Petition for Writ of Certiorari — Speigner v. Alexander

Ay

01 561 SEP > 72008

NO.:

In The

Supreme Court of the United States

4

MARVIN K. SPEIGNER, JR.,

Petitioner,

vs.

WILLIE A. ALEXANDER, CLYDE C. HENNIES, and

THE ALABAMA STATE MILITARY DEPARTMENT,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

e

PETITION FOR WRIT OF CERTIORARI

.

COUNSEL FOR PETITIONER:

J. DOYLE FULLER,

Law Office of J. Doyle Fuller,L.L.C.

2851 Zelda Road

Montgomery, Alabama 36106

(334) 270-0020

Ee

i

QUESTION PRESENTED FOR REVIEW

In 1998, Petitioner Marvin K. Speigner, Jr. was a Lieuten-

ant Colonel in the Alabama Army National Guard. That year,

the Selective Retention Board (“SRB”) of the Alabama Army

National Guard recommended that the Petitioner not be re-

tained and the Petitioner left the Army National Guard in April

of 1998. Between the years of 1996 through 1999, the SRB did

not retain 41 white male officers of the Alabama Army Na-

tional Guard while black officers had a 100% retention rate.

On July 9, 1999, the Petitioner filed a complaint against the

Respondents in the Circuit Court of Montgomery County, Ala-

bama, alleging racial discrimination under 42 U.S.C. §1981,

denial of equal protection under 42 U.S.C. §1983, denial of due

process under 42 U.S.C. §1983 and a race-based conspiracy

under 42 U.S.C. 1985(3). The Complaint sought damages and

declarative and injunctive relief but the Petitioner eventually

voluntarily dismissed all claims for damages. The Respon-

dents filed a Notice of Removal to the Federal District Court

for the Middle District of Alabama.

On April 10, 2000, the Respondents filed a Motion for Sum-

mary Judgment on the basis that the claims raised by the Peti-

tioner for injunctive and declaratory relief were nonjusticiable

and the District Court granted summary judgment on this ba-

sis. A timely appeal was taken to the United States Court of

Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed

the decision of the District Court, holding that all “cases

brought by military personnel against the military for injuries

incident to service are nonjusticiable, whether the claims re-

i

li

quest monetary damages or injunctive relief.”

The question presented in this case, as to which the courts

of appeals are in conflict and which the Eleventh Circuit Court

of Appeals decision is in conflict with this Court, is as follows:

Whether military personnel are barred by the doctrine of

nonjusticiablity from redress designed to halt or prevent un-

constitutional discrimination under 42 U.S.C. §1981, §1983 and

§1985(3) against the Alabama Army National Guard and its

Adjutant General.

RULES 29.6 AND 14.1 STATEMENT

Petitioner is an individual adult resident of the State of

Alabama. Until April of 1998, the Petitioner was a Lieuten-

ant Colonel in the Alabama Army National Guard.

Respondents are the Alabama State Military Department;

Clyde C. Hennies, Major General, former Adjutant General,

Alabama Army National Guard; Willie A. Alexander, Major

General, former Adjutant General of the Alabama Army Na-

tional Guard.

iii

PARTIES TO THE PROCEEDINGS

Petitioner:

Marvin K. Speigner

Counsel for the Petitioner

J. Doyle Fuller

Law Office of J. Doyle Fuller, L.L.C.

2851 Zelda Road

Montgomery, Alabama 36106

(334) 270-0020

. Respondents:

Willie A. Alexander

Clyde C. Hennies

Alabama State Military Department

Counsel for Respondents

The Honorable Bill Pryor _

Attorney General of Alabama

J. Park, Jr.

Margaret L. Fleming

Assistant Attorneys General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

Courtney W. Tarver

Bureau of Legal Services

P.O. Box 301410

Montgomery, Alabama 36130-0410

——— ee ee ee, eee eee ee eee we ee Tee eee ee A eee ee

Vv

TABLE OF CONTENTS

PAGE(S)

COTES LIN FINES CUNR vscnnenenssesnictsnnnnisnsniasniisisibnnsenennsinainiuiessiin i

RULES 29.6 AND 14.1 STATEMENT ...........ccccssesssssssessesseesreees ii

TAS GP AGF ie ROO catccesccctsonsnsensscssasennessininasinaniinninnniis Vii

Ce ITY sanrctitianasnipassctabeisinssiassaissansipniecssnsintimndabaiaineanis 1

CONSTITUTIONAL AND STATUTORY

FV Ae CUED saticeninissnnionminncsoinscatantinssiamnieonniiniosio 1

SEAT IIGE cctecnnnseniiecnssnionsatccsnininentoninheanssnniiiienssiapinsoeiaisbionnensan 3

A. ACTUAL AND PROCEDURAL BACKGROUND .... 3

B. THE DISTRICT COURT'S RULING .........cccesseeseeeees 5

C. THE ELEVENTH CIRCUIT'S DECISION ..............0008 6

REASONS FOR GRANTING THE PETITION .............ccccesesees 7

I. THIS COURT'S DECISION IN

CHTAPPELL AIG? BEATINGS sicecnssesnssccrninniandsnonsisniniisisins 7

I]. THE CIRCUITS ARE SPLIT OVER WHETHER

MILITARY PERSONNEL ARE BARRED FROM

BRINGING ACTIONS FOR INJUNCTIVE

AND DECLARATORY RELIEF DESIGNED

TO PREVENT OR HALT CONSTITUTIONAL

Fae EE sxsinsccnsereniseitoninliantinnintviinsinccesijuiaiséteaitnesniviasi -

II. THE ELEVENTH CIRCUIT’S LIMITING OF

THIS COURT’S STATEMENT IN CHAPPELL

AND STANLEY CONFLICTS WITH THIS

COURT'S CLEAR BIL AIIINGS, wsesecincisssissssnsscsnassiasonsans 14

CGE eG aicinstnsantccisnicinteionsedilassdaniitaisniniaiiiabieniasiaiiniban 20

vi

INDEX TO APPENDICES

. Memorandum Opinion of the United States

District Court for the Middle District of Alabama,

Northern Decision ...........::s:sesssssseseseneeneneneneenenenees App. 1-15

. Opinion of the United States Court of Appeals for

the Eleventh Circuit affirming the judgment of the

. Order of the United States Court of Appeals for the

Eleventh Circuit denying Petitioner’s Petition for

Rotrenrinag Tita Ba gie 2....ccocescccccsscsscscsscesecsnsescsssssonees App. 29-30

, 42 USC. § 19B1 ononccccccccccceccoscscocsccsscsscscessnssscocessscscssasees Page 1

>» EZ US. & TGS ocecercccrererecceserercrsesesecsceseccscsnssecnsnssnsaseoase Page 2

MUSE 6 I... cance Page 2

Vii

TABLE OF AUTHORITIES

PAGE(S)

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) .........s000000. 18

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

CREED <ncesstilinctsnnncinsniniessnhcninisnanitnintiaieeninninnmaniiianieis 6, 7, 8, 10, 13, 14,

15, 16, 17, 18, 20

Crawford v. Board of Education of City of Los Angeles,

458 U.S. 527, 102 S.Ct. 3211 (1982) .............000+. ianninenttiibienantinnin 17

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

Pe aa IID aiincessisichsennesniaienntbceniapainadatisii 9, 12, 16

Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95

SeDnDanEe SANOL EU UMUUNS estciccirsbnaineticesemnbepaiacdntchainneeemiiniiniiai 12

Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1974) ..... 16

Jones v. New York State Div. of Military and Naval

Affairs, 166 F.3d 45, 52 (24 Cir. 1999) ........ccesecsecseees iinet 9,12

Jorden v. Nat'l Guard Bureau, 799 F.2d 99 (3™ Cir. 1986)..... 9, 14

Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765

ge CREASES aS ht A 9,10, 12,17

Vili

Meister v. Texas Adjutant Gen. Dep’t., 233 F.3d 332

Saas STII sc sciatsbnsiiiplaninnidneaiaalsteclalainoeaanitdhailabaiisdibines 9,12

Mindes v. Seamon, 453 F.2d 197 (5 Cir. 1971) ........cssssssseeeeees 12

M.L.B. v. S.L.J., 519 US. 102, 105, 117 $.Ct. 555,

ie ta ida 17

Personnel Administrator of Massachusetts, 442 U.S. 256,

PE, Tae OD eatcscetncnistncrcinnioriegentimnianinninsnbsianiansagecsmeniintian 17

Speigner v. Alexander, 248 F.3d 1292, 1298

Ce, REL aaa ea eee 2 ee 6,9, 10, 16

United States v. Stanley, 483 U.S. 669, 107 S.Ct.

TO GIT ? sisrasciisiniintitrnniinteisinnsisainiapentation 6,7, 8, 10, 12, 13,

14, 15, 16, 18, 20

‘Watson v. Arkansas Nat’! Guard, 886 F.2d 1004

GF Cae BEG) eceitctiscsesstnnnsnccceninnieniinsuanvbennannntintsinemnnitiinsaneanisansimnnnnsas 9

Wigginton v. Centracchio, 205 F.3d 504 (1* Cir. 2000).......... 9,13

Constitutional and Statutory Provisions:

G2 UGA BEE weeccnnticansnsineseqcieiennencrcetamininniamartinssniiasisnenmenen L,5

PETITION FOR A WRIT OF CERTIORARI

Petitioner Marvin K. Speigner, Jr. respectfully petitions for

a writ of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

5

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 16b-28b) is

reported at 248 F.3d 1292. The opinion of the district court

(App., infra, 1a-15a) is not a published decision.

5

JURISDICTION

The judgment of the Eleventh Circuit Court of Appeals was

entered on April 24, 2001. A timely application for rehearing

was filed by the Petitioner. Said Application for Rehearing

was denied by the Eleventh Circuit Court of Appeals on June

29, 2001. (App. infra, 29c-30c). The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

©

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED |

§1981. Equal rights under the law.

“All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make

and enforce contracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citi-

zens, and shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and to no other.”

§1983. Civil action for deprivation of rights.

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any 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 jurisdic-

tion thereof to the deprivation of any rights, privileges, or im-

munities 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. For the purposes of this sec-

tion, any Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the District

of Columbia.”

§1985. Conspiracy to interfere with civil rights.

“...(3) Depriving persons of rights or privileges. If two or

more persons in any State or Territory conspire, or go in dis-

guise on the highway or on the premises of another, for the

purpose of depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws, or of

equal privileges and immunities under the laws, or for the

purpose of preventing or hindering the constituted authori-

ties of any State or Territory from giving or securing to all per-

sons within such State or Territory the equal protection of the

laws’ or if two or more persons conspire to prevent by force,

intimidation, or threat, any citizen who is lawfully entitled to

vote, from giving him support or advocacy in a legal manner,

toward or in favor of the election of any lawfully qualified

person as an elector for President or Vice-President, or as a

member of Congress of the United States; or to injure any citi-

zen in person or property on account of such support or advo-

cacy; in any case of conspiracy set forth in this section, if one

or more persons engaged therein do, or cause to be done, any

act in furtherance of the object of such conspiracy, whereby

another is injured in his person or property, or deprived of

having and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have an

action for the recovery of damages, occasioned by suchinjury

or deprivation, against any one or more of the conspirators.”

*

STATEMENT OF THE CASE

The issue in this case is whether, military personnel are

barred by the doctrine of nonjusticiablity from redress designed

to halt or prevent unconstitutional discrimination under 42

U.S.C. §1981, §1983 and §1985(3) against the Alabama Army

National Guard and its Adjutant General.

A. FACTUAL AND PROCEDURAL BACKGROUND

In 1998, Marvin K. Speigner, Jr. was a Lieutenant Colonel

4

in the Alabama Army National Guard. Because the Petitioner

had over 20 years of service, he had to undergo an annual re-

view of his military record by the Selective Retention Board of

the Alabama Army National Guard (hereinafter referred to as

“SRB”). The SRB was responsible for making recommenda-

tions to the Adjutant General concerning the continued ser-

vice of all commissioned Officers and Warrant Officers of the

Alabama Army National Guard with over twenty (20) years

of service. The SRB made the decision whether officers and

warrant officers with over twenty years service were retained

or non-retained within the Army National Guard. In 1997, the

SRB recommended that the Petitioner be retained for one year

and in 1998, the SRB recommended that the Petitioner not be

retained. The Petitioner left the Alabama Army National Guard

in April of 1998. Prior to the Petitioner’s separation from the

Alabama Guard, he had heard Respondent Clyde Hennies,

then Adjutant General of the Alabama Guard, comment about

the lack of black colonels on his staff and that he wanted to do

something about this fact.

Between the years of 1996 through 1999, the SRB did not

retain 41 white male officers of the Alabama Army National

Guard while black male officers had a 100% retention rate.

Only one female and one “other” male were not retained dur-

ing this period. Although regulations require that SRB panels

consist of three or nine members, Respondent Hennies received

an exception to expand the panels to five members. Regula-

tions also precluded a member of a SRB panel from sitting on

panels in consecutive years. Respondent Willie Alexander,

Adjutant General of the Alabama Guard at the time this action

5

was filed, received special permission to sit on the 1997 and

1998 SRB panels pursuant to a request by Respondent Hennies.

On July 9, 1999, the Petitioner filed a complaint against the

Respondents in the Circuit Court of Montgomery County, Ala-

bama. The complaint contained allegations of racial discrimi-

nation under 42 U.S.C. §1981, denial of equal protection under

42 U.S.C. §1983, denial of due process under 42 U.S.C. §1983

and a race-based conspiracy under 42 U.S.C. 1985(3). The Re-

spondents filed a Notice of Removal to the Federal District

Court for the Middle District of Alabama.

The Complaint initially sought damages and declarative

and injunctive relief but the Petitioner eventually voluntarily

dismissed all claims for damages. The District Court eventu-

ally dismissed all Petitioner’s claims against Respondent

Hennies and all claims against Alexander in his individual

capacity.

On April 10, 2000, the Respondents filed a Motion for Sum-

mary Judgment with the District Court on behalf of Alexander

in his official capacity and the Alabama Military Department

on the basis that the claims for injunctive and declaratory re-

lief were nonjusticiable. The District Court granted summary

judgment on this basis.

B. THE DISTRICT COURT’S RULING

In the District Court’s memorandum opinion in this case,

the District Court found that the Petitioner’s claims for injunc-

tive and declaratory relief on the basis of intentional racial and

gender discrimination were not justiciable. Although the Dis-

trict Court noted that “[i]t seems antithetical to our system of

justice to say that a court cannot redress intentional racial dis-

crimination in our armed forces,” App., infra, 15a, it found that

it was bound to follow the law of this Court. The law to which

the District Court referred was this Court's opinions in Chappell

v. Wallace, 462 U.S. 296, 103 S.Ct. 2362 (1983) and United States

v. Stanley, 483 U.S. 669, 107 S.Ct. 2362 (1987). The Petitioner

filed a timely notice of appeal.

C. THE ELEVENTH CIRCUIT’S DECISION

Affirming the District Court, the Eleventh Circuit specifi-

cally held that “cases brought by enlisted’ personnel against

the military for injuries incident to service are nonjusticiable,

whether the claims request monetary or injunctive relief.”

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

The holding of the Eleventh Circuit, like the District Court's

ruling, stems from that Court's interpretation of this Court’s

opinions in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362 (1983)

and United States v. Stanley, 483 U.S. 669, 107 S.Ct. 2362 (1987).

The Eleventh Circuit, while recognizing that this Court's state-

ment in Chappell and Stanley that injunctive relief is available

' It should be noted that the Petitioner was not an enlisted personnel.

Instead, the Petitioner was a commissioned officer. While this appears to be

a distinction without a difference because the same constitutional rights

should be afforded to enlisted men and women as well as commissioned

officers, the Petitioner wanted to note this technical error in the Eleventh

Circuit's holding. m

to military personnel to halt or prevent constitutional viola-

tions, chose to limit that relief to attacks on the facial validity

of military regulations.

©

REASONS FOR GRANTING THE PETITITION

This Court should grant review for, at least, two reasons.

First, the Eleventh Circuit’s decision in this case relates to an

important question that conflicts with this Court’s previous

decisions in Chappell and Stanley. Second, there is a conflict

among the circuits as to the precise issue raised in this Peti-

tion, i.e., whether military personnel are barred by the doc-

trine of nonjusticiability from redress designed to halt or pre-

vent constitutional violations. The conflict between the Elev-

enth Circuit’s decision and this Court’s plain language in

Chappell and Stanley and the conflict among the circuits needs

to be settled by this Court.

I. THIS COURT’S DECISIONS IN CHAPPELL AND

STANLEY

In Chappell, 462 U.S. at 305, 103 S.Ct. at 2368, this Court

held that “enlisted military personnel may not maintain a suit

to recover damages from a superior officer for alleged consti-

tutional violations.” This Court noted that as

Chief Justice Warren had occasion to note that ‘our

citizens in uniform may not be stripped of basic rights

simply because they have doffed their civilian clothes.’

E. Warren, The Bill of Rights and the Military, 37

N.Y.U.L.Rev. 181, 188 (1962). This Court has never held,

; 2 ond pe ; ‘tutional

a , - ion, Goo.

e.g., Brown v. Glines, 444 U.S. 348, 100 S.Ct. 609, 62

L.Ed.2d 540 (1980); Parker v. Levy, 417 U.S. 733, 94S.Ct.

2547, 41 L.Ed.2d 439 (1974); Frontiero v. Richardson, 411

US. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

Chappell, 462 U.S. at 304, 103 S.Ct. at 2368 (emphasis added).

Then in Stanley, this Court reiterated its earlier holding in

Chappell by stating that a member of the armed forces could

not maintain an action for damages, against his superiors for

injuries arising out of activity that was “incident to service.”

However, this Court clarified somewhat its statement in

Chappell which is highlighted in the quote from Chappell. This

Court stated that its statement that “we have ‘never held, nor

do we now hold, that military personnel are barred from all

redress in civilian court for constitutional wrongs suffered in

the course of military service” “referred to redress designed to

hal ‘tutional violati her 6 ;

award of money damages.” Stanley, 483 U.S. at 683, 107 S.Ct.

at 3063 (emphasis added).

This Court has specifically stated that military personnel

are not barred from maintaining an action designed to halt or

prevent, i.e., declaratory or injunctive relief, constitutional vio-

lations. Thus, the Eleventh Circuit’s decision limiting redress

9

of military relief for constitutional violations to just those ac-

tions attacking the facial validity of military regulations is in

conflict with this Court’s decisions in Chappell and Stanley.

Il. THE CIRCUIT’S ARE SPLIT OVER WHETHER MILITARY

PERSONNEL ARE BARRED FROM BRINGING ACTIONS

FOR INJUNCTIVE AND DECLARATORY RELIEF DE-

SIGNED TO PREVENT OR HALT CONSTITUTIONAL

VIOLATIONS.

As the Eleventh Circuit noted in its opinion, there is a split

among the circuit courts of appeal as to whether claims for

injunctive relief for constitutional violations, as well as dam-

age claims, are “nonjusticiable.” The Second, Fifth, Seventh,

Eighth Circuits have all held that claims by military personnel

for injunctive relief are barred by the doctrine of

nonjusticiability. Jones v. New York State Div. of Military and

Naval Affairs, 166 F.3d 45, 52 (2 Cir. 1999); Meister v. Texas Ad-

jutant Gen. Dep’t., 233 F.3d 332 (5 Cir. 2000); Crawford v. Texas

~ Army Nat'l Guard, 794 F.2d 1034, 1036 (5" Cir. 1986); Knutson v.

Wisconsin Air Nat'l Guard, 995 F.2d 765 (7" Cir. 1993); Watson v.

Arkansas Nat'l Guard, 886 F.2d 1004 (8" Cir. 1989). However,

the First and Third Circuits have held that such actions are

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

Jorden v. Nat’l Guard Bureau, 799 F.2d 99 (3 Cir. 1986). The

Eleventh Circuit has added another conflict by holding that

all claims by military personnel for injunctive relief for consti-

tutional violations are barred except those attacking the facial

validity of military regulations. Speigner, supra.

10

Thus, differing circuits have reached totally opposite in-

terpretations of this Court's statements in Chappell and Stanley.

As the Eleventh Circuit noted in Speigner, “Despite the Su-

preme Court's attempt in Stanley to harmonize the approaches

of the courts of appeal, implementation of Stanley has been

inconsistent in cases for injunctive relief.” Speigner, 248 F.3d ar

1296. Thus, the Eleventh Circuit recognizes that the issue the

Petitioner presents in this Petition is one that needs to be settled

by this Court.

In its opinion, the Eleventh Circuit relied on those cases

from the Second, Fifth, Seventh and Eighth Circuit. That court

cites the Seventh Circuit’s opinion in Knutson, supra, for the

principle that actions by military personnel seeking injunctive

or declaratory relief are “nonjusticiable.” Knutson cannot be

read so broadly. Indeed, it recognizes that all claims of mili-

tary personnel are not barred in civilian courts:

Although the treatment of justiciability by the par-

ties in their briefs is sparse, WLANG argued that staff-

ing and the nondiscriminatory administration of its

regulations governing the retention of personnel are of

sufficient importance to preclude our review at this

stage. Traditionally, support for the view that claims

concerning the composition of the military do not lie

within the purview of the judiciary have been found in

Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed.2d

482 (1953) and Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct.

2440, 37 L.Ed.2d 497 (1973). In an oft quoted passage

from Orloff, the Supreme Court noted:

11

{JJudges are not given the task of running the

Army. The responsibility for setting up chan-

nels through which [complaints of discrimina-

tion, favoritism, etc.] can be considered and

fairly settled rests upon the Congress and upon

the President of the United States and his sub-

ordinates. The military constitutes a special-

ized community governed by a separate disci-

pline from that of the civilian. Orderly govern-

ment requires that the judiciary be as scrupu-

lous not to interfere with legitimate Army mat-

ters as the Army must be scrupulous not to in-

tervene in judicial matters.

Orloff, 345 U.S. at 93-94, 73 S.Ct. at 540. But reading

Orloff to support broad deference to the military ignores

the-narrow context in which this language is meant to

apply. Deference to the military only affected the Su-

preme Court’s judgment as to the merits of Orloff’s

constitutional claim, not the question of whether it

should have reviewed the claim at all. Id., 345 U.S. at

91,73S.Ct. at 539. Gilligan, which arose out of the tragic

events at Kent State, contains similarly sweeping lan-

guage. According to the Gilligan Court, the Constitu-

tion vests ‘[t]he complex, subtle and professional deci-

sions as to the composition, training, equipping, and

control of a military force’ exclusively in the legislative

and executive branches. Gilligan, 413 U.S. at 10, 93S.Ct.

at 2446 (It should be clear that we neither hold nor im-

12

ply that the conduct of the Nationa! Guard is always

beyond judicial review or that there may not be account-

ability in a judicial forum for violations of law or for

specific unlawful conduct by military personnel.

Knutson, 995 F.2d at 768.

The Court, in Knutson, ultimately determined Knutson’s

claims to be nonjusticiable because of the underlying nature

of the claims. Knutson attacked the procedures by which he

was terminated without any allegation, as we have in this case,

of prohibited discrimination.

As stated above, the Eleventh Circuit relied on two Fifth

Circuit cases. The first, Crawford, supra, predated Stanley and

thus, has little precedential value. While the Fifth Circuit held

the plaintiff's claims for injunctive relief to be barred, it did

acknowledge that such claims should be “carefully regulated,”

not completely barred. Crawford, 794 F.2d at 1037.

The second case, Meister, supra, addressed the claims of a

civilian employee of the guard. The Fifth Circuit specifically

held that the “incident to service” test of Feres v. United States,

340 U.S. 135, 71 S.Ct. 153, 95 L.Ed.2d 152 (1950) did not bar the

plaintiff's claims as to failure to promote. The Fifth Circuit

then sent the plaintiff's other claims back to the lower court

for evaluation under Mindes v. Seamon, 453 F.2d 197 (5" Cir.

1971).

Reliance by the Eleventh Circuit on the Third Circuit's opin-

ion in Jones, supra, is misplaced. The Third Circuit in that case

found that Jones was attacking the sufficiency of the process

by which he was terminated, and since he had failed to seek

13

available administrative remedies, his claims were

nonjusticiable. The Third Circuit upheld the exhaustion of

administrative remedies requirement because it was contained

in the very regulation which the plaintiff sought to enforce.

The Eleventh Circuit did recognize that the First and Third

Circuits, relying on Stanley and Chappell, had found that ac-

tions, such as the one at bar, which seek only injunctive and

declaratory relief, are justiciable. In Wigginton, supra, the plain-

tiff, a major in the Rhode Island Army National Guard, was

terminated at the recommendation of a selective retention

board. He brought suit under 42 U.S.C. §1983 challenging his

termination. While the First Circuit held that Wigginton’s dam-

age claims were not justiciable, it determined that the injunc-

tive and declaratory claims were clearly justiciable. That court

held:

The second, and controlling, reason is that, taken

together, Chappell and Stanley, the Supreme Court deci-

sions Wright v. Park, built upon - make it clear that

intramilitary suits alleging constitutional violations but

not seeking damages are justiciable.

Wigginton, 205 F.3d at 512.

In an opinion following Chappell, but predating Stanley, the

Third Circuit also followed the simple and plain language of

the Supreme Court in Chappell to hold that the nonjusticiablity

principle of Chappell did not extend to claims for injunctive

relief:

14

Although the District Court made no specific men-

tion of Jorden’s claims for injunctive relief, i.e., reinstate-

ment, it apparently found those claims barred by

Chappell. We disagree. Chappell itself suggests that it

leaves open claims for injunctive relief against the mili-

tary, and has been so interpreted by every court to con-

sider the question. Moreover, we find that permitting

injunctive relief while denying a damages remedy is

supported by considerations of policy. Finally, the law

of this circuit dictates that Jorden’s claim for injunctive

relief be permitted.

Jorden, 799 F.2d at 109.

As can be seen above from the cases cited above, the courts

of appeal of this nation are sharply in conflict over this Court’s

decisions in Chappell and Stanley. At the present time, the resi-

dence of our military personnel determines whether those per-

sons may seek redress to prevent or halt constitutional viola-

tions. This unequal treatment of these personnel, due to the

conflicts between the circuits, presents a compelling reason for

this Court to grant certiorari review of this issue.

Ill. THE ELEVENTH CIRCUIT'S LIMITING OF THIS

COURT’S STATEMENTS IN CHAPPELL AND STANLEY

CONFLICTS WITH THIS COURT’S CLEAR HOLDING.

The year after Jorden, supra, this Court decided Stanley. In

the wake of Chappell, much discussion arose over this Court's

statement in Chappell, 462 U.S. at 304, 103 S.Ct. at 2368, that

a

15

“this Court has never held, nor do we now hold, that military

personnel are barred from all redress in civilian courts for con-

stitutional wrongs suffered in the course of military service.”

As stated above, this Court clarified this statement in Stanley

by stating that the Court referred to “redress designed to halt

or prevent the constitutional violation rather than the award

of money damages.” 483 U.S. at 683, 107 S.Ct. at 3063.

The Petitioner in this case brought this action for declara-

tory and injunctive relief in an attempt to halt and prevent the

SRB from making retention decisions that were racial and gen-

der based in violation of the constitution and several civil rights

statutes. The Eleventh Circuit, in its decision in this case, while

recognizing that this Court stated that injunctive relief may be

available to military personnel to halt or prevent constitutional

violations, chose to limit that relief to attacks on the facial va-

lidity of military regulations. The Eleventh Circuit has inter-

preted this Court's statements in Chappell and Stanley to mean

that all claims by military personnel for constitutional wrongs

are barred by the doctrine of nonjusticiability even redress

designed to halt or prevent constitutional violations except

those claims which relate to constitutional violations that are

contained in a written military regulation. Thus, the Eleventh

Circuit has held that while a member of the armed services

may bring an action seeking injunctive relief from a racially

discriminating regulation, that same person is barred from

bringing an action to enjoin a racially discriminatory practice

simply because it has not been reduced to writing. Such a hold-

ing is nonsensical. Surely, it is not permissible for the military

to engage in racial and gender discrimination as long as it is

16

not done openly.

As authority for the Eleventh Circuit's delineation of this

narrow exception to the nonjusticability doctrine, it states that

the cases cited by this Court in Chappell and Stanley refer to

only “cases challenging military regulations on their faces,

rather than their application to discrete personnel decisions.”

Speigner, 248 F.3d at 1297. However, the personnel decisions

being made by the SRB regarding the retention of white male

officers were not discrete decisions made on an individual ba-

sis but instead represented a systemic practice to retain all non-

white officers while non-retaining all others who did not fit

that racial profile. The Eleventh Circuit, quoting Crawford, 794

F.2d at 1036, noted that “[i]n cases where claims by enlisted

personnel against the military have been heard, it was ‘[t]he

f the } ee, he telat ae.

dered them justiciable.”” This is absolutely true but was to-

tally ignored by the Eleventh Circuit. The nature of this action

is intentional discrimination, the same cause of action this Court

found actionable for injunctive relief in Frontiero v. Richardson,

411 U.S. 677, 93 S.Ct. 1764 (1974). To make a distinction be-

tween Frontiero and this case, not on the nature of the lawsuit,

- but because the discrimination was encompassed in a regula-

tion rather than inflicted by practice, is a dangerous precedent

to establish.

Under this interpretation of Chappell and Stanley, the mili-

tary could refuse to promote women because of their gender

as long as the practice was not based on a written regulation

and these military personnel would not have any available

redress to halt or prevent this blatant violation of their consti-

17

tutional rights. Just as “our citizens in uniform” are not

stripped of their constitutional rights because “they have doffed

their civilian clothes, Chappell, 462 U.S. at 304, 103 S.Ct. at 2368,

military officials cannot ignore the constitution once they have

donned their uniforms. This Court has long held that a law or

regulation may be “nondiscriminatory on its face but can be

grossly discriminatory in operation.” M.L.B. v. S.L.J.,519 U.S.

102, 105, 117 S.Ct. 555, 558 (1996); Crawford v. Board of Education

of City of Los Angeles, 458 U.S. 527, 102 S.Ct. 3211 (1982); Person-

nel Administrator of Massachusetts, 442 U.S. 256, 99 S.Ct. 2282

(1979). Likewise, just because the discrimination is not being

done based on any kind of written regulation or policy does

not mean that it is not wrong or unconstitutional or totally

beyond the reach of the judiciary on the basis of

nonjusticiability. It is unfathomable that the Eleventh Circuit's

opinion would allow the military to engage in discriminatory

practices without giving the affected military personnel any

redress to stop the discrimination.

While “civilian courts have traditionally deferred to the

superior experience of the military in matters of duty orders,

promotions, demotions and retentions,” Knutson, 995 F.2d at

771, that deference should not extend to acts of intentional dis-

crimination by the military. While the Petitioner recognizes

that there are circumstances, peculiar to the military environ-

ment, which create “special factors counseling hesitation,”

Chappell, 462 U.S. at 298, 103 S.Ct. at 2365, none of those “spe-

cial factors” exist to “counsel hesitation” when the military is

engaging in intentional racial and gender discrimination. In-

deed, this Court has never, to the Petitioner’s knowledge, ex-

18

tended the nonjusticiability doctrine to cases such as this.

Chappell and Stanley both involved suits for damages and spe-

cifically dealt only with the question of whether the type of

actions recognized in Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) could

be extended to the military arena. This Court said they could

not, but clearly left the door to the courthouse open to all mili-

tary personnel for certain type of actions, i.e., actions designed

to prevent or halt constitutional violations. Despite the Elev-

enth Circuit’s attempt to limit this Court’s statements in

Chappell and Stanley, this Court clearly said that the

nonjusticiablity doctrine does not apply to cases in which the

plaintiff seeks to halt or prevent the kind of conduct complained

of in this case. Given that the only relief the Petitioner seeks

here is to halt or prevent racial and gender discrimination, the

solution and remedy is clear. The Eleventh Circuit, like every

other court in this land, is bound by the decisions of this Court.

It is not for that court to say that this Court meant something

other than what this Court clearly said.

The Eleventh Circuit in the final paragraph of its opinion

states that “it is imperative to the military that only those of-

ficers determined to be competent to serve are retained” and

“[t}]o dictate to the military which officers should be consid-

ered competent” is an impermissible interference with the

military. While the Petitioner agrees with this statement, the

Petitioner strongly believes, based on this Court’s statements

in Chappell and Stanley, that when a plaintiff can demonstrate

that retention decisions are being made nat based on the com-

petency of the officers but on the race or gender of the officers,

Ces ee ee Le ee

19

an action can be maintained to halt or prevent that discrimina-

tion whether that discrimination is based on a regulation or

unwritten policy. Indeed, the holding of the Eleventh Circuit

is tantamount to saying that race can be the basis in deciding

whether a military officer should be retained as long as the

practice is not embodied in a writing. Counsel for the Peti-

tioner spent some time in the army and in those eleven years

in which counsel was associated with the military, counsel did

not see one thing that a white man could do better than a black

man or one thing a black man could do better than a white

man. There is nothing about the color of a man’s skin that has

anything to do with the quality of his soldiering. Contrary to

the Eleventh Circuit's holding, there can be no possible legiti-

mate military reason for making retention decisions on the basis

of race.

What is of concern here is the simple proposition of whether

military personnel are absolutely precluded from seeking de-

claratory and injunctive relief from intentional acts of discrimi-

nation unless those acts are based ona written regulation. The

case reports are replete with case after case in which the courts

of this land have interceded to correct or punish acts of dis-

crimination prohibited by our Constitution or statutes. To the

extent one is willing to acknowledge the concept of “Natural

Law,” such discrimination cries out for redress. It is contrary

to every aspect of our modern conception of simple right and

wrong. While the District Court in this case, to its credit, noted

that such a result “seems antithetical to our system of justice”,

this statement fell short. Such a decision is antithetical to our

system of justice and conflicts with this Court's clear holdings

20

in Chappell and Stanley. There is, and can be, no authority for

anyone, even the commanding officer of a military unit, to en-

gage in unconstitutional discrimination. The Eleventh Circuit’s

decision in this case is contradictory and contrary to this Court’s

holdings in Chappell and Stanley and should be reversed.

*

CONCLUSION

In light of the sharp conflicts between the courts of appeal

on the issue raised in this petition and because the decision of

the Eleventh Circuit in this case conflicts with this Court's pre-

vious holdings in Chappell and Stanley, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

J. DOYLE FULLER

Law Office of J. Doyle Fuller, L.L.C. -

2851 Zelda Road

Montgomery, Alabama 36106

(334) 270-0020 |

Counsel for Petitioner

September 2001

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MARVIN K. SPEIGNER, JR.., et al.,

Plaintiff,

WILLIE ALEXANDER, et al.,

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION AND PROCEDURAL HISTORY

The plaintiff, Marvin K. Speigner, initiated this class ac-

tion in the Circuit Court of Montgomery County, Alabama,

against the Alabama State Military Department, Major Gen-

eral Willie Alexander, the present Adjutant General of the State

of Alabama, and Major General Clyde E. Hennies, the former

Adjutant General of the State of Alabama. Although not spe-

cifically pled in the complaint, the parties agree that Alexander

and Hennies were sued in their individual capacities and that

Alexander is sued in his official capacity as well. The case was

\

App. 2

removed to this court on August 8, 1999. The plaintiff’s com-

plaint contains a claim of racial discrimination under 42 U.S.C.

§ 1981 (Count I), a claim of denial of equal protection under 42

U.S.C. § 1983 (Count II), a claim of denial of due process under

42 U.S.C. § 1983 (Count III), and a claim of race-based con-

spiracy under 42 U.S.C. § 1985(3) (Claim IV).

On February 18, 2000, the Alabama State Military Depart-

ment and Willie Alexander, in his official capacity, filed a mo-

tion for partial summary judgment arguing that the § 1981

claim merges into the § 1983 claim and also arguing that Claim

IV, the conspiracy claim, was barred by the intracorporate con-

spiracy doctrine. The motion was set for submission on March

17, 2000. On February 24, 2000, a motion for summary judg-

ment was filed on behalf of Alexander and Hennies in their

individual capacities. The motion argued that Alexander and

Hennies were entitled to qualified immunity and that they were

entitled to intraservice immunity. It also argued the same

ground contained in the motion filed by them in their official

capacities. That motion was set for submission on March 27,

2000. On April 10, 2000, the Alabama State Military Depart-

ment, Alexander in his official, and individual capacity and

Hennies in his individual capacity filed another summary judg-

ment motion which argued that (1) as to Counts I and II, there

is no evidence of intentional racial discrimination; (2) as to

Count III, there is no legal entitlement to relief and (3) as to

Alexander, in his official capacity and the Alabama State Mili-

tary Department, all of the claims are not justiciable. That

motion was set for submission on May 9, 2000. On May 19,

2000, Speigner filed a response to the summary judgment

App. 3

motion on the merits with one exception. He filed a Rule 56(f)

motion with regard to qualified immunity.

On June 1, 2000, the court held a hearing on Speigner’s

motion for class certification. At the hearing, Speigner orally

dismissed his damages claims which had the effect of dismiss-

ing Hennies and all claims against Alexander in his individual

capacity.’ Thus, the present case remains one for declaratory

and injunctive relief against the Alabama Military Department

and Alexander in his official capacity.

The defendants seek summary judgment on a variety of

grounds. There is no need for a discussion of all of those

grounds. The court concludes that the defendants are entitled

to summary judgment because the claims which Speigner pre-

sents are non-justiciable.

Il. FACTUAL BACKGROUND

The facts viewed in the light most favorable to Speigner

establish the following:

In 1998, Speigner was a Lieutenant Colonel in the Alabama

Army National Guard with twenty five (25) years of service.

As an officer with at least years of service, his military record

was subject to annual review by Selective Retention Boards

(SRB). The purpose of the SRB was to evaluate officers and

warrant officers to “ensure that only the most capable officers

' Separate orders have been entered dismissing Alexander in his individual

capacity and Hennies.

App. 4

[were] retained beyond 20 years of qualifying service for as-

signment to the comparatively fewer higher level command

and staff positions.” After consideration of an officer’s record

and other selection criteria, an SRB could recommend that an

officer be retained for a certain time or not retained. Speigner

was considered by the 1997 and 1998 SRBs. The 1997 SRB rec-

ommended that he be retained for one year, and the 1998 SRB

recommended that he not be retained. As an officer not se-

lected for retention, Speigner was separated from the Army

National Guard o or about April 10, 1998. In his capacity as

the Adjutant General, Hennies review and approved the re-

sults of the 1997 and 1998 SRBs.

From 1996 through 1999, the SRBs have not retained 41

white male officers of the Alabama Army National Guard while

black male officers under consideration have enjoyed a one

hundred percent retention rate. Only one female and one

“other” race male were not retained during this time.

Regulations dictated that the SRB panels consist of three

or nine members. On January 24, 1997, the Adjutant General

of Alabama made a request for an exception to expand the com-

position of SRB panels to five members. Permission to expand

the board was granted. Although applicable regulations pre-

cluded a member of an SRB from sitting on consecutive pan-

els, per the request of Hennies, Alexander was given special

dispensation to serve as a member of the 1997 and 1998 SRBs.*

Speigner recalls that Hennies had previously commented about

* See Defendants’ Exhibit 17.

App. 5

the lack of black colonels on his staff and stated his desire to

do something about racism in the National Guard.

Ill. SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides

that summary judgment is appropriate where “there is no genu-

ine issue as to any material fact and . . . the moving party is

entitled to judgment as a matter of law.” This standard can be

met by the movant, in a case in which the ultimate burden of

persuasion at trial rests on the nonmovant, either by submit-

ting affirmative evidence negating an essential element of the

nonmovant's claim, or by demonstrating that the nonmovant's

evidence itself is insufficient to establish an essential element

of his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). .

The burden then shifts to the nonmovant to make a

showing sufficient to establish the existence of an essential.

element to his claims, and on which he bears the burden of

proof at trial. Id. To satisfy this burden, the nonmovant cannot

rest on the pleadings, but must, by affidavit or other means,

set forth specific facts showing that there is a genuine issue for

trial. Fed.R.Civ.P. 56(e).

The court's function in deciding a motion for summary

judgment is to determine whether there exist genuine, mate-

rial issues of fact to be tried; and if not, whether the movant is

entitled to judgment as a matter of law. See Dominick v. Dixie

Nat'l Life Ins. Co., 809 F.2d 1559 (11" Cir. 1987). It is substan-

tive law that identifies those facts which are material on mo-

App. 6

tions for summary judgment. Anderson v. Liberty Lobby, Inc.

477 U.S. 242, 258 (1986); see also De Long Equip. Co. v. Wash-

ington Mills Abrasive Co, 887 F.2d 1499 (11" Cir. 1989), cert.

denied, 494 U.S. 1081 (1990).

When the court considers a motion for summary judgment,

it must refrain from deciding any material factual issues. All

the evidence and the inferences drawn from the underlying

facts must be viewed in the light most favorable to the

nonmovant. Earley v. Champion Int'l Corp. 907 F.2d 1077,

1080 (11" Cir. 1990); see also Matsushita Elec. Indus. Co. v, Ze-

nith Radio Corp. 475 U.S. 574, 587 (1986). The movant bears

“the exacting burden of demonstrating that there is no dis-

pute as to any material fact in the case.” Warrior Tombigbee

Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11" Cir.

1983); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970).

IV. DISCUSSION

A. THE RULE 56(f) ISSUE

After Speigner responded to the defendants’ motion for

summary judgment on non-justiciability grounds, he filed a

Rule 56(f) motion seeking discovery. The motion is not sup-

ported by an affidavit and contains only the allegation that

“plaintiff cannot adequately answer the issue of summary judg-

ment motions filed by the defendants without further discov-

”

ery.

Under the law of this circuit, a “rule 56(f) motion must be

supported by an affidavit which sets forth with particularity

App. 7

the facts the moving party expects to discover and how those

facts would create a genuine issue of material fact precluding

summary judgment.” Harbert International, Inc. v. James, 157

F.3d 1271, 1280 (11" Cir. 1998). “Whether to grant or deny a

Rule 56(f) motion for discovery requires the court to balance

the movant’s demonstrated need for discovery against the

burden such discovery will place on the opposing party.” Jd.

Speigner seeks to depose the individual defendants but \ils

to indicate what information these defendants might have

which would be helpful to him in opposing summary judg-

ment on non-justiciability grounds. He has, thus, failed to make

the threshold showing required by Rule 56(f). In all candor,

however, it appears to the court that there is no need for dis-

covery on the non-justiciability issue. There is no dispute about

Speigner’s allegations and the court, in ruling on the motion

for summary judgment, views those allegations in a light most

favorable to Speigner. In assessing the validity of the defen-

dants’ non-justiciability argument, the court will assume that

Speigner is the victim of intentional racial discrimination and

a race-based conspiracy and that he has been deprived of a

property interest without due process of law. The facts about

his separation are undisputed. He was a lieutenant colonel

with 25 years of service in the National Guard who was sepa-

rated from the service because an SRB recommended that he

not be retained. Thus, the defendants’ motion for summary

judgment on non-justiciability presents a legal issue rather than

a factual one. Speigner’s Rule 56(f) motion has provided no

grounds for discovery at this stage of the proceedings and is

due to be denied.

App. 8

B. NON-JUSTICIABILITY?

Speigner asks for declaratory and injunctive relief,

including back pay, benefits, and reinstatement. The

defendants argue that his claims are barred because they are

non-justiciable. While military personnel are not absolutely

precluded from seeking redress for constitutional rights viola-

tions in civilian courts for wrongs suffered incident to military

service, the Supreme Court has stated that “[c]ivilian 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.

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

this hands-off approach is two-fold: the unique disciplinary

structure of the military and pervasive Congressional activity

in the field, militate against permitting military personnel to

sue their superior officers for constitutional violations that

“arise out of or are in the course of activity incident to [military]

service.” United States v. Stanley, 483 U.S. 669, 684 (1987).

Both Stanley and Chappell involved Bivens‘ actions by

military personnel against their superior officers. Neverthe-

less, most circuit courts reviewing this issue have agreed that

> The non-justiciability issue was raised on behalf of the Alabama State Military

Department and Alexander in his official capacity in the motion for summary judg-

ment filed on April 10, 2000. Speigner has filed a response to the motion.

‘ Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1983).

App. 9

there is “no principled basis for according state actors sued

under 42 U.S.C. § 1983 a different degree of immunity than

would be accorded federal actors sued for an identical abridg-

ment of rights under Bivens.” Wright v. Park, 5 F.3d 586, 591

(1% Cir. 1993) (citing Butz v. Economou, 438 U.S. 478, 500 (1978)).

As a result, the principles articulated in Stanley and Chappell

have been broadly construed to apply equally to claims for

damages against state officials under § 1983. Brown v. United

States, 739 F.2d 362, 267 (8" Cir. 1984), cert. denied, 473 U.S. 904

(1985); Marleton v. Temple, 747 F.2d 1348, 1350-51 (10 Cir.

1984), cert. denied, 471 U.S. 1135 (1985), Jorden v. National Guard

Bureau, 799 F.2d 99, 104-06 (3 Cir. 1986), cert. denied, 484 U.S.

815 (1987); Crawford v. Texas Army National Guard, 794 F.2d

1934 (5" Cir. 1986). That proscription against judicial review

of damages claims applies with equal force to claims brought

under 42 U.S.C. § 1981. See Gonzalez v. Dept. of Army, 718

F.2d 926 (9 Cir. 1983). That is true because the “incident to

service test” elaborated upon in Stanley has been “broadly

construed to immunize the United States and members of the

military from any suit which may intrude in military affairs,

second-guess[ ] military decisions, or impair[ ] military disci-

pline.” Presley v. Jackson Municipal Airport Authority, 94

FSupp.2d 755, 759 (S.D. Miss. 2000).

Speigner, unlike the plaintiffs in Chappell and Stanley, now

seeks only injunctive and declaratory relief and the Supreme

Court has permitted some suits against the military for injunc-

tive relief to go forward. See, e.g., Goldman v. Weinberger, 475

U.S. 503 (1986) (first amendment challenge to Air Force dress

code regulation); Rostker v. Goldberg, 453 U.S. 57 (1981) (equal

App. 10

protection challenge to all-male draft registration); Brown v,

Glines, 444 U.S. 348 (1980) (first amendment challenge to Air

Force regulation regarding circulation of petitions); Parker v.

Levy, 417 U.S. 733 (1974) (vagueness challenge to criminal pro-

visions of military code); Frontiero v. Richardson, 411 U.S. 677

(1973) (equal protection challenge to statutes discriminating

against women in military benefits) (citations omitted). How-

ever, as one court pointed out, these cases all involved “chal-

lenges to the facial validity of military regulations and were

not tied to discrete personnel matters.” Crawford, 794 F.2d at

1036. Therefore, where a claim for reinstatement or other in-

junctive relief “implicates only the nature of procedure used

in [the] termination,” and does not involve a facial constitu-

tional challenge, it is generally found to be nonjusticiable.

Knutson v. Wisconsin National Guard, 995 F.2d 765, 770 (7"

Cir. 1993). Given that distinction, this court agrees that claims,

such as here, for injunctive and declaratory relief which per-

tain only to personnel decisions, are discretely personal mat-

ters and fall outside of the type of claims for injunctive cited

which the Supreme Court has permitted. A claim for injunc-

tive relief seeking review of a personnel decision, especially

where it is the decision to separate an individual from the mili-

tary, implicates the same threat ot military autonomous deci-

sion-making as a constitutional claim for damages. See Watson

v. Arkansas National Guard, 886 F.2d 765, 770 (7 Cir. 1993).

: Given that distinction, this court agrees that claims, such as

here, for injunctive and declaratory relief which pertain only

to personnel decisions, are descretely personal matters and fall

outside of the type of claims for injunctive relief cited which

App. 11

the Supreme Court has permitted. A claim for injunctive relief

seeking review of a personnel decision, especially where it is

the decision to separate an individual from the military, impli-

cates the same threat to military autonomous decision-mak-

ing as a constitutional claim for damages. See Watson v. Ar-

kansas National Guard, 886 F.2d 1004 (8" Cir. 1989) (decidng

that intra-military action for injunctive relief raises the same

concerns as intra-military action for damages); Crawford, 794

F.2d at 1036 (“suits for injunctive relief, like those for mon-

etary damages, must be carefully regulated in order to pre-

vent intrusion of the courts into military structure.”); Farmer

v. Mabus., 940 F.2d 921, 924 (5 Cir. 1991) (same).

In order to avoid the result compelled by the Chappell/

Stanley analysis, Speigner argues that the test enunciated by

the United States Court of Appeals for the Fifth Circuit in

Mindes v. Seaman, 453 F.2d 197 (5" Cir. 1971), rather than the

Chappell/Stanley “incident to service test” should be applied

and that an analysis of the so-called Mindes factors mandates

the conclusion that his claims are justiciable. For the reasons

which follow, the court concludes that the Mindes factors are

no longer controlling.

The United States Supreme Court rendered its decision in

Chappell v. Wallace on June 13, 1983. In its first opportunity

to decide a non-justiciability issue involving the military fol-

lowing Chappell, the Eleventh Circuit concluded that. the

Mindes factors applied. Stinson v. Hornsby, 821 F.2d 1537, 1540

(11 Cir. 1987). The decision in Stinson, however, is not par-

ticularly persuasive precedent. Judge Hill dissented and Judge

Henderson specially concurred. As Judge Henderson noted:

App. 12

I concur in the decision of the panel, however, in

deference to the precedential weight of Mindes. I take

this opportunity to call attention to the recent interpre-

tation of Chappell by the Fifth Circuit Court of Appeals,

finding claims such as these non-justiciable without

resort to the cumbersome Mindes analysis, in the hope

that this matter might be reexamined en banc and the

utility of the Mindes test reconsidered in light of more

recent Supreme Court decisions.

Id. at 1541. The decision to which Judge Henderson was refer-

ring is the decision of the Fifth Circuit in Crawford v. Texas

Army National Guard, 794 F.2d 1034 (5 Cir. 1986). In that

case, two members of the Texas National Guard sued the

Guard, the governor of Texas and 12 military personnel alleg-

ing that they were the victims of racial discrimination and re-

taliation. The Fifth Circuit, interpreting Chappell, concluded

that the lawsuit was due to be dismissed as non-justiciable.

In Judge Henderson’s words:

Conspicuously absent in Crawford is nay applica-

tion of the Mindes test for adjudicating charges of civil

rights violations. Clearly, the court must have found

that the Supreme Court's opinion in this area are con-

trolling. The instant facts present the same kind of a

case found non-justiciable in Crawford and Chappell.

Stinson’s claims for reinstatement, back pay and injunc-

tive relief under 42 U.S.C. Section 1981 and 1983 are

App. 13

challenges to military personnel decisions which would -

require a court to review his commanding officer's de-

cisions concerning the promotion and dismissal of his

men, determinations particularly dependent on the

exercise of military discretion.

Stinson v. Hornsby, 821 F.2d at 1542.

On June 25, 1987, just prior to the issuance of the panel

opinion in Stinson, the Supreme Court issued its opinion in

United States v. Stanley. The decision in Stanley does much to

explain Chappell.’ As the decision in Stanley makes clear, the

doctrine of non-justiciability of suits by military personnel pre-

cludes all claims for relief which “arise out of or are in the

course of activity incident to service.” United States v. Stanley,

483 U.S. at 684. The panel in Stinson does not discuss Stanley

at all. Had Stanley been applied, it would have resulted in a

different ruling because the Mindes factor test is insufficiently

narrow under the Stanley opinion. The standard enunciated

in Chappell and further explicated in Stanley supersedes the

Mindes factor test.

This court’s conclusion that the Mindes factors have been

superseded is supported by the post-Stinson decision of the

Eleventh Circuit in United States v. Kitowski, 931 F.2d 1526

(11" Cir.), cert. denied, 502 U.S. 938 (1991). In that case, the court

* The court in Stanley noted that it granted certiorari because “. . . the Courts of

Appeals have not been uniform in their interpretation of the holding in Chappell.

United States v. Stanley, 483 U.S. at 676.

App. 14

did not apply or discuss the Mindes factors but rather applied

a simple three factor test to determine whether an activity is

“incident to service.” The court, citing the Stanley decision,

noted that the Supreme Court has interpreted the non-

justiciablity doctrine “strictly.” Id. at 1529. The court's con-

clusions that the Mindes factors no longer apply is also sup-

ported by two other decisions from this district. See also Neal

v. Alabama National Guard, 1997 WL 114910 (M.D. Al. 1997)

(In light of the Supreme Court’s Stanley holding, this court

finds that the “incident to service” standard is applicable rather

than the Mindes factors.) See also Smith v. Smith, No. 96-W-

-1419-N (M.D. Ala., November 26, 1997), slip op. at 18.

Having concluded that the “incident to service test” ap-

plies, the court must now determine whether Speigner’s inju-

ries occurred incident to his military service. As noted above,

the law of this circuit requires examination of three factors: (1)

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

injury occurred, and (3) the activity of the serviceman at the

time of injury. United States v. Kitowski, 931 F.2d at 1528. Of

these factors, duty status is the most important. Parker v.

United States, 611 F.2d 1007, 1013 (5" Cir. 1980). Given the

nature of the alleged injury in this case, the place of injury has

no place in the analysis. The application of factors one and

three clearly establish that the constitutional injury which

Speigner allegedly was “incident to service.” He was a Na-

tional Guard officer seeking retention from a Service Review

Board whose decision would ultimately be reviewed by the

Adjutant General. He was not retained, according to his alle-

gation, because he was white. He was also denied due pro-

i

LL

|

App. 15

cess of law. It is hard to imagine a case with more connection

to military decision-making authority. Because the injury

which Speigner suffered was incident to his National Guard

service, his claims are non-justiciable.

It seems antithetical to our system of justice to say that a

court cannot redress intentional racial discrimination in our

armed forces. Nonetheless, that is the law of the Supreme Court

which this Court is bound to follow. Accordingly, the plaintiff's

claims are due to be dismissed.

IV. CONCLUSION

For the foregoing reasons, the court concludes that the de-

fendants are entitled to summary judgment on all of Speigner’s

claims because they are non-justiciable. A separate judgment

will be entered accordingly.

DONE the 30" day of June, 2000.

/s/

JOHN L. CARROLL

UNITED STATES

MAGISTRATE JUDGE

App. 16

APPENDIX B |

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 00-13616

D.C. Docket No, 99-00846-CV-C-N

MARVIN K. SPEIGNER, JR.,

Retired,

Plaintiff-Appellant,

versus

WILLIE A. ALEXANDER, Major

General, Alabama Army National

Guard, The Adjutant General,

CLYDE A. HENNIES, Major

General, former Adjutant

General, Alabama Army National Guard, et al.,

Defendants-Appellees.

1 eee ee Cen

App. 17

Appeal from the United States District Court

For the Middle District of Alabama

(April 24, 2001)

Before BIRCH and HULL, Circuit Judges and TIDWELL’*, Dis-

trict Judge.

In this opinion, we decide whether a suit for injunctive re-

lief based on a personnel decision can be brought against the

Alabama National Guard (“Alabama Guard”). The district

court dismissed the claim as nonjusticiable. We AFFIRM.

I. BACKGROUND

Plaintiff-Appellant Marvin K. Speigner, Jr. a white male, was

removed from the Alabama Guard after 35 years of service.

He had reached the rank of Lieutenant Colonel. Because he

was an officer with at least 20 years of service, Speigner was

subject to annual review by the Selective Retention Board

(“SRB”). The SRB considers an officer’s record in light of United

States Nation Guard “National Guard”) selection criteria, and

either recommends that an officer be retained, be retained for

a limited period, or ot be retained at all. In 1997, the SRB rec-

ommended that Speigner be retained for one year, and in 1998,

it recommended that Speigner not be retained. Defendant

*Honorable G. Ernest Tidwell, U.S. District Judge for the Northern District

of Georgia, sitting by designation:

BIRCH, Circuit Judge:

App. 18

Clyde Hennies, then Adjutant General, approved both of these

recommendations. Accordingly, Speigner was separated from

the Alabama Guard in 1998.

Speigner identifies two regulations that were not followed

during his SRB reviews. First, both the 1997 and 1998 SRBs

had five members, rather than the mandated three or nine.

Also, defendant Willie Alexander, a black colonel, sat on both

boards, through regulations preclude a member of an SRB from

sitting on consecutive panels that consider the same officers.

Hennies, then Adjutant General of the Alabama Guard, had

received special permission each year from the National Guard

to make both of these changes. Speigner alleged that he heard

Hennies lament the lack of black colonels on his staff and ex-

press a desire to address racism in the Alabama Guard. The

1996 — 1999 SRBs removed 41 white male officers, 1 female, 1

“other” male, and 0 black males from the Alabama Guard.

These statistics, combined with Hennie’s statements and_

Alexander’s presence on consecutive SRBs form the basis for

Speigner’s claim of racial bias.

Speigner filed a complaint, alleging racial discrimination

under 42 U.S.C. § 1981, a denial of equal protection under 42

U.S.C. § 1983, a denial of due process under 42 U.S.C. § 1983,

and race-based conspiracy, in violation of 42 U.S.C. § 1985."

He requested an injunction against racial discrimination in the

' In a later filing, Speigner agreed that his claim of race-based conspiracy

under § 1985 was barred by the intracorporate conspiracy doctrine. R1-33-

15. See McAndrew v. Lockheed Martin Corp, 206 F.2d 1031 (11" Cir. 2000)

(en banc).

App. 19

Alabama State Military Department, reinstatement, back Pay,

compensatory and punitive damages, and attorneys’ fees.

Because Speigner voluntarily dismissed his claims for com-

pensatory and punitive damages,’ the district court consid-

ered only his claims for declaratory and injunctive relief against

the Alabama Military Department and against Alexander in

his official capacity. The district court granted summary judg-

ment against Speigner on the grounds that his case was

nonjusticiable under Feres v. United States, 340 U.S. 135, 71

S.Ct. 153 (1950), Chappell v. Wallace, 462 U.S. 296, 103 S.Ct.

2362 (1983), and United States v. Stanley, 483 U.S. 669, 107 S.Ct.

3054 (1987).

II. DISCUSSION

We review a grant of summary judgment de novo, view-

ing all the facts in the light most favorable to the non-moving

party. Harbert Int'l Inc. v. James, 157 F.3d 1271, 1277 (11" Cir.

1998). Summary judgment is proper when “there is no genu-

ine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” FED.R.CIVP 56(c).

A. Feres and Its Progeny

The district court correctly granted summary judgment in

this case based on the Supreme Court precedent set forth in

Feres, Chappell, and Stanley. In Feres, the Supreme Court held

* As discussed in section IIA of this opinion, Speigner’s claims for monetary dam-

ages were clearly nonjusticiable under United States v, Stanley, 483 U.S. 669, 107

S.Ct. 3054 (1987)

App. 20

that “the Government is not liable under the Federal Tort

Claims Act for injuries to servicemen where the injuries arise

out of or are in the course of activity incident to service.” 340

USS. at 146, 71 S.Ct. at 159. This remained a limited doctrine

until 1983, when the Supreme Court expanded the holding to

include all suits for damages. Chappell, 462 U.S. at 305, 103

S.Ct. at 2368 (“We hold that enlisted military personnel may

not maintain a suit to recover damages from a superior officer

for alleged constitutional violations.”).? The impetus behind

this decision was an acknowledgment of the “special nature

of military life [and] the need for unhesitating and decisive

action by military officers and equally disciplined by enlisted

personnel [that] would be undermined by a judicially created

remedy exposing officers to personal liability at the hands of

those they are charged to command.” Id., at 304, 103 S.Ct. at

2367.

Because the circuits were inconsistent in their application

of Chappell, the Court granted certiorari in Stanley. Stanley,

483 U.S. at 676, 107 S.Ct. at 3059-60. In Stanley, the Court reit-

erated the importance of the Feres “incident to service” test,

and extended the nonjusticiability doctrine to include Bivens

actions.‘ Id. At 683-84, 107 S.Ct. at 3064. Later, cases in several

> The doctrine was further expanded to include suits for non-constitutional

violations in United States v. Shearer 473 U.S. 52, 59, 105 S.Ct. 3039, 3044

(1985).

* Under Bivens v, Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct.

1999 (1971), an individual can seek monetary damages from a federal offi-

cial for a violation of constitutional rights.

App. 21

of the circuits extended the application of the Feres “incident

to service” test to cases brought under § 1983, an interpreta-

tion that grants state actors the same degree of immunity from

civil suits as federal actors would be afforded under Stanley.

See, e.g., Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1007

(8" Cir. 1989) (“This circuit, along with the majority of circuits

that have considered the question, has extended the logic of

Chappell to action brought against National Guard officers

under § 1983 [because] [t]he concern for the disruption of mili-

tary discipline upon which Feres, Chappell, and Stanley are

based applies equally when a court is asked to entertain an

intramilitary suit § 1983.”); accord Bowen v. Oistead, 125 E3d

800, 803 n.2 (9" Cir. 1997); Wright v. Park, 5 F.3d 586, 591 (1*

Cir. 1993). As a result of this line of cases, there is no recog-

nized cause of action for a member of the armed forces to re-

quest monetary damages from the military if the claim is based

on an injury that is incident to service.

* We no longer apply the test in Mindes v, Seaman, 453 F.2d 197 (5" Cir. 1971)

to determine justiciability in cases by members of the armed forces brought

against the military if the claim is based on an injury incident to service. See

Stanley, 483 U.S. 669, 107 S.Ct. 3054 (1987) (establishing a broader test for

nonjusticiability); United States v. Kitowski, 931 F.2d 1526 (11 Cir. 1991)

(applying the “incident to service” test without mention of Mindes); Doe v.

Garrett, 903 F.2d 1455, 1463 n. 15 (11 Cir. 1990) (“[I]t appears well estab-

lished that Mindes need not be applied before reaching the merits of a statu-

tory claim against the military.”) But see Stinson v. Hornsby, 821 F.2d 1537,

1540 (11 Cir. 1987) (remanding case against the military to district court to

apply Mindes factors). In this case, we expressly do not address the applica-

App. 22

At issue in this case is whether this doctrine of

nonjusticiability extends to cases for injunctive relief. Based

on the policy behind the Supreme Court decisions, and con-

sistent with the majority of the circuits that have addressed

this issue, we hold that, with certain exceptions, it does. The

Supreme Court has made clear that,

[civilian courts must, at the very least, hesitate long

before entertaining a suit which asks the court to tamper

with the established relationship between enlisted mili-

tary personnel and their superior officers; that relation-

ship is at the heart of the necessarily unique structure

of the Military Establishment.

Chappell, 462 U.S. at 300, 103 S.Ct. at 2366. It is this basic

premise that underlies the string of cases finding suits by en-

listed personnel against the military for an injury incident to

service nonjusticiable for injunctive relief as well as damages.

B. Circuit Court Approaches

Despite the Supreme Court's attempt in Stanley to harmo-

nize the approaches of the courts of appeal, implementation

bility of Mindes to other situations. See e.g., Meister v. Texas Adjutant Gen.

Dep‘t, 233 F.3d 332, 341 (5 Cir. 2000) (“It is true that Stanley blocks claims

brought by servicemen incident to their military service, which therefore

preempts Mindes with respect to such claims. But claims still fall within

Mindes and Stanley does not encompass-those involving ‘internal military

decisions’ that are ‘not incident to [a serviceman’s] military service.’”).

App. 23

of Stanley has been inconsistent in cases for injunctive relief.

A discussion of the differences is helpful to explain our ratio-

nale for agreeing with the majority of circuits that have ad-

dressed this issue.

The Seventh Circuit, in Knutson v. Wisconsin Air Nat'l

Guard, 995 F.2d 765 (7" Cir. 1993), found cases for reinstate-

ment against the military nonjusticiable. According to the

court, “[t]hese sorts of reinstatement claims, often pending for

several years in civilian courts, may well leave WIANG in limbo

awaiting the outcome of litigation and thus significantly ham-

per its ability to staff properly and to fulfill its mission.” Id. At

771. The result of review of military personnel decisions by

civilian courts would be to “undermine military discipline and

decision-making or impair training programs and operational

readiness.” Id.

In Watson, the Eighth Circuit found a case nonjusticiable

for similar reasons. As does Speigner, Watson brought a 42

U.S.C. § 1983 action seeking damages, back pay, correction of

his record, and reinstatement of the National Guard.® Watson,

886 F.2d at 1007. The Eighth Circuit dismissed his case be-

cause “the policies upon which the Feres doctrine, and subse-

quent case law in that doctrine’s development, are premised

heavily in favor or precluding claims for equitable relief.” Id.

at 1008. The court explained its decision by stressing that “[t]he

° While Watson’s case was pending, the Supreme Court decided

Stanley, causing Watson to abandon his claim for monetary dam-

ages. See Watson, 886 F.2d at 1007.

App. 24

judiciary does not acquire competence in this area merely be-

cause the remedy sought is an injunction rather than damages.

... To disallow claims for damages while agreeing to review

claims for injunctive relief arising from the same facts would

be to exalt for over substance.” Id. at 1009. The court wanted

to avoid “a highly intrusive judicial inquiry into personnel

decisions that bear upon the readiness of the military to per-

form its mission.” Id. at 1008.

The Fifth Circuit approaches cases against the military in a

similar manner. Though it was not necessary to apply the Feres

line of cases to the facts, the Fifth Circuit outlined the rationale

and policy behind the nonjusticiability doctrine in Meister v.

Texas Adjutant Gen. Dep't, 233 F.3d 332 (5" Cir. 2000). The

court emphasized that “courts should not interfere with mili-

tary discipline and management. These are areas where we

have little competence or authority to proceed.” Id. at 338. In

Meister the court cited Crawford v, Texas Army Nat'l Guard,

794 F.2d 1034, 1036 (5" Cir. 1986), a pre-Stanley decision that,

consistent with Chappell, applied the same rationale as Meister.

In Crawford, plaintiffs requested, inter alia, injunctive re-

lief in the form of reinstatement of their eligibility for all avail-

able retirement benefits and the removal of certain informa-

tion from their personnel files. The Fifth Circuit held that their

case was nonjusticiable because “[t]he injunctive-relief excep-

tion to Chappell advocated by appellants could swallow

Chappell’s rule of deference” to the military establishment. Id.

at 1036. In conclusion, the Fifth Circuit stated its belief that

“suits for injunctive relief, like those for monetary damages,

must be carefully regulated in order to prevent intrusion of

App. 25

the courts into the military structure.” Id. at 1036-37. The Fifth

Circuit noticed an exception to this rule for cases involving

“challenges to the facial validity of military regulations” that

are distinct from “discrete personnel matters.” Id. at 1036.

The Second Circuit also follows the same approach to cases

by enlisted personnel against the military when the injury is

incident to service. The court opined that “allowing service

members to sue their superiors would unacceptably compro-

mise military discipline and readiness for combat.” Jones v.

New York State Div, of Military and Naval Affairs, 166 F.3d 45,

52 (2"4 Cir. 1999).

Relying on the same quoted from Stanley that Speigner

relies on in this case, the minority of circuits have held that

injunctive relief is attainable against the military. To make the

argument that he could sue the military for monetary dam-

ages, Stanley relied on the sentence in Chappell that states,

‘[t]his Court has never held, not do we now hold, that military

personnel are barred from all redress in civilian courts for con-

stitutional wrongs suffered in the course of military.” Chappell,

462 US. at 304, 103 S.Ct. at 2368. In Stanley, the Supreme Court

called this argument “irrelevant,” and pointed out that, “[a]s

the citations immediately following that statement suggest, it

referred to redress designed to halt or prevent the constitu-

tional violation rather than the award of money damages.”

Stanley, 483 U.S. ay 683, 107 S.Ct. at 2368. From this sentence,

Speigner and the First Circuit see a window for claims for in-

junctive relief against the military. See Wigginton v.

Centracchio, 205 F.3d 504, 512 (1% Cir. 2000) (“[T]aken together,

Chappell and Stanley . . . make it clear that intramilitary suits

App. 26

alleging constitutional violations but not seeking damages are

justiciable.”). Before the Supreme Court decided Stanley, the

Third Circuit, in a case that has been relied upon post-Stanley,

also held that injunctive relief claims for reinstatement were

justiciable based on Chappell. See Jorden v. Nat'l Guard Bu-

reau, 799 F.2d 99, 111 (3" Cir. 1986) (“[I]f Jorden establishes a

constitutional violation, the remedy will be a court-ordered

reinstatement, rather than the kind of ongoing judicial over-

sight held inappropriate in Gilligan. . . . Jorden’s claims for

reinstatement are reviewable.”).

We do not find this argument persuasive, however, because

the “citations immediately following” the Chappell quote that

the Court referred to in Stanley are all cases challenging mili-

tary regulations on their faces, rather than their application to

discrete personnel decisions. See e.g., Goldman v. Weinberger,

475 U.S. 503, 106 S.Ct. 1310 (1986) (First Amendment challenge

to dress code in Air Force); Rostker v. Goldberg, 453 U.S. 57,

101 S.Ct. 2646 (1981) (Fifth Amendment challenge to all-male

draft registration); Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594

(1980) (First Amendment challenge to regulation of petitions);

Parker v. Levy, 417 U.S. 733, 94S.Ct. 2547 (1974) (Fifth Amend-

ment challenge that criminal provisions in the military code

were overbroad and vague); Fontiero v. Richardson, 411 U.S.

677, 93 S.Ct. 1764 (1973) (Fifth Amendment challenge to mili-

tary benefits statute that discriminated against women).

In contrast, however, “civilian courts have traditionally

deferred to the superior experience of the military in matters

of duty orders, promotions, demotions, and retentions.”

Knutson, 995 F.2d at 771. In cases where claims by enlisted

App. 27

personnel against the military have been heard, it was “[t]he

nature of the lawsuits, rather than the relief sought, [that] ren-

dered them justiciable.” Crawford, 794 F.2d at 1036. See also

Watson, 886 F.2d at 1010 (“There is a vast difference between

judicial review of the constitutionality of a regulation or stat-

ute of general applicability and judicial review of a discrete

military personnel decision.”) Therefore, we now hold that

cases brought by enlisted personnel against the military for

injuries incident to service are nonjusticiable, whether the

claims request monetary damages or injunctive relief. Consis-

tent with Supreme Court precedent, this holding in no way

bars facial challenges to military regulations.

C. Incident to Service Test

Accordingly, if Speigner’s injury was incident to service in

the Alabama Guard, it is nonjusticiable. We apply a three-part

test to determine whether an injury is incident to service. When

undertaking such an analysis, we consider, “(1) the duty sta-

tus of the service member, (2) the place where the injury oc-

curred, and (3) the activity the serviceman was engaged in at

the time of injury.” Pierce v. United States, 813 F.2d 349, 352-53

(11" Cir. 1987) (per curiam); see also Whitley v. United States,

170 F.3d 1061, 1070 (11 Cir. 1999). The rational behind this

test is to separate cases that may interfere with military disci-

pline and command decisions from those that do not. See

Whitley, 170 F.2d at 1069.

Speigner was on active duty with the Alabama Guard, and

the injury took place at a formal review by the SRB and as a

consequence of this review. The district court correctly held

App. 28

that the decision whether or not to retain Speigner meets the

Pierce test and, therefore, is nonjusticiable. Accord Mier v.

Owens, 57 F.3d 747, 751 (9 Cir. 1995) (“Military promotion is

one of the most obvious examples of a personnel decision that

is integrally related to the military’s structure.”). Because there

are a limited number of positions available at the higher levels

of command, it is imperative to the military that only those

officers determined to be competent to serve are retained. To

dictate to the military which officers should be considered com-

petent would be to interfere in just the way that Feres and its

progeny preclude.

Ill. CONCLUSION

Because Speigner’s complaint arises from an injury that

was incident to his service as an officer in the Alabama Guard,

we AFFIRM the judgment of the district court that his case in

justiciable.

App. 29

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

~FOR THE ELEVENTH CIRCUIT

NO. 00-13616-GG

MARVIN K. SPEIGNER, JR.,

retired,

Plaintiff-Appellant,

versus

WILLIE A. ALEXANDER, Major

General, Alabama Army National

Guard, The Adjutant General,

CLYDE A. HENNIES, Major

General, former Adjutant

General, Alabama Army National

Guard, et al.

Defendants-Appellees.

App. 30

On Appeal from the United States District Court for the

Middle District of Alabama

ON PETITION (S) FOR REHEARING AND PETITION (S)

FOR REHEARING EN BANC

(Opinion nt, eo

+ |

Before: BIRCH and HULL, Circuit Judges and TIDWELL*,

District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel nor other Judge in regular active service on the Court

~ having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh Cir-

cuit Rule 35-5), the Petition(s) for Rehearing En Banc are DE-

NIED.

ENTERED FOR THE COURT

/s/

UNITED STATES CIRCUIT JUDGE

ORD-42

(6/95)

*Honorable G. Ernest Tidwell, U.S. District Judge for the Northern District

of Georgia, sitting by designation.