Wallace v. Chappell

Decision Date02 November 1981
Docket NumberNo. 79-3172,79-3172
Citation661 F.2d 729
Parties34 Fair Empl.Prac.Cas. 1840 Vernon WALLACE, Robert Lemons, Cornelius Hickey, James Richardson, and George Shannon, Plaintiffs-Appellants, v. Commander George C. CHAPPELL, Lieutenant Commander Kenneth Viafore, Lieutenant Clarence Schultz, Lieutenant Barron Bianco, Lieutenant Kenneth Jordan, EMC Richard McCannon, ICC David Lamser, and MSC Lumberto Papa, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

John Murcko, Oakland, Cal., for plaintiffs-appellants.

Ed Kolker, Asst. U. S. Atty., San Diego, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, HUG, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

This action was brought by several black Navy enlisted men claiming discrimination on the basis of race. The complaint alleged that plaintiffs' superior officers had assigned them the least desirable duties, excluded them from training programs, given them low performance evaluations, and punished them with unusual severity for minor transgressions. It was further alleged that this discriminatory treatment would retard their present and future career development. Plaintiffs claimed violations of both the equal protection clause 1 and 42 U.S.C. § 1985(3) (1976). They Defendants moved for dismissal or, alternatively, for summary judgment. The district court granted defendants' motion on three grounds: that internal military decisions were not reviewable, that defendants were immune from liability, and that plaintiffs had failed to exhaust their administrative remedies. 2 Plaintiffs appeal. 3

sought money damages and declaratory and injunctive relief.

At the outset, we distinguish between the two substantive grounds for the district court's decision: nonreviewability and immunity. Nonreviewability, in the present context, involves the question of whether a court may review a military decision to determine whether a substantive wrong has been committed. This question can arise regardless of the identity of the defendant, i. e., whether the defendant is the United States or an individual federal official, and regardless of whether the remedy sought is damages or some form of non-monetary relief.

The official immunity question, in contrast, arises only when an individual official is sued for damages. If the underlying substantive claims are reviewable, the issue becomes whether the official can be held liable for damages for claims arising out of military service and, if so, under what circumstances.

We are thus presented with two difficult questions: whether constitutional claims by military personnel against their superior officers are subject to judicial review and whether the officers enjoy immunity from liability for money damages in connection with such claims. Because we conclude that some military decisions are reviewable and may give rise to liability for damages, we remand to the district court for reconsideration.

I REVIEWABILITY

We begin by noting numerous cases in which courts have reviewed internal military decisions. See, e. g., Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980) (reviewing requirement that prior In other cases, we have refused to review various military decisions. See, e. g., Schlanger v. United States, 586 F.2d 667 (9th Cir. 1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); Arnheiter v. Chafee, 435 F.2d 691 (9th Cir. 1970); Covington v. Anderson, 487 F.2d 660 (9th Cir. 1973). Our cases do not, however, make clear which military decisions are reviewable and which are not. The task we face today is that of clarifying this difficult area of the law.

approval be obtained before circulating petition on base); Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 13 L.Ed. 1036 (1851) (reviewing damages claim by enlisted man against superior officer for assault and false imprisonment); Tigue v. Swaim, 585 F.2d 909 (8th Cir. 1978) (reviewing exclusion of plaintiff from program involving access to nuclear weapons); Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) (reviewing claim for injunctive and declaratory relief to void erroneous evaluation report); cf. Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975) (reviewing equal protection challenge to discharge statute); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (reviewing decision by Adjutant General of Ohio National Guard to deploy Guard units on university campus); Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) (reviewing less than honorable discharge); Denton v. Secretary of Air Force, 483 F.2d 21 (9th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974) (reviewing honorable discharge).

Any test governing the reviewability of claims arising incident to military service must reflect a careful balancing of conflicting policy considerations. Militating in favor of review is the plaintiff's strong interest in obtaining adequate redress for harm caused by the unconstitutional conduct of a federal official. In addition, society as a whole has an interest in deterring federal officials from knowingly violating individuals' constitutional rights.

In the military context, however, several countervailing policy considerations are present. A member of the armed forces is at a disadvantage in litigation because he or she often lacks time, money, and the means to procure witnesses. Cf. Feres v. United States, 340 U.S. 135, 145, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950) (articulating rationales favoring immunity from damages). Litigation is potentially disruptive to military operations. See United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 145, 99 L.Ed. 139 (1954); Calhoun v. United States, 475 F.Supp. 1, 3 (S.D.Cal.1977), aff'd, 604 F.2d 647 (9th Cir. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980). Permitting litigation can make it difficult to maintain discipline. See, e. g., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-2058, 52 L.Ed.2d 665 (1977); Brown, 348 U.S. at 112, 75 S.Ct. at 143 (1954); Calhoun, 475 F.Supp. at 3. Finally, the Supreme Court has voiced a general objection to judges "running the army," Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 539-540, 97 L.Ed. 842 (1953), the implication being either that judicial review might usurp a military function or that the courts lack the competence to weigh the factors that might enter into a military decision. Under the Constitution, regulation of military affairs is within the special province of Congress rather than the courts. U.S.Const. art. I, § 8, cl. 14.

The Fifth Circuit has given careful thought to the problem of reconciling certain of these competing policies. In Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), the court identified several categories of internal military decisions that have been held reviewable and several categories that have not. Id. at 199-201. It then articulated a test, to be applied by the trial court, for ascertaining whether a particular military decision should be reviewed. Id. at 201-02.

The Mindes court held that an internal military decision is unreviewable unless the plaintiff alleges (a) a violation of the Constitution, a federal statute, or military regulations; and (b) exhaustion of available intraservice remedies. If the plaintiff meets both prerequisites, the trial court (1) The nature and strength of the plaintiff's claim. The Mindes court recognized that constitutional claims ordinarily carry greater weight than those resting on a statutory or regulatory base, but acknowledged that, within the class of constitutional claims, the nature and strength of the claim can vary widely.

must weigh four factors to determine whether review should be granted:

(2) The potential injury to the plaintiff if review is refused.

(3) The extent of interference with military functions. The court observed that interference per se should not preclude review because some degree of interference will always exist.

(4) The extent to which military discretion or expertise is involved.

In Schlanger v. United States, 586 F.2d 667, 671 (9th Cir. 1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979), we affirmed a district court decision applying the Mindes test. 4 Without discussion, we then applied the Mindes test to find a military decision reviewable in Glines v. Wade, 586 F.2d 675, 678 n.4 (9th Cir. 1978), rev'd on other grounds sub nom. Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980). We agree that, at least when constitutional claims are asserted, 5 the Mindes test is an appropriate means of deciding when military decisions are reviewable. With respect to such constitutional claims, however, we add a qualification that can be articulated only after describing the decision in Calhoun v. United States, 475 F.Supp. 1 (S.D.Cal.1977), aff'd, 604 F.2d 647 (9th Cir. 1979) (adopting opinion of district court), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980).

In Calhoun, the parents of a marine killed during training brought a wrongful death action against the United States and individual officers under the Federal Tort Claims Act. The parents also asserted numerous constitutional claims. The court held that the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (Government not liable under FTCA for negligence claims arising out of military service), barred recovery, even for the alleged constitutional violations. This holding was based on a conclusion that the constitutional claims were "essentially a restatement of the cause of action in tort." 475 F.Supp. at 5. The court explained Absent the...

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