Speigner v. Alexander, No. 00-13616

• Decision Date: 24 April 2001
• Docket Number: No. 00-13616
• Citation: 248 F.3d 1292
• Parties: (11th Cir. 2001) MARVIN K. SPEIGNER, JR., retired, Plaintiff-Appellant, v. 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
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1292

248 F.3d 1292 (11th Cir. 2001)

MARVIN K. SPEIGNER, JR., retired, Plaintiff-Appellant, v. 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.

No. 00-13616

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

April 24, 2001

Appeal from the United States District Court for the Middle District of Alabama

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

Before BIRCH and HULL, Circuit Judges and TIDWELL^*, District Judge.

BIRCH, Circuit Judge:

In this opinion, we decide whether a suit for injunctive relief 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 25 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 National Guard ("National Guard") selection criteria, and either recommends that an officer be retained, be retained for a limited period, or not be retained at all. In 1997, the SRB recommended that Speigner be retained for one year, and in 1998, it recommended that Speigner not be retained. Defendant 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, though 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 express 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 Hennies'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. 1985.¹ He requested an injunction against racial discrimination in the Alabama State Military Department, reinstatement, back pay, compensatory and punitive damages, and attorneys' fees. Because Speigner voluntarily dismissed his claims for compensatory and punitive damages,² the district court considered 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 judgment 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, viewing all the facts in the light most favorable to the non-moving party. Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998). Summary judgment is proper when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 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 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 U.S. 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.").³ 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 responses 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 reiterated the importance of the Feres "incident to service" test, and extended the nonjusticiability doctrine to include Bivens actions.⁴ Id. at 683-84, 107 S.Ct. at 3064. Later cases in several of the circuits extended the application of the Feres "incident to service" test to cases brought under 1983, an interpretation 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 (8th Cir. 1989) ("This circuit, along with the majority of circuits that have considered the question, has extended the logic of Chappell to actions brought against National Guard officers under 1983 [because] [t]he concern for the disruption of military discipline upon which Feres, Chappell, and Stanley are based applies equally when a court is asked to entertain an intra-military suit under 1983."); accord Bowen v. Oistead, 125 F.3d 800, 803 n.2 (9th Cir. 1997); Wright v. Park, 5 F.3d 586, 591 (1st Cir. 1993). As a result of this line of cases, there is no recognized cause of action for a member of the armed forces to request monetary damages from the military if the claim is based on an injury that is incident to service.⁵

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 consistent 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,

[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; that relationship 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 enlisted personnel against the military for an injury incident to service nonjusticiable for injunctive relief as well as damages.

B. Circuit Approaches

Despite the Supreme 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. A discussion of the differences is helpful to explain our rationale for agreeing with the majority of circuits that have addressed this issue.

The Seventh Circuit, in Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765 (7th Cir. 1993), found cases for reinstatement 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 hamper 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.⁶ Watson, 886 F.2d at 1007. The Eighth Circuit dismissed his case because "the policies upon which the Feres doctrine, and subsequent case law in that doctrine's development, are premised weigh heavily in favor of precluding claims for equitable relief." Id. at 1008. The court explained its decision by stressing that "[t]he judiciary does not acquire competence in this area merely because 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 form 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 perform 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 (5th Cir. 2000). The court emphasized that "courts should not interfere with military discipline and management. These are areas where we have little competence or authority to proceed." Id. at 338. In Meister, the court cited Crawford...