Amicus Curiae Brief — Hornsby v. Stinson

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

ey aS Cour

si | oF b E D

a hi QCT 20 1988

No. 87-1469 peel E SPANIOL, JR,

CCERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

MAJOR GENERAL WILLIAM A. HORNSBY, ET AL.,

PETITIONERS

DAVID STINSON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

MICHAEL K. KELLOGG

Assistants to the Solicitor General

ANTHONY J. STEINMEYER

E. ROY HAWKENS

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the test devised in Mindes v. Seaman, 453 F.2d

197 (Sth Cir. 1971), should be used to determine whether a

servicemember in the National Guard may bring suii

under 42 U.S.C. 1981 or 1983 challenging a personnel

decision made by superior officers.

(1)

TABLE OF CONTENTS

Page

RRR Te ne a PR a OE l

SD hie at ass eek ee Clale oe ole ase whee eene ees 6

ee. eo ee wih oudad wanes beehas ee 20

TABLE OF AUTHORITIES

Cases:

Allen v. McCurry, 449 U.S. 90 (1980) ................. 10

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ............ 4

Brown v. Glines, 444 U.S. 348 (1980) ............. 8, 9, 12, 18

Brown vy. United States, 739 F.2d 362 (8th Cir. 1984), cert.

denied, 473 U.S. 904 (1985) .... 2... 2... cee eee 14

Burns v. Wilson, 346 U.S. 137 (1953) .. ............... 9, 13

Chappell v. Wallace, 462 U.S. 296 (1983) .............. 4, 5,

9, 11, 12

Christoffersen v. Washington State Air Nat'l Guard, No.

I RS UE ccc caved ecnessuseaceas 13, 14, 16

Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034 (Sth

rss ad ld aa bee As ba od bee ece eee 6, 12, 18, 19

Department of the Navy v. Egan, No. 86-1552 (Feb. 23,

ae ee Nee waa epee ha meee oae6s 6 h.0) 9

Dillard v. Brown, 652 F.2d 316 (3d Cir. 1981) .......... 16

Frontiero v. Richardson, 411 U.S. 677 (1973) ........... 12, 18

Feres v. Uniied States, 340 U.S. 135 (1950) ............. s

Gilligan v. Morgan, 413 U.S. 1 (1973) ............. 7, 8, 9, 10

Goldman v. Weinberger, 475 U.S. 503 (1986) ........... 12, 18

Holdiness v. Stroud, 808 F.2d 417 (Sth Cir. 1987) ....... 13

Jorden v. National Guard Bureau, 799 F.2d 99 (3d Cir.

1986), cert. denied, No. 86-1382 (Oct. 5, 1987) ........ 14, 16

Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), cert.

Ce RR errr rr 10

Martélon v. Temple, 747 F.2d 1348 (10th Cir. 1984), cert.

MN TE OE, PRM ORUMOD 65 cans sks cvsecaceecs: 6, 10,

11, 12, 14-15

Mindes v. Seaman, 453 F.2d 197 (Sth Cir. 1971) ......... 5, 19

Noyd v. Bond, 395 U.S. 683 (1969) ................... 19

Orloff v. Willoughby, 345 U.S. 83 (1953) .............. 9, 19

(IL)

Cases — Continued: Page

Parker v. Levy, 417 U.S. 733 (1974) ................. 8, 12-13

Penagaricano v. Llenza, 747 F.2d 55 (ist Cir. 1984) ..... 13, 17

Rostker v. Goldberg, 453 U.S. 57 (1981) ............... 7

Runyon v. McCrary, 427 U.S. 160 (1976) .............. 10

Schlesinger v. Councilman, 420 U.S. 738 (1975) ......... 8,9

United States v. Brown, 348 U.S. 110 (1954) ............ y

United States v. O’Brien, 391 U.S. 367 (1968) ........... 7

United States v. Shearer, 473 U.S. 52 (1985) ............ 8

United States v. Stanley, No. 86-393 (June 25, 1987) ..... 15

Wallace v. Chappell, 661 F.2d 729 (9th Cir. 1981) ....... 10

Constitution, statutes, regulations and rule:

U.S. Const.:

Art. I, § 8:

DE Slr Tuleh ak chen beeneae eee te eae me 2

EE Tian lh id dad a's eek ake ew 7

Re éneu ie cueis eek bau vs rhs kupasns Okenees 2

oS re ew re ee ere Tree 2

Department of Defense Authorization Act, 1984, Pub. L.

Fe ME is ok 6 000450 ack esesds badeenes l

ee Es ncn kad ose akcs baba ak acdasaawebus 2

Se EE elie eis ccna ek san etneee cane eres 2

Cr are at ee aces gins 2

Oa a ea ees ks wae es ea aeed 13

ae IED. oka vonnocavecveenawoes 13

ED eee eels an ba oekies babe aaa 11

RS cdo na a dake Keak es Rhea he eee 11

10 U.S.C. (Supp. [V) 3040 ........... ORE eee agp eas, AAS, 3-4

Ap CE tea nol GG oe eee lek etn ak coca ktee earirate 2

Be ees , BOE GEE oo ho xd wane du Rea wo Oe 2

A Rl ER ey ree rey ii eer nt Agente 2

es Oh noe ck soda bane ckk seeks veer 2

RR EE OS stig Pd ted aed be ede One ees l

SR WE bk deine Sida caeatasanceneces 4, 5, 6. 14, 19, 20

Rn HEE oh cbode xe d4 04084) ¥ soos es 4, 5, 6, 7, 10, 11, 13,

14, 15, 19, 20

Statutes, regulations and rule — Continued: Page

ep Ae beckons k ease dbas sasaarnescdda 4

National Guard Reg. 600-21 (Aug. 15, 1985) ........... 2,17

ee EE a ee eee de hoa aee kaw ees 18

National Guard Reg. 600-5 (May 15, 1986):

SE OE 545K che eee Ree GR er EEE ER Lie 2

SE SME hnidsevates Raa vee cR ete tee ie

See Ws OU io ota caeraeeane seen boeken 17

Jn the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1469

MAJOR GENERAL WILLIAM A. HORNSBY, ET AL.,

PETITIONERS

Vv.

DAVID STINSON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. In October 1982, respondent, David Stinson, a

black male, joined the Alabama National Guard on a full-

time basis as a Training NCO/System Supervisor (Pet.

App. Al). He served in the Active Guard/Reserve (AGR)

Program, which is a military program authorized under 32

U.S.C. 502(f) whereby Guard personnel serve in a “full-

time duty status, for the purpose of organizing, adminis-

tering, recruiting, instructing, or training the reserve com-

ponents of the National Guard.” Department of Defense

Authorization Act, 1984, Pub. L. No. 98-94, 97 Stat. 631.

As a full-time uniformed soldier in the AGR Program, re-

(1)

spondent received pay from the United States, was entitled

to benefits provided by law to servicemembers on federal

active duty, and was required to adhere to the standards of

conduct demanded of servicemembers on federal active

duty. See National Guard Regulation (NGR) 600-5, paras.

1-7 & 3-14 (May 15, 1986).' Respondent’s daily activities,

however, were controlled by state officials in the Alabama

National Guard (see 32 U.S.C. (Supp. IV) 101(19)).

In March 1985, a white male was selected for a super-

visory position Stinson had sought. Stinson filed a com-

plaint with the Equal Employment Opportunity Commis-

sion, which informed him on May 31, 1985, that it lacked

jurisdiction because he was a member of the armed forces.

Stinson then filed a complaint with the National Guard

Bureau pursuant to NGR 600-21 (Aug. 15, 1985) alleging

that he had been denied the position on account of his

race. While his complaint was pending, Stinson completed

his tour of duty and was not recommended for renewal by

his immediate supervisor because of poor job performance

(Affidavit of George F. Hulsey, Mar. 13, 1986). He was

then separated from the Guard in September 1985.

' The National Guard is “an integral part of the first line defenses of

the United States” (32 U.S.C. 102). The purpose of the Guard “is to

provide trained units and qualified persons available for active duty in

the armed forces, in time of war or national emergency and at such

other times as the nationai security requires” (10 U.S.C. 262). All

members of the state National Guards have a dual status in that they

are also members of the National Guard of the United States, which is

a reserve component of the Army and Air Force (see 10 U.S.C.

101(11) and (13)) established under Art. I, § 8, Cl. 12 (congressional

authority to raise and support armies). The constitutional authority

for federal control and oversight of the Guard in its state capacity is

located in Art. I, § 8, Cls. 15 (congressional authority to call forth the

militia) and 16 (congressional authority to organize, arm, and

discipline the militia). The President prescribes regulations and issues

orders necessary to organize, discipline, and govern the National

Guard (32 U.S.C. 110), and he is empowered to call the Guard into

national service (10 U.S.C. 3500).

OO EE

The investigation into Stinson’s charge that he had been

discriminatorily denied the supervisory position he sought

continued. Lieutenant Colonel George Beck, a Judge Ad-

vocate General officer in the Alabama National Guard

who had personally interviewed Stinson’s supervisors and

co-workers, concluded that Stinson had been denied the

position for nondiscriminatory reasons.? In May 1986, the

Alabama Adjutant General, Major General William

Hornsby, filed a final decision in which he concluded that

respondent’s allegation of discrimination in the denial of

the promotion lacked merit (Pet. App. A2). The National

Guard Bureau, an adjunct of the United States Depart-

ments of the Army and the Air Force (10 U.S.C. (Supp.

2 Beck’s report stated: “While SSG Stinson appears to possess

higher educational qualifications and military formal education as a

Training NCO than SSG Whetsone [the person who was selected for

the supervisory position], * * * additional qualifications for the job

were lacking in SSG Stinson. For example, Commander Shipp in-

dicates that he chose SSG Whetstone to fill the vacancy over SSG Stin-

son because of SSG Stinson’s poor military attitude and inability to

properly follow orders. Observations by MSG Gillilard and CW2

George F. Hulsey, Jr. illustrate SSG Stinson’s apparent lack of ability

to follow the SOP [Standard Operating Procedures] and unit

guidelines. CW2 George F. Hulsey, Jr. has counseled SSG Stinson

many times about his inability to properly complete military

documents. Both MSG Gillilard and CW2 Hulsey indicate that the

unit has received numerous complaints from higher headquarters

because of SSG Stinson’s inability to adequately and completely

follow the State and Unit SOP.” Findings and recommendation of Lt.

Col. George L. Beck, Jr., regarding Discrimination Complaint filed

by SSG Stinson at 1-2 (Apr. 16, 1986). Beck also noted that “[njone of

SSG Stinson’s Supervisors nor co-workers consider race to have been a

factor in making the assignment,” that “[t]raining operations [in

which SSG Stinson has been involved] received more than usual

criticism from headquarters,” that “[bJlacks interviewed deny any

racial discrimination and believe that blacks and whites are treated

equally within the unit,” and that “[nJone of SSG Stinson’s supervisors

consider{ed] SSG Stinson to be doing a satisfactory job in his assign-

ment” (id. at 2).

IV) 3040), reviewed the decision and concurred with the

state’s finding. Letter from the Chief of the National

Guard’s Office of Human Resources to the Alabama Ad-

jutant General (Aug. 5, 1986).

2. On April 9, 1986, while his charge of discriminatory

denial of the supervisory position was pending, Stinson

filed this action in the United States District Court for the

Middle District of Alabama. He named four superior of-

ficers as defendants in their individual and official

capacities and alleged that the Alabama National Guard

had engaged in racially discriminatory and retaliatory

employment practices in refusing to advance him to the

supervisory position and in terminating his employment.

He sought relief under Title VII, 42 U.S.C. 2000e ef seq.,

and under 42 U.S.C. 1981 and 1983. Specifically, he

. sought reinstatement and advancement, back pay, injunc-

tive relief, and other further relief which the court might

deem appropriate.

The district court dismissed Stinson’s action for failure

to state a claim upon which relief could be granted (Pet.

App. Cl1-Cl1). With respect to Stinson’s Title VII claim,

the court stated that “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” (id. at C7-C8). Since Stinson

“was a full-time uniformed employee on military duty with

the Alabama National Guard” (id. at C8-C9), the court

concluded that he had no claim pursuant to Title VII.

‘Guided by Chappell v. Wallace, 462 U.S. 296 (1983),

the court rejected Stinson’s claims under Sections 1981 and

1983 as well. The Court in Chappell had held that, in light

of the unique disciplinary structure of the armed forces,

military personnel may not bring discrimination claims

against superior officers and seek a remedy under Bivens

v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The district court con-

cluded that the same result should follow in the case of

Sections 1981 and 1983 claims, which it considered

analogous to Bivens claims (Pet. App. C9-C11).

3. The court of appeals affirmed the dismissal of Stin-

son’s Title VII claim,’ but reversed the dismissal of his

claims under Sections 1981 and 1983 (Pet. App. Al-A27).

With respect to the Sections 1981 and 1983 claims, the

court first observed that this Court in Chappell stated that

it had not held that “ ‘military personnel are barred from

all redress in civilian courts for constitutional wrongs suf-

fered in the course of military service’ ” (Pet. App. All

(quoting 462 U.S. at 304)). The court of appeals then held

that full-time servicemembers in the National Guard who

bring actions for constitutional violations under Sections

1981 or 1983 must have the allegations in their complaints

tested for reviewability pursuant to the two-step procedure

articulated in Mindes v. Seaman, 453 F.2d 197, 201 (Sth

Cir. 1971). Under Mindes, a court first determines

whether a servicemember alleging a violation of a constitu-

tional right, a statute, or a regulation has exhausted his in-

traservice remedies. If he has, the court then examines the

facts alleged and balances four factors—the nature and

strength of the plaintiff's claim, the potential injury to the

plaintiff if review is refused, the anticipated extent of in-

terference with military functions if the claim is reviewed,

and the extent to which military expertise and discretion

was involved in the challenged action—to determine

whether the plaintiff may proceed. Pet. App. Al2-A14;

453 F.2d at 201-202. The court of appeals remanded the

case to the district court with instructions that it use the

Mindes test to determine whether Stinson may proceed

3 The court of appeals agreed with the district court that Stinson

“was a uniformed member of, and on full-time military duty with, the

Alabama National Guard” (Pet. App. A8) and that Title VII's

remedies are not available to members of the armed forces (/d. at A7).

The Title VII claim is no longer at issue.

with his claims under Sections 1981 and 1983 (Pet. App.

Al4).

Senior Judge Henderson concurred, stating that his

agreement with the decision stemmed from “deference to

the precedential weight of Mindes” (Pet. App. Al6). He

further stated, however, that the en banc court should

reexamine the applicability of that case in light of Chap-

pell and consider whether “claims such as these [are] non-

justiciable without resort to the cumbersome Mindes

analysis” (ibid.). He concluded: “Although the Chappell

decision expressly left open the right of military personnel

to bring constitutional grievances to court, there can be lit-

tle doubt that such access does not extend to ‘discrete per-

sonnel matters.’ Boldly stating this conclusion, as the Fifth

Circuit Court of Appeals has done [in Crawford v. Texas

Army Nat’! Guard, 794 F.2d 1034 (Sth Cir. 1986)], without

requiring the district court 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 poten-

tial litigants.” Pet. App. A24-A25 (footnote and citation

omitted).

Judge Hill dissented, agreeing with the district court

that Chappell required the dismissal of Stinson’s claims

(Pet. App. A26-A27).

The court of appeals denied the defendants’ suggestion

of rehearing en banc (Pet. App. B1-B3).

DISCUSSION

In our view, the court below erred in concluding that it

is appropriate to examine Stinson’s claim under the

Mindes test to determine whether it is justiciable. Rather,

like the Fifth Circuit in Crawford v. Texas Army Nat’l

Guard, 794 F.2d 1034 (1986) and the Tenth Circuit in

Martelon v. Temple, 747 F.2d 1348 (1984), cert. denied,

471 U.S. 1135 (1985), the court should have concluded

that servicemembers may challenge personnel decisions

only through the remedies created specifically for that pur-

pose. For the reasons given below, however, we believe

that this conflict between the courts of appeals has little

practical importance in the present context of this case,

and that review is therefore not warranted.

1. By its literal terms, Section 1983 could be read to

apply to a suit brought by a servicemember of a state na-

tional guard against his superior officers for an alleged

deprivation “of any rights, privileges, or immunities

secured by the Constitution and laws” (42 U.S.C. 1983).

Congress’s failure expressly to exempt the military from

such suits cannot, however, be understood as a determina-

tion that all such suits fall within the scope of Section

1983. To the contrary, this Court’s cases indicate that, in

the absence of clear and explicit congressional intent, a

general statute such as Section 1983 should not be con-

strued to encompass claims by soldiers against their

superior officers for discrete military personnel decisions.

The Constitution gives Congress the power “[t]o raise

and support Armies,” “[t]o provide and maintain a Navy,”

“{tlo make Rules for the Government and Regulation of

the land and naval Forces,” and “[t]o provide for organiz-

ing” and “calling forth the Militia.” U.S. Const. Art. I,

§ 8, Cls. 12-16. These powers are “broad and sweeping”

(United States v. O’Brien, 391 U.S. 367, 377 (1968)), and it

is weli established that, in the regulation of the military,

the role of the courts is decidely subordinate to that of

Congress. “[P]erhaps in no other area has the Court ac-

corded Congress greater deference. * * * Not only is the

scope of Congress’ constitutional power in this area broad,

but the lack of competence on the part of the courts is

marked.” Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981).

Indeed, “it is difficult to conceive of an area of govern-

mental activity in which the courts have less competence.”

Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

Congress, in turn, has recognized that substantial

discretion must be afforded to the military in molding an

effective fighting force. Brown v. Glines, 444 U.S. 348,

360 (1980). “To prepare for and perform its vital role, the

military must insist upon a respect for duty and a

discipline without counterpart in civilian life.” Schlesinger

v. Councilman, 420 U.S. 738, 757 (1975). For this reason,

“the military is, by necessity, a specialized society separate

from civilian society. * * * [T]he military has, again by

necessity, developed laws and traditions of its own during

its long history.” Parker v. Levy, 417 U.S. 733, 743 (1974).

These “laws and traditions * * * are founded on unique

military exigencies as powerful now as in the past. Their

contemporary vitality repeatedly has been recognized by

Congress.” Schlesinger v. Councilman, 420 U.S. at 757.

Courts, therefore, have been especially reluctant to in-

tervene in any matter which “goes directly to the ‘manage-

ment’ of the military [and] calls into question basic choices

about the discipline, supervision, and control of a service-

man.” United States v. Shearer, 473 U.S. 52, 58 (1985).

The “complex, subtle, and professional decisions as to the

composition, training, equipping and control of a military

force are essentially professional military judgments, sub-

ject always to civilian control of the Legislative and Ex-

ecutive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10

(1973) (emphasis omitted). On such matters, it is not ap-

propriate for a “civilian court to second-guess military

decisions.” United States v. Shearer, 473 U.S. at 57.

‘In view of these principles, it would be inappropriate for

courts to presume that a statute of general applicability in

civilian contexts applies equally to military decisions. In

the military context, this Court has always looked for an

express mandate before exercising its jurisdiction in a way

that might interfere with the smooth functioning of the

military. See, e.g., Feres v. United States, 340 U.S. 135

(1950) (declining to apply Federal Tort Claims Act to suits

by servicemen for service-related injuries); Orloff v.

Willoughby, 345 U.S. 83 (1953) (declining to review pro-

priety of duty assignment); Burns v. Wilson, 346 U.S. 137,

142, 144 (1953) (plurality opinion) (giving narrow inter-

pretation to scope of federal habeas corpus relief available

to servicemen); Gilligan v. Morgan, 413 U.S. at 10 (declin-

ing to assume jurisdiction over training, weaponry and

orders of National Guard); Schlesinger v. Councilman,

420 U.S. at 757-758 (limiting ability of servicemen to ob-

tain injunctive relief for alleged wrongs, including con-

stitutional violations); Chappell v. Wallace, 462 U.S. 296,

304 (1983) (refusing to permit military personnel to main-

tain suit to recover damages from a superior officer for

alleged constitutional violations); Department of the Navy

v. Egan, No. 86-1552 (Feb. 23, 1988) (declining to permit

Merit Systems Protection Board, in the course of review-

ing an adverse action suffered by a civilian employee of

the Navy, to review security clearance determination made

by the Navy).

It is against the background of these cases that the pro-

priety of respondent’s suit must be judged. It cannot be

assumed, simply because Congress has provided a general

remedy against violations by state officials of constitu-

tional and statutory rights, that Congress intended that

remedy to apply to suits by servicemembers in the state

National Guard against their superior officers. Rather, in

the absence of clear and explicit congressional intent, the

“peculiar and special relationship of the soldier to his

superiors” (United States v. Brown, 348 U.S. 110, 112

(1954)) counsels against recognizing claims by soldiers

against their superior officers. “[C]ourts must be careful

not to ‘circumscribe the authority of military commanders

to an extent never intended by Congress.’” Brown v.

Glines, 444 U.S. at 360 (citation omitted).4

4 The vitality of the principle that it should not be presumed that

Congress intended to permit suit by a servicemember against his

In the instant case, therefore, the threshold inquiry

should be whether Congress specifically intended the rele-

vant statutes to be used by soldiers to sue their superior of-

ficers, a question the court below failed to address. Had it

done so, it would have found no affirmative evidence,

either in the statutory language of the legislative history,

that Congress explicitly intended Sections 1981 and 1983

to provide causes of action for soldiers who allege injuries

suffered incident to military service. See Martelton v.

Temple, 747 F.2d at 1351; cf. Allen v. McCurry, 449 U.S.

90, 98-99 (1980) (discussing legislative history of Section

1983); Runyon v. McCrary, 427 U.S. 160 (1976) (discuss-

ing legislative history of Section 1981); Mahone v.

Waddle, 564 F.2d 1018 (3d Cir. 1977) (discussing Sections

1981 and 1983), cert. denied, 438 U.S. 904 (1978). In the

absence of express evidence that Congress intended Sec-

tions 1981 and 1983 to be used by soldiers to sue their

superior officers, such claims should not be permitted,

and analysis under the Mindes test is not necessary.

2. This Court found application of the Mindes test un-

necessary in Chappell. In that case, black Navy enlisted

men, claiming that they had suffered discrimination,

sought relief under Bivens. The Ninth Circuit, like the

court below, decided that “the Mindes test * * * provides

an appropriate framework for determining which military

decisions are reviewable and which are not” (Wallace v.

Chappell, 661 F.2d 729, 734 (1981)), and remanded the

case for the district court to apply that test (id. at 738).

This Court reversed, concluding that the “special nature of

military life—the need for unhesitating and decisive action

by military officers and equally disciplined responses by

superiors in the absence of specific evidence is not diminished by the

facts that the National Guard is involved here. The command relation-

ship among National Guard servicemembers is identical to the com-

mand relationship among other federal servicemembers. See Gilligan

v. Morgan, 413 U.S. at 7; n.1, supra.

enlisted personnel — would be undermined by a judicially

created remedy exposing officers to personal liability at

the hands of those they are charged to command” (462

U.S. at 304). The Court also noted that the Board for Cor-

rection of Naval Records, whose decisions may be re-

viewed only under the arbitrary and capricious standard,

is a forum in which the plaintiffs could seek relief (id. at

303).5 The Court held that “military personnel may not

maintain a suit to recover damages from a superior officer

for alleged constitutional violations” (id. at 305).

The Fifth Circuit and the Tenth Circuit have correctly

concluded, on reasoning analogous to that in Chappell,

that military personnel in the National Guard are barred

from challenging personnel decisions under Section 1983.

In Martelon, the Tenth Circuit first noted that this Court’s

decision in Chappell was based on the conclusion that

“ ‘(cjivilian 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 is

at the heart of the necessarily unique structure of the

military establishment” (747 F.2d at 1350 (quoting 462

U.S. at 300)). The difference between the Bivens suit in

Chappell and the Section 1983 suit before it, the court con-

cluded, was merely “the identity of the defendants” (747

F.2d at 1350). Since “[b]y the passage of § 1983, Congress

never intended” to authorize actions by members of the

armed forces alleging “liability on the part of military

5 Boards for the Correction of Military Records, which are com-

posed of civilians appointed by the Secretary of each branch of the

armed forces, constitute broad avenues by which servicemembers may

obtain federal court review of a variety of claims pertaining to their

service records. Congress has vested each Secretary, acting through

such a Board, with plenary power to “correct any military record * * *

when he considers it necessary to correct an error Or remove an in-

justice” (10 U.S.C. 1552(a)). In appropriate cases the Board may issue

orders leading to reinstatement and an award of back pay (10 U.S.C.

155(c)).

superiors” (id. at 1351), the court concluded, without

analysis under Mindes, that the “plaintiff's § 1983 claim

has no merit” (ibid.).

The Fifth Circuit in Crawford similarly concluded that

“Section 1983 * ** claims, like those predicated on

Bivens, invite judicial second-guessing of military actions

and tend to overlap the remedial structure created within

each service” (794 F.2d at 1036). It accordingly held,

without applying the Mindes test, that the plaintiffs “re-

quests for money damages, to the extent they are based

upon alleged constitutional violations and 42 U.S.C.

§ 1983, are precluded by Chappell” (ibid.). The court went

on to reject the plaintiffs contention that he could seek in-

junctive relief in the form of reinstatement. While the

Court in Chappell had stated that “military personnel are

[not] barred from all redress in civilian courts for constitu-

tional wrongs suffered in the course of military service”

(462 U.S. at 304), the Fifth Circuit noted that this Court

had never authorized suit challenging “military personnel

decisions” (794 F.2d at 1036). Rather, the Fifth Circuit

correctly noted that the Court had authorized only

“challenges to the facial validity of military regulations

[that] * * * were not tied to discrete personnel matters”

(ibid.).© The Fifth Circuit further concluded that extend-

ing the exception noted in Chappell to allow military per-

® The court in Chappell cited (462 U.S. at 304-305), as exemplifying

the cases where this Court had allowed military personnel to seek in-

junctive relief, Brown v. Glines, 444 U.S. 348 (1980) (challenge to a

regulation requiring prior approval for soliciting signatures on a peti-

tion); Frontiero v. Richardson, 411 U.S. 677 (1973) (challenge to a

Statute requiring female members of the armed forces, but not males,

to prove that their spouses were dependent on them for over one-half

of their support in order to obtain certain benefits); and Parker v.

Levy, 417 U.S. 733, 741 (1974) (“void for vagueness” challenge to

sonnel to challenge personnel actions by seeking injunctive

relief “could swallow Chappell’s rule of deference”

(ibid.).’

In contrast, like the court below, the First Circuit con-

cluded in Penagaricano v. Llenza, 747 F.2d 55 (1984), that

the Mindes test should be used to determine whether a

member of the National Guard could seek reinstatement.

Rather than remanding to the district court (see id. at 60

n.7), however, the court analyzed the plaintiffs claim

under Mindes (id. at 61-64) and concluded that the plain-

tiffs claim was not justiciable (id. at 64). Similarly, in

Christoffersen v. Washington State Air Nat'l Guard, No

85-4315 (Aug. 31, 1988), slip op. 10, the Ninth Circuit

found it unnecessary to “decide whether Chappell bars any

or all section 1983 claims for alleged civil rights violations

provisions of the Uniform Code of Military Justice); see also

Goldman v. Weinberger, 475 U.S. 503 (1986) (challenge to a regula-

tion prohibiting the wearing of a yarmulke).

In addition to challenging the facial validity of military regulations,

a servicemember claiming constitutional flaws in his conviction by a

court-martial can—after appealing through several layers of in-

tramilitary review, culminating in the Court of Military Appeals (10

U.S.C. 864-869) —seek relief in federal court either by petitioning for

a writ of certiorari (10 U.S.C. (Supp. IV) 867h(1)) or seeking a writ of

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

? In Holdiness v. Stroud, 808 F.2d 417, 423 (1987), the Fifth Circuit

concluded: “{W]e 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 [damages under Section 1983]

would be so disruptive to military service that the claim should not be

entertained.” While this statement might be taken to suggest that the

Mindes analysis is applicable in determining the justiciability of a Na-

tional Guard members’ Section 1983 claim, the court simply dismissed

the claim without specficially considering the Mindes analysis or

remanding to the district court for that purpose. Accordingly,

Holdiness does not fairly stand for the proposition that the Mindes

analysis must be worked through in order to determine whether to

dismiss challenges to personnel decisions brought under Section 1983.

by military personnel.” Instead, the court applied the

Mindes test to the plaintiff's claims for reinstatement and

damages, and concluded that those claims were non-

justiciable under Mindes (slip op. 18).

There is, therefore, disagreement in the courts of ap-

peals as to whether the Mindes test has any continuing

vitality in determining whether members of the National

Guard may challenge personnel decisions under the post-

Civil War civil rights statutes.* The approach taken by the

court below and the First and Ninth Circuits — determining

justiciability under Mindes—differs from the approach

taken by the Fifth and the Tenth Circuits. It appears,

however, that most actions challenging personnel deci-

sions would be dismissed under the Mindes test in any

event, as in Penagaricano and Christoffersen, since such

actions by their nature interfere with military decision-

making. The first two Mindes factors, which concern the

potential harm to the plaintiff if his claim is not heard, will

generally favor review, while the last two factors, which

concern the harm to the military if the claim is heard, will

generally favor dismissal of the claim. Since the Mindes

court “indicate[d] that the above factors should be bal-

anced but declined to indicate how they should be

weighted” (747 F.2d at 63), the test is itself of little help in

* In addition to the post-Chappell decisions of the First, Fifth,

Ninth, Tenth, and Eleventh Circuits discussed in the text, the Eighth

Circuit, in Brown v. United States, 739 F.2d 362, 369 (1984), cert.

denied, 473 U.S. 904 (1985), employing a test derived from Feres and

Chappell, concluded that a National Guard member could not sue his

superior officers under Sections 1981 and 1983, but could seek relief

from his fellow Guard members for actions unrelated to military

training or personnel decisions. See also Jorden v. National Guard

Bureau, 799 F.2d 99, 108 (3d Cir. 1986), cert. denied, No. 86-1382

(Oct. 5, 1987) (permitting suit for equitable relief but not damages),

discussed at pp. 15-18, infra.

deciding particular cases involving personnel decisions.

The First Circuit was “inclined to weigh the last two

factors heavily in view of the reservations many courts

have expressed as to a civilian court’s authority to counter-

mand a military decision or order that is within the deci-

sionmakers’s sphere of discretion and expertise” (id. at

63-64). That approach, which makes sense, will almost

always lead to the conclusion that a claim challenging a

personnel decision is barred.

We believe nonetheless, that application of the Mindes

test, which requires courts to consider how military exper-

tise and discretion affected a particular decision, itself

constitutes undesirable judicial interference. As this Court

stated recently in United States v. Stanley, No. 86-393

(June 25, 1987), slip op. 12-13: “A test for [justiciability]}

* * * that depends on the extent to which particular suits

would call into question military discipline and decision-

making would itself require judicial inquiry into, and

hence intrusion upon, military matters * * *. Even putting

aside the risk of erroneous judicial conclusions (which

becloud military decision-making), the mere process of ar-

riving at correct conclusions would disrupt the military

regime.” Thus, the approach of the court below and the

First and Ninth Circuits will necessarily intrude on the

military to some extent. But until a lower court actually

holds, after analysis under the Mindes test, that a discrete

military personnel decision is cognizable under Section

1983, there is no pressing need for this Court to decide

whether the Mindes test should be applied to determine

whether a claim is justiciable.

3. The Third Circuit, in Jorden v. National Guard

Bureau, supra, adopted an approach that differs from that

of any other court of appeals. It held that a member of the

National Guard who was dismissed could not seek

damages under Section 1983. Relying, however, on this

Court’s statement in Chappell that not all claims against

the military for constitutional violations are barred (799

F.2d at 109), the court held that the plaintiff could seek

reinstatement (id. at 111). The court noted that it had re-

jected the Mindes test (id. at 111 n.16), but instead, under

Dillard vy. Brown, 652 F.2d 316 (3d Cir. 1981), “heavily

disfavors finding injunctive relief claims against the

military non-reviewable” (799 F.2d at 110). Concluding

that the plaintiff's claim for reinstatement was not an “ex-

treme case,” the court held that the claim was justiciable

(id. at 111).

The Third Circuit’s approach could regularly call

military decisions directly into question whenever the

plaintiff seeks injunctive relief. Despite the broad

language of the opinion, however, the court’s holding in

Jorden was narrowly premised on a complete absence of

any intraservice remedies (799 F.2d at 102 n.5). In that

case, the Pennsylvania Air National Guard apparently

conceded (see id. at 102) that there were no remedies

within the Guard available to Jorden. Moreover, although

Jorden had sought federal intraservice relief by way of a

petition to the Air Force Board for Correction of Military

Records, the court of appeals noted that there were serious

doubts about the Board’s ability to afford relief, inasmuch

as Jorden sought reinstatement to the state Guard as well

as to his position as a federal technician. See also Christ-

offersen, slip op. 13 (Corrections Board “has no power to

force Washington to reinstate appellants in the

Washington Guard”); Penagaricano v. Llenza, 747 F.2d at

57 (“the [Board] has no power to force a state to reinstate

the officer in the state’s Air National Guard”). The Penn-

sylvania Air National Guard did not dispute that con-

clusion in its petition for a writ of certiorari. “Under these

exceptional circumstances,” we stated (at 8), in our Brief

in Opposition in Sajer v. Jorden, No. 86-1382,'° “we do

not think that the court of appeals acted unreasonably in

permitting Jorden to bring his constitutional claims direct-

ly to federal court.”

In this case, by contrast, it is clear that other remedies

are available to National Guard members such as Stinson.

The National Guard’s regulations prohibit discriminatory

treatment, and NGR 600-21 sets forth procedures to be

followed where a member of the Guard claims that he suf-

fered discrimination. Indeed, Stinson invoked NGR

600-21 in challenging the decision not to select him for the

supervisory position he sought.'' Moreover, although the

issue was not disputed by the Pennsylvania Air National

Guard in Jorden and there was, therefore, no occasion for

us to challenge the premise upon which the court of ap-

peals’ decision was based, we believe that members of the

co-defendant in that case and, hence, a respondent in this Court

because he did not join in the state’s petition for a writ of certiorari or

file one on his own behalf. See Sup. Ct. R. 19.6. We have furnished a

copy of our Jorden brief to the parties in this case.

'' It does not appear that Stinson exhausted the remedy available to

him under that regulation, as he did not complain about his separation

from the Guard, but limited his complaint to the charge that he should

have been selected for the supervisory position he sought (see pp. 2-4,

supra). Stinson could have obtained complete relief had the Guard

concluded, in an investigation conducted pursuant to NGR 600-21,

that he had been discriminatorily denied the supervisory position he

sought and had been improperly separated from the Guard.

—

National Guard may well be able to obtain sufficient relief

from a Board for the Correction of Military Records.

Such Boards can order that members of the Guard be

reinstated in comparable active federal reserve status and

awarded back pay. Although a Correction Board cannot

order reinstatement in the State National Guard, the prac-

tical reality appears to be that such relief is generally forth-

coming. In this case, we are informed by the State of

Alabama that such reinstatement in the State National

Guard would follow as a matter of course from a decision

of the Correction Board that Stinson had been improperly

discharged. '?

4. Where intraservice remedies are available to

challenge specific military decisions, exhaustion of those

remedies should be required before any judicial review is

permitted, and such judicial remedy should be confined to

review of the adequacy of the military proceedings. '? Per-

'2 Similarly, subsection (g) of Appendix E to NGR 600-21, states

that where “an administrative review reveals deficiencies in com-

pliance with law or regulation, the case will be returned to the State

for appropriate corrective action.”

'3 The Fifth Circuit in Crawford correctly noted (794 F.2d at 1036)

that this Court’s decisions permitting immediate recourse to the

federal courts have involved attacks by military personnel on the

facial validity of statutes or regulations. See, e.g., Goldman v.

Weinberger, 475 U.S. 503 (1986) (challenge to regulation prohibiting

the wearing of a yarmulke); Brown v. Glines, 444 U.S. 348 (1980)

(challenge to regulation requiring prior approval to solicit signatures

on a petition); Frontiero v. Richardson, 411 U.S. 677 (1973)

(challenge to regulations directing discriminatory payment of spousal

benefits). Immediate judicial review is less objectionable in such cases

because it does not require intrusion into the specific military

judgments made in particular instances. It is also more

justified—especially where a violation of constitutional rights is

asserted — given the broad-based effects of many statutes and regula-

tions.

mitting a servicemember to bring an initial judicial

challenge to a discrete personnel decision or other specific

action by military authorities—and thereby make the

federal courts an alternative forum, rather than a forum

of last resort for such complaints— would undermine the

system of remedies established by Congress within the

armed forces. As this Court kas noted (Noyd v. Bond, 395

U.S. 683, 696 (1969)): “If the military * * * dofes] vin-

dicate [the servicemember’s] claim, there will be no need

for civilian judicial intervention. Needless friction will

result if civilian courts throughout the land are obliged to

review comparable decisions of military commanders in

the first instance.” See also Orloff v. Willoughby, 345

U.S. 83, 93-94 (1953). Thus, in Crawford, the Fifth Cir-

cuit properly dismissed claims for equitable relief brought

by members of the Texas Army National Guard “without

prejudice to the reviewability of any future actions taken

by the Army Board for the Correction of Military

Records” (794 F.2d at 1037).

Stinson should be required to seek relief through the

channels specifically made available to him by Congress

and the National Guard Bureaus. Under the Mindes test,

which requires a servicemember to exhaust his intraservice

remedies (453 F.2d at 201), he plainly may not bring a

direct action under Section 1981 or 1983 in lieu of pur-

suing his intraservice remedies. Indeed, Stinson concedes

that he has failed to pursue his intraservice remedies and

agrees that he will “end up before the Army Board of Cor-

rections of Military Records” (Br. in Opp. 3-4). This is

correct. We disagree with Stinson only in that he appar-

ently thinks that, if the Board rejects his claims, he may

then proceed with his suit under Sections 1981 and 1983.

In our view, his exclusive remedy should then be an appeal

from the Board’s ruling to a district court, which would

limit its review to determining whether the Board acted ar-

bitrarily and capriciously. However, the issue of what

remedies are available to Stinson if the Board rejects his

claim is not ripe for review at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.