Chappell v. Wallace

PETITIONER:Chappell
RESPONDENT:Wallace
LOCATION:Shell Lake, Wisconsin

DOCKET NO.: 82-167
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 462 US 296 (1983)
ARGUED: Apr 26, 1983
DECIDED: Jun 13, 1983

ADVOCATES:
John Murcko – on behalf of the Respondent
J. Paul McGrath – on behalf of the Petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – April 26, 1983 in Chappell v. Wallace

Warren E. Burger:

We will hear arguments next in the case of George C. Chappell and others against Vernon Wallace and others.

Mr. McGrath, you may proceed whenever you’re ready.

J. Paul McGrath:

Thank you, Mr. Chief Justice, and may it please the Court.

There is but one issue in this case and that is whether military personnel may be permitted to maintain a damage action against their superiors for alleged constitutional torts.

The Ninth Circuit held that they may, at least under certain circumstances, and we ask this Court to reverse that ruling.

The respondents were five black enlisted men who were serving aboard the guided missile destroyer, U.S.S. Decatur.

They sued their superiors from the chief petty officers immediately above them on up to the commander of the ship and charged that actions taken by those superior officers were racially motivated and therefore that the Equal Protection rights of the respondents were violated.

The actions in question were actions taken in the ordinary course of military command.

They involved assignments to particular parts of the ship or to particular duties.

They involved performance evaluations.

They involved minor punishments for actions taken aboard the ship.

And they involved scoldings, or in the words of the record below, being chewed out by their superior officers.

The District Court dismissed, on the motion of the defendants, but the Court of Appeals reversed.

In doing so, the court recognized that permitting an action such as this to be maintained had serious drawbacks.

The court agreed that the mere maintenance of such an action can be disruptive of military discipline.

And the court also expressly recognized that permitting a civilian court at the beginning of such a process to review the internal disciplinary mechanisms of the service… of the military services could usurp military functions.

But nevertheless the court held that a constitutional damage action could be maintained and that the superior officers were not entitled to absolute immunity, and then it remanded the case to the District Court to consider whether this particular case could continue in light of a four-part test which the court promulgated.

The decision of the court below, if allowed to stand, means at least two things.

First it means that every military commander is subject to damage suits by his or her subordinate for any command decision taken with respect to them.

And secondly, the decision below is flatly inconsistent with the whole approach this Court has taken to intra-military suits.

And it is extremely troublesome in its impact.

Byron R. White:

And the same would go for the Fifth Circuit case?

J. Paul McGrath:

No, Mr. Justice White, the Fifth Circuit case was a judicial review of the intra-military process and it is clear that in certain circumstances the review process within the military–

Byron R. White:

This case you don’t think lends any support for this–

J. Paul McGrath:

–It lends no support whatsoever.

We urge two bases for reversal here.

First, under the Bivens case and the cases following Bivens, this Court has consistently held that no constitutional damage action will be implied if special factors counsel hesitation.

Well in this case, the special nature of the military command structure, as framed by Congress, and its operation, are the special factors which counsel hesitation in implying a Bivens remedy.

And secondly, under the Butz decision, this Court has held, and in cases following Butz, this Court has held that there should be absolute immunity afforded to governmental officials if those officials have special functions.

Byron R. White:

–You mean against damages or injunctions?

J. Paul McGrath:

Against damages.

Byron R. White:

But not injunctions?

J. Paul McGrath:

Not against injunctions.

Injunctions could still rest.

Byron R. White:

Yes.

J. Paul McGrath:

If the special functions of the individual could not be effectively carried out without absolute immunity.

Sandra Day O’Connor:

Well, Butz also distinguished, didn’t it, immunity, absolute immunity, from suit for common law torts, as compared to constitutional violations where it indicated qualified immunity.

J. Paul McGrath:

Yes.

In the Butz case, they were distinguishing Barr against Matteo which had held at least if a federal officer was acting within the scope of the office, they were generally absolutely immune from nonconstitutional torts and held that in the constitutional area the situation was different because by definition, the federal official was acting outside of any authority that the federal–

Sandra Day O’Connor:

Well we’re dealing with alleged constitutional torts or violations here.

J. Paul McGrath:

–Yes.

Sandra Day O’Connor:

How do you distinguish the Wilkes cases?

J. Paul McGrath:

The Wilkes case, which was the 1851 decision of this Court which recognized that, at least at that time, a military superior could be sued by essentially… for essentially assault and battery, is distinguished on several grounds.

First of all, that case did not deal with a constitutional tort.

The question whether there was a Bivens type action, whether a governmental official could be sued for a constitutional tort, was not decided by this Court until 1971 in the Bivens case itself.

Secondly, the Wilkes case, to the extent it can be read as permitting a nonconstitutional tort action, is inconsistent with Barr against Matteo.

And third, that case really arises in a different era.

It arises in an era when the military was much smaller, did not have the elaborate system of review that has been promulgated by the Congress since then.

It is inconsistent with this Court’s decisions in Feres and Stencel Aero, which we discuss in our brief.

It is not, in our view, necessary for this Court to overrule the Wilkes against Dinsman case in reversing the Ninth Circuit, because it did not deal with a constitutional tort.

But we feel that for all those reasons it is not controlling.

Sandra Day O’Connor:

Do you think the plaintiffs here could ask for injunctive or declaratory relief?

J. Paul McGrath:

Not at this point.

For instance, under the Mindes case and others, what the courts have held, including this Court, is that the intra-military actions are ultimately reviewable, judicially reviewable.

Here there were a number of courses of action that were open to the respondents.

They could have sought action from the Board of Corrections of Naval Records.

They could have sought Article 138 proceedings against their superiors and they could have sought other remedies to deal with the particular things they were complaining about.

At the end of those processes, had they availed themselves of them, and had the carrying out of those processes not been done in accordance with the statutes and the regulations in the Constitution, there would have been ultimately judicial review under the rules laid down by this and other courts.

But that is a wholly different situation from the one we have here where before taking any of those actions, this suit was filed and, as the record shows, as the joint appendix showed, they took only in desultory fashion, one or two half-hearted steps in these directions.

But, in any event, the administrative remedies were never exhausted.

J. Paul McGrath:

The–

Byron R. White:

But if you can’t get an injunction here, it wouldn’t be because of immunity.

J. Paul McGrath:

–If you could not get an injunction here, it would not be because of immunity.

The injunctive part of the case, which actually was not really focused on by the court–

Byron R. White:

That was a prayer for declaratory and injunctive relief.

J. Paul McGrath:

–The declaratory and injunctive relief would be separate, that’s correct.

That the two principle bases that we rely on for saying that the prayer for declaratory and injunctive relief should not be allowed are, first of all, that there is no cause of action stated.

Byron R. White:

Your argument is that a Bivens cause of action just shouldn’t lie in this context at all.

J. Paul McGrath:

It should not lie in this context at all.

Byron R. White:

Whether for damages or for an injunction.

J. Paul McGrath:

Whether for damages or for injunctive relief, but we do not rely on absolute immunity when we’re discussing the equitable question.

Warren E. Burger:

If a claim was brought by someone in the military, Marine Corps, for example, and said that the training course was excessively harsh and violent and they suffered injury, where would that kind of claim stand under the Federal Tort Claims Act?

J. Paul McGrath:

Under the Federal Tort Claims Act, that case would not lie.

In the Feres decision of this Court, it was held that a military… military personnel could not sue the government under the Federal Tort Claims Act, at least for actions taken within the military context.

And that decision has been reaffirmed a number of times since then, Mr. Chief Justice.

Warren E. Burger:

How does that bear here?

J. Paul McGrath:

I think that decision bears here in this sense.

In the Feres case, this Court recognized that the Tort Claims Act was broad enough, on its face, to permit suits by military personnel.

Yet the Court viewed the fact that suits by military personnel for command decisions would have a particularly disruptive effect on military discipline.

Having found that, the Court refused to imply that military personnel could sue their superiors, could sue the government under the Tort Claims Act for actions by their superiors.

And that, we think, shows that this Court has paid a special deference to Congress in this area of intra-military disputes.

The Court has been reluctant to add remedies onto those specifically applied by Congress in this area because of the fact, and the Court has stated it over and over again, the threat of disruption of military discipline is so great.

The military, after all, is a unique institution in our life.

It is the only institution that is designed to be prepared to send men into combat.

This Court has recognized over and over again that that single fact makes the military command function and military discipline an overriding concern and one that the Court should be very hesitant to disrupt.

The particular case before us, I think, is a classic example of why the Court should refrain from fashioning a new remedy here.

The plaintiffs were sailors on a ship.

As the record shows, that ship was about to embark on a five-month voyage to the Indian Ocean right at the beginning of the Iranian crisis.

That meant, obviously, these men would be in very close contact with their superiors during, perhaps, very hazardous circumstances for a long period of time.

To import into that situation the added artificial disruptive effect of an ongoing civilian lawsuit between the subordinates and their superiors could not possibly have anything other than a disruptive effect.

J. Paul McGrath:

And it is for that reason, the very fact that the existence of the lawsuit can disrupt the functioning of the military discipline process that we especially urge that the court’s decision below was incorrect.

Sandra Day O’Connor:

Mr. McGrath, I guess the plaintiffs also filed under Section 1985(3).

J. Paul McGrath:

They did file under 1985(3), yes, Justice O’Connor.

Sandra Day O’Connor:

The briefs don’t deal with that very extensively.

How do you address that problem?

The briefs do not deal with that very extensively, nor did the Court of Appeals and I believe that probably the reason for that is this.

In a number of this Court’s decisions in deciding whether damage actions should be implied under 1983 or 1985, on the one hand, or under the Constitution, in the case of federal officials, on the other, this Court has over and over again stated that generally the same considerations apply in either case.

Does section 1985(3) reach actions by federal officials?

J. Paul McGrath:

Well, it would be our position that it does not reach actions by federal officials in any event.

There has been no decision by this Court on that subject.

I think, however, that if you look at the legislative history of that 1871 Civil Rights statute, you will not find anything suggesting it was designed to go against the federal government or federal officials.

The statute talks, on its face, about persons in territories in the states which would tend to suggest it wasn’t meant to so imply, so apply, but there is really no definitive holding on that question.

What we would say, in any event, is that the Court really does not have to reach that question, that under cases such as Butz and Carlson against Green, if this Court were to hold that a Bivens case would not properly lie because it should not be implied because special factors do counsel hesitation, that that same reasoning should apply to 1985(3).

Both because of that and also because under Feres and other cases, this Court has been reluctant to imply new remedies in intra-military suits.

Byron R. White:

Now would all of the personnel actions involved here have been subject to review?

J. Paul McGrath:

Yes.

All of the actions here would have been subject to review.

For example, to the extent that there, a number of the complaints have to do with performance evaluation records.

Those are all subject to review by the Board of Correction of Naval Records.

A number of the actions are alleged, just bad acts by commanding officers.

Those are all subject to review under Article 138 of the Uniform Code of Military Justice.

There were minor punishments involved.

For instance, one of the actions mentioned in the papers prominently is a $50 fine for one of the men’s having left his clothes out in the work space just before an inspection.

That was subject to the informal review procedures within the military.

In short, every single action here was subject to review under those provisions and also, I think, perhaps even more important, under the Naval, Navy’s Equal Opportunity Program and its regulations, which expressly bar discrimination in any form within the Navy.

I would like to just make one more point.

The number of times that this Court has dealt with intra-military suits it, in each case, has pointed to the fact that going too far in fashioning new remedies would have an intrusive and disruptive effect on military discipline.

And in each case, it has pointed to the fact that the military has its own internal system of justice, which has been fashioned by Congress.

We believe those decisions make total sense.

They make complete sense in this case where, I think, everyone agrees that the implication of a damage remedy would have the greatest personal impact on the military command process and therefore we urge that the decision of the Ninth Circuit be affirmed… be reversed.

Warren E. Burger:

Thank you.

Mr. Murcko.

John Murcko:

Mr. Chief Justice, if it may please the Court.

I represent five black sailors who are here because they were intentionally discriminated against by their commanding officer and other officers aboard the U.S.S. Decatur in job assignments, in promotions, in discharges, as well as in advancement in ratings, in skilled ratings, in schooling for skilled ratings, and also because of the fact that they were threatened with violence and also subjected to various actions by people who were sympathetic to the Klan aboard the ship, and no action was taken by the command.

Before I get into my argument, I would like to briefly relate some of the salient facts here, which we think are particularly urgent and that show the discriminatory, the serious discriminatory action by the command.

Warren E. Burger:

How high up does this go?

Do they sue the Chief of Naval Operations, on the theory that he is the last word, or perhaps the Secretary of the Navy for not having the right kind of officers on the ship?

John Murcko:

No, we think it only applies to the officers that were involved in the intentional acts of discrimination against the black people who were on that ship and which deprived them of their constitutional rights.

Warren E. Burger:

What if they had… what if they had taken their complaint to the Admiral of the Fleet and the Admiral had brushed it off and said these are military command matters.

Is he subject to suit, too?

John Murcko:

No, I don’t believe so.

I think it would only apply to those particular individuals that were practicing the racial discrimination and wouldn’t go further than those particular individuals.

Warren E. Burger:

What if an allegation was that the Admiral tolerated this conduct?

Cause of action?

John Murcko:

Well, if he condoned it and in some way participated in it, then I believe that he would definitely be responsible.

Warren E. Burger:

I’m trying… mine is just after the event, the allegation is that these matters were brought to his attention and he did nothing about them.

John Murcko:

Well, the thing is if he had the authority and the responsibility to take action against these individuals and he knew that the commander was involved in intentional racial discrimination and he failed to take any action, then I believe that he would also be a participant and would be responsible for the discriminatory acts if they were continuing and he knew that they were continuing.

Warren E. Burger:

What if he responded by pointing to the provisions of the Code of Military Justice that permits the enlisted personnel to make complaints against their officers and said, here are your remedies?

John Murcko:

I’m sorry, I don’t understand your question, Mr. Chief Justice.

Would you please repeat the question?

Warren E. Burger:

Well, there are other remedies for military personnel within the structure of the military, are there not?

John Murcko:

Yes, that is correct.

There are certain remedies.

There are certain remedies that are available.

However, we think that those remedies essentially are not adequate.

They do not provide the type of relief that Bivens states should be provided, such as a damage remedy.

In addition, under Article 138, an individual does have the right to report his commanding officer.

However, we believe that this is a very informal remedy and what occurs is that the commanding officer calls in the individuals responsible, another officer, another person, and they informally discuss it, informally discuss it.

There’s no right to a hearing, there’s no right to subpoena witnesses, there’s no right to present evidence, it’s just an informal remedy, essentially, that is ineffective.

In fact, numerous federal courts have held that these remedies, so-called military remedies, are ineffective and are futile for servicemen to pursue because essentially the military has not had a history of supervising and essentially eradicating or eliminating the problems under Arcticle 138, a condition in this case.

John Murcko:

We have applied to the Board for the Correction of Naval Records and in one case they denied our relief.

In other cases, they referred us to the Chief of Naval Personnel and we still haven’t gotten any effective relief from the Chief of Personnel, even though we sent all of the complaints that we have–

Thurgood Marshall:

How about appeals from Captains Masts?

They’re not automatic, are they?

John Murcko:

–No, there was one appeal in this, there was one Article–

Thurgood Marshall:

I mean you had that right to appeal.

John Murcko:

–Yes, you do have a right, it isn’t automatic, that is correct.

Thurgood Marshall:

You have a right to appeal.

John Murcko:

Yes, that is correct.

Thurgood Marshall:

And they could have.

John Murcko:

There was only one Article 50 in this particular case–

Thurgood Marshall:

Well, they said several Captains Masts, I read in the appendix.

John Murcko:

–No, there was only one Article 50 and that was regarding Lemons and the fact that he was punished for one infraction of leaving his clothes when another person was not… a white person was not punished.

Thurgood Marshall:

But he could have appealed that, couldn’t he?

John Murcko:

Yes, that’s correct.

He could have appealed it, but the thing is, it wasn’t a question of that particular violation there, it was more a question of the actions that were taken by his command against him because of the fact that he was denied any right to take the examination for his position–

Thurgood Marshall:

But he wasn’t denied the right to appeal.

I’m just, it doesn’t hurt the case to admit one of them was a good one, does it?

John Murcko:

–No, no, I said he didn’t exercise it, that’s correct.

Thurgood Marshall:

I mean, we don’t have to go all the way with you, do we?

John Murcko:

That’s correct, sir.

So, we feel that Seaman Wallace here had been intentionally discriminated against by Commander Chappell, by Lieutenant Commander Viafore and by Lieutenant Jordan where they intentionally kept him out of OI Division after he had been approved to go into OI Division by the Personnel Development Board, which is a board of five chiefs who make a determination if a person is qualified.

The five chiefs said Wallace is qualified.

In addition, his division officer said yes, he is qualified.

He should be in the Operations Intelligence Section.

Yet Commander Chappell, as well as Lieutenant Jordan, intentionally kept blacks out of the Intelligence Division, because they felt that they could not trust black people there, because they did not want blacks in positions of authority and responsibility.

And so, as a result of that, they transferred him out, they transferred Wallace out into the area of the Deck Division.

And essentially, he was required there to chip paint as well as to swab the decks, which is the traditional role of black people in the Navy.

Historically they have been kept either as stewards or as people who worked in decks and unskilled jobs.

In addition, he had been threatened, Wallace had been threatened by his division officer on more than one occasion to be transferred out because of the fact that he was speaking up about the treatment of blacks on that ship.

John Murcko:

Also, Wallace had been subject to the actions of Klan sympathizers on the ship.

Some sympathizer hung a noose in his work space.

The noose has been the symbol of lynching of blacks for a long time.

This caused great consternation for Seaman Wallace, put him in great fear and caused him great humiliation.

This was done in the presence of Lieutenant Jordan, as well as Chief Parks.

They knew that it was there, yet they didn’t order it down.

They did not bring the responsible people to task.

And Wallace complained to them and they did nothing about it.

In addition, there was numerous graffiti in the work spaces that the Klan put, including KKK> [“].

This was reported to Lieutenant Jordan, to Commander Chappell.

They took no action to clean up, to clean it up or to get the responsible people.

And the respondents were involved in trying to essentially clean up the ship in that sense.

Ensign Shannon also was discriminated against.

He had been threatened by Lieutenant Bianco, to be killed by Lieutenant Bianco because he left a door open.

And also, he was given a low evaluation because of the fact that he had been complaining about the treatment of blacks on the ship.

After the suit was filed, there were more threats by these officers.

Hickey was threatened to be sent to Deck Division because of the fact that he filed the suit and the others were essentially required to be in dangerous conditions, including Lemmons and Richardson, because of the fact that they filed the suit.

Moving on to the argument, we think that first, it appears that the government, in their reply brief, concedes that in cases involving unconstitutional conduct by officers are reviewable in federal court for injunctive and declaratory relief.

And that’s on page two and footnote two.

So we think, in this case, that essentially they accede the question of jurisdiction of a federal court over these issues.

In addition, we feel that they accede the question of justiciability.

So the sole question here, we feel at this time, is the question of damage remedies and we feel essentially that, in this particular case, that the plaintiffs, the black sailors should be treated the same as any other litigants in federal courts and they are entitled to damage remedy for violation of their constitutional rights.

Warren E. Burger:

Would you limit this sort of relief to peacetime, or would you carry it into wartime?

John Murcko:

No, we just limit it to peacetime, Mr. Chief Justice.

We think that that is what the Ninth Circuit Court of Appeals did and we stand behind the Ninth Circuit Court of Appeals 100 percent.

We think that the damage remedy is the narrowest form of remedy in the courts and we feel that the injunctive relief that the government said it doesn’t oppose is much more intrusive.

It’s much more intrusive into the military because of the fact that it orders the military–

Byron R. White:

I thought they said they oppose it in this case, not because of immunity, but because of other considerations.

John Murcko:

–That is correct.

They may oppose it in this case, Your Honor, but as a general rule, they said they’re not opposing the fact that a service personnel does have the right to go to court and seek an injunction against his superiors who are violating his constitutional right and that’s in writing, Your Honor.

John Murcko:

And so we feel essentially that it’s much more intrusive, this injunction is much more intrusive than any damage remedy.

Thurgood Marshall:

Let me ask you just a simple question.

You set this case for trial on July 8 and on July 7 this ship gets orders to go to Timbuktu.

What would happen?

John Murcko:

Well, the ship would probably have to go to Timbuktu.

I think that that would take a priority.

Thurgood Marshall:

You don’t doubt that, do you?

John Murcko:

Don’t doubt it for one minute.

Thurgood Marshall:

What happens to the case?

John Murcko:

They have to wait until they get back, unless they transferred some of the people off the ship, which happens in many cases when you–

Thurgood Marshall:

Including the commander of the ship?

John Murcko:

–Pardon?

Thurgood Marshall:

Is the commander going to depart?

John Murcko:

No, the commander would go.

The commander would go.

The commander would go with his ship.

That’s his obligation, but the people would–

Thurgood Marshall:

You couldn’t stop him from going, could you?

John Murcko:

–No, that’s correct.

We could not stop him, his duties and obligations are to national security.

Thurgood Marshall:

But can’t you see a whole lot of problems?

John Murcko:

Well, Your Honor, we can just continue the case.

Other cases are continued.

Thurgood Marshall:

It might go back to what this Court said in Bivens, that you ought to move very cautiously.

Didn’t this Court say that in Bivens.

John Murcko:

Yes, that is correct, Justice Marshall.

Thurgood Marshall:

And don’t you urge us to move very cautiously here?

John Murcko:

Yes, I do urge you to move cautiously here, Your Honor, that is correct.

And in addition, we feel that the government also apparently concedes that there is still racial discrimination in the Naval when it states that on page nine, footnote 8 of their brief, that the U.S. military is making headway against racism.

They recognize that racism is a problem in the military and we feel that essentially there must be, these individuals must have the right to vindicate their rights to be free of racial discrimination in the Navy.

John Murcko:

We think that an important point that the government makes essentially is that whether Congress has enacted a gold remedy for servicemen.

Essentially, what they’re trying to do is state Bivens on its head.

Because Bivens states that there is a cause of action under the Constitution for violation of Constitutional rights, unless there are special factors counseling hesitation in the absence of a remedy by Congress.

And we think that essentially the remedy exists under Bivens for these black servicemen, but the government essentially is trying to deprive these black sailors of the right under Bivens by saying that Congress never, Congress never provided a remedy.

Well, the remedy is there.

Congress never provided an alternative, specific remedy and the thing is, we don’t think that that’s required.

But even more, we feel that Congress has spoken in this area.

In 1976, it issued a statute, 10 USC 1089, which essentially gave absolute immunity to military medical personnel for any acts that they perform in the military and only makes the government responsible for their acts.

Well, at that time, Congress recognized that officers of the military are subject to liability, otherwise they would not have had to pass this statute.

And we feel that by doing so, if it intended to preclude liability, it would have included all officers in there.

It would have made all officers absolutely liable.

But it did not do so.

It just said medical personnel are not liable.

And by doing so, we think they recognized the authority of Dinsman v. Wilkes and Wilkes v. Dinsman which holds that a superior officer is responsible for the violation of the rights of people under his command.

Byron R. White:

I take it, then, you wouldn’t you would say Congress could say, in providing remedies before the Corrections Board of Corrections, for example, that this remedy shall be exclusive.

John Murcko:

Yes, that is correct.

Byron R. White:

If they actually said it and it wouldn’t make any if they said it, it wouldn’t change the situation much if it was a lot a pretty poor remedy.

John Murcko:

Well, the thing is, Congress could say that but then there’d be a different issue, Justice White.

Then we’d have to make a determination whether a statutory exemption or immunity would take precedence over a constitutional right.

That is another case.

That is not this case, Justice White.

We feel that–

Byron R. White:

Well I think what if we happened to disagree with you and thought that the provision of these other remedies for some or all of these acts was intended by Congress to be the exclusive remedy–

John Murcko:

–Well, the thing is–

Byron R. White:

–and at least it presents the sort of a situation where you should not imply Bivens remedy.

What if we thought that and disagreed with you, then do we have to reach some constitutional issue?

John Murcko:

–Well, we think this Court in Carlson v. Green stated that the remedy of the Federal Tort Claims Act is not adequate for prisoners because it does not provide the type of relief that the Constitution requires and that these other relief that have been passed by Congress was not adequate in vindicating the constitutional rights.

Byron R. White:

But we didn’t suggest that Congress couldn’t have provided that there wouldn’t be a Bivens remedy in the Carlson against Green situation, did we?

John Murcko:

No, that’s correct.

No, the thing is I’m not saying that Congress can’t provide a remedy, I’m talking about whether Congress provides an immunity–

Byron R. White:

They can provide a remedy and they can also make it exclusive.

John Murcko:

–That is correct.

In addition, we think another important question here is the question of immunity, whether military officers are entitled to qualified or absolute immunity.

And we think that in this particular case, the main argument of the government here is whether or not there is going to be a breakdown in discipline caused by these particular types of actions.

We think that when there’s racial discrimination involved, that the discipline has, the special relationship between a sailor and his commissioned officer as well as the discipline, has already broken down.

It has broken down by the intentional discrimination and we feel that essentially the disciplinary effect on a sailor is that the damage action presupposes an obeyance of the orders, otherwise–

Warren E. Burger:

If the discipline breaks down, they can use the brig, can’t they?

John Murcko:

–Excuse me.

Warren E. Burger:

If the discipline really breaks down, they can use the brig or whatever the equivalent is on board ship.

John Murcko:

Yes, that is correct.

That is correct.

But discipline doesn’t just mean punishment.

Discipline means also affecting the relationship as far as people’s attitude toward number one, the enlisted person has toward his officer and number two, the attitude that the officer has toward the enlisted.

And we feel essentially that the there must that special relationship must be kept intact and we say that it’s affected by the intentional discrimination, long before the suit is brought, the intentional discrimination destroys that special relationship which we think is so important to the national security of our country.

And we think that by the time the suit is brought, it does not affect the discipline because essentially what this individual is trying to do is vindicate his rights and try to put a stop to the intentional discrimination action caused by his superior which, in effect, is causing harm to the military.

Warren E. Burger:

Do you think it’ll encourage suits out of the Ninth Circuit?

John Murcko:

No, I don’t think it would encourage suits any more than it would now, because of the fact that–

Warren E. Burger:

The Ninth Circuit, if we hadn’t taken the case, do you suggest this would have no impact on suits by military personnel against their officers?

John Murcko:

–Well, I wouldn’t say it would have no impact at all, but I’m saying that essentially there’s an economic question here.

Number one, there’s a question here of whether servicemen can afford to retain attorneys to bring suit on their behalf because of the fact that they make such a low amount of pay.

Second, they don’t qualify for legal services under the indigency program because of the fact that they make over $300 a month.

And in addition, the fact is many attorneys will not take these type of case when they know there is no great remuneration involved for it.

So we don’t believe that there’s going to be any flooding of the gates for these type of suits.

And in addition, the government only points to approximately 10 suits in their brief when there are over two million service personnel.

Byron R. White:

But if you win, what will happen?

John Murcko:

Well, if we win, Your Honor, Justice White–

Byron R. White:

You did win in the Ninth Circuit.

John Murcko:

–That’s correct.

If we win here and then essentially we’d go back and all we’re entitled to is a hearing to determine whether or not Mindes entitles us to a trial.

So we’ve been waiting five years for a trial, Justice White, and we haven’t gotten any step closer, any closer to that.

John Murcko:

We think essentially that the primary question here is the question of immunity.

And we think that the qualified immunity is the norm under the Harlow v. Fitzgerald case.

And we think that that is the type of immunity that military officers are entitled to.

We think that that gives naval officers adequate protection against suits by their inferiors.

We think that essentially only recognized constitutional claims can be brought.

In addition, we think that any frivolous suits can be dismissed under a Motion for Summary Judment.

In addition, we feel that there the arguments by the government that there is essentially an absolute immunity here has no basis in the common law.

The common law provides essentially, as the Dinsman case holds, that military officers do not have absolute immunity.

This Court in Dinsman v. Wilkes and Wilkes v. Dinsman held that military officers do not have absolute immunity.

They only have qualified immunity.

Byron R. White:

Are they state military officers or federals in that case?

John Murcko:

I believe that was the U.S. Navy, Your Honor.

Byron R. White:

Didn’t you say Sherrier against Rhodes?

John Murcko:

No, I said Dinsman v. Wilkes.

Dinsman v. Wilkes.

Warren E. Burger:

Sherrier against Rhodes was the state militia, National Guard.

Excuse me, I thought you were relating those two things.

John Murcko:

Yes, that’s right.

That’s correct.

But Dinsman v. Wilkes says that naval officers, United States Navy, are answerable for common law torts when they are intentional and malicious, so there is no common law basis for this absolute immunity the government is asking.

In addition, the judicial immunity that this Court has recognized as well as the prosecutorial immunity is also a rule in the common law.

But nowhere the common law does it say that military officers are entitled to absolute immunity.

So we move on to the constitutional area.

Does the constitution provide absolute immunity for the military?

No, it does not.

The only area where it provides constitutional immunity are legislative functions and presidential functions.

Warren E. Burger:

I don’t recall your brief, but did you refer to any cases in the British Navy or the British Army prior to 1776 where suits against officers of the British were sustained?

John Murcko:

Yes, that’s correct.

We do cite numerous cases from the common law of England which allowed suits against the officers there for intentional violation of their inferior’s rights.

And damage actions were upheld.

John Murcko:

So there’s a long tradition in the common law which allows a military person to sue a superior for intentional violation of his rights.

So we feel, in concluding, essentially that the Court of Appeals decision should be affirmed and the defendant’s right to a Bivens action should be allowed to proceed.

Thank you.

Warren E. Burger:

Thank you.

Do you have anything further, Mr. McGrath?

J. Paul McGrath:

I have nothing further, Mr. Chief Justice.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.