Wright v. Park

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1206

RICHARD L. WRIGHT,

Plaintiff, Appellant,

v.

ERNEST C. PARK, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Peter A. Anderson for appellant.

Michael M. DuBose, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and George P.

Dilworth, Assistant United States Attorney, were on brief, for

appellees.

October 4, 1993

SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.

consider whether civil rights actions can be maintained against

military officers in the chain of command by persons employed

under the National Guard Technician Act of 1968 (Technician Act),

32 U.S.C. 709 (1988). The district court granted summary

judgment because it deemed plaintiff's claims to be

nonjusticiable. See Wright v. Park, 811 F. Supp. 726 (D. Me.

1993). Although our reasoning differs from that of the court

below, we affirm.

I. BACKGROUND

The facts, insofar as they are germane to this

proceeding, are not seriously disputed. Plaintiff-appellant

Richard L. Wright served from 1970 to 1990 in a dual civilian-

military capacity as a technician at the Air National Guard (ANG)

base in Bangor, Maine. Wearing his civilian hat, appellant

served during the last three years of the period as an aircraft

maintenance specialist. Wearing his military hat, he served

during that same period as deputy commander for maintenance,

101st Air Refueling Wing, and as a colonel in the Maine ANG. In

these positions, appellant supervised approximately 450 persons

attached to the maintenance unit, including 130 technicians. His

primary mission was to keep Bangor-based military aircraft in a

state of combat preparedness, and to train others to do the same.

On March 2, 1990, Major General Ernest Park notified

appellant of his forthcoming reassignment to the position of

flight instructor. In compliance with Technician Personnel

2

Regulation No. 15, 2-5,1 Park's letter informed appellant that,

if he abjured reassignment, the letter itself would be deemed to

operate as a 30-day termination notice. Appellant did not

welcome the news: while the proposed shift in duties endangered

neither his pay nor his benefits, it promised to remove him from

the maintenance unit and divorce him from all supervisory

responsibilities. Consequently, appellant rejected the

reassignment. In due course, the threatened termination became a

reality. Park relieved appellant of his duties as a civilian

aircraft maintenance specialist and as deputy commander for

maintenance, while leaving intact his military rank.

His several hats askew, appellant brought suit in

federal district court against General Park and others presumably

responsible for cashiering him. He claimed that his habitual

whistleblowing during his tenure as maintenance officer, he had

filed repeated reports of safety violations, as well as a report

charging General Park with the unauthorized use of military

aircraft prompted a cabal of high-ranking officers to retaliate

against him and, ultimately, strip him of his job.2 His second

amended complaint (the operative document for our purposes)

alleges that the named defendants Generals Park, Eremita, and

1Regulation No. 15, promulgated by the Secretaries of the
Army and Air Force pursuant to 32 U.S.C. 709(a) (1988), covers
a wide range of personnel matters. Section 2-5 thereof addresses
non-disciplinary, management-directed reassignments of persons
employed under the Technician Act.

2Defendants deny these charges, contending that appellant's
reassignment was justified by discipline problems within the
maintenance unit and by the need to bolster flagging morale.

3

Durgin, and Colonel Hessert thereby violated the Civil Rights

Act, 42 U.S.C. 1983, 1985 (1988), the federal whistleblower

statute, 5 U.S.C. 2301-2302 (1988), and the state

whistleblower law, 26 M.R.S.A. 831-840 (1988).

The federal district court consolidated the case with a

related case.3 On January 26, 1993, the court granted

defendants' motion for summary judgment, holding in substance

that the dispute concerned a nonjusticiable military controversy.

See Wright v. Park, 811 F. Supp. at 732. It reached this result

by applying the analytic framework first suggested in Mindes v.

Seaman, 453 F.2d 197, 201-02 (5th Cir. 1971), and subsequently

adopted by this court in Penagaricano v. Llenza, 747 F.2d 55, 60-

61 (1st Cir. 1984).

The appeal from the district court's judgment presents

a pair of interrelated issues: separability and justiciability.

Thus, we must make two inquiries: Assuming defendants

discriminated against appellant, can appellant be said to have

suffered injury in his capacity as a civilian worker, independent

of his military role? (2) If not, i.e., if appellant was

3An investigator for the Maine Human Rights Commission found
reason to believe that defendants discriminated against
appellant, and the Commission joined with appellant to bring suit
in federal district court. A parallel state action was removed
to federal court and then consolidated with the original action.
After the Maine Supreme Judicial Court held that the state
whistleblower law does not pertain to National Guard personnel,
see Maine Human Rights Comm'n v. Maine Dep't of Defense &

Veterans' Servs., 627 A.2d 1005 (Me. 1993), the Commission

dropped its appeal from the judgment below. The parties agree
that the state-law issues are now moot and, consequently, we do
not address them.

4

injured, rather, in his military capacity, can his injury form

the basis for a justiciable civil rights claim against the

defendants (all of whom are military officers)? To complicate

matters, answering the second query will require us to reexamine

our governing precedent on justiciability in light of recent case

law elsewhere.

II. AN OFFICER AND A GENTLEMAN

Appellant, who remains a colonel in the ANG, argues

strenuously that, for purposes of this case, his civilian status

may be disentangled from his military status, and that he should

be free to sue for discrimination implicating the former. But

this balkanization of technicians' work is belied by Congress's

description of the functions that ANG technicians serve, by the

unmistakable intendment of the Technician Act (the statute that

Congress enacted in 1968 to regulate such personnel), and by the

resulting ties that bind technicians' civilian and military

roles.

The Technician Act makes technicians eligible for

military employment benefits and, in so doing, seeks to improve

national security by facilitating the recruitment of qualified

individuals. See American Fed'n of Gov't Employees v. FLRA, 730

F.2d 1534, 1542-47 (D.C. Cir. 1984) (analyzing legislative

history). The Act provides in relevant part that persons may be

employed as technicians only "[u]nder regulations prescribed by

the Secretary of the [relevant military branch]. . . ." 32

U.S.C. 709(a). Each such technician "shall, while so employed,

5

be a member of the National Guard and hold the military grade

specified by the Secretary concerned for that position." 32

U.S.C. 709(b). In substance, then, the Technician Act

evidences Congress's intention that technicians, while retaining

their positions as civil employees outside the competitive civil

service, will serve simultaneously as employees of the

appropriate military department, subject to its regulation.

It is axiomatic that the National Guard is military in

character. See H.R. Rep. No. 1823, 90th Cong. 2d Sess.,

reprinted in 1968 U.S.C.C.A.N. 3318, 3319 (recognizing the

"military characteristics of the National Guard"). We think it

follows that technicians are martial in character. Indeed, under

the Technician Act's composite regime, technicians are

considerably more than nominal members of the military

establishment. In referring to the National Guard's mission,

Congress termed it "essential" as a matter of "military policy"

that "the strength and organization of the [National Guard] as an

integral part of the first line defenses of the United States be

maintained and assured at all times." 32 U.S.C. 102. Because

National Guard technicians serve as the Guard's support staff and

are, in fact, those whose job it is to maintain and assure the

Guard's strength and organization, they are indispensable to this

nation's defense. See, e.g., 32 U.S.C. 709(a) (assigning to

technicians such distinctively military tasks as "(1) the

administration and training of the National Guard; and (2) the

maintenance and repair of supplies issued to the National Guard

6

or the armed services"). Nor do technicians merely perform tasks

that have a military ring to them; the record reflects that fully

one-half of appellant's outfit, the 101st Air Refueling Wing,

served in Operation Desert Storm or Desert Shield.

Given this mise-en-scene, it is unsurprising that, no

matter the context, every court having occasion closely to

consider the capacity of National Guard technicians has

determined that capacity to be irreducibly military in nature.

See, e.g., Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.), cert.

denied, 488 U.S. 817 (1988); Illinois Nat'l Guard v. FLRA, 854

F.2d 1396, 1398 (D.C. Cir. 1988); American Fed'n, 730 F.2d at

1545-46; New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276, 279

(3d Cir.), cert. denied, 459 U.S. 988 (1982); Nesmith v. Fulton,

615 F.2d 196, 200-01 (5th Cir. 1980). We, too, conclude that,

since National Guard technicians' positions are encompassed

within a military organization and require the performance of

work directly related to national defense, such positions are

themselves military in nature.

Appellant strives valiantly to elude the grasp of this

logic. He says that his situation is different; it falls outside

the mine run of previous cases because he was ousted from his

civilian employment without being terminated from his military

post. This asseveration cannot withstand scrutiny.

For one thing, appellant mischaracterizes his own

situation: though he retains his commission as a colonel in the

ANG, the injury of which he complains has had repercussions

7

beyond the loss of his civilian mantle. He also has been

dismissed from the post of deputy commander for maintenance a

post which he admits is military in nature. For another thing,

appellant's self-portrait, even as he has painted it, is not an

original. In Nesmith, for example, the plaintiff lost his

civilian post prior to the eventual loss of his military post.

Nesmith, 615 F.2d at 197. The court took care to analyze the

initial dismissal independently, yet reached the same conclusion

as other courts that have considered the question: an ANG

technician's two identities are not scissile. See id. at 201;

see also Stauber, 837 F.2d at 399 (holding that an injury

occurring in the course of plaintiff's civilian employment as an

ANG technician arose incident to military service); cf. New

Jersey Air Nat'l Guard, 677 F.2d at 279 (holding that the

Technician Act grants adjutants general final discretion relating

to discipline and discharge of ANG technicians).

We rule, therefore, that while a technician's job is a

composite, containing both civilian and military pieces, the

job's dual aspects are inseparable; they are, like Chang and Eng,

joined at the chest. And from the fact that the technician's

several roles are inextricably intertwined, it follows that the

adverse employment action against which appellant inveighs

necessarily implicates his military as well as his civilian

status. In other words, Colonel Wright, for present purposes, is

both an officer and a gentleman.

III. NO CLEARANCE FOR TAKEOFF

8

Having answered the separability question in the

negative, we proceed to the question of justiciability. The

touchstone of our inquiry is Chappell v. Wallace, 462 U.S. 296

(1983). Chappell held that "[t]aken together, 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 with a Bivens-type remedy against their

superior officers." Id. at 304 (citation omitted).4 The

Chappell Court placed particular emphasis on the first of these

two factors:

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 a judicially created remedy
exposing officers to personal liability at
the hands of those they are charged to
command. Here, as in Feres [v. United

States, 340 U.S. 135 (1950)], we must be

"concern[ed] with the disruption of `[t]he
peculiar and special relationship of the
soldier to his superiors' that might result
if the soldier were allowed to hale his
superiors into court."

Id. (citations omitted).

Chappell broke new ground, and courts across the nation

4When the Chappell Court wrote about a "Bivens-type" remedy,

it had in mind Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). Bivens is the case

establishing, as a general proposition, that victims of a
constitutional violation perpetrated by a federal actor may sue
the offender for damages in federal court despite the absence of
explicit statutory authorization for such suits. See Carlson v.

Green, 446 U.S. 14, 18 (1980) (restating Bivens rule); Morales v.

Ramirez, 906 F.2d 784, 786 (1st Cir. 1990) (same).

9

vigorously debated whether to read it narrowly, based on its

holding, or to read it broadly, based on its reasoning. See

Jorden v. National Guard Bureau, 799 F.2d 99, 107 (3d Cir. 1986)

(surveying case law), cert. denied, 484 U.S. 815 (1987). Within

a year after Chappell emerged, this court decided Penagaricano,

747 F.2d 55, a case involving facts similar to those we sift

today. There, an ANG technician, having been discharged, alleged

a conspiracy to end his employment in retaliation for his

political ideas and affiliations. See id. at 58. In upholding

the dismissal of plaintiff's claim, we took pains to acknowledge

the relevance of Chappell's emphasis on "the importance of the

military's decisionmaking autonomy," id. at 59, took into account

the factors identified by Chappell as counselling against

justiciability in the military context, id. at 59-60, and noted

that Chappell suggested a "predisposition to decline review," id.

at 64. Nevertheless, believing that the holding in Chappell

should be confined to the context of enlisted personnel suing

superior officers, we declined to cede it controlling effect.

See id. at 59. Thus, although we ultimately found Penagaricano's

claim to be nonjusticiable, we based that finding not on Chappell

but on an application of the balancing test limned by the Fifth

Circuit in Mindes, 453 F.2d at 201-02. See Penagaricano, 747

F.2d at 60-61.

Time has shed new light on the debate over Chappell's

doctrinal reach. In United States v. Stanley, 483 U.S. 669

(1987) a case which the Court accepted for review specifically

10

to resolve the controversy over the proper dimensions of

Chappell, see id. at 676 the Justices came down on the side of

the broad constructionists. While conceding that "no holding can

be broader than the facts before it," and that some of Chappell's

language focused explicitly on the officer/subordinate dichotomy,

id. at 680, the Stanley Court pointed out that Chappell had self-

consciously patterned its analysis after Feres the case that

barred tort liability for injuries that "arise out of or are in

the course of activity incident to [military] service." Stanley,

483 U.S. at 684 (quoting Feres, 340 U.S. at 146). Given this

symbiotic relationship between Feres and Chappell, the Stanley

Court concluded that the Chappell approach should apply to all

activities performed "incident to service" rather than merely to

activities performed within the officer/subordinate sphere.

Stanley, 483 U.S. at 680-81. In this sense, then, Stanley both

"reaffirm[ed] the reasoning of Chappell," id. at 683-84, and

widened the scope of its holding.

Of critical importance for present purposes, Stanley

makes pellucid that the exception to Bivens liability established

by Chappell is coextensive with the exception to tort liability

established by Feres and its progeny.5 Consequently, "no Bivens

remedy is available for injuries that "arise out of or are in the

5To call the Feres doctrine an exception is an

oversimplification. Feres is a judge-made exception to the

Federal Tort Claims Act, 28 U.S.C. 1346, 2671-2680 (1988 &
Supp. II 1990), itself a statutory waiver of sovereign immunity
from tort liability. Thus, if tort liability is the rule, Feres

created an exception to an exception to an exception.

11

course of activity incident to service." Id. at 684. We now

join several of our sister circuits in accepting this bright-line

rule as the definitive statement on the justiciability of civil

rights claims in the military context, including the National

Guard.6 And, being reluctant to leave "derelicts on the waters

of the law," Alabama Pub. Serv. Comm'n v. Southern Ry. Co., 341

U.S. 341, 357 (1951) (Frankfurter, J., concurring), we overrule

Penagaricano to the extent that it mandates a different rule.7

6See, e.g., Maddick v. United States, 978 F.2d 614, 615

(10th Cir. 1992); Kitowski v. United States, 931 F.2d 1526, 1529

(11th Cir.), cert. denied, 112 S. Ct. 371 (1991); Watson v.

Arkansas Nat'l Guard, 886 F.2d 1004, 1006-07, 1009-10 (8th Cir.

1989). We would add, moreover, that several courts, even without
the benefit of Stanley's clarification of Chappell, anticipated

Stanley and adopted a per se prohibition of damages actions

brought against military officers for alleged violations of
subordinates' civil rights. See, e.g., Jorden, 799 F.2d at 107;

Trerice v. Summons, 755 F.2d 1081, 1084 (4th Cir. 1985); Mollnow

v. Carlton, 716 F.2d 627, 630 (9th Cir. 1983), cert. denied, 465

U.S. 1100 (1984); see also Martelon v. Temple, 747 F.2d 1348,

1350 (10th Cir. 1984), cert. denied, 471 U.S. 1135 (1985). Most

significantly for our purposes, the Fifth Circuit, progenitor of
the Mindes multifactor test, has abandoned that approach in favor

of a per se prohibition. See Crawford v. Texas Army Nat'l Guard,

794 F.2d 1034, 1036 (5th Cir. 1986). In short, Mindes has been

banished from its homeland.

7Although panel decisions of this court are ordinarily
binding on newly constituted panels, that rule does not obtain in
instances where, as here, a departure is compelled by controlling
authority. In such relatively rare instances, we have sometimes
chosen to circulate the proposed overruling opinion to all
members of the court prior to publication even though the need to
overrule precedent is reasonably clear. See, e.g., Trailer

Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5 (1st

Cir. 1992). This procedure is, of course, informal, and does not
preclude a suggestion of rehearing en banc on any issue.

We have followed that praxis here and can report that none
of the judges of this court has objected to the panel's analysis
or to its conclusion that the justiciability regime limned in
Penagaricano has outlived its usefulness as precedent.

12

Of course, Wright's suit invoked the Civil Rights Act

rather than following the Bivens route. But absent a specific

statutory provision to the contrary, there is no principled basis

for according state actors sued under 42 U.S.C. 1983 a

different degree of immunity than would be accorded federal

actors sued for an identical abridgement of rights under Bivens.

See Butz v. Economou, 438 U.S. 478, 500 (1978). Thus, while the

Stanley Court's clarification of Chappell occurred in the context

of a Bivens action, Stanley can only be understood to apply

equally to civil rights claims against state officials under

section 1983 and, for that matter, under kindred statutes. See

Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1007 (8th Cir.

1989) (collecting cases construing Chappell rule to cover suits

brought under section 1983). The federal whistleblower statute,

5 U.S.C. 2301-2302, relied on by appellant in association with

his civil rights claims, is a statute that falls comfortably

within this generality. Hence, the district court appropriately

declined to clear the case for trial.

IV. CONCLUSION

We need go no further. Since a technician's dual roles

are too tightly imbricated to be pried apart at a litigant's

whim, appellant necessarily suffered the injury of which he

complains in his military capacity. See supra Part II. For that

reason, the injury arose incident to military service. See supra

Part III. In these circumstances, Stanley applies, and, under

the Stanley rule, the statements of claim contained in

13

appellant's second amended complaint fail the test of

justiciability.8

Affirmed.

8Because appellant's suit is nonjusticiable, we need not
consider other potential deficiencies in appellant's case, e.g.,

whether the defendants can be said to have acted under color of
state law.

14