Petition for Writ of Certiorari — Hicks v. Harrison

e~ >upreme Court, U.S.

FILED

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

MICHAEL E. HICKS,

5 Petitioner,

RECEIVE

U.S.

SUPREME COURT U. v.

POLICE DEPARTMENT

anal RONALD O. HARRISON,

MAR 1 «201

aM PWM ae

78) 9100 tI HBF EP

a une Raser™ ae

nes : PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Avenue, N.W.

_ Suite 225

Washington, D.C. 20009

202/328-2244

March 15, 2002 Counsel of Record for Petitioner

DBR

QUESTION PRESENTED

Is a former state National Guard member's 42 U.S.C. §

1983 claim that his termination violated the First Amendment

and federal statutory rights nonjusticiable, even in an official

capacity suit for equitable relief, unless the claim is a facial

challenge to military regulations?

il

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES i

OPINION AND ORDER

JURISDICTION 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE 2

ARGUMENT - 3

I. The decision below conflicts with

those of other circuits 3

II. The decision below conflicts with

the reasoning of this Court's opinions 4

III. The decision below and the "facial

challenges only" rule have no basis

in justiciability principles 5

CONCLUSION 14

APPENDIX la

Opinion of the Court of Appeals la

District Court Order 3a

iil

TABLE OF AUTHORITIES

Cases

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)

Dibble v. Fenimore, 84 F. Supp. 2d 315

*(N.D. N.Y. 2000) interlocutory appeal

pending, No. 00-6243 (2d Cir. argued

Feb. 14, 2001)

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)

passim

3,5,13

49-11

5,13

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)

Will v. Michigan Dep't of Police,

491 U.S. 58 (1989)

Woodward v. United States, 871 F.2d

1068 (Fed. Cir. 1989)

Statutes

5 U.S.C. § 551

5 U.S.C. § 701 ef seq.

5 U.S.C. § 7102

13

5,10

passim

4,5,7

8,10

3,10,13

12

28 U.S.C. § 1254(1)

28 U.S.C. § 1331

28 U.S.C. § 2671 et seq.

32 U.S.C. § 709

42 U.S.C. § 1983

2,6

OPINION AND ORDER

The appellate opinion and district court order--issued after

decision of an indistinguishable case, Speigner v. Alexander,

248 F.3d 1292 (11th Cir. 2001)--are unreported.

JURISDICTION

The judgment sought to be reviewed was entered

December 18, 2001. 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.

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

Hicks, a former member of the Florida Air Guard and

former federal excepted service technician employed by the

Air Guard under 32 U.S.C. § 709, sued the Florida Adjutant

General, in official capacity, for equitable relief under 42

U.S.C. § 1983. Hicks alleged that the Air Guard terminated

his military membership 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; and (2)

his First Amendment rights to (a) associate with fellow

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

speak 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.

Following the decision in Speigner v. Alexander, 248 F.3d

1292 (11th Cir. 2001), the courts below dismissed Hicks's

complaint as nonjusticiable. In Speigner the court held that

only “cases challenging military regulations on their faces,

rather than their application to discrete personnel decisions,"

are justiciable. 248 F.3d at 1297.

ALA PE

3

ARGUMENT

I

The decision below conflicts with those of other circuits

As the Speigner court acknowledged, 248 F.3d at

1297, the decision below conflicts with Wigginton v.

Centracchio, 205 F.3d 504, 512 (1st 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 Jones v. New York State Division of

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

1998)(Guard member may obtain injunctive relief from New

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

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).

1 The Speigner opinion, 248 F.3d at 1297, citing Jones,

erroneously stated that the Second Circuit "follows the same

approach" as the Fifth Circuit regarding justiciability of claims

incident to military service. In contrast with the Fifth Circuit's

barring of all equitable claims in Crawford v. Texas Army

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

Second Circuit in Jones upheld the justiciability of a claim for

equitable relief. In Dibbie v. Fenimore, 84 F. Supp. 2d 315

(N.D. N.Y. 2000) interlocutory appeal pending, No. 00-6243

(2d Cir. argued Feb. 14, 2001), the district court followed

Jones and held claims for equitable relief, identical to those

raised here, to be justiciable.

a

4

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.

I

The decision below conflicts with the reasoning of this

Court's opinions

The decision 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 U.S. 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. On the other-hand, the First, Second, and Third

Circuits have recognized the distinction. Wigginton v.

Centracchio, 205 F.3d 504 (lst Cir. 2000); Jones v. New

York State Division of Military and Naval Affairs, 166 F.3d

2 For example, 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).

a

5

45 (2d Cir. 1998); Jorden v. National Guard Bureau, 799

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

In Speigner, the Eleventh Circuit asserted that "redress

designed to halt or prevent [a] constitutional violation,"

Stanley, 483 U.S. at 683, is available only in "cases

challenging military regulations on their faces." 248 F.3d at

1297. The court's sole basis for this assertion, however, was

that cases affording equitable relief cited in Stanley had

involved facial challenges. Jd. The Eleventh Circuit identified

no reasoning in the Stanley opinion to support a “facial

challenges only" conclusion. There is none. The Speigner

opinion also overlooked that military correction board cases

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

involve "discrete personnel decisions," 248 F.3d at 1297, not

facial challenges. See, e.g., Kreis v. Secretary of the Air

Force, 866 F.2d 1508 (D.C. Cir. 1989); Sanders v. United

States, 594 F.2d 804 (Ct. Cl. 1979).

The Court should grant review and reject the lower

court's interpretation of the Stanley opinion. For reasons

developed further below, the Court should hold that

servicemembers’ official capacity suits for equitable relief are

not limited to facial challenges to military regulations, and

that Hicks's claim is justiciable.

iil

The decision below and the "facial challenges only" rule

have 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

6 '

regulation on its face or concerns an individual personnel

decision.

Intra-Military Immunity

Intra-military immunity applies to damage claims by

military members against other military members sued 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").? In Chappell the Court expressly

recognized that suits for equitable relief by military members

3 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 the immunity

doctrine, itself, extends to the federal government or to

official capacity defendants. Rather, it is because the federal

government (including any federal official capacity defendant)

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 seg. The FTCA makes the

United States liable only where the federal tortfeasor would

be personally liable. Since intra-military immunity precludes

personal liability, the United States cannot be held liable in

damages for intra-military torts. Intra-military immunity also

results in state servicemembers being unable to sue state

governments or state official capacity defendants for damages

for federal violations; but, again, this is not because the

immunity doctrine, itself, extends to them. States and state

official capacity defendants cannot be held liable for damages

for federal law violations because they have Eleventh

Amendment immunity and are not "persons" liable for

damages under 42 U.S.C. § 1983. See Will v. Michigan

Dep't of Police, 491 U.S. 58 (1989).

7

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, 3044 In United States v.

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

The Court held intra-military, individual capacity damages

actions barred, but also echoed Chappell's distinction between

"redress designed to halt or prevent the constitutional

violation" from “award of money damages." 483 U.S. at 683.

In distinguishing official capacity equitable suits from

individual capacity damages actions, the Court in neither

Chappell nor Stanley expressly addressed individual capacity

equitable suits. Hicks's suit, however, does not raise this

issue, since, as an official capacity suit, it does not raise intra-

military immunity at all.5 Similarly, the Eleventh Circuit's

distinction between official capacity suits involving individual

decisions, and those involving facial challenges, has no basis

in intra-military immunity--again because official capacity

suits do not implicate this doctrine.

4 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". Jd. This point

is inapplicable to official capacity suits.

5 See n. 3, supra.

8

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 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").

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

Hicks does not claim that his separation was based on

unsound military judgment. Rather, he claims that his

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

was separated in retaliation for exercise of First Amendment

and federal statutory nights. Adjudication of these claims

requires no military expertise. It does not involve review of

t

9

the wisdom of military opinions. The Eleventh Circuit's

distinction between official capacity suits involving individual

decisions, and those involving facial challenges, also has no

basis in the Curran principle. The Curran principle could

apply, or not apply, in either type of case, since its

applicability depends on whether the specific issues raised

require military expertise.

On this point, the Speigner court, 248 F.3d at 1296,

erroneously relied on the remark in Watson v. Arkansas

National Guard, 886 F. 2d 1004, 1008 (8th Cir. 1989), 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 v.

Wallace, 462 U.S. 296, 304 (1983).

As noted, the principle which holds claims nonjusticiable

due to lack of judicial competence applies only to a "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.

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

10

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").6 The Schonbrun principle does not apply to suits, like

Hicks's, which challenge military separations rather than call-

up orders. Hicks'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 (Fed. Cir. 1989);

Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979).

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 US. at 304. On this point, the Speigner court

erroneously relied on Knutson v. Wisconsin Air National

6 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.

11

Guard, 995 F.2d 765 (7th Cir. 1993). 248 F.3d at 1296.

Nothing supports the Knutson notion that, since 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.

Since reinstatement is an available remedy in correction

board cases, 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 Hicks, since separation from the Guard

simultaneously severs federal as well as state military

membership. See Dibble v. Fenimore, 84 F. Supp. 2d 315

(N.D. N.Y. 2000) (refusing to dismiss claim for reinstatement

in state National Guard and granting summary judgment and

remanding for reconsideration correction board's denial of

federal military reinstatement, where denial of state and

federal reenlistment alleged to be in retaliation for exercise of

First Amendment and federal statutory and regulatory rights),

interlocutory appeal pending, No. 00-6243 (2d Cir. argued

Feb. 14, 2001). Given the undisputed availability of judicial

12

review of federal military separation, it makes no sense to

deny review of simultaneous state military separation resulting

from the same decision, made for the same reasons.”

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 seqg., 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").®

7 Hicks's challenge to his federal military separation is pending

before the correction board.

8 The Curran court invoked this principle. 420 F.2d at 128.

Curran, however, was decided before the Supreme Court's

decision in Citizens to Preserve Overton Park. Under the

latter decision, a statute requiring use of an "available"

resource likely 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 2n otherwise

cognizable legal standard are nonjusticiable if interpretation or

application of the standard requires military expertise beyond

judicial competence.

Si

13

Hicks's claims do not concern matters that would be

deemed committed to agency discretion under the APA if his

suit concerned federal (rather than state) military separation,

and were brought against the federal Secretary of the Air

Force (rather than the state Adjutant General). Hicks'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); 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 v. 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 constitutional or statutory claim is based on a

cognizable legal standard, moreover, does not depend on

whether the claim challenges a military regulation on its face

or challenges an individual decision. The same constitutional

or statutory standard could be invoked in either type of case.

None of the four bases of the nonjusticiability doctrine

applies to Hicks's claims. And none of the differences

between facial challenges to regulations and challenges to

actions taken for undisclosed but unconstitutional reasons

14

have any bearing on justiciability. The Eleventh Circuit's

“facial challenges only" rule 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

Counsel of Record for Petitioner

March 14, 2002

ae a P Sand ——_ =e hte = —st? :: “rt oe rd ee Se ee ee er — = hoes

APPENDIX

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-13887

Non-Argument Calendar

D.C. Docket No. 99-00683-CV-J-25

MICHAEL E. HICKS,

Plaintiff-Appellant,

versus

RONALD O. HARRISON, Major General,

Florida Army National Guard,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(December 18, 2001)

Before BLACK, MARCUS and COX, Circuit Judges.

PER CURIAM:

2a

Michael E. Hicks appeals the district court's dismissal of

his 42 U.S.C. § 1983 claim seeking declaratory and injunctive

relief against the Adjutant General of the Florida National

Guard in his official capacity. Hicks alleges that the Florida

National Guard violated his constitutional and statutory rights

by declining to retain him as a Florida National Guard

member. The district court, applying our decision in Speigner

v. Alexander, 248 F.3d 1292, 1298 (11th Cir. 2001),

concluded that Hicks's alleged injury was incident to military

service and therefore nonjusticiable. The district court

correctly applied the law of this circuit and properly dismissed

Hicks's claims as nonjusticiable. Accordingly, the judgment of

the district court is

AFFIRMED.

3a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL E. HICKS,

Plaiatiff,

vs. CASE NO. 3:99-cv-683-J-

25TJIC

RONALD O. HARRISON,

Defendant.

/

ORDER

THIS CAUSE is before the Court on Defendant's Motion

to Dismiss or, in the Alternative, Motion for Summary

Judgment (Dkt. 7), and Plaintiff's response thereto.

Plaintiff is a former member of the Florida Air National

Guard (FLANG") and a former federal service technician

employed by FLANG, pursuant to 32 US.C. § 709

("National Guard Technicians Act"). The national Guard

Technicians Act made Plaintiffs civilian employment

contingent on maintaining his membership in FLANG. In

1996, Plaintiff was not selected for retention in FLANG, ad as

a result, he was separated from his civilian technician position.

Plaintiff breings this 42 U.S.C. § 1983 equitiable action,

challenging the Selective Retention Review Board's decision

not to select him for retention in FLANG.! Specificaly he

1 The Selective Retention Review Board is appointed by the

state Adjutant General to consider, under the guidelines of the

4a

claims thqt the Board's decision was based on their anti-union

hostility? and contends that the Board's actions violated his

rights under the First Amendment of the United State[s]

Constitution and his statutory right to assist and act for a

labor organization, under 5 U.S.C. § 7102.3

By this motion, Defendant seeks dismissal of this lawsuit

under Federal Rules of Civil Procedure 12(b)(1) and (6),

contending that Plaintiff's claims are not justiciable because

this action arises out of or in the course of activity incident to

military service. For the following reasons the Court finds

that the above-styled action should be dismissed under

Federal Rule of Civil Procedure 12(b)(6) for Plaintiff's failure

to state a claim upon which relief may be granted.

Dismissal for failure to tate a claim upon which relief may

be granted is appropmate only if "it appears beyond a doubt

that the plaintiff can prove no set of facts in support of his

claims which would entitle him to relief." Conley v. Gibson,

National Guard Regulation (AF) 35-6, whether to retain

FLANG members.

2 Plaintiff held a position as a union steward in his civilian

capacity with the FLANG.

3 "Although the National Guard has both state and federal

characteristics . . . [an] action by the National Guard of a

particular state is considered state action . . . and therefore

suits alleging constitutional violations of the Guard and its

personnel are brought under § 1983, rather than Bivens [v.

Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971), which authorizes suites

against federal officials whose actions violate an individual's

constitutional rights.] Watson v. Arkansas National Guard,

886 F.2d 1004, 1007 (8th Cir. 1989) (Citations omitted).

|

Sa

355 U.S. 41, 45-46 (1957). In making this determination, the

Court is restricted to consideration of facts alleged in the

complaint itself. Milburn v. United States, 734 F.2d 762, 765

(11th Cir. 1984). Further, the facts set forth in the compliant

must be viewed in the light most favorable to the plaintiff.

Quality Foods De Centro America v. Latin American

Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th

Cir. 1983). Essentially, Defendant's basis for dismissal is that

this action is nonjusticiable.

Plaintiff's position as a National Guard technician is

military in nature. See Nesmith v. Fulton, 615 F.2d 196, 201

(Sth Cir. 1980). And as such the Court's analysis of the

justiciability of his claims begins with the doctrine espoused in

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

most recently by the Supreme Court in United States v.

Stanley, 483 U.S. 669 (1987).

Feres involved claims brought against the military under

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

seq., which waives the federal government's sovereign

immunity for actions claiming injuries negligently caused by

government employees acting within the scope of their

employment, if a private person would be liable under the

same circumstances. The Supreme Court in Feres created a

judicial exception to this congressionally created waiver. The

exception provides that military personnel may no recover

damages [under the FTCA) for injuries "aris[ing] out of or are

in the course of activity incident to [military] service." Feres,

340 U.S. at 146. The key rationale behind this exception was

the Supreme Court's concern that civilian courts would

improperly interfere with military discipline and second guess

discrete military personnel decisions.

A test for liability that depends on the extent to which

particular suits would call into question military

6a

discipline and decisionmaking would itself require

judicial inquiry into, and hence intrusion upon, military

matters. . . . Even putting aside the risk of erroneous

judicial conclusions (which would becloud military

decisionmaking), the mere process of arriving at

correct conclusions would disrupt the military regime.

Stanley, 483 at 682-83; see also United States v. Shearer, 473

U.S. 52, 57 (1985). In 1983 the holding in Feres was

extended to all suits for damages where the injuries arise out

of or are in the course of activity "incident to service."

Chappell v. Wallace, 462 U.S. 296, 305 (1983).

The Feres "incident to service" standard applies to seciton

1983 claims for damages as well. See Wright v. Park, 5 F.3d

586, 591 (1st Cir. 1993); Watson v. Arkansas National

Guard, 886 F.2d 1004, 1007 (8th Cir. 1989); Jorden v.

National Guard Bureau, 799 F.2d 99, 106 (3d Cir. 1986);

Crawford v. Texas Army National Guard, 794 F.2d 1034,

1036 (Sth Cir. 1986); Martelon v. Temple, 747 F.2d 1348,

1350-51 (10th Cir. 1984), cert. denied, 471 U.S. 1135

(1985). However, in this case, Plaintifff does not seek

monetary relief pursuant to section 1983, but seeks injunctive

relief. Thus, the question before this Court is whether

Plaintiffs section 1983 claims for equitable relief are also

barred by Feres and its progeny. The Eleventh Circuit

recently answered this question, finding that equitable relief,

like monetary relief, is unavailable if the plaintiff's injury was

incident to service. See Speigner v. Alexander, 248 F.3d

1292, 1298 (11th Cir. 2001).

Thus, the only question remaining is whether Plaintiff's

injury in this case was "incident to service." The Court must

consider the following factors in making this determination:

Ta

(1) the duty status of the service member, (2) the place

where the injury occurred, and (3) the activity the

serviceman was engaged in at the time of injury.

Pierce v. United States, 813 F.2d 349, 352-53 (11th Cir.

1987) (per curiam); see also Whitley v. United States, 170

F.3d 1061, 1070 (11th Cir. 1999). There can be no question

that the factors in Pierce have been met in this case. See

Speigner, 248 F.3d at 1298. Moreover, the Selective

Retention Review Board's decision not to retain Plaintiff in

military service is the quintessential example of a suit that is

nonjusticiable because, in the Supreme Court's view, the

Court's inquiry into these matters would interfere with military

discipline and second guess discrete military personnel

decisions.

Accordingly, it is ORDERED:

1. Defendant's Motion to Dismiss (Dkt. 7-1) is GRANTED,

and the above-styled aciton is DISMISSED WITH

PREJUDICE.

2. The hearing on this motion, scheduled for June 28, 2001,

is CANCELLED.

3. The Clerk is DIRECTED to enter final judgment in favor

of Defendant and against Plaintiff and to close this case.

DONE AND ORDERED in Chambers this 14th day of

June, 2001.

/s/__

HENRY LEE ADAMS, JR.

UNITED STATES DISTRICT JUDGE

Copies to:

Honorable Timothy J. Corrigan

Counsel of Record

Law Clerk

Courtroom Deputy