specially concurring:
I write separately to suggest that remand of the plaintiffs constitutional claims based on 42 U.S.C. §§ 1981 and 1983 for analysis under Mindes v. Seamen, 453 F.2d 197 (5th Cir.1971) may be unnecessary in light of the Supreme Court’s rationale in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). I concur in the decision of the panel, however, in deference to the precedential weight of Mindes. I take this opportunity to call attention to the recent interpretation of Chappell by the Fifth Circuit Court of Appeals, finding claims such as these nonjusticiable without resort to the cumbersome Mindes analysis, in the hope that this matter might be reexamined en banc and the utility of the Mindes test reconsidered in light of more recent Supreme Court decisions.
In Chappell, enlisted military men brought an action against their superior officers seeking damages, declaratory judgment, and injunctive relief for alleged racial discrimination in assignments and performance evaluations. The Supreme Court of the United States analyzed the direct constitutional challenges in terms of whether they stated a cause of action under Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Analogizing to 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,” Id. at 146, 71 S.Ct. at 159, 95 L.Ed. at 161, the Court concluded that the unique disciplinary structure of the military establishment and Congress’ activity in the field of military justice made it inappropriate to provide a Bivens-type remedy in this context. The Court stated:
[Jjudges 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 interfere in judicial matters.
Chappell, 426 U.S. at 301, 103 S.Ct. at 2366, 76 L.Ed.2d at 591 [quoting Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953) ]. The Court further found that:
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, taking into account the special patterns that define the military structure. The resulting system provides for the review and remedy of complaints and grievances such as those presented by respondents.
Id. at 302, 103 S.Ct. at 2367, 76 L.Ed.2d at 592.
The Court echoed these concerns in United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), while defending the Feres doctrine, concluding:
To permit this type of suit would mean that commanding officers would have to *1542stand 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 place restraints on a soldier’s off-base conduct.
Id. at 58, 105 S.Ct. at 3044, 87 L.Ed.2d at 45.
The Fifth Circuit Court of Appeals, without relying on the two-part Mindes analysis, recently determined that Chappell and Shearer preclude judicial cognizance of constitutional claims brought by national guardsmen. In Crawford v. Texas Army National Guard, 794 F.2d 1034 (5th Cir. 1986), two members of the Texas Army National Guard brought suit against the Guard, the governor of Texas and twelve military personnel alleging violations of their rights under the Constitution and 42 U.S.C. §§ 1983 and 1985(2). The plaintiffs asserted that, in retaliation for reporting criminal activity and racial discrimination by the Guard, they were dismissed or removed from active duty. The Fifth Circuit Court of Appeals affirmed the district court’s dismissal of the action pursuant to Fed.R.Civ.P. 12(b)(6), finding no significant difference between such claims and those held impermissible in Chappell. The Crawford court reasoned that the constitutional due process and section 1983 causes of action advanced by the plaintiffs required “judicial second-guessing of military actions” and interfered with the military system of justice established within each service to the same extent as the Bivens claims rejected in Chappell. The section 1985(2) allegations were dismissed under the same rationale. Id. at 1036. The appellate court declined to except the plaintiffs’ prayers for injunctive relief from the reach of Chappell, finding that such an exception would “swallow” Chappell’s rule of deference. Therefore, the court held that suits for injunctive relief, like those for money damages, must be carefully regulated to prevent intrusion into the military structure. Id. at 1037.
Conspicuously absent in Crawford is any application of the Mindes test for adjudicating charges of civil rights violations.1 Clearly, the court must have found that the Supreme Court’s opinions in this area are controlling. The instant facts present the same kind of case found nonjusticiable in Crawford and Chappell. Stinson’s claims for reinstatement, back pay and injunctive relief under 42 U.S.C. §§ 1981 and 1983,2 are challenges to military personnel decisions which would require a court to review his commanding officers’ decisions concerning the promotion and dismissal of his men, determinations particularly dependent on the exercise of military discretion. Furthermore, Stinson had an opportunity to assert his grievances within the military system of justice, an opportunity which the defendants assert he has yet to exhaust. The military concerns found compelling in Chappell are equally present here. Therefore, Chappell can be read to support of the district court’s dismissal of these claims on their face.
Although the Chappell decision expressly left open the right of military personnel to bring constitutional grievances to court, there can be little doubt that such access does not extend to “discrete personnel matters.” Crawford, 794 F.2d at 1036. Boldly stating this conclusion, as the Fifth Circuit Court of Appeals has done, without requiring the district courts to address the Mindes test would bring this circuit closer *1543in line with the Supreme Court on this issue and would perhaps be fairer to potential litigants. In my opinion, the Crawford decision is a better approach for determining the propriety of hearing military disputes in our courts.3
. The Crawford.court, in noting that several other circuits have found § 1983 causes of action by national guardsmen nonjusticiable, specifically refers to the First Circuit’s reliance on the Mindes test in addressing this question in Penagaricano v. Llenza, 747 F.2d 55, 59 (1st Cir.1984). Therefore, the Fifth Circuit knowingly rejected the Mindes analysis in the context of §§ 1983 and 1985(2) claims for money damages. Nor is there any indication that the Crawford court applied Mindes to the guardsmen's request for injunctive relief.
. Although Stinson is an employee of the federal government for purposes of Title VII, his charges of due process violations under § 1983 against the Alabama National Guard, the Adjutant General, and other officers of the Guard appear to satisfy the state action requirement of § 1983 since the Guard is a hybrid state-federal venture. See generally, New Jersey Air Nat'l Guard v. Fed. Labor Rel. Auth., 677 F.2d 276, 278-79 (3d Cir. 1982); Ala.Code §§ 31-2-1 through 31-2-3 (1975).
. A more recent decision of the Fifth Circuit Court of Appeals casts some doubt on that circuit’s position with respect to the Mindes test. In Holdiness v. Stroud, 808 F.2d 417 (5th Cir. 1987), the court affirmed the dismissal of the plaintiffs action brought pursuant to § 1983 and § 1985 for failure to state a claim upon which relief could be granted. The suit was brought by a former member of the National Guard who sought damages from his superior officers for violation of federal constitutional and statutory rights when he was barred from reenlisting and terminated from his employment as a civil technician. The district court dismissed the § 1983 claims against four of the officers named in the complaint on the grounds that they were federal employees and thus, there was no state action. The plaintiff appealed. In addressing the plaintiff's § 1983 claim, the court found the requisite state action but noted that the Crawford decision held that § 1983 does not provide a cause of action for service connected disputes. The court, however, also referred to the First Circuit’s opinion in Penagaricano, 747 F.2d 55, which applied the Mindes test in such instances. The Holdiness court then stated: "[w]e follow Crawford in applying the Chappell rule to Guard members, and using the tests in Chappell and Mindes, hold that the remedy sought by Holdiness would be so disruptive to military service that the claim should not be entertained by the federal courts." Holdiness, 808 F.2d at 423. The court did not remand the case to the district court for consideration of the Mindes factors, evidently finding that step unnecessary in light of Crawford and Chappell.