Introini v. South Carolina Nat. Guard, Civ. A. No. 8:93-1252-3.

• Decision Date: 29 July 1993
• Docket Number: Civ. A. No. 8:93-1252-3.
• Citation: 828 F. Supp. 391
• Court: U.S. District Court — District of South Carolina
• Parties: Richard INTROINI, Plaintiff, v. SOUTH CAROLINA NATIONAL GUARD, SFC [Bobby] Horton, Col. [Robert] Brown, Maj. [Ricky] Haggard, Maj. [Matthew] Chandler, Maj. General T. Eston Marchant, in their individual and official [capacities], Defendants.

828 F. Supp. 391

Richard INTROINI, Plaintiff, v. SOUTH CAROLINA NATIONAL GUARD, SFC Bobby Horton, Col. Robert Brown, Maj. Ricky Haggard, Maj. Matthew Chandler, Maj. General T. Eston Marchant, in their individual and official capacities, Defendants.

Civ. A. No. 8:93-1252-3.

United States District Court, D. South Carolina, Greenwood Division.

July 29, 1993.

William Gary White, III, Law Firm, Columbia, SC, for plaintiff.

Vance J. Bettis, Gignilliat, Savitz & Bettis, Columbia, SC, for defendants.

ORDER

GEORGE ROSS ANDERSON, Jr., District Judge.

This is an action brought by Richard Introini ("Introini"), an enlisted member of the South Carolina National Guard on full-time status, against the South Carolina National Guard and five of his military superiors, including the Adjutant General of South Carolina, General Marchant. In his complaint, Introini alleges that he reported wrongdoing by his immediate military superior, Sergeant First Class (SFC) Horton, and that the defendants retaliated against him for these reports by accusing him of disloyalty and transferring him from his unit in Newberry to a less desirable unit. He purports to state a First Amendment whistleblower claim under 42 U.S.C. § 1983 and a statutory whistleblower claim under the South Carolina Whistleblower Act (S.C.Code Ann. § 8-27-10 et seq.) against the defendants. Introini seeks actual and punitive damages, attorneys' fees under 42 U.S.C. § 1988, and "such other and further relief as this court may deem just and equitable." Complaint. p. 4.

The defendants filed a motion to dismiss under F.R.Civ.P. 12(b)(1) and (6) on June 17, 1993. The motion was fully briefed by the parties and the court heard oral argument on July 22, 1993. Upon consideration of the motion, the briefs of the parties, oral argument and pertinent authorities, the court concludes that the defendants' motion should be granted.

The § 1983 Claim Against the South Carolina National Guard

At the outset, the South Carolina National Guard asserts that it is immune from suit in federal court under the Eleventh Amendment and is not a "person" within the meaning of § 1983. Both of these contentions are correct. The South Carolina National Guard is, as Introini concedes, an agency of the State of South Carolina. Accord, Henry v. Textron, Inc., 577 F.2d 1163, 1164 (4th Cir. 1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 705; Hefley v. Textron, Inc., 713 F.2d 1487, 1493-94 (10th Cir.1983). Accordingly, the Guard is immune from suit in federal court under the Eleventh Amendment unless the State has consented to be sued in federal court or unless Congress has overridden Eleventh Amendment immunity pursuant to its power to enforce the Fourteenth Amendment "by appropriate legislation." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984).

Congress did not override the Eleventh Amendment immunity of the States when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Indeed, the Supreme Court has expressly held that the States and state agencies are not "persons" within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Therefore, it is unnecessary to consider whether the State of South Carolina has consented to be sued in federal court under § 1983. Under Will, a § 1983 claim against the Guard cannot be maintained in state or federal court. Accordingly, the § 1983 claim against the Guard fails as a matter of law under F.R.Civ.P. 12(b)(1) and (6).

The § 1983 Claim Against the Individual Defendants

The individual defendants contend that Introini's § 1983 claim for damages against them is foreclosed by the Supreme Court's decision in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). The court agrees.

In Chappell, several enlisted members of the Navy sought to sue their commanding officer for damages for alleged racial discrimination. The Supreme Court squarely and unequivocally rejected the claim and held that "enlisted military personnel may not maintain a suit for damages from a superior officer for alleged constitutional violations." 462 U.S. at 305, 103 S.Ct. at 2368. In explaining its unwillingness to permit suits by military members against their superiors, the Court wrote:

The special nature of military life, the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel, would be undermined by ... exposing officers to personal liability at the hands of those they are charged to command.

462 U.S. at 304, 103 S.Ct. at 2367.

The Fourth Circuit has interpreted Chappell as imposing an absolute bar to suits for damages by members of the military against their military superiors for alleged constitutional violations. Mickens v. United States Army, 760 F.2d 539 (4th Cir.1985). Although Mickens was himself an officer, not an enlisted member, the court of appeals held that the rationale of Chappell barred his suit for damages against his superiors.

While both Chappell and Mickens involved claims brought by active duty military members, the courts have applied Chappell to bar claims for damages brought by members of the National Guard against their military superiors. Indeed, it appears that every court of appeals that has addressed this issue since Chappell was handed down has held that a member of the National Guard may not sue his military superiors for alleged constitutional violations under § 1983. Jorden v. National Guard Bureau, 799 F.2d 99, 108 (3rd Cir.1986), cert. denied 484 U.S. 815, 108 S.Ct. 66, 98 L.Ed.2d 30 (1987); Crawford v. Texas Army National Guard, 794 F.2d 1034 (5th Cir.1986); Watson v. Arkansas National Guard, 886 F.2d 1004 (8th Cir.1989); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985); see also Banks v. Commander, Detachment 1 etc., 797 F.Supp. 984 (M.D.Ga. 1992). This court agrees that Chappell forecloses Introini's § 1983 claim against his military superiors.

It is noteworthy that the courts have not distinguished among various constitutional rights in applying Chappell. Chappell involved a claim of racial discrimination. Mickens involved a claim for deprivation of procedural due process. However, several of the cases involving § 1983 claims by National Guard members have dealt with First Amendment whistleblower claims like the one asserted by Introini. The result has been the same in all cases: Chappell bars the § 1983 claims.

For example, in Crawford, an enlisted member of the Texas National Guard sued twelve of his superiors under § 1983. Crawford, like Introini, alleged that his superiors had retaliated against him for reporting criminal wrongdoing by members of the Texas Army National Guard. The Fifth Circuit held that the claim was foreclosed by Chappell:

Chappell held that military personnel may not pursue a Bivens-type action for damages against their superior officers to redress constitutional violations. 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.

. . . . .

We perceive no basis upon which to distinguish § 1983 claims asserted by National Guardsmen against their superiors in the Guard 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....

Crawford, 794 F.2d at 1035-36 (internal citations omitted).

In Jorden, a member of the Pennsylvania Air National Guard sued his superiors for damages under § 1983 alleging that he was discharged in retaliation for reporting improper expenditures of Guard funds. The Third Circuit held that Chappell together with Butz v. Economu, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), foreclosed Jorden's claim. As the court of appeals observed, Chappell involved a Bivens¹ claim against a federal officer. Butz held that the immunity of federal officials from Bivens claims is identical to the immunity of state officials from § 1983 claims. The Third Circuit concluded that the combined holdings of Chappell and Butz compelled the conclusion that a member of the National Guard cannot maintain a § 1983 action for damages against his military superiors. 799 F.2d at 105-108. See also Watson v. Arkansas National Guard, 886 F.2d 1004, 1007 and id. n. 9 (8th Cir.1989).

Most recently, in Lovell v. Heng, 890 F.2d 63 (8th Cir.1989), the Eighth Circuit held a § 1983 First Amendment claim nonjusticiable under Chappell. Lovell testified before the Nebraska legislature in opposition to the confirmation of General Heng as Nebraska Adjutant General. General Heng was thereafter confirmed and, upon being confirmed, promptly ordered that Lovell be involuntarily terminated as State Retention Noncommissioned Officer for the Nebraska National Guard. Lovell sued, alleging that his involuntary termination was in retaliation for his testimony and therefore violated his First Amendment rights. Relying on Chappell and its own earlier decision in Watson v. Arkansas National Guard, 886 F.2d 1004, the court of appeals held Lovell's § 1983 claim for damages and injunctive relief (i.e., reinstatement to his former position) nonjusticiable.

Despite the array of authority against him, Introini argues that his § 1983 action is supported by the Fifth Circuit's decision in Mindes v. Seaman, 453 F.2d 197 (1971). The court disagrees. First, Mindes was decided twelve years prior to Chappell. Second, Mindes did not involve a claim for damages,...