[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
APR 24, 2001
No. 00-13616 THOMAS K. KAHN
_______________ CLERK
D. C. Docket No. 99-00846-CV-C-N
MARVIN K. SPEIGNER, JR.,
retired,
Plaintiff-Appellant,
versus
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.
______________________________
Appeal from the United States District Court
for the Middle District of Alabama
______________________________
(April 24, 2001)
Before BIRCH and HULL, Circuit Judges and TIDWELL*, District Judge.
_____________________
* Honorable G. Ernest Tidwell, U.S. District Judge for the Northern District of Georgia, sitting
by designation.
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
2
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
1
In a later filing, Speigner agreed that his claim of race-based conspiracy under § 1985
was barred by the intracorporate conspiracy doctrine. R1-33-15. See McAndrew v. Lockheed
Martin Corp., 206 F3d. 1031 (11th Cir. 2000) (en banc).
2
As discussed in section IIA of this opinion, Speigner’s claims for monetary damages
were clearly nonjusticiable under United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054 (1987).
3
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
4
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
3
The doctrine was further expanded to include suits for non-constitutional violations in
United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039, 3044 (1985).
4
Under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999
(1971), an individual can seek monetary damages from a federal official for a violation of
constitutional rights.
5
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
5
We no longer apply the test in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) to
determine justiciability in cases by members of the armed forces brought against the military if
the claim is based on an injury incident to service. See Stanley, 483 U.S. 669, 107 S.Ct. 3054
(1987) (establishing a broader test for nonjusticiability); United States v. Kitowski, 931 F.2d
1526 (11th Cir. 1991) (applying the “incident to service” test without mention of Mindes); Doe
v. Garrett, 903 F.2d 1455, 1463 n.15 (11th Cir. 1990) (“[I]t appears well established that Mindes
need not be applied before reaching the merits of a statutory claim against the military.”). But
see Stinson v. Hornsby, 821 F.2d 1537, 1540 (11th Cir. 1987) (remanding case against the
military to district court to apply Mindes factors). In this case, we expressly do not address the
applicability of Mindes to other situations. See, e.g., Meister v. Texas Adjutant Gen. Dep’t, 233
F.3d 332, 341 (5th Cir. 2000) (“It is true that Stanley blocks claims brought by servicemen
incident to their military service, which therefore preempts Mindes with respect to such claims.
But claims still fall within Mindes that Stanley does not encompass–those involving ‘internal
military decisions’ that are ‘not incident to [a serviceman’s] military service.’”).
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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
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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
6
While Watson’s case was pending, the Supreme Court decided Stanley, causing Watson
to abandon his claim for monetary damages. See Watson, 886 F.2d at 1007.
8
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 v. Texas Army Nat’l
Guard, 794 F.2d 1034, 1036 (5th Cir. 1986), a pre-Stanley decision that, consistent
with Chappell, applied the same rationale as Meister.
In Crawford, plaintiffs requested, inter alia, injunctive relief in the form of
reinstatement of their eligibility for all available retirement benefits and the
removal of certain information from their personnel files. The Fifth Circuit held
that their case was nonjusticiable because “[t]he injunctive-relief exception to
Chappell advocated by appellants could swallow Chappell’s rule of deference” to
the military establishment. Id. at 1036. In conclusion, the Fifth Circuit stated its
belief that “suits for injunctive relief, like those for monetary damages, must be
carefully regulated in order to prevent intrusion of the courts into the military
structure.” Id. at 1036-37. The Fifth Circuit noticed an exception to this rule for
cases involving “challenges to the facial validity of military regulations” that are
distinct from “discrete personnel matters.” Id. at 1036.
9
The Second Circuit also follows the same approach to cases by enlisted
personnel against the military when the injury is incident to service. The court
opined that “allowing service members to sue their superiors would unacceptably
compromise military discipline and readiness for combat.” Jones v. New York
State Div. of Military and Naval Affairs, 166 F.3d 45, 52 (2nd Cir. 1999).
Relying on the same quote from Stanley that Speigner relies on in this case,
the minority of circuits have held that injunctive relief is attainable against the
military. To make the argument that he could sue the military for monetary
damages, Stanley relied on the sentence in Chappell that states, “[t]his 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.” Chappell, 462 U.S. at 304, 103 S.Ct. at 2368. In Stanley, the Supreme
Court called this argument “irrelevant,” and pointed out that, “[a]s the citations
immediately following that statement suggest, it referred to redress designed to halt
or prevent the constitutional violation rather than the award of money damages.”
Stanley, 483 U.S. at 683, 107 S.Ct. 3063. From this sentence, Speigner and the
First Circuit see a window for claims for injunctive relief against the military. See
Wigginton v. Centracchio, 205 F.3d 504, 512 (1st Cir. 2000) (“[T]aken together,
Chappell and Stanley . . . make it clear that intramilitary suits alleging
10
constitutional violations but not seeking damages are justiciable.”). Before the
Supreme Court decided Stanley, the Third Circuit, in a case that has been relied
upon post-Stanley, also held that injunctive relief claims for reinstatement were
justiciable based on Chappell. See Jorden v. Nat’l Guard Bureau, 799 F.2d 99, 111
(3d Cir. 1986) (“[I]f Jorden establishes a constitutional violation, the remedy will
be a court-ordered reinstatement, rather than the kind of ongoing judicial oversight
held inappropriate in Gilligan. . . . Jorden’s claims for reinstatement are
reviewable.”).
We do not find this argument persuasive, however, because the “citations
immediately following” the Chappell quote that the Court referred to in Stanley are
all cases challenging military regulations on their faces, rather than their
application to discrete personnel decisions. See, e.g., Goldman v. Weinberger, 475
U.S. 503, 106 S.Ct. 1310 (1986) (First Amendment challenge to dress code in Air
Force); Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646 (1981) (Fifth
Amendment challenge to all-male draft registration); Brown v. Glines, 444 U.S.
348, 100 S.Ct. 594 (1980) (First Amendment challenge to regulation of petitions);
Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547 (1974) (Fifth Amendment challenge
that criminal provisions in the military code were overbroad and vague); Frontiero
11
v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973) (Fifth Amendment challenge to
military benefits statute that discriminated against women).
In contrast, however, “civilian courts have traditionally deferred to the
superior experience of the military in matters of duty orders, promotions,
demotions, and retentions.” Knutson, 995 F.2d at 771. In cases where claims by
enlisted personnel against the military have been heard, it was “[t]he nature of the
lawsuits, rather than the relief sought, [that] rendered them justiciable.” Crawford,
794 F.2d at 1036. See also Watson, 886 F.2d at 1010 (“There is a vast difference
between judicial review of the constitutionality of a regulation or statute of general
applicability and judicial review of a discrete military personnel decision.”).
Therefore, we now hold that cases brought by enlisted personnel against the
military for injuries incident to service are nonjusticiable, whether the claims
request monetary damages or injunctive relief. Consistent with Supreme Court
precedent, this holding in no way bars facial challenges to military regulations.
C. Incident to Service Test
Accordingly, if Speigner’s injury was incident to service in the Alabama
Guard, it is nonjusticiable. We apply a three-part test to determine whether an
injury is incident to service. When undertaking such an analysis, we consider, “(1)
the duty status of the service member, (2) the place where the injury occurred, and
12
(3) the activity the serviceman was engaged in at the time of injury.” Pierce v.
United States, 813 F.2d 349, 352-53 (11th Cir. 1987) (per curiam); see also
Whitley v. United States, 170 F.3d 1061, 1070 (11th Cir. 1999). The rationale
behind this test is to separate cases that may interfere with military discipline and
command decisions from those that do not. See Whitley, 170 F.3d at 1069.
Speigner was on active duty with the Alabama Guard, and the injury took
place at a formal review by the SRB and as a consequence of this review. The
district court correctly held that the decision whether or not to retain Speigner
meets the Pierce test and, therefore, is nonjusticiable. Accord Mier v. Owens, 57
F.3d 747, 751 (9th Cir. 1995) (“Military promotion is one of the most obvious
examples of a personnel decision that is integrally related to the military’s
structure.”). Because there are a limited number of positions available at the higher
levels of command, it is imperative to the military that only those officers
determined to be competent to serve are retained. To dictate to the military which
officers should be considered competent would be to interfere in just the way that
Feres and its progeny preclude.
III. CONCLUSION
13
Because Speigner’s complaint arises from an injury that was incident to his
service as an officer in the Alabama Guard, we AFFIRM the judgment of the
district court that his case in nonjusticiable.
14