# Petition for Writ of Certiorari — Speigner v. Alexander > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2569%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1056 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2569%3A1. Public record. Not legal advice.