Watson v. Arkansas Nat. Guard, 86-1639

• Decision Date: 22 September 1989
• Docket Number: No. 86-1639,86-1639
• Citation: 886 F.2d 1004
• Parties: 50 Fair Empl.Prac.Cas. 1718, 51 Empl. Prac. Dec. P 39,332 John C. WATSON, Appellee, v. ARKANSAS NATIONAL GUARD, Maj. Gen. Jimmie "Red" Jones, Garnett J. Leonard, Charles S. Rowland, Guy Robinson, Ronald D. Fewell, In Their Individual and Official Capacities, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1004

886 F.2d 1004

50 Fair Empl.Prac.Cas. 1718,

51 Empl. Prac. Dec. P 39,332

John C. WATSON, Appellee, v. ARKANSAS NATIONAL GUARD, Maj. Gen. Jimmie "Red" Jones Garnett J. Leonard, Charles S. Rowland, Guy Robinson, Ronald D. Fewell, In Their Individual and Official Capacities, Appellants.

No. 86-1639.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 4, 1988.

Decided Sept. 22, 1989.

Claudell Woods, N. Little Rock, Ark., for appellants.

Steve Weaver, Little Rock, Ark., for appellee.

Before FAGG and BOWMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

BOWMAN, Circuit Judge.

John C. Watson seeks, among other things, to have a federal court order his reinstatement to the Arkansas National Guard. He brought this action pursuant to 42 U.S.C. Secs. 1981 and 1983 and the Fourteenth Amendment against the Arkansas National Guard and five individuals, all military personnel, alleging that the defendants acted in a racially discriminatory manner in dismissing him from the Guard for reasons of physical disability. ¹ His complaint requested damages and equitable relief, including reinstatement and back pay.

Defendants moved to dismiss or, in the alternative, for summary judgment on the grounds, inter alia, that they were entitled to both absolute immunity and qualified immunity as a matter of law. The District Court, ² in a brief order, denied these motions. An interlocutory appeal was taken from that order, resulting in our directing the trial court to address the various grounds for dismissal or summary judgment raised by defendants in their motion and to give reasons for its rulings. We retained jurisdiction over the appeal. ³

On remand, the District Court granted summary judgment in favor of defendants on Watson's claim for damages based upon the Feres ⁴ doctrine and dismissed without prejudice Watson's claims for equitable relief because of Watson's failure to exhaust his administrative remedies. ⁵ In a memorandum opinion, the court set forth a cogent and thorough analysis of the issue of whether the policies of judicial noninterference in military matters would preclude a claim for equitable relief and concluded that such claims must be carefully regulated. The matter is again before us, with defendants contending that all Watson's claims, those for damages and for injunctive relief alike, are nonjusticiable, and therefore that his claims for equitable relief should have been dismissed with prejudice.

We conclude that the District Court properly granted summary judgment against Watson on his claim for damages (Watson in fact has abandoned this claim), and properly dismissed without prejudice his equitable claim for correction of military records and back pay pending exhaustion of administrative remedies. We further conclude that Watson's claim for reinstatement is nonjusticiable, and therefore we remand this claim to the District Court for dismissal with prejudice.

DISCUSSION

In Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), a unanimous Supreme Court held that military personnel may not bring a Bivens-type ⁶ action for damages against their superior officers for alleged constitutional violations. Id. 462 U.S. at 305, 103 S.Ct. at 2368. In Chappell, enlisted military personnel sued their superiors seeking damages, declaratory judgment, and injunctive relief for alleged racial discrimination in their assignments and evaluations. Guided by the doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct 153, 95 L.Ed. 152 (1950), which held that the United States is not liable under the Federal Tort Claims Act for injuries to military personnel which "arise out of or are in the course of activity incident to service," ⁷ the Court concluded that the unique disciplinary structure of the military coupled with Congress's well-established authority in the military field made it "inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." Chappell, 462 U.S. at 304, 103 S.Ct. at 2368. The Court stated:

"[J]udges are not given the task of running the Army. The responsibility for setting up channels through which ... grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters."

Id. at 301, 103 S.Ct. at 2366 (quoting Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 539-40, 97 L.Ed. 842 (1953)). The Court further stated:

[T]he special relationships that define military life have "supported the military establishment's broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have."

Chappell, 462 U.S. at 305, 103 S.Ct. at 2368 (quoting Warren, The Bill of Rights and the Military, 37 N.Y.U. L.Rev. 181, 187 (1962)).

The Court, in recognition of Congress's authority over the military, stated: "The case arises in the context of Congress' authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference." Id. at 301, 103 S.Ct. at 2366 (quoting Rostker v. Goldberg, 453 U.S. 57, 64-65, 101 S.Ct. 2646, 2651, 69 L.Ed.2d 478 (1981)). "Congress has exercised its plenary constitutional authority over the military, has enacted statutes regulating military life, and has established a comprehensive internal system of justice to regulate military life," id. at 302, 103 S.Ct. at 2367, resulting in the establishment of a comprehensive system of military justice distinct from, but comparable to, the civilian courts. See Schweiker v. Chilicky, --- U.S. ----, 108 S.Ct. 2460, 2475, 101 L.Ed.2d 370 (1988) (Brennan, J., dissenting) (in the military setting Congress has "established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure," quoting Chappell, 462 U.S. at 302, 103 S.Ct. at 2367).

The Court in United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), recognizing the continuing validity of the Feres doctrine, concluded:

To permit this type of suit [negligence] 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 replace restraints on a soldier's off-base conduct.

Id. at 58, 105 S.Ct. at 3043.

In United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) the Court, in overturning a lower court's narrow construction of Chappell, reemphasized the breadth of the Feres doctrine and clarified Chappell. ⁸ In Stanley, a former serviceman brought a Bivens action and attempted to distinguish Chappell by arguing that the suit did not involve his superior officers, and therefore the chain-of-command concerns at the heart of Chappell were not implicated. The Court rejected this argument, concluding that the "incident to service" test established in Feres applies to all Bivens claims in the military setting. Id. at 680, 107 S.Ct. at 3061-62. To hold otherwise

ignore[s] our plain statement in Chappell that "[t]he 'special factors' that bear on the propriety of respondents' Bivens action also formed the basis of this Court's decision in Feres v. United States," 462 U.S. at 298, 103 S.Ct. at 2365, and that "[a]lthough this case concerns the limitations on the type of nonstatutory damages remedy recognized in Bivens, rather than Congress' intent in enacting the Federal Tort Claims Act, the Court's analysis in Feres guides our analysis in this case." Id. at 299, 103 S.Ct. at 2365.... Today, no more than when we wrote Chappell, do we see any reason why our judgment in the Bivens context should be any less protective of military concerns than it has been with respect to FTCA suits, where we adopted an "incident to service" rule.

Id. at 680-81, 107 S.Ct. at 3062.

The clear principle that emerges from these Supreme Court decisions is that "civilian courts may not sit in plenary review over intra-service military disputes. Following Chappell and Shearer [and Stanley ], 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." Crawford v. Texas Army National Guard, 794 F.2d 1034, 1035 (5th Cir.1986) (footnote omitted).

Chappell and Stanley involved Bivens actions, while Watson's claims rest upon Sec. 1983. The difference is due to the identity of the defendants. Although the National Guard has both state and federal characteristics, see Perpich v. United States Department of Defense, 880 F.2d 11 (8th Cir.1989) (en banc), action by the National Guard of a particular state is considered state action within the meaning of the Fourteenth Amendment, and therefore suits alleging constitutional violations by the Guard and its personnel are brought under Sec. 1983, rather than Bivens. Jorden v. National Guard Bureau, 799 F.2d 99, 104-06 (3rd Cir.1986), cert. denied, 484 U.S. 815, 108 S.Ct. 66, 98 L.Ed.2d 30 (1987).

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 Sec. 1983. Brown v. United States, 739 F.2d 362, 367 (8th Cir.1984), cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert....