Crawford v. Texas Army Nat. Guard

Citation794 F.2d 1034
Decision Date23 July 1986
Docket NumberNo. 85-1287,85-1287
PartiesRichard M. CRAWFORD, Plaintiff-Appellant, v. TEXAS ARMY NATIONAL GUARD, et al., Defendants-Appellees. Bruce A. OLSON, Plaintiff-Appellant, v. TEXAS ARMY NATIONAL GUARD, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Wilson, Grosenheider & Burns, Austin, Tex., for plaintiff-appellant.

Joseph W. Barbisch, Jr., Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, HILL, and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge:

Less than two years before the Supreme Court's decision in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), appellants Crawford and Olson filed suit against the Texas Army National Guard (TARNG), the Governor of Texas, and twelve military personnel to rectify what they believe to be violations of their constitutional rights. They allege that they were dismissed or put in the inactive reserve in retaliation for reporting criminal activity and the discrimination and mistreatment of blacks in the TARNG. They further assert that the TARNG did not follow proper procedures in changing their status. Appellants' claims were pled under the first, fifth, and fourteenth amendments, and 42 U.S.C. Secs. 1983 and 1985(2). They demanded judgment, including compensatory damages, punitive damages, reinstatement of their eligibility for all available retirement benefits, costs, attorney fees, and the removal of all false and adverse information from their personnel files, together with "such other and further relief ... at law or equity" to which they might be entitled. The appellants did not avail themselves of their right of appeal to the Army Board for the Correction of Military Records (ABCMR), which is responsibile for awarding back pay, retirement benefits, and other compensatory measures in the case of inequitable military personnel actions.

The district court granted TARNG's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), dismissing appellants' actions with prejudice. We affirm the dismissal, with the modification that it be without prejudice to the claims for which there may be ultimate reviewability of any future decision of the ABCMR.

Chappell held that military personnel may not pursue a Bivens -type action for damages against their superior officers to redress constitutional violations. 462 U.S. at 305, 103 S.Ct. at 2368, 76 L.Ed.2d at 594. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Court emphasized the long-standing supremacy of Congress over rights, duties, and responsibilities in the framework of the military establishment and the practical necessities of maintaining a strict discipline and command structure within the military services. These factors counseled against judicial intervention in internal military affairs.

Last term, in United States v. Shearer, --- U.S. ----, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), reasserting the Feres 1 doctrine, which prevents claims under the Federal Tort Claims Act for injuries arising out of or in the course of activity incident to military service, the Court explained that:

To permit this type of [negligence] suit would mean that commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions; for example, whether to overlook a particular incident or episode, whether to discharge a serviceman, and whether and how to place restraints on a soldier's off-base conduct.

Id. at ----, 105 S.Ct. at 3044, 87 L.Ed.2d at 45 (citing Chappell with approval). The principle expressed in these cases is that civilian courts may not sit in plenary review over intraservice military disputes. Following Chappell and Shearer, there can be little doubt that the permissible range of lawsuits by present or former servicemen against their superior officers is, at the very least, narrowly circumscribed. 2

Several of the circuit courts, acknowledging the breadth of Chappell, have declared off limits Sec. 1983 claims by National Guard personnel, Brown v. United States, 739 F.2d 362, 366-67 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985); and a claim based on the alleged inadequacy of an intraservice remedy, Mollnow v. Carlton, 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). Only one circuit has held that Chappell did not directly preclude the justiciability of a serviceman's complaint that he was severed from the National Guard in violation of his rights to due process. See Penagaricano v. Llenza, 747 F.2d 55, 59 (1st Cir.1984). We note, in any event, that the Penagaricano court ultimately found the guardman's claims to constitute a nonjusticiable military controversy. Id. at 64. See Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971).

We agree with the reasoning behind the majority of the circuit cases, as we perceive no basis upon which to distinguish such claims from those held impermissible by Chappell. Section 1983 and due process claims, like those predicated on Bivens, invite judicial second-guessing of military actions and tend to overlap the remedial structure created within each service, which, according to Chappell, provide an exclusive remedy subject to review only under the arbitrary and capricious standard. 462 U.S. at 302-03, 103 S.Ct. at 2366-67, 76 L.Ed.2d at 592-93. Consequently, appellants' requests for money damages, to the extent they are based upon alleged constitutional violations and 42 U.S.C. Sec. 1983, are precluded by Chappell.

We similarly reject the claims alleging a conspiracy violative of 42 U.S.C. Sec. 1985(2). Inasmuch as the litigation of a claim under ...

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