USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1206
RICHARD L. WRIGHT,
Plaintiff, Appellant,
v.
ERNEST C. PARK, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Peter A. Anderson for appellant.
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Michael M. DuBose, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and George P.
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Dilworth, Assistant United States Attorney, were on brief, for
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appellees.
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October 4, 1993
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SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.
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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.
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1993). Although our reasoning differs from that of the court
below, we affirm.
I. BACKGROUND
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
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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
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by applying the analytic framework first suggested in Mindes v.
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Seaman, 453 F.2d 197, 201-02 (5th Cir. 1971), and subsequently
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adopted by this court in Penagaricano v. Llenza, 747 F.2d 55, 60-
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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
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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 &
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Veterans' Servs., 627 A.2d 1005 (Me. 1993), the Commission
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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.
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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
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
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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,
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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.,
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reprinted in 1968 U.S.C.C.A.N. 3318, 3319 (recognizing the
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"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
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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
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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
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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.
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denied, 488 U.S. 817 (1988); Illinois Nat'l Guard v. FLRA, 854
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F.2d 1396, 1398 (D.C. Cir. 1988); American Fed'n, 730 F.2d at
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1545-46; New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276, 279
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(3d Cir.), cert. denied, 459 U.S. 988 (1982); Nesmith v. Fulton,
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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
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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
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civilian post prior to the eventual loss of his military post.
Nesmith, 615 F.2d at 197. The court took care to analyze the
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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;
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see also Stauber, 837 F.2d at 399 (holding that an injury
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occurring in the course of plaintiff's civilian employment as an
ANG technician arose incident to military service); cf. New
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Jersey Air Nat'l Guard, 677 F.2d at 279 (holding that the
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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
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
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(1983). Chappell held that "[t]aken together, the unique
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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
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superior officers." Id. at 304 (citation omitted).4 The
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Chappell Court placed particular emphasis on the first of these
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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
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States, 340 U.S. 135 (1950)], we must be
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"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).
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Chappell broke new ground, and courts across the nation
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4When the Chappell Court wrote about a "Bivens-type" remedy,
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it had in mind Bivens v. Six Unknown Named Agents of the Federal
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Bureau of Narcotics, 403 U.S. 388 (1971). Bivens is the case
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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.
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Green, 446 U.S. 14, 18 (1980) (restating Bivens rule); Morales v.
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Ramirez, 906 F.2d 784, 786 (1st Cir. 1990) (same).
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vigorously debated whether to read it narrowly, based on its
holding, or to read it broadly, based on its reasoning. See
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Jorden v. National Guard Bureau, 799 F.2d 99, 107 (3d Cir. 1986)
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(surveying case law), cert. denied, 484 U.S. 815 (1987). Within
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a year after Chappell emerged, this court decided Penagaricano,
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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
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the dismissal of plaintiff's claim, we took pains to acknowledge
the relevance of Chappell's emphasis on "the importance of the
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military's decisionmaking autonomy," id. at 59, took into account
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the factors identified by Chappell as counselling against
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justiciability in the military context, id. at 59-60, and noted
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that Chappell suggested a "predisposition to decline review," id.
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at 64. Nevertheless, believing that the holding in Chappell
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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
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claim to be nonjusticiable, we based that finding not on Chappell
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but on an application of the balancing test limned by the Fifth
Circuit in Mindes, 453 F.2d at 201-02. See Penagaricano, 747
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F.2d at 60-61.
Time has shed new light on the debate over Chappell's
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doctrinal reach. In United States v. Stanley, 483 U.S. 669
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(1987) a case which the Court accepted for review specifically
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to resolve the controversy over the proper dimensions of
Chappell, see id. at 676 the Justices came down on the side of
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the broad constructionists. While conceding that "no holding can
be broader than the facts before it," and that some of Chappell's
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language focused explicitly on the officer/subordinate dichotomy,
id. at 680, the Stanley Court pointed out that Chappell had self-
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consciously patterned its analysis after Feres the case that
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barred tort liability for injuries that "arise out of or are in
the course of activity incident to [military] service." Stanley,
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483 U.S. at 684 (quoting Feres, 340 U.S. at 146). Given this
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symbiotic relationship between Feres and Chappell, the Stanley
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Court concluded that the Chappell approach should apply to all
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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
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"reaffirm[ed] the reasoning of Chappell," id. at 683-84, and
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widened the scope of its holding.
Of critical importance for present purposes, Stanley
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makes pellucid that the exception to Bivens liability established
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by Chappell is coextensive with the exception to tort liability
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established by Feres and its progeny.5 Consequently, "no Bivens
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remedy is available for injuries that "arise out of or are in the
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5To call the Feres doctrine an exception is an
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oversimplification. Feres is a judge-made exception to the
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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
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created an exception to an exception to an exception.
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course of activity incident to service." Id. at 684. We now
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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
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U.S. 341, 357 (1951) (Frankfurter, J., concurring), we overrule
Penagaricano to the extent that it mandates a different rule.7
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6See, e.g., Maddick v. United States, 978 F.2d 614, 615
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(10th Cir. 1992); Kitowski v. United States, 931 F.2d 1526, 1529
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(11th Cir.), cert. denied, 112 S. Ct. 371 (1991); Watson v.
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Arkansas Nat'l Guard, 886 F.2d 1004, 1006-07, 1009-10 (8th Cir.
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1989). We would add, moreover, that several courts, even without
the benefit of Stanley's clarification of Chappell, anticipated
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Stanley and adopted a per se prohibition of damages actions
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brought against military officers for alleged violations of
subordinates' civil rights. See, e.g., Jorden, 799 F.2d at 107;
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Trerice v. Summons, 755 F.2d 1081, 1084 (4th Cir. 1985); Mollnow
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v. Carlton, 716 F.2d 627, 630 (9th Cir. 1983), cert. denied, 465
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U.S. 1100 (1984); see also Martelon v. Temple, 747 F.2d 1348,
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1350 (10th Cir. 1984), cert. denied, 471 U.S. 1135 (1985). Most
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significantly for our purposes, the Fifth Circuit, progenitor of
the Mindes multifactor test, has abandoned that approach in favor
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of a per se prohibition. See Crawford v. Texas Army Nat'l Guard,
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794 F.2d 1034, 1036 (5th Cir. 1986). In short, Mindes has been
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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
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Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5 (1st
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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.
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Of course, Wright's suit invoked the Civil Rights Act
rather than following the Bivens route. But absent a specific
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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.
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See Butz v. Economou, 438 U.S. 478, 500 (1978). Thus, while the
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Stanley Court's clarification of Chappell occurred in the context
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of a Bivens action, Stanley can only be understood to apply
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equally to civil rights claims against state officials under
section 1983 and, for that matter, under kindred statutes. See
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Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1007 (8th Cir.
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1989) (collecting cases construing Chappell rule to cover suits
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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
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
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reason, the injury arose incident to military service. See supra
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Part III. In these circumstances, Stanley applies, and, under
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the Stanley rule, the statements of claim contained in
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appellant's second amended complaint fail the test of
justiciability.8
Affirmed.
Affirmed.
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8Because appellant's suit is nonjusticiable, we need not
consider other potential deficiencies in appellant's case, e.g.,
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whether the defendants can be said to have acted under color of
state law.
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