"[t]he obvious import of the Court's qualified holding is to
limit the Chappell decision to its facts." Stanley v. United
States, 574 F. Supp. at 479.
With all due respect to the Stanley court, we believe that that
conclusion is anything but obvious. As the Court of Appeals for
the Eleventh Circuit noted in granting the defendants' motions
for interlocutory appeal in Stanley, Stanley v. United States,
Nos. 84-2018, 84-2019, slip op. at 2-3 (11th Cir. Apr. 13, 1984),
courts of appeals in two circuits have rendered decisions which
are inconsistent with the district court's decision in Stanley.
Gaspard v. United States, 713 F.2d 1097 (5th Cir. 1983), cert.
denied, ___ U.S. ___, 104 S.Ct. 2354, 80 L.Ed.2d 826 (1984);
Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981) (en banc),
cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845
(1982). See Stanley v. United States, 574 F. Supp. at 480 n. 8.
The language of the Supreme Court in Chappell is quite clear:
members of the armed services "may not maintain a suit to recover
damages from a superior officer for alleged constitutional
violations" in the course of military service. 103 S.Ct. at 2368
(footnote omitted). We cannot help but agree with the court in
Mollnow v. Carlton, 716 F.2d 627, 628-630 (9th Cir. 1983), cert.
denied, ___ U.S. ___, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984), that
the Court in Chappell "imposed a per se prohibition on the filing
of Bivens-type actions by servicemen against their superiors."
716 F.2d at 630. See also Benvenuti v. Department of Defense,
587 F. Supp. 348, 353 (D.D.C. 1984). As the Mollnow court explained,
the Supreme Court's statement in Chappell that its holding did
not bar all constitutional actions by military personnel was not
intended to apply to damages actions such as that involved in the
present case, as is made clear by the fact that none of the three
cases which the Court cited as examples of cognizable
constitutional actions, 103 S.Ct. at 2367, involved an action for
damages by a member of the armed services against a superior
officer. Mollnow v. Carlton, 716 F.2d at 629-630 & n. 4. See
Gaspard v. United States, 713 F.2d at 1103 & n. 12. Contrary to
Plaintiff's suggestion, nothing in Gonzalez v. Department of
Army, 718 F.2d 926, 929 (9th Cir. 1983), indicates that that
court saw anything more in the Supreme Court's qualification of
its holding in Chappell than we do.
Even were we to agree with the district court in Stanley that
Chappell should be limited to its facts, however, we would find
Chappell to be controlling in the present case, since the
similarities between the facts of Chappell and the facts of this
case deprive us of a valid basis on which to distinguish the two.
Nor can Plaintiff any longer find support for his position in the
Supreme Court's venerable decisions in Wilkes v. Dinsman, 48 U.S.
(7 How.) 89, 12 L.Ed. 618 (1849), and Dinsman v. Wilkes, 53 U.S.
(12 How.), 390, 13 L.Ed. 1036 (1851). Chappell v. Wallace, 103
S.Ct. at 2368 n. 2. Accordingly, Count I of Plaintiff's complaint
must be dismissed.
Having reached that conclusion, we might simply dismiss Counts
II, III, and IV of the complaint without further discussion,
since Plaintiff does not contend that he can maintain his
statutory civil rights claims if his Bivens claim is dismissed.
However, since neither Chappell nor Feres on its face mandates
the dismissal of the statutory claims, we believe that those
claims merit some consideration. Because Plaintiff's § 1986 claim
is derivative of his § 1985 claims, see, e.g., Mollnow v.
Carlton, 716 F.2d at 632; Williams v. St. Joseph Hospital,
629 F.2d 448, 452 (7th Cir. 1980), we first address the § 1985
At the outset, we reject Defendants' argument that they cannot
be liable under § 1985 because that statute only applies to those
whose conduct constitutes "state action," and thus does not apply
to federal officials. Although Judge Marshall thoroughly and
thoughtfully considered that issue, Alvarez v. Wilson, 431
F. Supp. at 140-142, Defendants contend that the Supreme Court's
subsequent decision in United Brotherhood of Carpenters and
Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825,
103 S.Ct. 3352, 77 L.Ed.2d 1049
(1983), establishes that Judge Marshall was incorrect in finding
that § 1985 applies to "federal action," at least with respect to
Plaintiff's claim under § 1985(3). We disagree. In Scott, the
Court specifically noted that state action is not a necessary
element of a § 1985(3) claim where, for example, as here, the §
1985(3) claim is based on the Thirteenth Amendment. 103 S.Ct. at
Defendants' primary argument with respect to Plaintiff's § 1985
claims, that the rationales of Feres and Chappell (though not the
actual holdings) require that we dismiss those claims, is,
however, far more substantial. Interestingly, the plaintiffs'
complaint in Chappell included claims under § 1985(3), and the
Court of Appeals for the Ninth Circuit reversed the district
court's decision dismissing those claims. In so doing, the court
of appeals stated, without elaboration, that it saw no
distinction, for its purposes, between the plaintiffs' Bivens
claims and their § 1985(3) claims, 661 F.2d at 733 n. 5, and the
court did not separately discuss the § 1985(3) claims. Finding
that the "issue was not adequately addressed either by the Court
of Appeals or in the briefs and oral argument before this Court,"
the Supreme Court in Chappell refused to consider whether the
plaintiffs could maintain their § 1985(3) claims, leaving that
question for the court of appeals to decide on remand. 103 S.Ct.
at 2368 n. 3. See Gonzalez v. Department of Army, 718 F.2d at 929
& n. 2. However, because, on remand, the appeal was dismissed by
agreement of the parties, Wallace v. Chappell, No. 79-3172 (9th
Cir. Oct. 3, 1983), the court of appeals never reconsidered its
ruling with respect to the plaintiffs' § 1985(3) claims.
Moreover, no other court of which we are aware has discussed the
impact of the "Feres doctrine" (in its broader sense) on
intramilitary damages actions under § 1985(3), although the court
in Lombard v. United States, 690 F.2d 215, 227 (D.C.Cir. 1982),
cert. denied, ___ U.S. ___, 103 S.Ct. 3086, 77 L.Ed.2d 1347
(1983), seems to have assumed that § 1985(3) actions and Bivens
actions are indistinguishable for these purposes.
One court has, however, discussed the question of whether a
member of the armed services can maintain an action under § 1985
against a superior officer, in light of the Supreme Court's
decision in Chappell. Mollnow v. Carlton, 716 F.2d at 630-632. As
the court in Mollnow pointed out, although the question of
whether an intramilitary action can be brought under § 1985 is a
question of congressional intent rather than one involving the
judicial creation of a remedy, making the problem analytically
similar to that in Feres rather than to that in Chappell, the
Supreme Court's analysis of the Feres decision in Chappell should
guide the resolution of the statutory issues before us. 716 F.2d
As discussed above, the Chappell Court's discussion of Feres
focused on "`the "peculiar and special relationship of the
soldier to his superiors, [and] the effects of the maintenance of
such suits on discipline . . .,"'" 103 S.Ct. at 2365 (citations
omitted), and the Court admonished 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 . . . military personnel and their superior officers;
that relationship is at the heart of the necessarily unique
structure of the military establishment." Id. As the court in
A § 1985(1) action would strike directly at that
special military relationship, perhaps even more so
than an action for negligence. In a negligence
action, a spontaneous event has occurred; someone has
suffered an accident and another is at fault.
Under § 1985(1), however, an action would lie
even for calculated decisions made in the judgment
and discretion of a superior military officer, so
long as the subordinate alleged the superior had
interfered with his military "duties."
The Chappell case discussed at length Congress'
plenary authority over the military. . . .
In the exercise of that authority, Congress has
enacted "a comprehensive internal system of justice
to regulate military life, taking into account the
special patterns that define the military
structure." . . . Section 1985(1) is completely
foreign to that system. . . . [W]e know of no
civilian law that would prevent superior officers, in
the exercise of their wide discretion, from ordering
a subordinate to refrain from performing a specific
duty. . . . If the subordinate felt the order was
unjust, he would have his opportunity to attack the
decision before military tribunals. Congress
established that procedure to address internal
military matters. It obviously did not intend to
supplement those internal military procedures through
the enactment of § 1985(1).
716 F.2d at 631-632 (citations omitted). We find this reasoning
to be persuasive, and we agree with the court in Mollnow that §
1985(1) does not authorize intramilitary actions of the type
which Plaintiff seeks to bring in the present case.
For similar reasons, we find that Plaintiff cannot maintain an
action against Defendants under § 1985(3). We believe that the
potential for disruption of "the unique disciplinary structure of
the military establishment," Chappell v. Wallace, 103 S.Ct. at
2367, presented by suits under § 1985(3) is as great as in the
case of suits under § 1985(1), and perhaps even greater than that
perceived in Feres with respect to suits under the Federal Tort
Claims Act. See Hillier v. Southern Towing Co., 714 F.2d 714, 723
(7th Cir. 1983). Thus, we cannot conclude that Congress intended
to allow such intramilitary actions under § 1985(3), and
Plaintiff's § 1985(3) claim must be dismissed. See Mollnow v.
Carlton, 716 F.2d at 631-632. Since neither Plaintiff's § 1985(3)
claim nor his § 1985(1) claim can stand, Plaintiff's § 1986 claim
must also be dismissed. See, e.g., Mollnow v. Carlton, 716 F.2d
at 632; Williams v. St. Joseph Hospital, 629 F.2d at 452.
For the reasons stated above, Defendants' motion to dismiss
Plaintiff's complaint is granted.