Trerice v. Pedersen

Decision Date11 January 1985
Docket NumberNo. 84-5789,84-5789
Citation769 F.2d 1398
PartiesWilliam TRERICE, et al., Plaintiff-Appellant, v. Dan A. PEDERSEN, Captain, U.S. Navy, Commanding Officer, USS Ranger, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Peter J. Kelley, Ann Arbor, Mich., for plaintiff-appellant.

Kathryn A. Snyder, Asst. U.S. Atty., San Diego, Cal., for defendants-appellees.

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

Before NELSON, CANBY, and HALL, Circuit Judges.

NELSON, Circuit Judge:

William Trerice, father and personal representative for the estate of Paul Anthony Trerice, appeals from the district court's dismissal of his action for failure to state a claim upon which relief can be granted. Trerice's son Paul, an enlisted member of the Navy, died while serving at sea aboard the USS Ranger, and Trerice filed suit seeking damages from defendant-appellee Lee Cargill, a Navy Captain and the Executive Officer of the USS Ranger, for alleged common law torts and deprivations of his son's constitutional and civil rights which are claimed to have led to Paul's death. Trerice now contends that the district court erred in dismissing his claims, which arose under the Constitution, civil rights statutes 42 U.S.C. Secs. 1985(3) & 1986, and common law. We do not find appellant's arguments persuasive, and affirm the judgment of the district court dismissing the action.


Paul Anthony Trerice, an enlisted member of the United States Navy, died on April 14, 1981, while serving at sea aboard the USS Ranger. Lee Cargill was at that time a Navy Captain and Executive Officer of the USS Ranger. The complaint alleges that, in the days prior to Paul Trerice's death, Cargill and eight other members of the Navy conspired to harm decedent and

without just cause or excuse assaulted, battered and required excessive physical exercise of Paul Anthony Trerice resulting in his death from heat prostration and heart failure, or ... knowing that such tortious acts were about to be committed, and having the power and duty to prevent the commission of same, neglected and refused to do so, although by reasonable diligence they could have done so.

Paul's father, William Trerice, filed a complaint for monetary damages on April 11, 1983, as personal representative for the estate of his deceased son. Of the nine named defendants, only Lee Cargill was ever served with the complaint, and so appeared as the lone defendant below and is the only appellee in the current proceedings. On Cargill's motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss for failure to state a claim upon which relief can be granted, and after briefing by both parties, the district court dismissed Trerice's complaint on February 29, 1984. On March 28, Trerice filed a timely notice of appeal from this final decision of the district court.


Did the district court properly dismiss Trerice's complaint, which included claims for relief under (I) the federal Constitution, (II) civil rights statute 42 U.S.C. Sec. 1985(3) 1, (III) civil rights statute 42 U.S.C. Sec. 1986 2, and (IV) the common law of torts, for failure to state any claim upon which relief can be granted?


The district court's ruling on the motion to dismiss for failure to state a claim upon which relief can be granted involves questions of law and is reviewable de novo. E.g., Alonzo v. ACF Property Management, Inc., 643 F.2d 578, 579 (9th Cir.1981).


The district court rested its order dismissing the action upon the doctrine of "intramilitary immunity." However, we may affirm the district court's ruling on any basis presented by the record. E.g., Mollnow v. Carlton, 716 F.2d 627, 628 n. 1 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984).


Trerice filed suit seeking damages on account of actions which allegedly violated his son's constitutional rights. Trerice's constitutional claims were properly dismissed because (1) no private cause of action under the Constitution is available to him, and (2) even were an appropriate cause of action available, the military decisions of which he complains are not subject to judicial review.

A. The Existence of a Cause of Action

A cause of action in monetary damages against individual federal officials for constitutional infringements exists by virtue of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny. A Bivens-type action for damages will not lie, however, when "special factors counselling hesitation" are present. Id. at 396, 91 S.Ct. at 2005, quoted in Chappell v. Wallace, 462 U.S. 296, 298, 103 S.Ct. 2362, 2364, 76 L.Ed.2d 586 (1983).

The Supreme Court, in Chappell, concluded that

the unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute "special factors" which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers.

Id. at 304, 103 S.Ct. at 2367. Chappell involved a suit by Navy enlisted men against their superior officers for alleged racially discriminatory conduct. The Court's broad holding there, that "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations," id. at 305, 103 S.Ct. at 2368, raises an insuperable obstacle to Trerice's constitutional claims in the present case.

Trerice, in his brief, argues that his constitutional claim falls within the Chappell doctrine's "acknowledged exception" for particularly extreme, as opposed to "garden-variety," constitutional violations. However, Chappell involved allegations of discriminatory conduct which included the imposition of "penalties of unusual severity," 462 U.S. at 297, 103 S.Ct. at 2364, and so is factually quite similar to the present case.

But a more fundamental flaw in Trerice's argument is that there exists no such exception as he posits to the broad rule of Chappell. He misreads the assertion in the Chappell opinion that

This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service. [Citations.]

Id. at 304, 103 S.Ct. at 2367. This statement indicates merely that the Chappell Court did not intend to preclude all suits by military personnel arising out of constitutional violations; a non-Bivens, congressionally-authorized statutory cause of action for damages against superior officers might lie, as might other constitutional claims, if they are not directed at individual superior officers.

We have recently endorsed a broad reading of Chappell in this Circuit, in a decision which affirmed the dismissal of a former Air Force pilot's Bivens claims against his erstwhile commanding officers. Mollnow v. Carlton, 716 F.2d 627, 629-30 & n. 4 (9th Cir.1983) ("we believe the Court necessarily imposed a per se prohibition on the filing of Bivens-type actions by servicemen against their superiors"), cert. denied, --- U.S. ----, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984).

B. Reviewability

A second, independent ground for proper dismissal of Trerice's constitutional claims is provided by the fact that the military decisions upon which his complaint focuses are not subject to judicial review, under the doctrine of Wallace v. Chappell, 661 F.2d 729, 731-34 (9th Cir.1981), rev'd on other grounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). There, we adopted, "at least where constitutional claims are asserted," id. at 733, a version of the Fifth Circuit's test of reviewability of military decisions as enunciated in Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971). We have since reaffirmed these principles in several decisions written after the Supreme Court's reversal of Wallace. See Helm v. State of California, 722 F.2d 507, 509-10 (9th Cir.1983); Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983); Gonzalez v. Department of Army, 718 F.2d 926, 929-30 (9th Cir.1983).

Trerice's constitutional claims fail to satisfy at least one requirement of this test, in that they lack any allegation of exhaustion of intraservice remedies, and so were properly dismissed.

II. THE 42 U.S.C. Sec. 1985(3) CLAIM

Trerice's 42 U.S.C. Sec. 1985(3) claim is deficient in at least two respects, and so was properly dismissed.

The Supreme Court in Chappell v. Wallace left open the possibility that a cause of action in monetary damages does not exist under section 1985(3) for military personnel against their superior officers for injuries sustained in the line of duty, for reasons similar to those governing the blanket prohibition of Bivens-type actions in such circumstances. 462 U.S. at 305 n. 3, 103 S.Ct. at 2368 n. 3. Indeed, we have since applied the Chappell reasoning to prohibit suits by military personnel against their superiors under 42 U.S.C. Sec. 1985(1), although we did not reach that issue with respect to section 1985(3). Mollnow v. Carlton, 716 F.2d at 630-32.

We choose not to resolve that issue in the present case, however, because there exist independent reasons justifying the dismissal of Trerice's section 1985(3) claim, even assuming arguendo that the requisite cause of action exists under the statute. First, the allegedly injurious military decisions of which he complains are not subject to judicial review under Wallace v. Chappell, 661 F.2d at 731-34 & n. 5. As with Trerice's constitutional claims, the failure to allege exhaustion of intraservice remedies itself provides sufficient ground for the dismissal of the section 1985(3) claim.

Alternatively, Trerice's section 1985(3) claim is vulnerable to a motion to dismiss because his...

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