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ALVAREZ v. WILSON

January 11, 1985

FRANK ALVAREZ, JR., PLAINTIFF,
v.
ALMON C. WILSON, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Plunkett, District Judge.

MEMORANDUM OPINION AND ORDER

Frank Alvarez, Jr. ("Plaintiff"), who was at all relevant times an officer in the United States Navy, brought this action against five individuals ("Defendants"), all of whom were at all relevant times Plaintiff's superior officers in the Navy, seeking compensatory and punitive damages for Defendants' alleged violations of Plaintiff's constitutional and other civil rights. Count I of Plaintiff's complaint is grounded directly on the Due Process Clause of the Fifth Amendment, Count II on 42 U.S.C. § 1985(3) ("§ 1985(3)"), Count III on 42 U.S.C. § 1985(1) ("§ 1985(1)"), and Count IV on 42 U.S.C. § 1986 ("§ 1986");*fn1 Counts V and VI of the complaint, in which Plaintiff purported to proceed on behalf of a class, were voluntarily dismissed by Plaintiff several years ago. Jurisdiction is based on 28 U.S.C. § 1331 and 1343. Presently before the court is Defendants' motion, under Fed.R.Civ.P. Rule 12(b)(6), to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted, on the theory that Plaintiff cannot maintain this type of "intramilitary" action. For the reasons set forth below, Defendants' motion is granted.

The gravamen of the complaint is that Plaintiff, who is a black Puerto Rican, was the victim of intentional racial discrimination by Defendants in connection with his service as a "Racial Awareness Facilitator" in the Navy. Plaintiff's specific allegations are well summarized in an earlier opinion in this case by the Honorable Prentice H. Marshall, to whom this case was originally assigned, Alvarez v. Wilson, 431 F. Supp. 136, 138-139 (N.D.Ill. 1977), and we will not repeat that discussion here. Nor will we describe the unusual procedural history of this case, except to note that Judge Marshall denied motions to dismiss filed by Defendants on three separate occasions (on March 7, 1977, on March 31, 1980, and on September 15, 1981), in the latter two instances specifically rejecting the arguments which Defendants now press before us. Defendants attempted to appeal from Judge Marshall's September 15, 1981 order, but the Court of Appeals for the Seventh Circuit granted Plaintiff's motion to dismiss the appeal for lack of jurisdiction on February 29, 1984. Alvarez v. Wilson, No. 81-2696 (7th Cir. Feb. 29, 1984). The court of appeals found that Defendants' notice of appeal was not timely filed under Fed.R.App.P. Rule 4(a). On remand, the case was reassigned to us.

At the outset, we reject Defendants' argument that the issues decided by Judge Marshall are the "law of the case," and thus that we cannot reconsider Judge Marshall's rulings in this case. The Court of Appeals for the Seventh Circuit has held that a federal district judge may correct an earlier interlocutory ruling by another district judge which he or she finds to be erroneous. Diaz v. Indian Head, Inc., 686 F.2d 558, 562-563 (7th Cir. 1982). Indeed, in dismissing Defendants' appeal in the present case, the court of appeals specifically stated that its decision "does not mean, as . . . [Plaintiff] suggests, that the district court's ruling on immunity is the `law of the case.'" Moreover, we are not inclined to find that Defendants have waived the arguments for dismissal on which they now rely, despite the fact that they arguably did not raise those arguments until several years after Plaintiff filed his complaint. See Fed.R.Civ.P. Rule 12(h)(2).

Nevertheless, we would not disturb Judge Marshall's earlier rulings in this case absent very good reason for doing so. See 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice ¶ 0.404 [4.-2], at 127-129 (2d ed. 1984). Such reason, however, is provided by the Supreme Court's decision, on June 13, 1983 (while the present case was before the Seventh Circuit and long after it was last before Judge Marshall), in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Chappell, in reversing a decision of the Court of Appeals for the Ninth Circuit, a unanimous Court held that 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.*fn2 103 S.Ct. at 2368 (footnote omitted).

The plaintiffs in Chappell were enlisted men in the Navy who claimed that the defendants, eight of their superior officers, had discriminated against the plaintiffs in various ways because of their race. Like Plaintiff, the plaintiffs in Chappell attempted to bring a "Bivens action,"*fn3 grounded on the Due Process Clause of the Fifth Amendment, against the defendants. In finding that the plaintiffs could not maintain a Bivens action in Chappell, the Court primarily relied on the reasoning of its landmark decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

In Feres, the 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, and the "Feres doctrine" has been held to bar tort actions by members of the armed services against other members of the armed services for injuries occurring incident to military service. See, e.g., Jaffee v. United States, 663 F.2d 1226, 1234 (3d Cir. 1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). Although several of the arguments advanced by the Feres Court in support of its decision do not apply to actions such as the present one seeking redress for alleged deprivations of constitutional or other federally protected civil rights, see Wallace v. Chappell, 661 F.2d 729, 736 n. 9 (9th Cir. 1981), rev'd, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), in Chappell the Supreme Court made clear that it considers the foundation of the Feres decision to be "`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).

While recognizing that Feres involved a question of statutory interpretation rather than of whether to create a Bivens remedy, the Court in Chappell largely based its decision on what it took to be the fundamental rationale of Feres: the need to avoid the kind of disruption of "the unique disciplinary structure of the military establishment" which allowing intramilitary suits over service-related matters would threaten to bring about. 103 S.Ct. at 2364-2365, 2367. See West v. United States, 729 F.2d 1120, 1124-1125 (7th Cir. 1984), rehearing en banc granted, No. 83-1842 (7th Cir. June 25, 1984). In particular, the Court noted Chief Justice Warren's observation "`that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.'" 103 S.Ct. at 2368 (citation omitted). Also of importance to the Court's decision was the fact that the comprehensive system of military justice which Congress has created provides remedies for grievances such as those presented by the plaintiffs in Chappell, and by Plaintiff in the present case. 103 S.Ct. at 2366-2367.

In arguing that Chappell does not mandate the dismissal of Count I of his complaint, Plaintiff primarily relies on Stanley v. United States, 574 F. Supp. 474 (S.D.Fla. 1983), motions for interlocutory appeal granted, Nos. 84-2018, 84-2019 (11th Cir. Apr. 13, 1984). In Stanley, the plaintiff alleged that, while he was a sergeant in the United States Army, Army personnel surreptitiously administered the narcotic drug commonly known as "LSD" to him in the course of a supposedly unrelated experiment in which he had volunteered to participate. 574 F. Supp. at 476. The plaintiff's second amended complaint was in part grounded directly on the Due Process Clause of the Fifth Amendment, seeking to recover damages from various "individual agents and officers of the United States" who were involved in the experiment. 574 F. Supp. at 477. In holding that the Supreme Court's decision in Chappell did not require dismissal of the plaintiff's Bivens action, the district court in Stanley quoted the Court's statement that "[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 v. Wallace, 103 S.Ct. at 2367 (citations omitted), concluding that "[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 claims.

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 3357-3358.

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 ...


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