Petition for Writ of Certiorari — Hornsby v. Stinson

SUPREME COURT OF THE UNITED

IN THE

OCTOBER TERM, 1988

MAJOR GENERAL WILLIAM A. HORNSBY,

Bucis OF Ali.,

Petitioners

V.

DAVID STINSON

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

DON SIEGELMAN

Attorney General of Alabama

ROBERT L. RASH

Assistant Attorney General

State of Alabama

Counsel of Record

Attorneys for Petitioners

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7406

STATES

QUESTION PRESENTED

1. Does this Court's Opinion in

Chappell v. Wallace, 462 U.S. 296

(1983), which held that enlisted

military personnel may not maintain a

Suit to recover damages from a superior

officer for alleged constitutional

violations, preempt the employment of

the analysis reguired under Mindes v.

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

determine the justiciability of claims

based upon alleged violations of rights

protected by 42 U.S.C. Sections 1981 and

1983 filed by discharged military

personnel?

PARTIES

In addition to the names contained

in the caption, Petitioners include the

Alabama National Guard, Major Ernest L.

Shipp, individually and as an Officer of

the Alabama National Guard; Lt. Col.

John Q. Adams, individually and as an

officer of the Alabama National Guard;

George F. Hulsey, individually and as an

officer of the Alabama National Guard.

All other parties are named in the

caption,

ii

TABLE OF CONTENTS

Page

OpiRiGORS BOLO crcccccsccccssscceeVas

TULISGICCION. cccccccccccccsccsccceVsad

Statement..cccccccvccccccccccsccccccot

Reasons for Granting the Petition...4 |

CONCLUSION. ccocccccccccccccsccscsccssenh

AMPMORGIZ Acccccscccscccesech@h = KeZ7

APPONGIZ Bicccccccccecscce cobb =- BZ

Appendix ee ee me eS

iii

TABLE OF AUTHORITIES

Cases Page

Bivens v. Six Unknown Named

Agents of the Federal Bureau of

Narcotics, 403 U.S. 388

(APF Rp ccccccsssesssecssseoscweshs 4, 6-10

Brown v. United States, 739

cert. denied, U.S. ,

105 S.Ct. 3524, 87 L.Ed.2d 650

CAPE P00 6b bb cbRaO Sw 668 06800606 K8S8

Chappell v. Wallace, 462 U.S.

296 RET & Hs C0466 Oho OS SOOMEC SS ~ 3-14

Crawford v. Texas Army Nat. Guard,

794 F.2d 1034 (5th Cir.

it Fer ee a errs oT

Martelon v. Temple, 747 F.2d

1348 (10th Cir. 1985),

cert. denied U.S. _,

105 S.Ct. 2675, 86 L.Ed.2d 694

(1965 ) ac cccccccccccccccccccvccccccceccoha

Mindes v. Seaman, 453 F.2d

197 (5th og OF EVikdacecsesovsens 3-10, 14

Mollnow v. Carlton, 716 F.2d

627, (9th Cir. 1983), cert

denied, 465 U.S. 1100,

104 S.Ct. 1595, 80 L.Ed.2d 126

(1984). cee cce eer eercecseeescescesseseell

Penagaricano v. Llenza, 747

F.2d 95, (lst Cit. Se ee

iv

Page

United States v. Shearer, 473

U.S. 52 [awe hss 66466664 6660 céeceuenene

Statutes:

Civil Rights Act of

b9OR co ecessoeeeseanes

Civil Rights Act of

42 GO eBeCe ft 3

1964, 42 U.S.C.

eccccescoccccecsoess &

1964,

eccccccecccccecoceonnd

mtn Ml Bo coe.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NO.

MAJOR GENERAL WILLIAM A. HORNSBY,

Etc., et al.

Petitioners*

Vv.

DAVID STINSON

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioners, Major General

William A. Hornsby, etc. et al.,

respectfully pray that a writ of

certiorari issue to review the Judgment

and Opinion of the United States Court

*The other parties to this cause are

Petitioners the ALABAMA NATIONAL GUARD,

MAJOR ERNEST L. SHIPP, individually and

as an Officer of the Alabama National

Guard; LT. COL. JOHN Q. ADAMS,

individually and as an officer of the

Alabama National Guard; GEORGE F.

HULSEY, individually and as an officer

of the Alabama National Guard.

vi

of Appeals for the Eleventh Circuit

entered July 20, 1987.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Eleventh

Circuit is reported as Stinson v.

Hornsby, 821 F.2d 1537 (llth Cir. 1987),

and is reproduced as Appendix A hereto,

infra. The order of the United States

Court of Appeals for the Eleventh

Circuit denying Petitioners Petition for

Rehearing In Banc is not reported and is

reproduced as Appendix B hereto, infra.

The Opinion and Order of the United

States District Court for the Middle

District of Alabama, Northern Division,

Granting Petitioner's Motion to Dismiss

is not reported and is reproduced as

Appendix B hereto, infra.

vii

JURISDICTION

The Judgment of the United States

Court of Appeals for the Eleventh

Circuit was entered on July 20, 1987.

Petitioner's Petition for Rehearing and

Suggestion of Rehearing En Banc was

Denied on November 6, 1987. The

jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

viii

STATEMENT

1. On April 19, 1986, Respondent

David Stinson filed a complaint in the

United States District Court for the

Middle District of Alabama alleging

discrimination and seeking relief under

Title 42 U.S.C Sections 1981, 1983 and

2000e-2000-17. The Respondent had been

on active duty with the Alabama National

Guard pursuant to Title 32 U.S.C.

Section 502(f) and as such was a

full-time uniformed federal member of

the military. In his complaint,

Respondent named his military

supervisors, including the Adjutant

General of Alabama and the Alabama

National Guard itself as defendants.

Respondent had filed administrative

claims alleging racial discrimination

with the United States Department of the

Army, which resulted in an investigation

Within the command structure of the

Alabama Army National Guard. On May 13,

1986, the Adjutant General of the

Alabama National Guard submitted a final

agency decision finding that Respondent

had not been a victim of racial

discrimination. |

Petitioner filed a Motion to

Dismiss the complaint, which the

District Court granted on the grounds

that Respondent had no grounds for

relief pursuant to Title VII of the

Civil Rights Act of 1964 and that, based

upon this Court's decision in Chappell

v. Wallace, 462 U.S. 296 (1983),

Respondent had no claim for relief

pursuant to Title 42 U.S.C. Section 1981

and 1983.

2. Respondent Stinson appealed the

granting of the Motion to Dismiss.

On July 20, 1987, the United States

Court of Appeals, Eleventh Circuit,

issued an opinion affirming the District

Court on the Title VII issue, but

remanded the Title 42 U.S.C. Sections

1981 and 1983 issues for analysis under

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

1971).

On August 6, 1987, Petitioner

petitioned for Rehearing and Suggestion

for Rehearing En Banc on the remand of

the Title 42 U S.C. Sections 1981 and

1983 issues.

ea a ETD

On November 6, 1987, the Eleventh

Circuit denied Petitioner's Petition for

Rehearing and Suggestion for Rehearing

En Banc.

REASONS FOR GRANTING THE PETITION

This case tests the application of

this Court's opinion in Chappell.

Essentially, if Chappell is held to

establish that enlisted military

personnel should not be allowed to

maintain claims for damages against

Superior military officers for

violations of constitutional rights

during the course of their military

service, then the limited review

afforded by Mindes is no longer

applicable for Bivens-type claims.

Mindes employed a factoring analysis

to determine the justiciability of

constitutional claims asserted by

members of the armed forces against

their superiors. The Mindes analysis

reguires a two-step evaluation. First,

an internal military decision is

nonreviewable unless the plaintiff

asserts:

"(a) an allegation of the

deprivation of a constitutional

right, or an allegation that the

military has acted in violation of

applicable statutes, or its own

regulations and

(b) exhaustion of available

intra-service corrective measures."

Mindes, 453 F.2d at 201. Second, the

reviewability of the claim must be

examined by weighing four factors:

"1. The nature and strength of the

plaintiff's challenge to the

ia is

military determination.

Constitutional claims, normally more

important than those having only a

statutory or regulatory base, are

themselves unegual in the whole

scale of values....

2. The potential injury to the

plaintiff if review is refused.

3. The type and degree of

anticipated interference with the

military function. Interference per

se is insufficient since there will

always be some interference when

review is granted, but if the

interference would be such as to

seriously impede the military in the

performance of vital duties, it

militates strongly against relief.

4. The extent to which the exercise

of military expertise or discretion

is involved...." Id.

The issue before this Court in

Chappell was whether military personnel

may pursue a Bivens-type action for

damages against their superior officers

to redress constitutional violations.

See Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403

OO MUTT

U.S. 388 (1971), (which authorized a

suit for damages against federal

officials whose actions violated an

individual's constitutional rights, even

though Congress had not expressly

authorized such suits). In Chappell,

five enlisted men brought a Bivens-type

action against their military superiors

claiming that because of their minority

race, they were assigned undesirable

duties, given low performance

evaluations, threatened and given

penalties of unusual severity.

The district court dismissed the

complaint on the grounds that, inter

alia, the actions complained of were

nonreviewable military decisions and the

Ninth Circuit reversed, requiring

the application of a Mindes-type test to

determine whether the actions at issue

were reviewable by a civilian court.

This Court reversed the Court of Appeals

7

and held that enlisted military

personnel may not maintain a Bivens-type

action for damages against their

superior officers for alleged

constitutional violations. Chappell 462

U.S. at 305.

In so holding, this Court

recognized that "...the Legislative

Branch has plenary control over rights,

duties, and responsibilities in the

framework of the military establishment,

including regulations, procedures and

remedies related to military

discipline...." Id. at 301. Recognizing

the necessity to maintain strict

discipline and obedience to command

Within the military structure, the court

also held that:

"([c]civilian courts must, at the

very least, hesitate long before

entertaining a suit which asks the

court to tamper with the established

relationship between enlisted

military personnel and their

superior officers; that relationship

8

se

is at the heart of the necessarily

unigue structure of the military

establishment."

Id. at 300. The Court then concluded

that ",...the unique disciplinary

structure of the Military Establishment

and Congress’ activity in the field

constitute ‘special factors' which

dictate that it would be inappropriate

to provide enlisted military personnel a

Bivens-type remedy against their

Superior officers." Id. at 304.

2. This petition guestions the

continued application of the Mindes

doctrine for Bivens-type claims in light

of this Court's decision in Chappell.

Chappell suggests that the Mindes test

is no longer applicable to determine the

justiciability of a claim predicated on

Bivens,

Petitioners assert that Respondent's

Bivens-type claims should be controlled

by Chappell. The analysis required by

Mindes conflicts with the reasoning of

this Court in Chappell. The very

matters that the Court said are not

Within the proper jurisdiction of the

Civil courts are reguired to be examined

under the Mindes rule on remand of the

instant case. In essence, the district

court is required, under Mindes, to

intrude into a military personnel

decision to determine the justiciability

of constitutional claims asserted by a

member of the armed forces against his

superiors. Such intrusion invites

"second-guessing of military actions and

tend([s] to overlap the remedial

structure created within each service,

which, according to Chappell, provides

10

an exclusive remedy subject to review

only under the arbitrary and capricious

standard". See Crawford v. Texas Army

Nat. Guard, 794 F.2d 1034, 1036 (5th

Cir. 1986). Consequently, respondent's

alleged constitutional violations and

claims based upon 42 U.S.C. Sections

1981 and 1983 are precluded by

Chappell. Id.

Respondent seeks injunctive relief

in the nature of reinstatement, with

retroactive promotion and back-pay, to

the Alabama National Guard. This type

of relief should be treated no

differently under Chappell from a claim

for monetary damages. The nature of the

lawsuit, rather than the relief sought,

determines justiciability. Indeed, to

allow an injunctive-relief exception to

Chappell would only serve to swallow

ll

ies

Chappell's rule of deference. Crawford

794 F.2d at 1036.

There is a growing body of precedent

following Chappell. The Fifth Circuit

in Crawford noted that the Eight Circuit

Court of Appeals, the Tenth Circuit

Court of Appeals, and the Ninth Circuit

Court of Appeals had "declared off

limits Section 1983 claims by National

Guard personnel", Brown v. United

States, 739 F.2d 362, 366-67 (8th Cir.

1984), cert. denied, U.S. ’

105 S.Ct. 3524, 87 L.Ed.2d 650 (1985);

Martelon v. Temple, 747 F.2d 1348,

1350-5) (10th Cir. 1984), cert.

L.Ed.2d 694 (1985); Mollnow v. Carlton,

716 F.2d 627, 629-30 (9th Cir. 1983),

cert. denied, 465 U.S. 1100, 104 S.Ct.

12

1595, 80 L.Ed.2d 126 (1984), Crawford

794 F.2d at 1036.

In addition to the instant case,

only the First Circuit Court of Appeals

has held that Chappell does not directly

preclude the justiciability of a

constitutional claim. See Penagaricano

v. Llenza, 747 F.2d 55, 59 (lst Cir.

1984).

Petitioners urge that the instant

facts present the same kind of case

found nonjusticiable in Chappell and

Crawford. As this court stated in

United States v. Shearer, 473 U.S. 52,

(1985):

"To permit this type of suit would

mean that commanding officers would

have to stand prepared to convince a

civilian court of the wisdom of a

wide range of military and

disciplinary decisions, for example,

whether to overlook a particular

13

incident or episode, whether to

discharge a serviceman and whether

and how to place restraints on a

soldier's off-base conduct."

Shearer, 473 U.S. at 58.

CONCLUSION

Because there is conflict and

confusion between decisions of the

Courts of Appeal regarding the

application of Chappell, and because the

instant case presents an important

question regarding the continued

applicability of the Mindes doctrine in

light of this Court's decision in.

Chappell, certiorari should be granted.

haga

DON SIEGELMAN

ATTO Y GENERAL

ROBERT L. RASH

ASSISTANT ATTORNEY GENERAL

14

APPENDIX A

Opinion of the United States

Court of Appeals

For the Eleventh Circuit

No. 86-7508

Entered: July 20, 1987

Before HILL, HATCHETT and HENDERSON,

Circuit Judges,

HATCHETT, Circuit Judge:

On October 1, 1982, the Alabama

National Guard employed David Stinson, a

black resident citizen of Montgomery

County, Alabama, on a full time basis,

as Training NCO/System Supervisor. It

terminated him on September 29, 1985.

Stinson alleged that the Alabama

National Guard prohibited and refused to

allow him the opportunity to gain a

supervisory position, allowed white

A-1

employees, with equal or fewer

gualifications and experience, to gain

supervisory positions, and allowed a

less qualified white employee to act as

supervisor over him. Stinson contends

that his termination was due to racial

discrimination,

FACTS

On September 5, Stinson filed a

complaint alleging racial discrimination

with the Department of the Army. On

September 5, 1985, the complaint was

received by Nelson V. Wood, Chief, The

Army, National Guard Bureau, Washington,

D.C. On November 5, 1985, Lt. Col.

George Beck was directed to conduct a

factual investigation of Stinson's

complaint. On May 13, 1986, Maj. Gen.

William Hornsby, Adjutant General,

Alabama,- submitted a final agency

decision finding no discrimination,

A-2

PROCEEDINGS IN THE DISTRICT COURT

On April 19, 1986, Stinson filed a

complaint in the United States District

Court for the Middle District of

Alabama, alleging discrimination and

seeking relief under 42 U.S.C. Sections

1981, 1983, and 2000e-2000e-17.

Stinson's complaint alleged that the

Alabama National Guard engaged in

racially discriminatory employment

practices which had a disparate impact

on him. Stinson contends that such

discriminatory acts and practices

violated his rights to due process and

egual protection under the fourteenth

amendment and hi’s federal rights under

Title VII, 42 U.S.C. Sections

2000e-2000e-17.

On April 30, 1986, General Hornsby

moved to dismiss Stinson's complaint,

A-3

asserting that the district court was

Without jurisdiction under Title VII

because Stinson had failed to exhaust

administrative remedies; the military

decision not to renew Stinson's tour of

duty was nonreviewable; and the court

was without subject matter jurisdiction

to review Stinson's claim of racial

discrimination against his military

superiors.

In dismissing the complaint, the

district court held that because Stinson

was a full-time uniformed employee on

military duty with the Alabama National

Guard, Stinson had no claim for relief

under Title VII of the Civil Rights Act

of 1964, 42 U.S.C.A. Sections 2000e-

2000e-17. The district court also held

that based upon Chappell v. Wallace, 462

U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586

A-4

(1983), Stinson had no claim for relief

pursuant to 42 U.S.C. Sections 1981 and

1983.

DISCUSSION

Stinson claims that the district

court erred in finding that both causes

of action alleged in his complaint

failed to state a claim upon which

relief could be granted, pursuant to

Federal Rule of Civil Procedure 12(b)

(6), and subsequently in dismissing the

complaint.

On appeal, we accept as true the

allegations in Stinson's complaint in

order to determine whether Stinson

sufficiently stated a cause of action

under Title VII or sections 1981 and

1983. Scheuer v. Rhodes, 416 U.S. 232,

94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

A. Title VII Claim

[1] In 1964, Congress enacted

A-5

legislation that authorized members of

the National Guard to perform additional

training and duty beyond their regularly

scheduled drills and periods of active

duty. Title 32 U.S.C. Section 502(f);

Pub.L. No. 88-621, Section 502(f), 78

Stat. 999, 1136 (1964).+ Stinson was

on full-time military duty with the

Alabama National Guard pursuant to

section 502(f£) during the period of the

misconduct alleged in this case,

In Taylor v. Jones, 653 F.2d 1193,

1200 (8th Cir.1981), the court, in

declaring Title VII inapplicable to

1. The purpose of the enactment is to

"provide protection for members of the

National Guard who incur disability

while they are (1) performing training

or other authorized duty that is in

addition to the regularly scheduled

drills of their units, or the annual

periods of 15 days of active duty for

training...." S.Rep. No. 1584, 88th

Cong., 2d Sess. 110 (1964), reprinted

in 1964 U.S. Code Cong. & Admin. News

3800.

A-6

persons enlisted in the Armed Forces of

the United States, including the

National Guard, stated:

We have previously held that

‘neither Title VII nor its standards

are applicable to persons who enlist

Or apply for enlistment in any of

the Armed Forces of the United

States.' [Citation omitted.] We do

not see any significant distinction,

for Title VII purposes, between a

member of the Army or Air Force and

a member of the reserve component of

those forces, the National Guard.

In neither case is the relationship

between the government and the

member that of employer-employee;

military service differs materially

from civilian employment, whether

public or private, and is not

appropriately governed by Title

VII. [Citation omitted.].

In Gonzales v. Dept. of the Army, 718

F.2d 926 (9th Cir. 1983), the court

noted that the "military departments"

consist of civilian employees, whereas

the "armed forces" include uniformed

military personnel, a distinction

intended by Congress.

A-7

Stinson contends that because the

Alabama National Guard is a state

agency, it follows that an employer/

employee relationship is created with

the state. Stinson, however, was a

uniformed member of, and on full-time

military duty with, the Alabama National

Guard. Title 10 U.S.C. Section 101

defines "armed forces" to include the

Army, Navy, Air Force, Marine Corps, and

the Coast Guard. Under 10 U.S.C.

Section 3062(c)(1), the Army consists of:

1. The Regular Army, the Army

National Guard of the United States,

the Army National Guard while in the

service of the United States, and

the Army Reserves.

Other factors support the district

court's determination that Stinson, for

purposes of Title VII, should be con-

sidered military personnel, rather than

A-8

an employee of the state of Alabama: (1)

Stinson wore a military uniform during

periods of active duty and/or training;

(2) he served on full-time military

duty; (3) he was paid by the federal

government and not by the state of

Alabama; and (4) he was subject to

military discipline on a daily basis.

Thus, we conclude that Stinson, a member

of the National Guard, is not an

employee of the state of Alabama for

purposes of Title VII. Compare Calhoun

v. Doster, 324 F.Supp. 736

(M.D.Ala.1971) (district court found the

distinction between defendant's state

and federal positions blurred and

A-9

artificial).

We recognize that the finding that

Stinson is more military personnel than

state employee is a close one. Such a

finding, however, does afford Stinson

the same treatment and remedies as those

With whom he worked full time.

2. The district court did not find

that Calhoun's military position in

the Alabama Air National Guard also

established an employer/employee

relationship with the state of

Alabama as Stinson urges in this

case. The district court ruled that

"the defendant's military authority

over the plaintiff is so

inextricably intertwined with their

Civilian authority over him as to

render any distinction between

‘federal’ and ‘state’ one of form,

not substance." Calhoun, 324

F.Supp. at 740. Unlike Stinson,

Calhoun held two separate and

identifiable position: one as a

civilian employee and the the other

as military personnel.

A-10

2. Sections 1981 and 1983 Claims

[2] The Supreme Court in Chappell

v. Wallace, 462 U.S. 296, 103 S.Ct.

2362, 76 L.Ed.2d 586 (1983), held that

enlisted military personnel are

precluded from maintaining suits against

superior officers to recover damages for

injuries resulting from violations of

constitutional rights in the course of

military service. The Supreme Court in

Chappell continued by noting that

‘our citizens in uniform may not be

stripped of basic rights simply

because they doffed their civilian

clothes.' [Citation omitted.] This

Court has never held, nor do we how

hold, that military personnel are

barred from all redress in civilian

courts for constitutional wrongs

suffered in the course of military

service.

Chappell, 462 U.S. at 304, 103 S.Ct. at

2367. The court in Gonzales, stated

that "{i]mplicit in the court's order

A-11

of remand is the recognition that, in

some situations at least, uniformed

members of the armed services may assert

that their constitutional and statutory

rights have been violated by their

superiors." Gonzales, 718 F.2d at 929.

The Fifth Circuit in Mindes v.

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

employed a factoring analysis to

determine whether a particular

constitutional claim asserted by members

of the armed forces against their

Superiors are barred from suit. The

Mindes analysis requires an independent

two-step evaluation. First, an internal

military decision should not be reviewed

unless the plaintiff asserts:

(a) an allegation of the

deprivation of a constitutional

right, or an allegation that the

military has acted in violation

A-12

of applicable statutes or its own

regulations, and (b) exhaustion of

available intraservice corrective

measures.

Mindes, 453 F.2d at 201. Second, the

reviewability of the claim must be

examined by weighing the following four

factors:

l. The nature and strength of the

plaintiff's challenge to the

military determination.

Constitutional claims, normally more

important than those having only a

statutory or regulatory base, are

themselves unegual in the whole

scale of values....

2. The potential injury to the

plaintiff if review is refused.

3. The type and degree of

anticipated interference with the

A-13

military function. Interference per

se is insufficient since there will

always be some interference when

review is granted....

4. The extent to which the

exercise of military expertise or

discretion is involved.

Mindes, 453 F.2d at 201.

We find the approach adopted in

Mindes binding in this action. The

record does not indicate that the

district court employed the Mindes test

to determine whether Stinson's sections

1981 and 1983 claims were barred because

of the military personnel exemption.

Therefore, we reverse and remand to the

district court with instructions to

employ the Mindes test in determining

whether Stinson's sections 1981 and 1983

claims are barred. Noting that the

Mindes test provides for an evaluation

A-14

regarding exhaustion of available

administrative remedies, we decline to

address that issue now.

Our holding today is that members of

the National Guard are generally

employees of the state; but where tne

facts indicate that the person is on

full-time military duty and other

factors indicate that the person is more

military than civilian, no Title VII

action may be brought. As ea ther:

types of actions brought under statutes

addressing discrimination, we hold only

that the National Guard full-time member

plaintiff must have the allegations of

the complaint tested by the Mindes

standard. Accordingly, we affirm in

part, reverse in. part, and remand,

AFFIRMED in part, REVERSED in part,

and REMANDED.

HENDERSON, Senior Circuit Judge,

specifically concurring:

I write separately to suggest that

remand of the plaintiff's constitutional

claims based on 42 U.S.C. Sections 1981

and 1983 for analysis under Mindes v.

Seamen, 453 F.2d 197 (5th Cir.1971) may

be unnecessary in light of the Supreme

Court's rationale in Chappell v.

Wallace, 462 U.S. 296, 103 S.Ct. 2362,

76 L.Ed.2d 586 (1983). I concur in the

decision of the panel, however, in

deference to the precedential weight of

Mindes. I take this opportunity to call

attention to the recent interpretation

of Chappell by the Fifth Circuit Court

of Appeals, finding claims such as these

nonjusticiable without resort to the

cumbersome Mindes analysis, in the hope

that this matter might be reexamined en

banc and the utility of the Mindes test

A-16

reconsidered in light of more recent

Supreme Court decisions,

In Chappell, enlisted military men

brought an action against their superior

officers seeking damages, declaratory

judgment, and injunctive relief for

alleged racial discrimination in

assignments and performance

evaluations. The Supreme Court of the

United States analyzed the direct

constitutional challenges in terms of

whether they stated a cause of action

under Bivens v. Six Unknown Agents, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971). Anmalogizing to the doctrine

established in Feres v. United States,

340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152

(1950), which held that the United

States is not liable, under the Federal

Tort Claims Act, for injuries to

military personnel which "arise out of

A-17

Or are in the course of activity

incident to service," Id. at 146, 71

S.ct. at 159, 95 L.Ed. at 161, the Court

concluded that the unigue disciplinary

structure of the military establishment

and Congress' activity in the field of

military justice made it inappropriate

to provide a Bivens-type remedy in this

context. The. Court stated:

[JJudges are not given the task of

running the Army. The

responsibility for setting up

channels through which... grievances

can be considered and fairly settled

rests upon the Congress and upon the

President of the United States and

his subordinates. The military

constitutes a specialized community

governed by a separate discipline

from that of the civilian. Orderly

government requires that the

judiciary be as scrupulous not to

interfere with legitimate Army

matters as the Army must be

scrupulous not to interfere in

judicial matters.

Chappell, 426 U.S. at 301, 103 S.Ct. at

2366, 76 L.Ed.2d at 591 [quoting Orloff

A-18

v. Willoughby, 345 U.S. 83, 73 S.Ct.

534, 97 L.Ed. 842 (1953)]. The Court

further found that:

Congress has exercised its plenary

constitutional authority over the

military, has enacted statutes

regulating military life, and has

established a comprehensive internal

system of justice to regulate

military life, taking into account

the special patterns that define the

military structure. The resulting

system provides for the review and

remedy of complaints and grievances

such as those presented by

respondents,

Id. at 302, 103 S.Ct. at 2367, 76

L.Ed.2d at 592.

The Court echoed these concerns in

\

United States v. Shearer, 473 U.S. 52,

105 S.Ct. 3039, 87 L.Ed.2d 38 (1985),

while defending the Feres doctrine,

concluding:

To permit this type of suit would

mean that commanding officers would

have to stand prepared to convince a

Civilian court of the wisdom of a

wide range of military and

disciplinary decisions, for

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example, whether to overlook a

particular incident or episode,

whether to discharge a service-

man and whether and how to place

restraints on a soldier's off-base

conduct.

Id. at 58, 105 S.Ct. at 3044, 87

L.Ed.2d at 45.

The Fifth Circuit Court of Appeals,

without relying on the two-part Mindes

analysis, recently determined that

Chappell and Shearer preclude judicial

cognizance of constitutional claims

brought by national guardsmen. In

Crawford v. Texas Army National Guard,

794 F.2d 1034 (5th Cir. 1986), two

members of the Texas Army National Guard

brought suit against the Guard, the

governor of Texas and twelve military

personnel alleging violations of their

rights under the Constitution and 42

U.S.C. Sections 1983 and 1985(2). The

plaintiffs asserted that, in retaliation

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Ah eae EOE IP aS 0 Pe tee rae ete

Bais

for reporting criminal activity and

racial discrimination by the Guard, they

were dismissed or removed from active

duty. The Fifth Circuit Court of

Appeals affirmed the district court's

dismissal of the action pursuant to

Fed.R.Civ.P. 12(b)(6), finding no

significant difference between such

claims and those held impermissible in

Chappell. The Crawford court reasoned

that the constitutional due process and

section 1983 causes of action advanced

by the plaintiffs required "judicial

second-guessing of military actions" and

interfered with the military system of

justice established within each service

to the same extent as the Bivens claims

rejected in Chappell. The section

1985(2) allegations were dismissed urider

the same rationale. Id. at 1036. The

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appellate court declined to except the

plaintiffs' prayers for injunctive

relief from the reach of Chappell,

finding that such an exception would

"swallow" Chappell's rule of deference.

Therefore, the court held that suits for

injunctive relief, like those for money

damages, must be carefully regulated to

prevent intrusion into the military

Structure, Id. at 1037.

Conspicuously absent in Crawford is

any application of the Mindes test for

adjudicating charges of civil rights

violations.~ Clearly, the Court must

1. The Crawford court, in noting that

several other circuits have found

Section 1983 causes of action by

national guardsmen nonjusticiable,

specifically refers to the First

Circuit's reliance on the Mindes test in

addressing this question in Penagaricano

v. Llenza, 747 F.2d 55, 59 (lst

Cir.1984). Therefore, the Fifth Circuit

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have found that the Supreme Court's

Opinions in this area are controlling.

The instant facts present the same kind

| of case found nonjusticiable in Crawford

and Chappell. Stinson's claims for

reinstatement, back pay and injunctive

relief under 42 U.S.C. Sections 1981 and

2

1983, are challenges to military

knowingly rejected the Mindes analysis

in the context of Sections 1983 and

1985(2) claims for money damages. Nor

is there any indication that the

Crawford court applied Mindes to the

guardsmen's request for injunctive

relief.

2. Although Stinson is an employee of

the federal government for purposes of

Title VII, his charges of due process

violations under Section 1983 against

the Alabama National Guard, the

Adjutant General, and other officers of

the Guard appear to satisfy the state

action reguirement of Section 1983 since

the Guard is a hybrid state-federal

venture. See generally, New Jersey Air

Nat'l Guard v. Fed. Labor Rel. Auth.,

677 F.2d 276, 278-79 (3d Cir.1982);

Ala.code Sections 31-2-1 through

31-2-3(1975).

A-23

personnel decisions which would reguire

a court to review his commanding

officers' decisions concerning the

promotion and dismissal of his men,

determinations particularly dependent on

the exercise of military discretion.

Furthermore, Stinson had an opportunity

to assert his grievances within the

military system of justice, an

opportunity which the defendants assert

he has yet to exhaust. The military

concerns found compelling in Chappell

are equally present here. Therefore,

Chappell can be read to support of the

district court's dismissal of these

claims on their face.

Although the Chappell decision

expressly left open the right of

military personnel to bring

A-24

constitutional grievances to court,

there can be little doubt that such

access does not extend to "discrete

personnel matters." Crawford , 794 F.2d

at 1036. Bodly stating this conclusion,

as the Pifth Circuit Court of Appeals

has done, without requiring the district

courts to address the Mindes test would

bring this circuit closer in line with

the Supreme Court on this issue and

would perhaps be fairer to potential

litigants. In my opinion, the Crawford

decision is a better approach for

determining the propriety of hearing

military disputes in our courts.”

3. A more recent decision of the Fifth

Circuit Court of Appeals casts some

doubt on that circuit's position with

respect to the Mindes test. In

Holdiness v. Stroud, 808 F.2d 417 (5th

Cir. 1987), the court affirmed the

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HILL, Circuit Judge, dissenting.

The opinion for the panel by Judge

Hatchett and the special concurring

opinion of Judge Henderson illuminate

this issue and the interplay of

precedent. I can add nothing of value

to the discussion,

I conclude that Chappell v. Wallace,

462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.

586 (1983) directs the district court's

dismissal of the plaintiff's action

brought pursuant to Section 1983 and

Section 1985 for failure to state a

Claim upon which relief could be

granted. The suit was brought by a

former member of the National Guard who

sought damages from his superior

officers for violation of federal

constitutional and statutory rights when

he was barred from reenlisting and

terminated from his employment as a

Civil technician. The district court

dismissed the § 1983 claims against four

of the officers named in the complaint

on the grounds that they were federal

employees and thus, there was no state

action. The plaintiff appealed. [In

addressing the plaintiff's § 1983 claim,

the court found the requisite state

action but noted that the Crawford

decision held that § 1983 does not

provide a cause of action for service

connected disputes. The

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dismissal of this case and I would,

therefore, AFFIRM.

court, however, also referred to the

First Circuit's opinion in Penagaricano,

747 F.2d 55, which applied the Mindes

test in such instances. The Holdiness

court then stated: "({wle follow

Crawford in applying the Chappell rule

to Guard members, and using the tests in

Chappell and Mindes, hold that the

remedy sought by Holdiness would be so

disruptive to military service that the

claim should not be entertained by the

federal courts." Holdiness, 808 F.2d at

423. The court did not remand the case

to the district court for consideration

terminated from his employment as a

civil technician. The district court

dismissed the Section 1983 claims

against four of the officers named in

the complaint on the grounds that they

were federal employees nd thus, there

was no state action. The plaintiff

appealed. In addressing the plaintiff's

Section 1983 claim, the court found the

reguisite state action but noted that

the Crawford decision held that Section

1983 does not provide a cause of action

for service connected disputes. The of

the Mindes factors, evidently finding

that step unnecessary in light of

Crawford and Chappell.

A-27

———EE

1 ie Mee

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 86-7508

DAVID STINSON,

Plaintiff-Appellant,

versus

MAJOR GENERAL WILLIAM A. HORNSBY,

individually and as th adjutant General

of the Alabama National Guard, State of

Alabama, THE ALABAMA NATIONAL GUARD;

MAJOR ERNEST L. SHIPP, individually and

as an officer of the Alabama National

Guard; LT. COL. JOHN Q. ADAMS,

individually and as an officer of the

Alabama National Guard; GEORGE F.

HULSEY, individually and as an officer

of the Alabama National Guard,

Defendants-Appellees,.

Appeal from the United States District

Court for the

Middle District of Alabama

ON PETITION FOR REHEARING AND

SUGGESTION OF REHEARING IN BANC

(Opinion July 20, 1987 , 11 Cir.,

F.2d ).

(Nov. 6, 1987)

Before HILL, HATCHETT, Circuit Judges,

and HENDERSON, Senior Circuit Judge

PER CURIAM:

(X) The Petition for Rehearing is

DENIED and no member of this panel nor

other Judge in regular active service on

the Court having requested that the

Court be polled on rehearing in banc

(Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5),

the Suggestion of Rehearing In Banc is

DENIED.

( ) The Petition for Rehearing is

DENIED and the Court having been polled

at the request of one of the members of

the Court and a majority of the Circuit

Judges who are in regular active service

not having voted in favor of it (Rule

B-2

Alt pnt Slay al i Ae alt i lg

:

35-5), the Suggestion of Rehearing In

Banc is also DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause in banc,

and a majority of the judgess in active

service not having voted in favor of it,

Rehearing In Banc is DENIED.

ENTERED FOR THE COURT:

SIGNED

JOSEPH W. HATCHETT

United States Circuit Judge

0180c

deters,

—

APPENDIX C

ORDER OF THE U. S. DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

NO. 86V-385-N

Entered: June 16, 1986

ORDER

In accordance with the Opinion

entered in the above-styled cause on

this date, it is

ORDERED by this Court that

Defendants’ motion to dismiss filed

herein April 30, 1986, as amended May

16, 1986, be, and the same is hereby,

granted and the above-styled cause is

hereby dismissed with costs taxed

against the Plaintiff, for which

execution may issue,

C-1l

It is further ORDEREED by this Court

that Plaintiff's motion to compel filed

herein May 30, 1986, be and the same is

hereby, denied as moot.

DONE this 16th day of June,

1986.

SIGNED

ROBERT E. VARNER

UNITED STATES DISTRICT JUDGE

Bre a ree te ee ee

Saw h

michele

OPINION OF THE U. S. DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

ALABAMA

NORTHERN DIVISION

No. 86V-385-N

Entered: June 16, 1986

OPINION

This cause is now before the Court

on the Defendants' motion to dismiss

filed herein April 30, 1986, as amended

May 16, 1986. Having considered

Defendants' motion to dismiss, this

Court is of the opinion that, for the

reasons expressed below, the same is due

to be granted.

FACTS

On April 9, 1986, Plaintiff filed

herein the instant complaint alleging

that he had been discriminated against

by the Defendants on account of

Plaintiff's race. Pursuant to said

complaint, Plaintiff invoked the

jurisdiction of this Court under 28

U.S.C. Sections 1331, 1343(3) and (4)

and 42 U.S.C. Sections 2000-5(e), et

seg. Plaintiff seeks relief under 42

U.S.C. Sections 1981, 1983 and

2000e(a)(1)(2).

Plaintiff, a black resident citizen

of Montgomery County, Alabama, alleges

that on October 1, 1982, he became

employed by Defendant Alabama National

Guard (167th Data Processing Unit) on a

full-time basis as a Training NCO/System

Supervisor. Plaintiff further says

that, at the time of his termination on

: September 29, 1985, he remained in said

position as a result of Defendants’

having prohibited and refused "to allow

plaintiff the opportunity to gain a

DN ae ee aoe

Supervisory position while at the same

, time allowing white employees with the

same or fewer qualifications and

experience to gain such supervisory

positions including allowing a less

gualified white employee to be promoted

and act as supervisor over plaintiff."

Additionally, Plaintiff alleges that

"the defendants have engaged in racially

discriminatory employment practices

which have had a disparate impact on

plaintiff" and that the individual

Defendants "knew or should have known of

said practices and should have stopped

the same." As a result of such,

Plaintiff contends that the alleged

discriminatory acts and practices of

Defendants have violated "his rights to

due process and equal protection of the

laws under the 14th Amendment and his

federal right under Title VII [42 U.S.C.

Section 2000(e)] not to be discriminated

against because of his race,"

Pursuant to their motion to dismiss,

the Defendants contend that, as to each

cause of action stated in Plaintiff's

complaint, the same fails to state a

claim upon which relief can be granted.

Specifically, the Defendants contend

(1) that Plaintiff has no claim for

relief under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Sections

2000e, et seq., and (2) that, under the

ads wit

doctrine enunciated in Chappell v.

Wallace, 462 U.S. 296, 103 S.Ct. 2062,

76 L.Ed.2d 586 (1983), Plaintiff has no

Claim for relief under 42 U.S.C.

Sections 1981 or 1983.

CONCLUSION

A. Plaintiff's Claim Under 42

U.S.C. Sections 2000e, et seq. As

stated above, Plaintiff claims that 42

U.S.C. sections 2000e, et seg., provides

him a cause of action for the alleged

racial discrimination suffered by

Plaintiff with respect to job promotions

and termination from his full-time

employment with Defendant Alabama

National Guard. This Court cannot agree.

It appears well settled that the

intention of Congress was to exclude

military personnel from the purview of

Title VII. As a result, courts have

uniformly held that neither Title VII

nor its standards are applicable to

members of the Armed Forces or members

of the reserve components of those

forces. See, Taylor v. Jones, 653 F.2d

1193 (8th Cir. 1983); Helm v.

California, 722 F.2d 507 (9th Cir.

1983); Gonzales v. Department of the

Army, 718 F.2d 926 (9th Cir. 1983;

Johnson v. Alexander, 572 F.2d 1219 (8th

Cir.), Cert.den. 439 U.S. 986, 99 S.Ct.

579, 58 L.Ed.2d 658 (1978).

Accordingly, this Court is of the

opinion that, since at all times

relevant hereto Plaintiff was a

full-time uniformed employee on

military duty with the Alabama National

cuara,! then upon the basis of the

foregoing authorities, Plaintiff has no

oe

Claim for relief pursuant to 42 U.S.C.

Sections 2000e, et seq.

. B. Plaintiff's Claims Under 42

U.S.C. Sections 1981 and 1983. Finally,

Plaintiff states causes of action

: pursuant to 42 U.S.C. Sections 1981 and

1983 for the alleged discriminatory

conduct of the Defendants. Likewise,

Defendants contend that, pursuant to

Chappell v. Wallace, supra, Plaintiff

has no claim for relief under either

1. At oral argument of Defendants'

motion, heard in open Court on June 6,

1986, the parties stipulated that

Plaintiff was a full-time uniformed

employee of and on active duty with the

Alabama National Guard,

c-9

Section 1981 or Section 1983. This

Court agrees,

In Chappell, the United States

Supreme Court considered the issue of

whether enlisted military personnel may

maintain suits to recover damages from

senior officers for injuries sustained

as a result of violations of

constitutional rights in the course of

military service. In holding that such

actions were not available to military

pesonnel, the Court held that the unique

disciplinary structure of the military

and Congress' previous activity in this

area constituted "special factors"

militating against recognition of a

Bivens-type remedy for servicemen

against their superiors. See, Chappell,

Supra, at 2366-2367. See also, Mollnow

ee ee eiieiniaiadiiceteimmeniie, paiement

v. Carlton, 716 F.2d 627 (9th Cir. 1983)

and Holderfield v. Greene, Civil Action

No. 83-G-1655-S (ND Ala. 1983), for

application of the Chappell doctrine to

members of the National Guard.

Accordingly, based upon the Chappell

ruling, this Court is of the opinion

that Plaintiff has no claim for relief

pursuant to 42 U.S.C. Sections 1981 and

1983.

Therefore, Plaintiff's complaint is

due to be dismissed in its entirety. An

Order will be entered in accordance with

this Opinion.

; DONE this 16th day of June _,

1986.

SIGNED

ROBERT E. VARNER

UNITED STATES DISTRICT JUDGE

C-1l