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
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
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
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 ...