# Petition for Writ of Certiorari — Hornsby v. Stinson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1435%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 959

## Text

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

A-19

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

A-20

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

A-21

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
A-22

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
A-25

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

A-26

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1435%3A1. Public record. Not legal advice.