# Amicus Brief — Chappell v. Wallace > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0510%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1983 - **Citation:** 462 U.S. 296 ## Text 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 —— 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 -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 » 52 « --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0510%3A08. Public record. Not legal advice.