S. 1 (1972).....39

Laswell v. Brown, 683 F.2d 261 (8th

Cir. BEES 060 606eee 4h eee Sh SSEeSeee een

Little v. Barreme, 2 Cr. 170

Cee 6600668000666 0606608 66eee sue 47

Lombard v. United States, 690 F.2d

215 (D.C. Cir. Bee 0006605 6bseee eee

Luther v. Borden, 48 U.S. (7 How.)

l et . PFeyevrrrreireogfgfttrinee eee C=#s

Middendorf v. Henry, 425 U.S. 25

Pree 6000006 060bb6ben6e ne ben 6k eee

Mindes v. Seaman, 453 F.2d 197

(5th Cir. BUSS 060 000666NS6OH6866Re ese

Mitchell v. Harmony, 54 U.S. (13

How.) 113 ERE 6eeeeseenseéeutscoeseun

Montana-Dakota Utilities Co. v.

Northwestern Public Service

Co., 431 U.S. 246 (1951)

(Frankfurter, J., dissenting).......1ll

Page

Nixon v. Fitzgerald, U.S.

, 73 L.Ed.2d 349 (1982)..........31

Orloff v. Willoughby, 345 U.S.

83 Eee ecoceceeceoeeoose ee fe ef © —

Parisi v. Davidson, 405 U.S.

BS CEPVE cocccecceeoeeceeoeoecoecees .18

Parker v. Levy, 417 U.S. 733

Er rrTrTTrrTrrrrrrisfTre | 45

Pierson v. Ray, 386 U.S. 547

1 FrrrTrrererreefrrsereririst | 7 35

Procunier v. Martinez, 416 U.S.

396 ere TTT TTrrTTTiTdTr | oo 47

Procunier v. Navarette, 434 U.S.

555 OO rT TTTrTrirr+r+r+rirst | 47

Scheuer v. Rhodes, 416 U.S. 232

ERTS? Cocccoeccooccecoceosns 35, 37, 38

Schlesinger v. Ballard, 419 U.S.

498 7 esseneeecoeeetsoeosccecoeoeoet

Schlesinger v. Councilman, 420

U.S. 738 CRPUOP cocccoceccocccceocoete 49

Stencel Aero Engineering Corp.

v. United States, 431 U.S. 666

EEE eee

Stump v. Sparkman, 435 U.S. 349

Dt seeeeGeeceoooococesoesceceoeoooen

Toth v. Quarles, 350 U.S. ll

Dt 62a eeeceeeee 6eeeeoesecesooceocen

United States v. Brown, 348 U.S.

110 EEO T TT TTTTTTTT TT

vi

Page

United States v. Lee, 106 U.S.

196 rrr TTTrTrYeTTTTTTifTtTT Cs

Wood v. Strickland, 420 U.S.

308 6) 7, | PRPPPTTIrTITTrTreecererrerrirrrest

Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 (1952)......+...12

Statutes:

U.S. Const., Art. IIIT. .c eee eceeee ss passim

Con ccoeenseeeeseesoeoeesseoul

10 U.S.C.

10 U.S.C. TAZ. ccccccccccccccscsesses eh

10 U.S.C. iP PPPPrrrrrrrrrrrrrrererrrs |

10 U.S.C. Ul) errs |

10 U.S.C. B09. cc cccccccccccccesecces 346

10 U.S.C. B10. wc ccccccccccccccccsese cS

10 U.S.C. Bla. cccccccccccccccccccese s 46

10 U.S.C. SP FrrrrrrirrrrTrTTfTgfTgfTrtT.

10 U.S.C. | errr rrrrrrrrrd+TsTT ss

10 U.S.C.

a)

. PPPTTTITITITrTiTir. 44, 45

10 U.S.C. Dianna cece eeseeoeecesooeseee

10 U.S.C. Bee ccececeetesteocececoosent

10 U.S.C. rrr, TTTTrTiTTiyT._.

vii

Page

28 U.S.C. Bneeseedcoosoeeeesoeseceoenn

38 U.S.C. errr rrT TTT TTT TTTTTTeT CC

38 U.S.C. iin ee6eee06eeeu0eeeeoooe6nt

38 8.8.Ce Bemeecoecoesoesoeesoeeesoesoaune

38 U.S.C. 36060066 0066006000060060

42 U.S.C. Pe ¢6600666000606006666R

50 U.S.C. App. § ms Gee ceseoesese *e ee 40

50 U.S.C. App. § | wrrrrrrerrrreTtTe

U.S.C.M.J., Art. PPPTrrrir?T er ee eee --42

Other Authorities:

Comment, Free Speech in the

Milita N.Y.U.L. Rev.

tence

Schleuter, The Court Martial,

og Mil.L. Rev. 125 (1980) —eheaceeece cul

Zilman and Imwikelreid,

Constitutional Rights &

Milita Necessity, 50

Notre ~ Law. 356

CO ee

viii

INTEREST OF AMICUS*

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan or-

ganization of over 250,000 members dedi-

cated to protecting fundamental rights,

including the guarantees of racial fair-

ness inherent in the Fifth Amendment.

This case poses significant issues con-

cerning the enforceability of basic con-

stitutional cuarantees of racial equality

in a military setting. Since constitu-

tional rights without adequate remedies

are a mere form of words, the ACLU sub-

mits this brief amicus curiae in support

of the historic powers of the Article III

yudiciary to grant traditional remedies

to vindicate constitutional rights of

persons in nilitary service.

*Written consents to the filing of this

brief amicus curiae have been granted by

all parties and have been lodged with the

Court.

STATEMENT OF THE CASE

AND PROCEEDINGS BELOW

Plaintiff-respondents were black

enlisted men on board the U.S.S. Decatur

who allege that defendant-petitioners

discriminated against them because of

their race in regard to duty assign-

ments, training and ratings that would

enable them to advance, and advancement

itself; and that these acts not only

handicapped them in the Navy but in their

potential employment opportunities in

civilian life. (ga 3)./

The United States District Court for

the Southern District of California dis-

missed the complaint, stating, "l. That

the actions complained of are nonreview-

able military decisions; 2. That public

l. The affidavit and papers filed in

support of a motion for a preliminary

injunction also specified various in-

stances of racial slurs and harassment

(JA 21, 27-29, 30-21, 38).

policy compels that the defendants be en-

titled to intra-service immunity; 3. That

the plaintiffs have failed to exhaust

their administrative remedies.". (Pet.

App. 22a). The Court of Appeals for the

Ninth Circuit reversed. (JA la, 20a,

22a). The Ninth Circuit held, first,

"that the district court erred in dis-

missing for failure to exhaust administra-

tive remedies ... as the record reveals an

apparent factual dispute” on this issue.

(JA 3a, n.2). The Circuit Court sug-

gested the submission of additional evi-

dence on this issue before further pro-

ceedings in the district court, recogniz-

ing that exhaustion is a prerequisite for

judicial review. (JA 7a, 10a-lla).

The Circuit Court construed respond-

ents’ right to bring an action under 42

U.S.C. § 1985(3) for a violation of equal

protection as co-extensive with their

right to bring an action pursuant to

Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). (JA 2a, n.1l; 8a, n.5).

It then considered whether Bivens~-action

review should be allowed for "claims

arising incident to military service"

concluding that “reviewability ... must

reflect a careful balancing of policy con-

siderations". (JA 5a-6a). As a basic

limitation, the Court held that review

must be confined to alleged violations of

a “'recognized' constitutional right ----

The allegations must amount to more than

a traditional state court claim". (JA 10a,

see also 7a and 9a, n.5). The Court

pointed out that Feres v. United States,

340 U.S. 135 (1950), on which petitioner-

defendants relied, was inapplicable to

such a constitutional violation. (JA l3a,

16a, n.9).* In addition, adopting tests

2. In the court below petitioners argued

that under Feres they were entitled to ab-

solute immunity (JA 13a); in this Court they

rely »%n the case as a basis for disallowing

a Bivens action. (Pet.Br. 17).

edie

outlined in Mindes v. Seaman, 453 F.2d

197, 201-202 (5th Cir. 1971), the Court

held that other factors in determining

reviewability are “the nature of the plain-

tiff's interest and the potential injury

to the plaintiff if review is withheld; ...

the extent of interference with military

functions; ... [and] the extent to which

resolution of the claim requires mili-

tary expertise." (JA lla). Holding

that respondents' Claim of willful racial

discrimination satisfied the Mindes tests,

the Court rejected petitioners’ claim of

absolute immunity, relying on the opinion

in Butz v. Economou, 438 U.S. 478 (1978)

that though qualified immunity should be

the general doctrine in regard to consti-

tutional violations, there should be "an

exception however, for cases in which

absolute immunity ‘is essential for the

conduct of the public business.’ 438 U.S.

et S67 «ce © GWA AZa)-

In considering whether such an exemp-

tion should be made for the military, the

Ninth Circuit noted:

In Dinsman v. Wilkes, 53 U.S.

(12 How.) 390, 13 L.Ed. 1036

(1851), the Supreme Court al-

lowed only qualified immunity

from liability in connection

with an internal military deci-

sion .... The reference in

Economou to Dinsman*, 438 U.S.

at 492-94, 98 S.Ct. at 2903-

2904, indicates that the fact

that the constitutional claim

was incident to military ser-

vice would not necessarily pre-

clude recovery. (JA 13a-1l4a)

(footnote omitted).

The Court concluded that "creating an

exception to those two holdings” (JA 14a)

by affording absolute immunity, was unwar-

ranted for “military decisions made in a

noncombat setting in peacetime." (JA

15a, 16a n.10).

*The Economou opinion referred to Wilkes

v. Dinsman, 48 U.S. (7 How) 83, 131 (1849),

the Court's first opinion in the case,

which arose again in 1851 on writ of error

after new trial, 53 U.S. (12 How.) 390

(1851).

SUMMARY OF ARGUMENT

Since respondents allege a classic

violation of a clearly established con-

stitutional right, this case falls within

the subject matter jurisdiction of a federal

district court, which is presumptively em-

powered to grant traditional remedies,

including compensatory damages, to vin-

dicate constitutional rights. No basis

exists to suggest that Congress wishes to

deny the federal courts traditional reme-

dial powers in constitutional cases in-

volving military officials, since Congress

has granted jurisdiction to federal courts

to enforce constitutional rights in the

military in other contexts. Congress’

decision to rely on a no-fault mechan-

ism for compensating military tort victims

does not imply a desire to preclude Article

III courts from entertaining damage claims

in cases alleging a violation of an estab-

lished constitutional right for which no clear

- 7 -

tort analogue exists. Finally, no basis

exists for a blanket grant to military

officials of absolute immunity from dam-

ages for violating constitutional rights.

A qualified immunity is sufficient.

ARGUMENT

INTRODUCTORY STATEMENT

This case poses the question of whether

a member of the armed forces of the United

States may, in time of peace and in a

non-combat setting, seek redress in an

Article III court for damages suffered as

a result of willful racial discrimination

3

allegedly~ inflicted upon him or her by a

superior in violation of the Fifth Amend-

3. Since the district court dismissed

respondent's complaint on its face, the

factual allegations of the complaint

which allege willful racial discrimination

must be taken as true at this stage of

the litigation.

ment. 4 The Solicitor General argues that

no Article III remedy is available to a

military victim who has been injured by

willful racial discrimination, first,

because Congress has not explicitly auth-

orized an Article III court to entertain

a constitutional damage claim against a

military defendant and, second, because

military officials are entitled to abso-

lute immunity from damage actions by sub-

ordinates for unconstitutional conduct.”

4. The case does not challenge the re-

quirement that military remedies be ex-

hausted. Cf. Schlesinger v. Councilman,

420 U.S. 738 (1975). jem a serious

factual question appears to exist as to

whether plaintiffs have exhausted their

military remedies, plenary review by this

Court of an important issue of law touch-

ing on the relation between military and

civilian authority may well be premature.

5. In the lower courts, the government's

principal argument was based on an asser-

tion of absolute immunity. In this Court,

the emphasis has been shifted to whether

an Article III court may entertain a dam-

age claim against a military official for

unconstitutional behavior in the absence

(footnote continued on following page)

Neither contention can withstand analysis.

The basic principle underlying the

decision of the court below is unarguable:

the supremacy of constitutional rights

over military discretion and of civilian

over military authority. See Hirabayashi

v. United States, 320 U.S. 81 (1943);

Ex parte Milligan, 71 U.S. (4 Wall.) 2,

21-28 (1866); see also, Davis v. Passman,

442 U.S. 228, 242 (1979): “justiciable

constitutional rights are to be enforced

through the courts ... unless such rights

are to become merely precatory.,."

In the instant case the only method

for judicial vindication of the Fifth

Amendment guarantee of equal protection

(footnote continued from preceding page)

of explicit congressional authorization.

It does not appear, however, that the

government argued the Bivens issue in the

court below, raising a question as to

the jurisdiction of this Court to consider

it. Harlow v. Fitzgerald, ~U.S.- 73 L.Ed

396, 411, n.36 (1982).

- 10 -

against racial discrimination is an action

for damages against the officials who al-

legedly committed the constitutional viola-

tion. The situation is the same as that

in Davis: "...[T]here are available no other

alternative forms of judicial relief. For

Davis as for Bivens, ‘it is damages or

nothing'". Davis, supra, 442 U.S. at 245.

See also Harlow v. Fitzgerald, 73 L.Ed.2d

396, 407-8 (1982) ("an action for damages

may offer the only realistic avenue for

vindication of constitutional guarantees").

I. ARTICLE III COURTS MAY GRANT

TRADITIONAL COMPENSATORY DAM-

AGE REMEDIES IN CONSTITUTIONAL

CASES WITHIN THEIR JURISDICTION

IN THE ABSENCE OF A CONGRES~-

SIONAL INTENTION TO DEPRIVE

THEM OF A PARTICULAR REMEDY.

As Justice Frankfurter noted in

Montana-Dakota Utilities Co. v. North-

Western Public Service Co., 341 U.S. 246,

261 (1951) (Frankfurter, J., dissenting):

-ll-

"Courts, unlike administra-

tive agencies, are organs with

historic antecedents which

bring with them well-defined

powers. They do not require

explicit statutory authoriza-

tion for familiar remedies ..."

Accordingly, where Congress has

granted a federal district court subject

matter jurisdiction over a claim arising

6 this Court has

under the Constitution,

repeatedly recognized judicial power to

grant a successful litigant the "familiar

remedies" of prohibitory injunction’ and

compensatory damages .° Thus, in Bivens,

6. Jurisdiction is conferred by 28 U.S.C.

§ 1331. See Davis v. Passman, 442 U.S.

228, 231 (1979).

7. #Ex parte Young, 209 U.S. 123 (1908)

and Y stown Sheet & Tube Co. v. Sawyer,

343 os. 575 (1952) are, perhaps, the

two most celebrated grants of prohibitory

injunctions in the absence of congressional

authorization. In each case, subject mat-

ter jurisdiction was granted by 28 U.S.C.

§ 1331. In each case, the cause of action

for equitable relief was premised directly

on the Constitution.

8. nerally Bivens v. Six Unknown

agents, 4 os 0 U.S. Se 88 (1971); Davis v.

e continued on following page)

this Court recognized that Article III

courts were empowered to award compensa-

tory damages to plaintiffs who properly

invoked their subject matter jurisdiction

and who proved that federal officials had

injured them in violation of the Fourth

Amendment. Similarly, in Davis v. Passman,

this Court ruled that federal courts were

empowered to award damages against a mem-

ber of Congress who was alleged to have

discriminated on the basis of sex in viola-

tion of the Fifth Amendment. Finally, in

Carlson v. Green, this Court upheld the

power of a district court to award dam-

ages to a federal prisoner who was injured

in violation of the Eighth Amendment. In

each of Bivens, Davis and Carlson, federal

(footnote continued from preceding page)

Passman, 442 U.S. 228 (1979); Carlson v.

Green, 446 U.S. 14 (1980).

oe 83 «

defendants earnestly argued that the lack

of an explicit congressional statute auth-

orizing an award of compensatcry damages

precluded the grant of relief. In each

case, however, this Court rejected the at-

tempt to blur the classic distinctions

among subject matter jurisdiction, cause

of action and remedial power which are

central to the Bivens analysis. Where an

Article III court is vested with uncon-

tested subject matter jurisdiction and

where, as here, a plaintiff has pleaded

facts which, if true, make out an estab-

lished constitutional cause of action,

the government's suggestion that the "fam-

iliar remedy” of compensatory damages is

unavailable in federal court must rest on

more than an invocation of a talismanic

immunity of the military from judicial

-14-

9 «ndeed, of all the institutions

review.

in American life, none is in greater need

of a degree of judicial review to assure

that the necessary application of mili-

tary discipline does not degenerate into

lawless tyranny. Where a plaintiff must

exhaust military remedies before seeking

judicial redress of his constitutional

9. The government carefully refrains from

discussing the question of whether a federal

court would be empowered to enjoin racially

discriminatory activity by the military.

Presumably, even the Solicitor General would

recognize the power of the Article III ju-

diciary to enjoin a return to racially

‘segregated military installations. In fact,

Article III courts routinely entertain claims

for equitable relief from allegedly uncon-

stitutional military activity. E.g. Flower

v. United States, 407 U.S. 197 ( 2);

Brown v. ines, 444 U.S. 348 (1980); Greer

v. Spock, 424 U.S. 828 (1976). While this

Court was sympathctic to the substantive

positions argued by the military in Brown

and Greer, no question was raised as to the

power of a federal court to grant equitable

relief. If, as Justices Brennan and Harlan

noted in ens, a federal judge is empow-

ered to issue injunctive relief to enforce

a litigant's constitutional claim, it is

difficult to understand why the other tradi-

tional remedy -- compensatory damages -- is

not also available. 403 U.S. at 396-97, 404.

-15 -

10 and where relief is con-

grievances,

fined to established constitutional claims

raised in peacetime and in a non-combat

setting, a traditional compensatory dam-

age cemedy does not threaten any legiti-

mate military interest, while preserving

the minimum degree of constitutional en-

forcement necessary to the continued

existence of the rule of law.

Far from indicating hostility to

judicial enforcement of constitutional

standards in the military, Congress has

consistently recognized that Article III

courts should exercise final authority

10. Requiring exhaustion of administra-

tive remedies as a precondition to a Bivens

claim is, itself, a major accommeation

to military necessity, since constitutional

litigants are not required to exhaust

administrative remedies prior to suit.

Since respondents claim to have exh” ted

their military remedies, the extent .o

which exhaustion is requir:d is not an

issue in this case. °

over military activity which impinges

upon constitutional rights.

First, Congress has provided for an

internal review mechanism culminating in

the Board for the Correction of Naval

Records, the decisions of which are

reviewable in Article III courts. See

10 u.S.c. § 1552; 32 C.F.R.

723. While the limited remedies available

before the Board do not provide an

adequate substitute for a Bivens remedy ,*+

congressional provision for Article III

review of the Board's findings evidences

a clear recognition that internal military

resolution of serious legal claims should

be subject to a degree of civilian judi-

cial review.

ll. The Board is authorized to grant back

pay awards, but not compensatory damages

generally. See Carlson v. Green, supra.

o 39. =

Second, Congress has long provided for

habeas corpus review of military decisions

affecting constitutional rights. E.g.

Burns v. Wilson, 346 U.S. 137 (1953);

Parker v. Levy, 417 U.S. 733 (1974);

Orloff v. Willoughby, 345 U.S. 83 (1953);

Toth v. Quarles, 350 U.S. ll, 22 (1955);

Harmon v. Bruckner, 355 U.S. 579 (1958);

Parisi v. Davidson, 405 U.S. 34, 44

(1972); Middendorf v. Henry, 425 U.S. 25,

38, 44 (1976); Hiatt v. Brown, 339 U.S.

103 (195C). A serviceman's redress

against his superior for violation of a

constitutional right is consistent with

holdings that the courts limit review of

military decisions to the question of

whether the military was acting within

its lawful authority (see Pet. Br. 18-20;

French v. Weeks, 259 U.S. 326 (1922) as

to this limitation). For, an unconsti-

tutional act must be “viewed as not authorized"

(Butz v. Boonomou, 438 U.S. 478, 490-91

(1978)). While Article III courts, in

exercising habeas corpus review over the

military, have been cautious in deferring

to military expertise in non-constitutional

settings, it is clear that Congress, in

granting habeas corpus jurisdiction, has

vested the Article III judiciary with

the power and the duty of assuring that

the Constitution is respected within the

armed forces.

Third, Congress has provided for

Article III review of the constitution-

ality of military activity pursuant to the

traditional mechanism of actions for

injunctive relief directed at an allegedly

unconstitutional military decision. E.g.

Flower v. United States, 407 U.S. 197

(1972); Brown v. Glines, supra; Greer v.

Spock, supra. Schlesin er v. Ballard, 419

U.S. 498 (1975).

Since Congress has vested the Article

III courts with explicit power to review

the Board for the Correction of

-19 -

Naval Records and with habeas corpus and

federal question jurisdiction over the

military in constitutional cases, the

Solicitor General can hardly argue that

Congress has expressed an intent to pre-

clude the federal courts from performing

their traditional role as guardians of

the Constitution in this case merely be-

cause the defendant happens to be a mem-

ker of the armed forces. Instead, the

Solicitor General seeks to draw a false

analogy between tort law and constitu-

tional law in arguing that Feres v. United

States, 340 U.S. 135 (1950) precludes the

recognition of a Bivens claim against a

military superior. Feres is not, however,

authority for precluding an action against

an individucl military defendant for

damages flowing from the violation of an

established constitutional right to be

free from willful racial discrimination.

The decisions dismissing suits for

damages by servicemen against their super-

iors (cited in Pet. Br. 14-15, 37) are

consistent with the decision of the

court below and maintenance of a Bivens

action herein. This body of cases con-

sists of personal injury tort actions,

typified by Calhoun v. United States?

(cited in Pet. Br. 15), discussed with

approval by the court below. (Pet. Br.

9a-10a).

The Court recognized that Caihoun

and similar cases expressed an “under-

standable concern that a clever pleader

can often transform the most innocuous

12. 475 F. Supp. 1 (S.D. Cal. 1977),

aff'd, 604 F.2d 547 (9th Cir. 1979)

(adopting opinion of district court),

cert. denied, 444 U.S. 1078 (1980). The

exception to the statement in the text

as to the aro een al By gt is

Birdwell v. Schlesin (Pet. Br. 15),

which dismissed an ac a for damages for

a discharge from the ais Force but which,

contrary to petitioners’ implication,

accorded the commandant only qualified

immunity. 402 F. Supp. 710, 718 (D.

Colo. 1975).

- 21-

state tort action into a claim of const-

tutional status" (Pet. App. 10a) .23

To meet this problem it held that only a

""recognized' constitutional right" could

ground a reviewable claim; and that "the

allegations must amount to more than a

traditional state law claim" (Pet. App.

10a). Without violence to the intent of

the court below but utilizing this Court's

subsequent language in Harlow v. Fitz-

gerald, supra, the criterion of a valid

cause of action should be reworded to

include an alleged violation of a "clearly

established ... constitutional right."

(73 L.Ed.2d at 410).

The reason for concern about artful

pleading of a constitutional injury rather

13. Compare Davis, 442 U.S. at 248:

the Bivens plaintiff "must first demon-

strate that his constitutional rights have

been violated. We do not hold that every

tort by a federal official may be redressed

in damages."

than merely a tort, is that this device

would circumvent the rule in Feres v.

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

is uniformly deemed applicable to suits

against other servicemen as well as suits

against the United States under the FTCA

(see cases cited by Pet. Br. 14-15, and

decision of court below, Pet. App. 13a;

15a-l6a, n.9).

Saying that the Federal Tort Claims

Act "should be construed to fit ... into

the entire statutory system of remedies

against the Government ... " (340 U.S.

at 139), the Feres Court stressed Congress’

establishment of a system of benefits

specifically for those in the armed ser-

vices (340 U.S. at 144) -- a compensation

system viewed as reasonable. (340 U.S.

at 145).24

14. No-fault compensation by the United

States to servicemen, veterans and their

survivors for any disability suffered "in

(footnote continued on follcwing page)

« 23 «

However, racial discrimination against

a serviceman is not compensable or remed-

iable under the Veterans Benefit Act or

any other legislation, nor does it give

rise to a traditional tort action. For these

reasons as well as the irrelevance to a con-

stitutional claim of the other considerations

in Feres (see summary of Feres by court

below, Pet. App. 15a-l6a, n.9)*> the

(footnote continued from preceeding page)

the line of duty" (38 U.S.C. §§ 11, 310, 321,331,

ff.), has been emphasized in a number of the cases

dismissing complaints against military superiors,

cited by petitioners. Fae! oa 19, 1237 Ge

States (Pet. Br. =. 6 663 F.2d 1226, 1237 (3rd Cir.

O81); Laswell v. Brown (Pet. Br. 14) 683 F. 2d

261 (8.n Cir. 1982) at ; Lombard v. United States

(Pet. Br. 15) 690 F.2d 215, 220-21 (D.C. Cir. 1982).

See also Hatzlachh ly Co. v. United States,

444 U.S. P ‘

15. The dictum relating Feres to military dis-

cipline originated in United States v. Brown, 348

U.S. 110, 112 (1954), where it was used to dis-

tinguish Feres and pemmit FICA recovery to a

prisoner. In Steel SST. vs

oe aa 977), (Marshall,

J. be Comene @ a third-party claim against

the United

(footnote continued on following page)

- 24 -

ruling of the court below is entirely con-

sistent with Feres.

The court below's exclusion from Bivens

actions of "a traditional state law claim"

and inclusion of only a "recognized" (or

clearly established) constitutional

right, not only prevents circumvention of

Feres but also is likely to exclude claims

whose determination may require military

expertise -- such as claims based on in-

juries incurred in training or maneuvers.

And claims arising in "a combat setting"

are entirely excluded from the ruling

below (Pet. App. 16a, n.10).?°

(footncte continued from preceding page)

negligence in the manufacture of military

planes, Justice Marshall noted that third-

party recovery would, equally with a direct

suit against the United States, involve

"second-guessing military orders" and

intra-military testimony. However, it

must be observed that these occurrences

are routine in court martials, which are

a regular part of military affairs.

16. The court below also ruled that one

factor determining reviewability is "the

extent to which resolution of the claim

requires military expertise.” (Pet.App. lla).

- 25-

In sum, a Bivens-action is appropriate

because the court below established a feas-

ible limitation to prevent abuse of this

critical method of redressing the viola-

tion of the established constitutional

rights cf servicemen by their superiors.

Moreover, as this Court has made

clear since United States v. Lee, 106 U.S.

196 (1882), sovereign immunity does not

shield a gcvernment employee who acts

beyond the scope of his constitutional

powers. Such an employee acts, not as

an agent of the sovereign, but as an

incividual. Thus, in the case of consti-

tutional violations by a military official,

Feres and the Federal Tort Claims Act are

irrelevant betause the individual defend-

ant has no sov-reign immunity to waive.

Whatever the validity of Feres in the tort

area (where an alternative no-fault scheme

was available), the paramount: importance

of vindicating constitutional rights, argues

strongly in favor of judicial enforcement

of constitutional rights in this case.

Finally, and most tellingly, Feres

did not purport to bar all tort suits

against military defendants -- merely

actions against the United States. While

traditional sovereign immunity doctrine

grants an individual government defend-

ant the cloak of sovereign immunity in

many tort settiugs, no such cloak is

available to an official defendant charged

with unconstitutional, as contrasted with

merely tortious activity; or to a defend-

ant charged with willful tortious activity

clearly beyond the scope of his official

duties. In such cases, the governing

rule in cases against military superiors is not

to be found in Feres or the Federal Tort

Claims Act, but in Wilkes v. Dinsman, 48

U.S. (7 How.) 83 (1849), (on writ of error after

new trial) 53 U.S. (12 How.) 390 (1851), which

recognizes the existence of a claim against

a military superior for willful tortious

#27 «

behavior beyond the scope of his official

duties. See also Henderson v. Bluenmink, 511

F.2d 399, 403-404 (D.C. Cir. 1974); Bissell

v. McElligot, 369 F.2d 115 (8th Cir. 1966),

cert. denied 387 U.S. 917 (1967).

Thus, Congress’ desire to avoid intra-

military negligence actions in the wake

of the Federal Tort Claims Act does not

provide persuasive authority for denying

a federal court power to remedy violations

of a constitutional magnitude. If, as

Wilkes v. Dinsman holds, a claim for

willfully tortious activity would lie,

there can be no justification for refusing

to redress similarly willful activity

which violates not merely the law of

torts, but the non-discrimination provi-

sions of the Constitution itself.

The government's lame attempt to dis-

tinguish Wilkes v. Dinsman is singularly

unpersuasive. First, the government

argues, Wilkes involved a tort, not

a constitutional claim. Of course, such

an cbservation merely strengthens Wilkes,

- 28 -

since vindication of constitutional rights

would seem more compelling than enforc-

ing a tort remedy. Second, the govern-

ment argues, the military was smaller

when Wilkes was decided and fewer internal

remedies existed. The need for constitu-

tional enforcement mechanisms would,

however, seem directly proportionate to

the size of the military establishment.

Thus, far from arguing for the abolition

of Wilkes v. Dinsman, the size and power

of the current American military establish-

ment argues for its retention. Moreover,

as this Court noted in Carlson v. Green,

the existence of alternative remedies

are relevant to a Bivens analysis, but

only if they are of equivalent scope.

Not even the Solicitor General argues

that internal military remedies are the

equivalent of an Article III action for

damages. Finally, the government argues

that while the Wilkes Court recognized

- 29 -

an “ancient common law" remedy, the

Ninth Circuit created a "new" remedy.

Such an argument misperceives the Ninth

Circuit's decision. Surely, there is

nothing new about the principle that

racial discrimination is forbidden by the

Constitution. Nor is there anything new

about using compensatory damages to right

legal wrongs. The Ninth Circuit merely

applied traditional remedies to tradi-

tional legal principles. If there is

anything new in this case, it is the

Solicitor General's determined attempt

to place the military above the con-

stitutional law of the land.

II. MILITARY OFFICIALS ARE NOT ENTITLED

TO ABSOLUTE IMMUNITY FROM DAMAGE

ACTIONS BY SUBORDINATES FOR THE

WILLFUL VIOLATION OF CLEARLY

ESTABLISHED CONSTITUTIONAL RIGHTS.

With the sole exception of the Presi-

dent of the United States, this Court

has consistently refused to grant execu-

tive officials absolute immunity from

damage actions for the violation of clearly

established constitutional rights. Compare

Nixon v. Fitzgerald, U.S. __, 73 L,Ed,2d 349

(1982) (describing unique status of President)

with, e.g. Harlow v. Fitzgerald, 73 L.Ed.

396 (1982) (denying blanket absolute

immunity to White House aides); Scheuer

v. Rhodes, 416 U.S. 232 (1974) (Governor,

National Guard officials); Butz v.

Economou, 436 U.S. 478 (1978) (cabinet

officials); Procunier v. Martinez, 416

U.S. 396, 406 (1974) (prison officials) ;

Pierson v. Ray, 386 U.S. 547 (1967) (police

officers); ‘Wood v. Strickland, 420 U.S.

308 (1975) (educational officials); Davis

v. Passman, 442 U.S. 228 (1979) (members of

Congress as employers). "For executive

officials ... qualified immunity presents

the norm." Harlow v. Fitzgerald, 73 L.

Ed.2d 396, 403 (1982).1’ petitioners seek

a dramatic and potentially dangerous excep-

tion from the norm on behalf of military

officials in seeking to “bear the burden

of showing that public policy requires ...

absolute exemption from personal liability

for [their] unconstitutional conduct”

towards their subordinates. See Butz v.

Economou, 436 U.S. 479, 506 (1978).28

17. As defined in Harlow, a qualified

immunity shields an individual defendant

from liability so long as a reasonable

person would not have been expected to

know that his conduct violated constitu-

tional norms.

18. In Butz (438 U.S. at 489-91), the

Court explained that the grant of absolute

immunity to certain executive officials

in Barr v. Matteo, 360 U.S. 564 (1959),

was not intended to insulate an official

who acted beyond a “constitutional limita-

tion on his authority”. 438 U.S. at 489.

Compare. Feres v. United States, discussed

re at pp. 22-28 with Barr v. Matteo, supra.

us, while military officials may well

enjoy an absolute immunity in certain tort

cases, no similar immunity exists in a con-

stitutional case. Barr was applied to a

military commandant in Howard v. Lyons,

360 U.S. 593, 597 (1959).

@ 32 «

Casting petitioners' argument in terms of

this Court's immunity decisions, petitioners

contend that a military superior's poten-

tial liability in damages for the willful

violation of an established constitutional

right would cause him to hesitate in the

issuance of valid orders; and that such

hesitation would be more detrimental to

the public than hesitation by other offi-

cials because of the military's function

(see Pet. Br. 21-25) .2? In addition,

petitioner argues that the existence of

a damage remedy for willful violations

of the Constitution would impede the exi-

stence of a relationship of trust and

discipline necessary to the maintenance

of an effective fighting force. However,

whether one approaches the issue from the

perspective of history, public policy, ana-

19. The military function at issue in this

appeal excludes activity in a "combat set-

ting." (Pet. App. l6éa, n.10).

- 33-

lagous precedent or functional analysis,

no basis exists for granting absolute

immunity to the military establishment

for the willful violation of a service-

man's constitutional rights.

A. History Rejects The Grant

Of Absolute Immunity To

Military Superiors For

Willfully Unlawful Acts.

In Wilkes v. Dinsman, 48 U.S. (7 How.)

83 (1849), on writ of error after a new trial,

53 U.S. (12 How.) 390 (1851), the Supreme

Court sustained the validity of a complaint

for damages filed by an American sailor

alleging that he had been unlawfully

flogged by his superior officer while on the

high seas.7° The recognition in Wilkes

20. Although the complaint in Wilkes v.

Dinsman was couched as a common law tort,

it is apparent that, were it filed today,

it would make out a claim under the Eighth

Amendment as well. See Carlson v. Green,

supra. The Court declined to dismiss the

complaint in Wilkes despite the acquittal

of Captain Wilkes by a court martial.

- 34 <-

v. Dinsman that military superiors who

willfully*? exceed the limits of their

lawful authority may not plead official

immunity is fully consistent with the ,

classic evolution of executive immunity

in related contexts involving law enforce-

ment officials. See, e.g. Scheuer v.

Rhodes, supra; Pierson v. Ray, supra.

Moreover, Wilkes was not an isolated

phenomenon. Thus, in Luther v. Borden,

48 U.S. (7 How.) 1, 61 (1848), this Court

noted that military authority:

cannot, without liability to

a private suit in the judicial

tribunals, be exercised on a

soldier himself for a cause

not military or over which the

officer has no right to order

him. (emphasis added) (citing

both English and American Prece-

dents).

21. Chief Justice Taney ruled that Dinsman

could recover if Wilkes had acted from

"malice or a vindictive feeling". 53 U,S.

at 404, See also 48 U.S. (7 How.) 88,

122 (1849). Phrased in modern terms,

Captain Wilkes enjoyed only a qualified

immunity ‘or good faith acts.

- 35 -

Similarly, in Bates v. Clark, 95 U.S. 204,

209 (1877), a military officer was deemed

liable in damages despite a defense that

he was merely acting in accordance with a

superior's orders. Finally, in Mitchell

v. Harmony, 54 U.S. (13 How.) 113, 134-35

(1851), a military official was deemed

personally liable for an unjustified seizure

of property during deployment against the

enemy in enemy territory, unless he had

"reasonable grounds for believing that

the peril is immediate." See also Little

v. Barreme, 2 Cr. 170 (1804). Thus, as

the Ninth Circuit noted below, no histor-

ical precedent exists to support a claim

for absolute immunity for military offi-

cials.

- 36 -

B. Public Policy And Analagous

Recent Precedent Reject The

Grant Of Absolute Immunity

To Military Officials.

1. The Effect of Qualified

Immunity on the Issuance

of Military Orders

Petitioners argue that continued

recognition of the historic existence

of a qualified, as opposed to an absolute,

immunity for military officials would

unduly inhibit the issuance of necessary

military orders. However, from the

standpoint of inhibiting the issuance of

valid orders, the question of immunity

for officials with sensitive public safety

functions was resolved by Scheuer v. Rhodes,

416 U.S. 232 (1974). In Scheuer the

Governor, Adjutant General of the National

Guard, and other National Guard officers,

were accorded only a qualified immunity

from liability for injuries suffered

when guardsmen were deployed and ordered

to fire their guns during an alleged

civil disturbance. The Court pointed

out: "In common with police officers ...

officials must often act swiftly and

firmly ... when a condition of civil dis-

order in fact exists, there is obvious

need for prompt action" with regard to

"the decision to invoxe military power."

(416 U.S. at 246).°?

If orders issued by the Governor and

the National Guard during a civil disturb-

ance are entitled to merely a qualified

immunity, it is difficult to understand

why military orders issued in peacetime

and in a non-combat setting should be

accorded the drastic protection of absolute

immunity. In short, Scheuer is the modern

analogue of Wilkes v. Dinsman and is dis-

positive of the immunity issue in this

case.

22. And see Gilligan v. Morgan, 413 U.S. l,

11 (1973) as to the National Guard's pos-

sible "accountability in a judicial forum

--- by way of damages ... ".

- 38 -

As to other instances of qualified

immunity in spite of circumstances in

which quick and firm orders are necessary

for the public safety, see Imbler v.

Pachtman, 424 U.S. 409, 430 (1976), and

Butz, supra, 438 U.S. at 501 (policemen) ;7°

Carlson v. Green, 446 U.S. 14, 19 (1980)

(prison officials): “even if requiring

them to defend respondent's suit might

inhibit their efforts to perform their

official duties, the ... qualified im-

munity .... provides adequate protection ";

Procunier v. Navarette, 434 U.S. 555 (1978)

(prison officials).

2. The Burden of Defending

in a Qualified Immunity

Setting

Petitioners contend, as well, that

the burden cf defending unwarranted con-

stitutivnal claims argues strongly for

the creation of an absolute immunity for

23. In civil disorders, the Armed Forces

performed the same functions as the police.

See Laird v. Tatum, 408 U.S. l, 5 (1972).

- 39 -

military officials. However, respondents'

recognition that internal military rem-

edies must be exhausted and the exclusion

of “combat settings” from the decision

below, eliminates the "burden" issue as

a serious factor. There is no reason to

believe that the time pressures on mili-

tary officials in peacetime are more

onerous than those borne by other govern-

ment officials, such as prison officials

and policemen who have been denied

absolute immunity by this Court. 74 In

addition, the newly reinforced summary

judgment procedure on the existence of a

qualified immunity defense will expedite

the determination of insubstantial

24. Under current guidelines, the govern-

ment bears the burden of defending Bivens

actions against individual government

defendants, including members of the mili-

tary.

- 40 -

cases.*” See Harlow, supra, 73 L.Ed.2d

at 396 , Pet. App. 17a.

In petitioners’ fear of the number

of unwarranted suits that might ensue

from the ruling of the court below (Pet.

Br. 23-24), they overlook the significant

restraint on litigation imposed by the

nature of military life and the impossi-

bility of leaving it at will. The anta-

gonism likely to be engendered towards

the serviceman who files suit against his

superior and the many ways in which it

can be manifested in the enclave of a

vessel or base acts as a potent deterrent

to frivolous litigation. (See JA 26-39):

25. Cf. Alvarez v. Wilson, 431 F. Supp.

136, 145 (N.D. III. 1977) ABD. pending,

No 81- 2696 (7th Cir.): aff vits fa to

establish good faith of administrator and

psychiatric evaluation of a “Black-Puerto Rican"

assertive member of the base's human relations

committee, who was released by hospital psy-

chiatrists with a report of no psychiatric

disability. |

alleged harassment and racial slurs towards

plaintiff-respondents). Further, the

"lack of time and money” to retain an

attorney and pay other litigation costs

(see Feres, supra, 340 U.S. at 145) is

another realistic impediment.

3. The Effect of Qualified

Immunity on a Serviceman's

Obedience to Orders and

the Morale and Trust of

the Armed Forces.

Petitioners suggest. that a refusal

to cloak military supericrs with absolute

immunity would encourage disobedience to

orders. U.S.C.M.J. Art. 90; 10 U.S.C.

§ 890. The fact that the unlawfulness

of an order is a>-recognided defense to a

court martial proceeding has not impaired

military discipline. Indeed, it has acted

as a necessary restraint which reinforces

the effectiveness of our military forces. 7°

26. The effort to increase the sense of

justice and fair treatment in the mili-

tary has stimulated dramatic reform of

(footnote continued on following page)

Similarly, recognition that military

superiors are not above the Constitution

can only serve to strengthen the effective-

ness and will of a free people's defense

forces. Indeed, it is difficult to under-

stand how immunizing military officials

from damages for willful racial discrim-

ination would aid the sense of mutual

trust and confidence which is a prere-

quisite of any effective fighting force.*’

(footnote continued from preceding page)

the court martial procedure over a fifty

year period. See Schleuter, The Court

Martial, 89 Mil. L. Rev. 129, 156, 165

27. Only a qualified immunity for acts

performed in good faith was accorded a

congressman in a suit by his employee

for an unconstitutionally discriminatory

discharge, despite the special relation-

ship of confidence and loyalty between

a congressman and his employee. Davis v.

Passman, 442°U.S. at 249 (Burger, C.J., ©

dissenting).

—_—

Lingering vestiges of racism weaken. us

as a nation -- and weaken. our armed

forces as its shield. Elimination of

the only judicial remedy available to a

serviceman who is the victim of willful

racial discrimination hardly serves to

improve the morale and trust within the

military. See Alvarez v. Wilson, 431 F.

Supp. 136, app. pending, No. 81-2696

(7th Cir.).

Moreover, in view of the immediate

consequences for disobedience to an order

that can be imposed under the Uniform

Code of Military Justice, the distant

possibility cf a lawsuit against a

superior could not have an appreciable

effect of military discipline.

Disobelience of a superior's order,

punishable Ly death in wartime, is pun-

ishable by any punishment a court martial

directs, except death, in peacetime;

(10 U.S.C. § 890) also punishable are "all

= 44 @-

disorders and neglects to the prejudice

of good order and discipline in the armed

forces." (10 U.S.C. § 934)28 The code

specifies no limit on the allowable per-

iod of a suspect serviceman's confinement

after arrest, either before arraignment

or before trial, nor does it provide for

bail; during confinement the prisoner can

be segregated and subject to "minor pun-

28. See Parker v. Levy, 417 U.S. 733

(1974) upholding constitutionality of

§ 934. Levy was sentenced to 3 years

confinement at hard labor and other pen-

alties (417 U.S. at 736) for violation

of the above-quoted sections and the

section prohibiting concuct unbecoming

an officer and a gentleinan.

Assuming arguendo that discipline

might be affect y the possibility of

a damage suit, the exclusion of orders in

a “combat setting" from the ruling below

(Pet. App. 16a, n.10) implements the

greater significance attributed to war-

time than tc peacetime obedience to

orders in 10 U.S.C. 890.

ishment" for infractions of discipline;

a serviceman attached to a vessel is sub-

ject, at a commanding officer's discretion,

to non-judicial punishment (without the

option of court martial), which can in-

clude seven days confinement (10 U.S.C.§§

807, 809, 810, 813, 815, 833).

In the context of the compulsion to-

wards obedience exerted by the military

justice system, it is clear why the

Court in Dinsman, supra, treated as

entirely consistent its emphasis on the

serviceman's obligation to obey all

orders (see 53 U.S. at 403-404) and his

superior's qualified liability to him

for damages. *? See Bates v. Clark, 95

29. Civilians receiving police directions

on the strects or highways are accustomed

to the reaction that yielding even to an

invalid order will be less burdensome

than courting arrest and litigation by

disobedience; for a serviceman the re-

sults of an arrest for insubordination

are much more fearsome.

46

U.S. 204, 209 (1877) where an officer

was held liable for damages regardless of

his claim that he issued his order in ac-

cordance with his duty to obey superior

orders; and Little v. Barreme, supra.

The need in a prison for the prison-

ers' obedience to orders and conformity

with regulations is analagous to that

need in the Armed Forces. Nevertheless,

the Court beiieves that only qualified

immunity for prison officials from dam-

ages suits by inmates is required. See

Procunier v. Martinez 416 U.S. 396, 406

(1974) referring to the “tension between

the traditional policy of judicial re-

straint regarding prisoner complaints and

the need to protect constitutional rights";

Procunier v. Navarette, 434 U.S. 555

(1978); Carlson v. Green, 446 U.S. 14

(1980).

= 47 «

4. Qualified Immunity and

the Function of a Mili-

tary Superior

This Court has consistently refused

to extend an absolute immunity to an of-

ficial whose function did not require it,

Eg. Butz v. Economou, 438 U.S. at 506,

515; Imbler v. Pachtman, 424 U.S. 490,

430 (1976), Doe v. McMillan, 412 U.S. 306,

317, 319, 320 (1973); Stump v. Sparkman,

435 U.S. 349 (1978). The Ninth Circuit

below recognized that the function per-

formed by a military commander in a com-

bat setting might well require an abso-

lute immunity from damage claims. How-

ever given the myriad functions performed

by our peacetime military establishment

in a non-combat setting, a grant of blan-

ket absolute immunity to all military

supervisors has never been the law.

oe 4 «

See, e.g. Henderson v. Bluemink, 51l F.2d

399, 403-404 (D.C. Cir. 1974) (army doctor).

The military has “become a multi-million

person employer involved in almost every as-

pect of American life." See Zilman and

Imwikelreid, Constitutional Rights and

Military Necessity, 50 Notre Dame Law,396,

400 (1976); see also Comment, Free Speech

in the Military, 53 N.Y.U. L.Rev. 1102, 1114

(1978) .2° tndeed, members of the armed

forces, including many who perform duties

identical to those ordinarily performed

by civilians, are subject to military or-

ders about their corduct even in their own

homes in the civilian community. See

Schlesinger v. Councilman, 420 U.S. 739 (1975).

30. As to the variety of duties performed

by the military, see, e.g. 10 U.S.C. § 41

(appointment of officers to Military Staff

Committee of the United Nations); 10 U.S.C.

§ 719 (members of Armed Forces detailed for

duty in Department of Commerce); 10 U.S.C.

§ 2114 (medical students supported by De-

fense Department appointed as officers);

10 U.S.C. § 713 (members of Armed Forces

to inspect State Department buildings).

- 49 +

No basis exists for suggesting that

the vast bulk of military officials per-

form functions which require the extra-

ordinary shield of absolute immunity.

To suggest that a Motor Pool Sergeant

or a Mess Officer is called upon to

perform functions comparable to those per-

formed by the President of the United

States or a sitting judge is ludi-

crous. In the vast bulk of settings, a

grant of qualified immunity fully satis-

fies any legitimate concern for military

efficiency and function.

Moreover, unlike the President and

sitting judges, who have been afforded

absolute immunity, no effective alter-

native mechanism operates to assure

compliance with constitutional norms in

a military setting. By definition,

military society is often geographically,

p-ychologically, and physically remote

from civilian life. The safeguards of

- 50 -

public scrutiny and formal review which

may be counted upon to assure comp] iance

with constitutional norms in many areas of

civilian life are simply not present in

many -- perhaps most -- military settings.

The grant of absolute immunity to

military officials would affect literally

millions of individuals. Unlike a narrow

grant of absolute immunity to a discrete

category of officials based upon a careful

functional analysis, a blanket grant of

immunity to all military officials would

create an enormous loophole in the Consti-

tution, justified by neither history,

policy nor functional analysis.

CONCLUSION

For the above-stated reasons, the

judgment of the Court of Appeals should

be affirmed.

Respectfully submitted,

NANETTE DEMBITZ

Counsel of Record

BURT NEUBORNE

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Dated: February 2, 1983

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