Petition for Writ of Certiorari — Dibble v. Fenimore

; Supieme Court, U.&

ya CS N

O311c4 FEB 20 2004

No.

pee (4 PK

Ss Ss

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

DONALD J. DIBBLE,

Petitioner,

V.

JOHN H. FENIMORE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Avenue, N.W.

Suite 225

Washington, D.C. 20009

202/328-2244

February 20, 2004 Counsel of Record for Petitioner

QUESTION PRESENTED

Are adjutants general sued in official capacity for equitable

relief under 42 U.S.C. § 1983 immune from all federal

constitutional and statutory claims arising incident to state

military Service--except facial challenges to military

regulations?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS AND ORDERS

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE

ARGUMENT

I. The decision below conflicts with

those of other circuits

II. The decision below conflicts with

the reasoning of this Court's opinions

III. The holding below allowing facial

challenges to regulations and individual

regulatory claims, but precluding individual

statutory or constitutional claims, has no

basis in justiciability principles

Intra-military immunity

Issues requiring military expertise

Delay of availability of military assets

il

10

iil

Absence of cognizable legal standard

CONCLUSION

TABLE OF AUTHORITIES

Cases

Brown v. Glines, 444 U.S. 348 (1980)

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

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971)

Crawford v. Texas Army National Guard,

794 F.2d 1034 (Sth Cir. 1986)

Curran v. Laird, 420 F. 2d 122

(D.C. Cir. 1969)

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

Jones v. New York State Division of

Military and Naval Affairs, 166 F.3d 45

(2d Cir. 1998)

Jorden v. National Guard Bureau,

799 F.2d 99 (3d Cir. 1986)

Knutson v. Wisconsin Air National Guard,

995 F.2d 765 (7th Cir. 1993)

Kreis v. Secretary of the Air Force,

866 F.2d 1508 (D.C. Cir. 1989)

12

“14

8,9,12

iohia

4,5,9,11

6,13

iV

Neal v. Secretary of the Navy,

639 F.2d 1029 (3d Cir. 1981)

Sanders v. United States, 594 F.2d 804

(Ct. Cl. 1979)

Speigner v. Alexander, 248 F.3d 1292

(11th Cir. 2001)

United States v. Stanley,

483 U.S. 669 (1987)

United States ex rel. Schonbrun v.

Commanding Officer, 403 F.2d 371

(2d Cir. 1968)

Watson v. Arkansas National Guard,

886 F.2d 1004 (8th Cir. 1989)

Wigginton v. Centracchio, 205 F.3d 504

(1st Cir. 2000)

Woodward v. United States, 871 F.2d

1068 (Fed. Cir. 1989)

Statutes

5 U.S.C. § 551

5 U.S.C. § 701 et seq.

5 U.S.C. § 7102

28 U.S.C. § 1254(1)

13

6,11

45,7,9,11

5,7

a

4,8

3,5

3-4,6,10-11,13

12

12

28 U.S.C. § 1331

28 U.S.C. § 2671 et seq.

32 U.S.C. § 709

32 U.S.C. § 709(f)

42 U.S.C. § 1983

OPINIONS AND ORDERS

The decision below, App. la, is reported at 339 F.3d

120. The appellate court's denial of rehearing, App. 42a, is

unreported. The district court's initial decision, App. 17a,

is reported at 84 F.Supp.2d 315. The district court's

unreported denial of reconsideration, App. 35a, appears at

2000 U.S. Dist. LEXIS 9240.

JURISDICTION

The judgment sought to be reviewed was entered

August 8, 2003. The court below denied rehearing

November 24, 2003. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

U.S. Const. amend. I (excerpt)

Congress shall make no law . . . abridging the freedom

of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.

5 U.S.C. $ 7102 (excerpt)

Each employee shall have the right to form, join, or

assist any labor organization . . . freely and without fear of

penalty or reprisal, and each employee shall be protected in

the exercise of such right. Except as otherwise provided

under this chapter, such right includes the right . . . to act

for a labor organization in the capacity of a representative

and the right, in that capacity, to present the views of the

labor organization to heads of agencies and other officials

of the executive branch of the Government, the Congress,

or other appropriate authorities.

32 USC. § 709(f) (excerpt)

[A]... suspension . . . shall be accomplished by the

adjutant general.

42 U.S.C. §1983 (excerpt)

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of a State or

Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of

any rights privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding

for redress.

STATEMENT OF THE CASE

Dibble, a former member of the New York Air Guard

and former federal excepted service technician employed

by the Air Guard under 32 U.S.C. § 709, sued the New

York Adjutant General, in official capacity, for equitable

relief under 42 U.S.C. § 1983. Dibble claimed that the Air

Guard denied him reenlistment in retaliation for his

exercise, during civilian technician employment, of (1) his

right under 5 U.S.C. § 7102 to assist and to act for a labor

organization; (2) his right under 32 U.S.C. § 709(f) to

appeal (successfully) his suspension from employment; and

(3) his First Amendment rights to (a) associate with fellow

civilian employees in a union, (b) petition for redress, and

in furtherance of his and fellow employees' rights in a non-

disruptive manner expressly authorized by federal law.!

The district court had federal question jurisdiction under 28

U.S.C. § 1331.

The district court, denying Fenimore's motion to

dismiss, held Dibble's claims justiciable. App. 26a, 40a.

Fenimore appealed immediately, asserting intra-military

immunity. The Court of Appeals sustained the immunity

claim, holding that only facial challenges to, or violations of,

military regulations are justiciable. App. 14a, 15a.

ARGUMENT

I

The decision below conflicts with those of other circuits |

As the court below acknowledged, App. 1la-12a, its

decision conflicts with Wigginton v. Centracchio, 205 F.3d

504, 512 (ist Cir. 2000) ("intramilitary suits alleging

constitutional violations but not seeking damages are

justiciable"); and Jorden v. National Guard Bureau, 799

F.2d 99, 108-111 (3rd Cir. 1986) (discharge of National

Guard member in retaliation for exercise of First

Amendment rights may be equitably redressed). The

decision below also conflicts with Woodward v. United

States, 871 F.2d 1068 (Fed. Cir. 1989) (release of Reserve

! Dibble also sued the Secretary of the Air Force, in official capacity,

seeking review of the Air Force Board for Correction of Military

Records decision that refused relief from the simultaneous denial of

Dibble's federal military reenlistment. Dibble's claim against the

Secretary was not at issue in the court below. It remains before the

district court.

officer from active duty under 10 U.S.C. § 681(a) subject to

judicial review upon claim _ that release was

unconstitutionally motivated).

The lower court said it found "more persuasive"

decisions reasoning that only facial challenges to military

regulations are justiciable. App. 13a-14a, citing Knutson v.

Wisconsin Air National Guard, 995 F.2d 765, 771 (7th Cir.

1993); Watson v. Arkansas National Guard, 886 F. 2d

1004, 1008-10 (8th Cir. 1989); Crawford v. Texas Army

National Guard, 794 F.2d 1034, 1036 (Sth Cir. 1986). See

also, Speigner v. Alexander, 248 F.3d 1292, 1297 (11th Cir.

2001) (same).

These decisions, however, conflict with the Second

Circuit's own decision in Jones v. New York State Division

of Military and Naval Affairs, 166 F.3d 45, 52 (2d Cir.

1998), which held that a state Guard member may obtain

injunctive relief from the military's violation of its own

regulations.”

The question presented involves interests of exceptional

importance--military need and the enforcement of

constitutional rights. The Court should resolve the conflict

among the circuit courts over this important question.

2 The Jones decision, to the extent it deems justiciable any claim

alleging failure to follow military regulations, conflicts with United

States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374-

375 (2d Cir. 1968) (claim of regulatory violation nonjusticiable if

interpretation of regulation requires military expertise).

—— A

Il

The decision below conflicts with the reasoning of this

Court's oninions

The ruling below is inconsistent with the reasoning of

Chappell v. Wallace, 462 U.S. 296 (1983), and United

States v. Stanley, 483 U.S. 669 (1987). In holding

servicemembers’ individual capacity suits for damages to be

nonjusticiable, both decisions distinguished official

capacity suits for equitable relief. Chappell, 462 US. at

303, 304 (military correction board decision denying

military promotion subject to judicial review; Court has

"never held . . . that military personnel are barred from all

redress in civilian courts for constitutional wrongs suffered

in the course of military service"); Stanley, 483 U.S. at 683

("redress designed to halt or prevent the constitutional

violation" distinguishable from "award of money

damages").

Contrary to the opinions in Chappell and Stanley, the

court below and other appellate courts? have held that

official capacity suits for injunctive relief are not

distinguishable, for purposes of justiciability, from

individual capacity suits for damages. The First, and Third

Circuits, however, have recognized the distinction.

Wigginton v. Centracchio, 205 F.3d 504 (1st Cir. 2000);

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

1986). The court below recognized the distinction as to

claims alleging violations of military regulations. App.

3 Speigner v. Alexander, 248 F.3d 1292, 1297 (11th Cir. 2001) Knutson

v. Wisconsin Air National Guard, 995 F.2d 765, 771 (7th Cir. 1993);

Watson v. Arkansas National Guard, 886 F. 2d 1004, 1008 (8th Cir.

1989).

15a, citing Jones v. New York State Division of Military

and Naval Affairs, 166 F.3d 45 (2d Cir. 1998).

The decision below identified no reasoning in Chappell

or Stanley precluding equitable claims except facial

challenges to, or alleged violations of, military regulations.

There is none to be found. In Brown v. Glines, 444 U.S.

348, 357 n. 15 (1980), the Court said permissible claims are

not limited to facial challenges. Military correction board

cases approved by the Chappell opinion, 462 U.S. at 303,

typically concern individual complaints, not facial

challenges, and often present constitutional and statutory

claims, not just violations of military regulations. See, e.g.,

Kreis v. Secretary of the Air Force, 866 F.2d 1508 (D.C.

Cir. 1989); Woodward v. United States, 871 F.2d 1068

(Fed. Cir. 1989); Sanders v. United States, 594 F.2d 804

(Ct. Cl. 1979).

Il

The holding below allowing facial challenges to

regulations and individual regulatory claims, but

precluding individual statutory or constitutional claims,

has no basis in justiciability principles

Courts properly have recognized four grounds upon

which a challenge to military action can be deemed to be

nonjusticiable. None of these grounds applies here. And

none is related to whether the challenge attacks a military

regulation on its face or concerns an individual decision, or

claims violation of a military regulation rather than

violation of a statute or the Constitution.

Intra-military immunity

Intra-military immunity applies to damages claims

brought by military members against other military

members in their individual capacities. Chappell v.

Wallace, 462 U.S. 296, 304 (1983) (intra-military immunity

precludes "exposing officers to personal liability at the

hands of those they are charged to command").4 In

Chappell the Court expressly recognized that suits for

equitable relief by military members against military

officials sued in their official capacities--such as cases

against military service heads challenging separation from

the military or denial of military promotion--are not

precluded. 462 U.S. at 303, 304.5 In United States v.

Stanley, 483 U.S. 669 (1987), the Court followed Chappell.

The Court held intra-military damages actions barred, but

4 Intra-military immunity results in servicemembers being unable to sue

the federal government for damages for torts committed by other

servicemembers, Feres v. United States, 340 U.S. 135 (1950), but this

is not because intra-military immunity, itself, extends to the federal

government. Rather, it is because the federal government has sovereign

immunity from tort damages suits to the extent that immunity is not

waived by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et

seq. Because the FTCA makes the United States liable only where the

federal tortfeasor would be personally liable, and intra-military

immunity precludes personal liability, the United States cannot be held

liable in damages for intra-military torts.

> Contrary to the Eleventh Circuit's view, the Chappell holding is not

based on deference "to the military establishment." Speigner v.

Alexander, 248 F.3d 1292, 1297 (11th Cir. 2001). Rather, it is based

on the need to protect military personnel from "personal liability."

Chappell, 462 U.S. at 304. This protection is necessary because "the

need for unhesitating and decisive action . .. would be undermined by .

. . exposing officers to personal liability." /d. This point is inapplicable

to official capacity suits.

echoed Chappell's distinction between "redress designed to

halt or prevent the constitutional violation" and "award of

money damages." 483 U.S. at 683.6

Because intra-military immunity precludes only

individual capacity damages suits, not official capacity

equitable claims, the doctrine does not address different

types of equitable claims. Whether an official capacity

equitable action presents a facial challenge; attacks an

individual decision; or claims violation of a regulation,

statute, or the Constitution is irrelevant.

Issues requiring military expertise

A second ground on which a challenge to a military

decision may be held nonjusticiable is lack of judicial

competence to decide the specific question presented,

because the question requires military expertise. This

principle can apply in suits by civilians as well as military

members. The decision in Curran v. Laird, 420 F.2d 122

(D.C. Cir. 1969), illustrates the point. There, the court held

that whether reserve fleet vessels were "available" to

transport military cargo, within the meaning of a statute

requiring that available domestic vessels be used before

foreign vessels, was nonjusticiable because the issue was

6 In declining to recognized the distinction drawn in Chappell and

Stanley between damages actions and official capacity suits for

“equitable relief, the court in Watson v. Arkansas National Guard, 886

F. 2d 1004, 1008 (8th Cir. 1989), erroneously reasoned that "(t]he

judiciary does not acquire competence in this area merely because the

remedy sought is an injunction rather than damages." Contrary to the

Watson court's assumption, intra-military immunity from damages is not

based on lack of judicial competence to adjudicate all constitutional or

federal statutory claims that arise incident to military service. Rather,

intra-military immunity from damages is based on the need to protect

service members from personal liability. Chappell, 462 U.S. at 304.

one of a "narrow band of matters" involving "decisions

relating to the conduct of national defense" in which "the

national interest contemplates and requires flexibility in

management of defense resources" and "the particular

issues call for determinations that lie outside sound judicial

domain in terms of aptitude, facilities, and responsibility."

420 F.2d at 131, 129. See also United States ex rel.

Schonbrun v. Commanding Officer, 403 F.2d 371, 374-375

(2d Cir. 1968) ("while the regulations wisely give . . .

specific content to [the hardship exemption from military

service], a good deal is necessarily left to the judgment of

the commanding officer"; "administration of the hardship

exemption necessarily involves a balancing of the

individual's claims against the nation's needs, and the

balance may differ from time to time and from place to

place in a manner beyond the competence of a court to

decide").’

Application of the Curran principle does not depend on

whether the plaintiff presents a facial challenge; attacks an

individual decision; or claims violation of a regulation,

statute, or the Constitution. Any of these kinds of cases

might raise specific issues requiring military expertise

beyond judicial competence.

The Curran principle does not apply to Dibble's suit.

Dibble does not claim that he was denied reenlistment

7 The Curran principle, as noted, applies only to the "narrow band of

matters" that require military expertise, Curran, 420 F.2d at 131;

Schonbrun, 403 F.2d at 374-375, not to all service-related claims.

Courts properly "defer to the superior experience of the military in

matters of duty orders, promotions, demotions, and retentions,"

Speigner, 248 F.3d at 1298, quoting Knutson v. Wisconsin Air

National Guard, 995 F.2d 765, 771 (7th Cir. 1993), when they decline

to decide specific issues that require military expertise.

10

based on unsound military judgment. He claims that the

decision was not based on military judgment at all--that he

was denied reenlistment in retaliation for exercise of First

Amendment and federal statutory rights. Adjudication of

these claims requires no military expertise. It does not

involve review of the wisdom of military opinions.

Delay of availability of military assets

A third ground on which a challenge to a military

decision may be held nonjusticiable is where adjudication

would delay availability of military assets. United States ex

rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374-

375 (2d Cir. 1968) ("delay in the call-up of a reservist, even

during the period necessary for judicial consideration of his

claim to discretionary exemption, inevitably means .. . a

gap in the unit").8 The Schonbrun principle does not apply

to suits, like Dibble's, which challenge military separations

rather than call-up orders. Dibble's claims, if successful,

would not deprive the military of assets, and adjudication of

his claim therefore would not delay availability of military

assets. The United States Court of Federal Claims routinely

reviews military separation cases, and has authority to order

reinstatement. Woodward v. United States, 871 F.2d 1068

8 Although a "gap in the unit" might be avoided by "call of another

reservist who otherwise might not have been reached," id., the gap

would not be avoided if that other reservist also challenged the call-up

decision. Allowance of Schonbrun's claim would allow class action

challenges to call-up decisions, making gaps in the units unavoidable.

In this setting, adoption of the Eleventh Circuit's "facial challenges

only" rule, instead of the Schonbrun principle, would have a perverse

effect, since facial challenges to military regulations affect large

numbers of servicemembers, threatening greater deprivation of military

resources than a challenge applicable only to one plaintiff.

1]

(Fed. Cir. 1989); Sanders v. United States, 594 F.2d 804

(Ct. Cl. 1979).9

Because reinstatement is an available remedy in

correction board cases--like Woodward and Sanders--there

is no reason to withhold this remedy in other official

capacity military suits. The point has particular applicability

to reinstatement suits by former National Guard members

like Dibble, because separation from the Guard

simultaneously severs both federal and state military

membership. A rule allowing judicial restoration of the

former, but not the latter, would be meaningless, and have

no basis in justiciability principles. !°

? On this point, the court in Knutson v. Wisconsin Air National Guard,

995 F.2d 765 (7th Cir. 1993), erroneously reasoned that, because

military reinstatement claims can require years to litigate, military

separation in violation of the Constitution should be tolerated. The

idea that the military cannot "staff properly," maintain "operational

readiness," or properly conduct "training programs" while it "await[s]"

the outcome of reinstatement litigation, Knutson, 995 F.2d at 771, is

absurd. The mere filing of reinstatement litigation does not require

the military to change its staffing, operations, or training. And even if

the possibility of future reinstatement of an unconstitutionally-

separated service member could be deemed to "significantly hamper"

current staffing and mission accomplishment, id., this possibility

would not be a rational reason to allow facial challenges to military

regulations, while disallowing challenges to individual personnel

decisions. Simultaneous reinstatement of tens of thousands of

members incident to judicial invalidation of an unconstitutional

military regulation would cause far greater change in military staffing

and operations than reinstatement of a single individual.

10 Contrary to the Speigner court's opinion, 248 F.3d at 1296, official

Capacity suits for military reinstatement do not "tamper with the

established relationship between enlisted military personnel and their

superior officers," Chappell v. Wallace, 462 U.S. 296, 300 (1983),

because these suits do not subject military officers to personal liability.

Chappell, 462 U.S. at 304.

12

Absence of cognizable legal standard

A fourth ground on which a challenge to a federal

military decision-may be held nonjusticiable arises under

the review provisions of the Administrative Procedure Act

(APA), 5 U.S.C. § 701 ef seq., which apply to federal

agencies generally, including the military. 5 U.S.C. § 551.

Claims which challenge discretionary decisions, and which

are not founded on either the Constitution or a statute or

regulation embracing a cognizable legal standard, are

unreviewable because they concern matters "committed to

agency discretion” under 5 U.S.C. § 701(a)(2). Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 409 (1971)

(agency decision is "committed to agency discretion" where

there is "no law to apply").!!

Dibble's claims against Fenimore do not concern

matters that would be deemed committed to agency

discretion under the APA if they concerned federal, rather

than state, military membeiship. Dibble's claims are based

on the First Amendment and a federal statute that embraces

cognizable legal standards affording federal employees

rights to serve as union representatives. These claims are

justiciable. Jones v. New York State Division of Military

and Naval Affairs, 166 F.3d 45, 52 (2d Cir. 1998) (holding

justiciable Guard member's claim for injunctive relief from

New York State military's violation of its own regulation);

\! The Curran court invoked this principle. 420 F.2d at 128. Curran,

however, was decided before this Court's decision in Citizens to

Preserve Overton Park. Under the latter decision, a statute requiring

use of an "available" resource states a cognizable legal standard. 401

U.S. at 409. The point in Curran that remains valid after Citizens to

Preserve Overton Park is that claims under an otherwise cognizable

legal standard are nonjusticiable if interpretation or application of the

standard requires military expertise beyond judicial competence.

13

Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989)

(release of Reserve officer from active duty under 10

U.S.C. § 681(a) subject to judicial review upon claim that

release was unconstitutionally motivated); Kreis vy.

Secretary of the Air Force, 866 F.2d 1508 (D.C. Cir. 1989)

(denial of military promotion reviewable for statutory

violations); Jorden v. National Guard Bureau, 799 F.2d 99,

108-111 (3rd Cir. 1986) (discharge of National Guard

member in retaliation for exercise of First Amendment

rights may be equitably redressed); Neal v. Secretary of the

Navy, 639 F.2d 1029, 1041 n. 11, 1044 (3d Cir. 1981)

(absence of right to reenlist does not preclude judicial

review of enlistment denial where statutory standard was

violated).

Whether a claim is based on a cognizable legal standard

does not depend on whether the standard is found in a

regulation, a statute, or the Constitution. Nor does it

depend on whether the claim challenges a_ military

regulation on its face or challenges an individual decision.

None of the four bases of the nonjusticiability doctrine

applies to Dibble's claims. None of the differences between

facial challenges to regulations and challenges to individual

decisions has any bearing on justiciability. The holding

below that individual claims based on military regulations

are justiciable, but individual claims based on statutes or

the Constitution are not, is unexplained and inexplicable.

The decision below is an arbitrary minimization of

military suits, not a reasoned application of justiciability

principles.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Ave., N.W.

Suite 225

Washington, D.C. 20009

202/328-2244

ome

Counsel of Record for Petitioner

February 20, 2004

a ee ee eee ee ee a ee

(Ss )\ "Fee

NO.31184 FEB 20 2004

QPPICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

DONALD J. DIBBLE,

Petitioner,

V.

JOHN H. FENIMORE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Avenue, N.W.

Suite 225

Washington, D.C. 20009

202/328-2244

February 20, 2004 Counsel of Record for Petitioner

Re

Ee

TABLE OF CONTENTS

Opinion of the Court of Appeals

August 8, 2003 (Leval, J.)

(holding, on interlocutory appeal,

that intra-military immunity bars

former state military member's

federal constitutional and statutory

claims under 42 U.S.C. § 1983

against state Adjutant General

sued in official capacity for equitable

relief, unless claim is facial challenge

to, or asserts failure to follow, military

regulation)

District Court decision January 19, 2000

(Kahn, J.) (upholding justiciability of

equitable claim alleging denial of

state military reenlistment in retaliation for

exercise of federal constitutional and

statutory rights)

District Court decision July 5, 2000

(Kahn, J.) (denying Adjutant General's

motion for reconsideration of January

19, 2000 decision)

Order by Court of Appeals November

24, 2003 denying petition for rehearing

la

17a

35a

42a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2000

(Argued: February 14, 2001 Decided: August 8, 2003)

Docket No. 00-6243

DONALD J. DIBBLE,

Plaintiff-Appellee,

-V.-

JOHN H. FENIMORE, V, MAJOR GENERAL,

NEW YORK AIR NATIONAL GUARD,

Defendant-Appellant,

SECRETARY OF THE AIR FORCE F. WHITTEN

PETERS,

Defendant.

Before:

KEARSE, LEVAL AND KATZMANN,

Circuit Judges.

Former National Guard member sued the commander of

the New York State Air National Guard, claiming that he

was unlawfully discharged in retaliation for his

2a

constitutionally protected activities as a union steward. The

United States District Court for the Northern District of

New York (Kahn, J.) denied defendants’ motion to dismiss.

State Defendant brought an_ interlocutory appeal

challenging the denial of the motion to dismiss. The Court

of Appeals (Leval, J.) holds that (a) the interlocutory order

denying the defendant’s motion to dismiss was immediately

appealable as a collateral order covered by Cohen v.

Industrial Beneficial Loan Corp., 337 U.S. 541 (1949), and

(b) the commander of the New York Air National Guard

was immune from suit under Feres v. United States, 340

U.S. 135 (1950). REVERSED and REMANDED with

direction to dismiss the action. -

MICHAEL S. BUSKUS, Assistant Solicitor General,

for Eliot Spitzer, Attorney General of the State of New

York (Nancy A. Spiegel, Assistant Solicitor General;

Peter H. Schiff, Senior Counsel, on the briefs), Albany,

New York, for defendant-appellant.

DANIEL M. SCHEMBER, Gaffney & Schember, P.C..,

Washington, D.C., for plaintiff-appellee.

LEVAL, Circuit Judge:

Defendant-appellant John Fenimore is Major General

and Commander of the New York Air National Guard (“Air

Guard” or “Guard”). Plaintiff-appellee Donald J. Dibble

was a staff sergeant with the Air Guard.' In late 1994,

1 Dibble’s staff sergeant position is classed as federally excepted

civilian employment. Dibble was required by 32 U.S.C. § 709(b) to

maintain military membership in the Air Guard as a condition of this

employment.

3a

Dibble was ordered honorably discharged from the Guard

and denied the opportunity to re-enlist.2_ Following his

dismissal (and the unsuccessful pursuit of various intra-

military administrative remedies), Dibble brought this

action in the United States District Court for the Northern

District of New York (Kahn, J/.), claiming that he was

unlawfully denied re-enlistment in retaliation for his

constitutionally and statutorily protected activities as a

union steward.3 Fenimore moved to dismiss, arguing, inter

alia, that Dibble’s claims were non-justiciable under the

doctrine of intra-military immunity. The district court

denied the motion and on reconsideration, adhered to its

decision. Fenimore brought this appeal.*

This case presents two issues: (1) whether the

interlocutory order denying the motion of the Commander

of the State National Guard to dismiss the suit by reason of

the doctrine of intra-military immunity is immediately

appealable under the collateral order rule of Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); and

2 The stated reason for Dibble’s dismissal was his “performance in a

military capacity.”

3 Specifically, Dibble alleges that he was dismissed as a result of his

exercise of (1) his right under 5 U.S.C. § 7102 to assist and act for a

labor organization; (2) his right under 32 U.S.C.§ 709(e)(5) (since

recodified as 32 U.S.C. § 709(f)(4) and Technician Personnel

Regulation (TPR) 752 § 2-17, Element 6(b), to appeal (successfully) his

thirty-day suspension from employment; and (3) his First Amendment

right to associate in a union and to speak freely in furtherance of his and

fellow employees’ rights.

4 The suit also named the Secretary of the United States Air force. As

to that defendant, the district court remanded the case to the Air Force

Board for the Correction of Military Records for administrative

proceedings. Those proceedings are still pending.

4a

(2) if so, whether such a suit is non-justiciable under the

doctrine of intramilitary immunity. For the reasons set

forth below, we conclude that (1) the district court’s order

was immediately appealable and (2) that defendant’s

motion to dismiss should have been granted.

DISCUSSION

A. Appealability

Interlocutory orders of federal district courts are not

ordinarily appealable until the rendition of a final decision.

See 28 U.S.C. § 1291. A “final decision” is one that “ends

the litigation on the merits and leaves nothing for the court

to do but execute the judgment.” Van Cauwenberghe v.

Biard, 486 U.S. 517, 521 (1988) (quoting Catlin v. United

States, 324 U.S. 229, 233 (1945)). An order denying a

defendant’s motion to dismiss on the grounds of

intramilitary immunity is certainly not “final”; indeed, such

an order “ensures that litigation will continue in the District

Court.” Gulfstream Aerospace Corp. v. Mayacamas Corp.,

485 U.S. 271, 275 (1988). In limited circumstances,

however, federal appellate courts may review nonfinal

orders. For example, under the collateral order rule of

Cohen, appeals may be taken in “that small class which

finally determines claims of right separable from, and

collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself to

require that appellate consideration be deferred until the

whole case is adjudicated.” Cohen at 546.

District court orders denying claims of immunity are at

times held appealable, because, as appellant notes,

immunity is intended to shield the defendant not only from

an adverse outcome, but also from the burden of having ito

5a

go through the litigation process at all. As the Supreme

Court has observed with respect to a state officer’s

immunity from a suit alleging a constitutional tort under 42

U.S.C. § 1983, the defense is “an immunity from suit rather

than a mere defense to liability; and . . . it is effectively lost

if a case is erroneously permitted to go to trial.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). This court has applied

the collateral order rule to permit appeals from district court

orders denying a wide variety of immunity claims. See,

e.g., Transatlantic Shiffahrtskontor GmbH v. Shanghai

Foreign Trade Corp., 204 F.3d 384, 387 (2d Cir. 2000)

(Foreign Sovereign Immunities Act immunity); Baker v.

Coughlin, 77 F.3d 12, 14 n.2 (official immunity under state

law); Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72 (2d

Cir. 1992) (municipal immunity); Smith v. Reagan, 841

F.2d 28, 30 (2d Cir. 1988) (Eleventh Amendment

immunity); Barrett v. United States, 798 F.2d 565, 570-71

(2d Cir. 1986) (prosecutorial immunity). But see In re

“Agent Orange” Prod. Liab. Litig., 745 F.2d 161, 162 (2d

Cir. 1984) (rejecting an interlocutory appeal from an order

denying a defense of intramilitary immunity). ,

Under the collateral order rule, a prejudgment order is

eligible for immediate interlocutory appeal if it satisfies

three criteria: It “must conclusively determine the disputed

question, resolve an important issue completely separate

from the merits of the action, and be effectively

unreviewable [upon the eventual] appeal from a final

judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463,

468 (1978). The orders appealed in this case satisfy these

three standards. First, there is no dispute that they

“conclusively determine” the availability of the immunity

defense. Second, the immunity question is separate from

6a

the merits of the action.5 And as to the third requirement,

we conclude that the interlocutory order is “effectively

unreviewable” on appeal from a final judgment because an

important element “of absolute immunity is its possessor’s

entitlement not to have to answer for his conduct in a civil

damages action.” Mitchell v. Forsyth, 472 U.S. 511, 5a.

86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985) (citing Nixon v.

Fitzgerald, 457 U.S. 731 (1982)). The defendant would

irrevocably lose this benefit of immunity if obligated to

defend the case at trial.

The Supreme Court appears to take this view of the

nature of the right, at least with respect to claims of

immunity made by officers in the active U.S. military. In

United States v. Stanley, 483 U.S. 669 (1987), the Court

suggested that the process of defending a lawsuit, not

merely the end result, compromises military discipline and

thus gives rise to immunity. Concerned by the prospect of

“compelled depositions and trial testimony by military

officers concerning the details of their military commands,”

the Stanley court explained that if a subordinate were

allowed to prosecute a lawsuit against his superior officer,

“the mere process of arriving at correct conclusions would

disrupt the military regime.” Stanley, 483 U.S. at 682-83.

See also Stencel Aero Eng'g Corp. v. United States, 431

5 The factual record on appeal is somewhat spare, making it difficult to

assess whether there are any material facts genuinely in dispute that

would bear on the applicability of intramilitary immunity. As this court

has noted previously, "[w]here . . . resolution of the immunity defense

requires the adjudication of issues of fact that are inseparable from the

merits, the denial is not immediately appealable." Tolbert v. Queens

College, 164 F.3d 132, 138 (2d Cir. 1999); see also Behrens v.

Pelletier, 516 U.S. 299, 312-13 (1996); Johnson v. Jones, 515 U.S.

304, 313 (1995). The pleadings are, however, clear enough for us to

conclude with relative confidence that the availability of an immunity

does not turn on the resolution of any disputed questions of fact.

Ta

U.S. 666, 673 (1977) (“The trial would . . . involve second-

guessing military orders, and would often require members

of the Armed Services to testify in court as to each other’s

decisions and actions.”). We see no reason why this logic

would apply with any less force to claims brought by

members of the National Guard. See Jones v. N.Y. State

Div. of Military & Naval Affairs, 166 F.3d 45, 51 (2d Cir.

1999) (“Absent some reasoned distinction, justiciability of

constitutional tort actions incident to federal and state

military service should be co-extensive.”).

Intramilitary immunity is designed to protect a

defendant from the obligation to participate in the litigation,

and not merely from an adverse result. The loss of such a

benefit cannot be vindicated by appeal from an adverse

final judgment. Were we required to refrain from hearing

an appeal of an interlocutory order denying a claim of

intramilitary immunity, the benefit claimed by the

defendant (freedom from the burden of suit) would be

irrevocably lost by the time we were able to hear his claim.

We are mindful of our decision in Jn re “Agent

Orange” Product Liability Litigation, 745 F.2d 161, in

which we declined to exercise jurisdiction over an

interlocutory appeal challenging an order denying dismissal

on intramilitary immunity grounds. However, we believe

Agent Orange to be both distinguishable on its facts and in

large part superceded by subsequent decisions of the

Supreme Court. As to the facts, the order appealed from in

Agent Orange was “tentative” in its wording, thus raising

doubt whether it “conclusively determined” the question of

immunity. Jd. at 163-64. Furthermore, Agent Orange

relied on an understanding of the intramilitary immunity

doctrine since rejected by the Supreme Court. We held in

Agent Orange that intramilitary immunity was “inextricably