OpenJurist

799 F2d 99 Jorden v. National Guard Bureau

799 F.2d 99

Ulus JORDEN, Jr., Appellant,
v.
NATIONAL GUARD BUREAU, Departments of the Army and the Air
Force; Emmett H. Walker, Jr., Chief, National Guard Bureau;
Richard M. Scott, Major General (PA), The Adjutant General,
Commonwealth of Pennsylvania; John D. Campbell,
individually and as Colonel, Pennsylvania Air National Guard
Base Detachment Commander; and Henry C. Frisby,
individually and as Major, Pennsylvania Air National Guard
Chief, Administration, Appellees.

No. 85-1664.

United States Court of Appeals,
Third Circuit.

Argued June 3, 1986.
Decided Aug. 27, 1986.
Rehearing and Rehearing In Banc Denied Oct. 23, 1986.

Frank Finch, III (Argued), McDaniel, Dade, Wheeler & Walwyn, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Margaret L. Hutchinson, Asst. U.S. Atty., Philadelphia, Pa., Thomas M. Crowley (Argued), Office of the Attorney General, Harrisburg, Pa., Marilyn D. Barton, Major, USAF (Argued), Office of the Judge Advocate General, U.S. Air Force, Washington, D.C., for appellees.

Before GIBBONS, BECKER, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

1

This case requires us to determine the susceptibility of National Guard officers to suits by guardsmen for damages and injunctive relief. Plaintiff, Ulus Jorden, discharged from both his military and civilian positions in the Pennsylvania Air National Guard ("PaANG"), sought damages against his superiors and reinstatement to both positions. Relying on Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the district court dismissed plaintiff's case under Fed.R.Civ.P. 12(B).

2

Although we find that the district court acted correctly in dismissing Jorden's claims for damages, we conclude that it erred in dismissing his claims for injunctive relief, i.e., reinstatement, accordingly, we shall affirm in part and reverse in part and remand this case for further proceedings.

3

Part I of this opinion sets forth the necessary background--the structure of the National Guard and the facts and procedural history of this case. Part II begins with a brief history of the case law concerning the immunity of military officers from damages claims, and then applies that body of law to the instant case. Similarly, Part III begins with a brief history of the case law concerning the reviewability of claims for injunctive relief against the military, and then considers its applicability to Jorden's claims for reinstatement.1I. Background

A. Structure of the National Guard

4

As this court noted recently in Johnson v. Orr, 780 F.2d 386, 388 (3d Cir.1986), the National Guard has an "unusual 'hybrid' status as an agency with both federal and state characteristics." The Guard is the modern successor to the state militia, see Engblom v. Carey, 522 F.Supp. 57, 65 (S.D.N.Y.1981), and all fifty states and Puerto Rico have their own Guard. Article 1, Section 8, clause 16 of the Constitution places the power of appointing personnel to the state militia in the hands of the state. Guard members are called out for roughly two weeks a year of military training. In addition, governors may call out their state Guard at any time for state emergencies such as riots and floods. However, there is a federal component to the Guard as well. The National Guard Bureau, an adjunct of the United States Departments of the Army and Air Force, gives Guard personnel federal recognition as part of either the Army National Guard of the United States or the Air National Guard of the United States ("ANGUS"). In addition, the President may call the Guard into national service, 10 U.S.C. Sec. 3495 (1982).

5

The Guard's status is further complicated by its having a mixture of military and civilian elements. In addition to its military complement, the Guard hires full-time civilian technicians. The technician program provides various services critical to the Guard's mission: maintenance of equipment and facilities, support of aircraft operations, and clerical functions. The technician program too involves federal and state elements. Although the 1968 National Guard Technicians Act, 32 U.S.C. Sec. 709 (1982), made civilian technicians federal employees, the technician program is administered at the state level.2 The adjutant general, a state officer, is in charge of personnel matters. Finally, and significant in this case, in order to be eligible for a technician position, one must be a Guard military member. 32 U.S.C. Sec. 709(b). A Guard technician is automatically dismissed from his civilian technician position if he loses his military membership, 32 U.S.C. Sec. 709(e)(6), and can otherwise be dismissed "for cause." 32 U.S.C. Sec. 709(e)(3).

B. Facts And Procedural History

6

In 1956 plaintiff-appellant Jorden became the first black member to enlist in PaANG. Two years later he became a full-time civilian technician in PaANG as well. For the next twenty-five years he served in both capacities without incident. Beginning in 1981, however, Jorden became either a "whistleblower" or a "troublemaker," depending on whom one believes. He launched a series of protests alleging various abuses by his superiors, including impermissible expenditure of Guard funds and discriminatory treatment of him personally.

7

Jorden alleges that his complaints were legitimate, that they were not followed up adequately, and that instead they led to a campaign of harassment against him. In October, 1984, he was called alone (without his unit), in an Order of the Governor, to active duty for twenty-three days of "special training." The order specified that, during the twenty-three day period, Jorden was to report to the Malcolm Grow Medical Center for psychiatric evaluation.

8

Jorden refused to comply, believing that the governor was not empowered to call out a single guardsman for such a special session. Following Jorden's non-compliance, PaANG Adjutant General Richard M. Scott dismissed him from his military position in PaANG. Thereupon, Jorden's technician employment was automatically terminated, because, as we have noted, only military members of the Guard are eligible for technician employment. At the time of his discharge, Jorden was a master sergeant in the PaANG military unit and an assistant office manager in the technician program.

9

Jorden then brought a civil rights suit in the United States District Court for the Eastern District of Pennsylvania alleging that his various superiors had engaged in a conspiracy to harass him and to discharge him on the basis of race and in retaliation for the exercise of his first amendment rights. Specifically, he asserted claims for damages under 42 U.S.C. Secs. 1983, 1985 and 1986 against General Scott, Colonel John D. Campbell and Major Henry C. Frisby, all of whom were both his military officers and his civilian supervisors; a pendent state common law claim of defamation against Scott, Campbell and Frisby; and claims for reinstatement against the aforementioned defendants, as well as against Emmett Walker, Chief of the National Guard Bureau ("NGB") and against the NGB itself.3

10

Defendants moved for dismissal of plaintiff's entire case, invoking both Fed.R.Civ.P. 12(b)(1) and (6). As we have noted, the district court granted the motion to dismiss,4 finding that Jorden's federal claims were barred by Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and then dismissing the state common law claim because pendent jurisdiction was lacking.5II. Plaintiff's Damages Action

11

A. History of the Availability of Damages Suits Against Military Officers

12

Military officers have not always been afforded absolute immunity from damages suits. The leading nineteenth century case is Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618 (1849), after remand Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 13 L.Ed.1036 (1851), in which the Court held that a naval commander alleged to have flogged and imprisoned an enlisted seaman could be held liable for damages at common law.

13

The ability of servicemen and other aggrieved persons to recover damages in a military context was dealt a severe blow by the Supreme Court's 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 United States was immune from liability under the Federal Tort Claims Act for torts arising out of or incident to military service. The Court was concerned, inter alia, with deference to Congress, which had provided a system of military remedies. Although Feres does not explicitly rely on the special requirements of military discipline, in subsequent cases the Court has observed that "Feres seems best explained by the 'peculiar and special relationship of the soldiers to his superiors, [and] the effect of the maintenance of such suits on discipline....' " United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963), quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). Feres did not address the propriety of common law suits against individual officers, such as the action brought in Wilkes.

14

The availability of damages relief against military officers was subsequently affected by two Supreme Court cases that did not involve military officers but whose holdings concerned damages actions against government officials in general. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court greatly expanded the potential liability of state officers under Sec. 19836 and in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court recognized a damages action brought directly under the Constitution against federal officers. In the aftermath of these cases, both the Supreme Court and this circuit gave their imprimatur to damage suits against military officials for the violation of constitutional rights. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (Adjutant General of Ohio and subordinate officers not immune from damage suits arising out of events in connection with the Kent State shooting); Chaudoin v. Atkinson, 494 F.2d 1323, 1332 (3d Cir.1974) (remanding case to district court with instructions to award damages to guardsman in suit against Adjutant General of Delaware); Lasher v. Shafer, 460 F.2d 343, 348 (3d Cir.1972) (rejecting claim of automatic immunity for state military officers in Sec. 1983 suit and remanding for development of factual record to determine if immunity is appropriate).

15

However, in 1982, this court held that soldiers who alleged that they were ordered to stand in a field while a nuclear device was exploded nearby could not bring a Bivens damages action against their federal military officers. Jaffe 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) (Jaffe II" ). We did not address whether the holding affected constitutional claims brought under Sec. 1983 against state military officers.

16

One year later, in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Supreme Court faced a Bivens claim for damages brought by servicemen against their naval officers alleging racial discrimination in making duty assignments, performing evaluations and imposing penalties. The Court essentially adopted the reasoning of Feres, finding that concern for military discipline and deference to Congress required rejection of the Bivens claim brought by the plaintiffs.

17

As noted, the district court found that Chappell barred Jorden's damages suit. Determining whether this holding was correct requires analysis of two issues. First, we must decide whether the reasoning of Chappell, which dealt with a Bivens claim against federal military officers, also applies to Sec. 1983 actions against state military officers. Because we conclude that it does, we must then consider Jorden's contention that Chappell does not prohibit all or even most damages actions against military officers but compels a fact-specific inquiry into whether judicial review in a particular case will unduly interfere with the military mission.7

18

B. Does Chappell Apply To Sec. 1983 Actions?

19

Jorden's counsel made clear at oral argument that the claim against Walker, the only federal military officer in the case, was for injunctive relief only. Thus, this case involves no Bivens damages claims. Rather, Jorden's damages claims are brought against state military officers under the Reconstruction Civil Rights statutes. Because Chappell involved Bivens claims against federal military officers, and not Sec. 1983 claims against state military officers, it is not clear whether Chappell controls this case. This uncertainty is heightened by two footnotes near the end of the Chappell opinion.

20

Footnote 2 distinguished Wilkes v. Dinsman, supra, on the ground that "[Wilkes ] involved a well-recognized common law cause of action ... and did not ask the Court to imply a new kind of cause of action." 462 U.S. at 305 n. 2, 103 S.Ct. at 2368 n. 2. In another footnote, the Court explicitly declined to address whether the plaintiffs' claim under 42 U.S.C. Sec. 1985(3) was barred because the issue had not been briefed. Id. n. 3. These two footnotes lend credence to the view that Chappell was limited to Bivens claims (a "new" judicially-created remedy), and does not apply to damages claims brought under Sec. 1983. Yet, the courts of appeals that have considered the question have, with little discussion, extended Chappell to bar actions brought against state military officers under Sec. 1983. Brown v. United States, 739 F.2d 362, 367 (8th Cir.1984), cert. denied --- U.S. ---, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert. denied --- U.S. ----, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985). These courts have observed that the disruptive effect of damages suits on military discipline is the same regardless of whether the suit is a Bivens claim against federal military officers or a Sec. 1983 claim against state military officers.8 Thus, they have held that there is no "reasoned distinction for the purposes of the Feres doctrine between Bivens-type actions under the Constitution and actions brought under a federal civil rights statute." Brown, 739 F.2d at 367.

21

We believe that the issue is more problematic than these courts have suggested. Bivens claims and Sec. 1983 claims are not entirely parallel, for the former is a judicially-created remedy while the latter was created by Congress. As we noted in Johnson v. Orr, 780 F.2d at 395 n. 17 (3d Cir.1986), the concern for deference to Congress that may lead a court to preclude a Bivens action is not present where the preclusion of a Sec. 1983 action is at issue. However, the Supreme Court in Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57 L.Ed.2d 895 (1978), left little doubt that where immunity of government officials is concerned, Sec. 1983 and Bivens claims must be treated alike.

22

Butz posed the obverse situation of the instant case. In Butz, the government tried to argue that notwithstanding the fact that the Court had granted state officials only qualified immunity under Sec. 1983, federal officials should receive greater immunity from Bivens claims. In the instant case, the Supreme Court having already held that federal military officials have immunity, the question is whether state officials should receive equal immunity. This distinction is not significant, however, given the unequivocal command of Butz that Bivens claims and Sec. 1983 suits are to be treated as identical for the purposes of immunity:

23

[I]n the absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under Sec. 1983. The constitutional injuries made actionable by Sec. 1983 are of no greater magnitude than those for which federal officials may be responsible. The pressures and uncertainties facing decisionmakers in state government are little if at all different from those affecting federal officials. We see no sense in holding a state governor liable but immunizing the head of a federal department; in holding the administrator of a federal hospital immune where the superintendent of a state hospital would be liable.... Moreover, the Government's analysis would place undue emphasis on the congressional origins of the cause of action in determining the level of immunity.... [W]e deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under Sec. 1983 and suits brought directly under the Constitution against federal officials.

24

Butz, 438 U.S. at 500-02, 504, 98 S.Ct. at 2907-08, 2909. Accord Harlow v. Fitzgerald, 457 U.S. 800, 819 n. 30, 102 S.Ct. 2727, 2738 n. 30, 73 L.Ed.2d 396 (1982) (following Butz ).

25

A holding that Chappell applies to bar or limit Sec. 1983 damages claim is troublesome in one respect. Immunity from Sec. 1983 damages claims generally requires a court's determination that: 1) there was a common law immunity at the time of the passage of Sec. 1983 in 1871; and 2) Congress did not seek to abolish that immunity in passing Sec. 1983. City of Newport v. Facts Concerts, Inc., 453 U.S. 247, 258-59, 101 S.Ct. 2748, 2755, 69 L.Ed.2d 616 (1981). See also Tenney v. Brandhove, 341 U.S. 367, 376-78, 71 S.Ct. 783, 788-89, 95 L.Ed. 1019 (1951) (legislators immune from Sec. 1983 damages suit because Congress did not intend to abolish their common law immunity); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (same analysis leads Court to find judges immune from Sec. 1983 damages actions). However, because Chappell dealt with a Bivens claim, the Court undertook no such inquiry (and, in fact, military officers were not absolutely immune from common law suits for damages when Sec. 1983 was passed, see supra p. 103).

26

In sum, to apply Chappell to Sec. 1983 actions is problematic because Chappell was based not on the existence of a common law immunity for military officers but on policy considerations that, while relevant to immunity of federal officers from Bivens suits, may be less relevant to immunity of state officers from Sec. 1983 suits.9 Even if this argument is correct, however, Butz prevents us from adopting it. The argument contradicts the unequivocal command of Butz that immunity for federal officers from Bivens claims is identical to that of state officers from Sec. 1983 suits.

27

Nor can we evade the command of Butz by stating that, as a matter of policy, immunity for federal military officers is more important than immunity for state military officers. Rather, we recognize that "[t]he Guard is an essential reserve component of the Armed Forces of the United States." Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). It is common knowledge that, in the event of a surprise attack, the Guard may be the first line of defense. See 32 U.S.C. Sec. 102 ("[I]t is essential that the strength and organization of the Army National Guard and the Air National Guard as an integral part of the first line defense of the United States be maintained and assured at all times.") Indeed, Congress recently passed a resolution, Pub. L. No. 99-290, 100 Stat. 413 (1986), designed to "reaffirm Congressional recognition of the vital role played by members of the National Guard ... in the nation's armed forces." H.Rep. No. 504, 99th Cong., 2d Sess., reprinted in 1986 U.S. Code Cong & Ad. News 1294.

28

Thus, the conclusion that state military officers have at least a certain immunity from Sec. 1983 damage actions is compelled by the combination of Chappell and Butz: the former disallowing a Bivens claim against federal military officials and the latter holding that Bivens claims and Sec. 1983 suits must be treated the same for purposes of immunity.10 Our next task is to determine the scope of that immunity.

29

C. The Scope of Chappell's Prohibition on Damage Claims

30

We have just determined that, notwithstanding the fact that Chappell dealt with a Bivens claim against federal military officers whereas Jorden's damages claim is a Sec. 1983 claim against state military officers, Chappell applies to this case. It does not necessarily follow, however, that Jorden's claim is barred. Rather, we must consider Jorden's contention that Chappell bars damages action only after a court has determined that, in a particular case, hearing a damages claim would threaten military discipline.

31

The majority of courts to consider the question have rejected that contention, holding instead that Chappell establishes a per se prohibition of damages actions against military officers for violations of constitutional rights. Trerice v. Summons, 755 F.2d 1081 (4th Cir.1985); Martelon v. Temple, 747 F.2d 1348 (10th Cir.1984), cert. denied --- U.S. ---, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1986); Mollnow v. Carlton, 716 F.2d 627 (9th Cir.1983), cert. denied 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 547 (1984); Alvarez v. Wilson, 600 F.Supp. 706 (N.D.Ill.1985). However, several courts have disagreed in whole or in part. Stanley v. United States, 574 F.Supp 474 (S.D.Fla.1983), aff'd, 786 F.2d 1490 (11th Cir.1986) (Chappell requires analysis of whether allowing suit in the particular case will threaten the military mission); Shaw v. Gwatney, 584 F.Supp. 1357, 1362 (E.D.Ark.1984) (Chappell requires balancing strength of the right and likely degree of interference with the military order for determining whether suit is barred); cf. Brown v. United States, 739 F.2d 362 (8th Cir.1984) (Chappell automatically bars damages actions except in rare case in which alleged conduct is entirely unrelated to military mission).

32

Jorden relies primarily on the reasoning of Stanley v. United States, 574 F.Supp. 474 (S.D.Fla.1983), aff'd 786 F.2d 1490 (11th Cir.1986),11 which involved experimental administration of LSD to soldiers. Stanley held that Chappell required courts to undertake a fact-specific inquiry that focuses on the nature of the military conduct in question, i.e., whether it was the kind of conduct that courts could not scrutinize without jeopardizing military discipline.

33

We believe that the Stanley court misread Chappell. It appears to have been influenced by the following statement in Chappell: "[N]or 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." 462 U.S. at 304, 103 S.Ct. at 2368. The Stanley court saw that language as limiting Chappell to its facts. We disagree. This interpretation ignores the fact that the Chappell Court, following its qualification that it had not closed the door on all military claims, cited three cases to illustrate the kind of suits that remained viable: Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). None of those cases involved damages actions against military officers. And almost immediately after these citations the Court stated: "We hold that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations." 462 U.S. at 305, 103 S.Ct. at 2368.

34

The clear implication of Chappell is that while some non-damage constitutional claims involving the military remain viable, damage claims do not. The Stanley court's approach would frequently require courts to make difficult and hair-splitting distinctions as to whether a particular claim was the sort that, if legally actionable, would threaten military discipline. This approach seems questionable as a matter of policy. In any event, we simply do not read Chappell as sanctioning this kind of case-by-case approach.

35

We thus believe that the Supreme Court was laying down a general rule barring damages actions by military personnel against superior officers for constitutional violations, rather than authorizing a fact-specific inquiry. The Eighth Circuit understands Chappell to leave room for an exception where the conduct complained of has "total antipathy to any conceivable military purpose." Brown v. United States, 739 F.2d 362, 367 (8th Cir.1984). The instant case does not give us occasion to evaluate the possibility that Chappell leaves room for such an exception because the immediate cause of Jorden's discharge was his disobedience of a military order from a superior officer; it cannot be said that the order had no "conceivable military purpose." Under the circumstances, Chappell clearly bars a Sec. 1983 damages action.12

III. Jorden's Claims For Reinstatement

36

Our conclusion in part II establishes that the district court was correct to dismiss Jorden's claim for damages. We now turn to his claim for injunctive relief, i.e., reinstatement.

37

A. History of Availability Of Injunctive Relief Against The Military

38

The Supreme Court has heard many cases involving claims for injunctive relief against the military without even suggesting that the claims were not reviewable in a civilian court. The most notable exception is Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), a case arising out of the Kent State shootings in 1970. Kent State students brought suit seeking far-reaching injunctive relief "to restrain [the governor] in the future from prematurely ordering National Guard troops" and "to restrain leaders of the National Guard from future violations of the students' national rights." Id. at 3, 93 S.Ct. at 2442. Finding that the relief requested was a "broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard," a step that would require "a judicial evaluation of the appropriateness of the training, weaponry and orders of the Ohio National Guard," id. at 5-6, 93 S.Ct. at 2443 the Court declared the matter inappropriate for judicial resolution. However, the Court explicitly stated that its holding involved no broad rule:

39

[I]t should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief.

40

Id. at 11-12, 93 S.Ct. at 2446.

41

Several subsequent cases have confirmed that the Court has not established a per se rule that military matters are not subject to judicial review. Rotsker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (equal protection challenge to all-male draft registration); Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980) (first amendment attack on Air Force regulation with respect to circulation of petitions); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (vagueness challenge to criminal provisions of military code); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (equal protection challenge against statutes discriminating against women in military benefits).

42

Chappell made no direct reference to claims for injunctive relief against the military, but it did cite Brown, Parker and Frontiero as examples of suits against the military that remain viable. 462 U.S. at 304-05, 103 S.Ct. at 2367-68. Three years after Chappell, the Court heard another case involving a claim for injunctive relief in the military context, and made no mention of a reviewability problem. Goldman v. Weinberger, --- U.S. ---, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (naval officer's refusal to permit plaintiff to wear yarmulke upheld).

43

This court, too, has entertained suits for injunctive relief against the military. In Jaffe v. United States, 592 F.2d 712 (3d Cir.1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979) ("Jaffe I"), we reviewed the actions of the military under the Administrative Procedure Act. More recently, in Dillard v. Brown, 652 F.2d 316 (3d Cir.1981), we held that, as a general matter, requests for injunctive relief against the military are reviewable. We stated that the only exceptions to this rule were rare cases, such as Gilligan v. Morgan, supra, where the kind of relief requested would involve the court in tasks well outside of its capacity and function. See discussion infra at 111.

44

B. Should Jorden's Claims for Reinstatement Have Been Dismissed?

45

Although the district court made no specific mention of Jorden's claims for injunctive relief, i.e., reinstatement, it apparently found those claims barred by Chappell. We disagree. Chappell itself suggests that it leaves open claims for injunctive relief against the military, and has been so interpreted by every court to consider the question. Moreover, we find that permitting injunctive relief while denying a damages remedy is supported by considerations of policy. Finally, the law of this circuit dictates that Jorden's claim for injunctive relief be permitted.

46

As noted above, Chappell stated that it was not closing the door on claims against the military for constitutional violations, and cited as examples of viable actions three cases--Brown, Frontiero, and Parker--that involved injunctive relief. It is true that those cases, like Rotsker, involved facial constitutional challenges to regulations or statutes concerning the military. However, the Court in Brown expressly stated that judicial scrutiny was not limited to facial constitutional challenges; rather, legitimate constitutional claims could arise from the application of these statutes and regulations. 444 U.S. at 357 n. 15, 100 S.Ct. at 601 n. 15. The recent Goldman case involved such a challenge.

47

All of the courts to consider the question have held that Chappell leaves open claims by discharged military personnel for injunctive relief. Ogden v. United States, 758 F.2d 1168 (7th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55 (1st Cir.1984); Gant v. Binder, 596 F.Supp. 757 (D.Neb.1984), aff'd, 766 F.2d 358 (8th Cir.1986).13 In Ogden, in which plaintiff alleged that his military superior's application of an "off-limits" declaration violated his first amendment rights, the court said:

48

The district court did not expressly deny plaintiffs' claims for injunctive relief nor specifically consider whether the Chappell decision was also a bar to such relief. We hold that Chappell does not preclude an equitable remedy and that the district court erred in not addressing the injunctive requests. Chappell contains the express qualification that military personnel are not barred from "all redress in civilian courts for constitutional wrongs suffered in the course of military service." The Court cited three of its decisions as supporting this proposition. These cases involved facial attacks on the constitutionality of statutes and regulations concerning the military ... The suits requested nonmonetary relief, as opposed to the monetary damages sought in Chappell ... The implication that the Court could forbid the unconstitutional prohibition of protected conduct is clear.

49

758 F.2d at 1175-76 (emphasis added). Although Ogden did not involve a suit for reinstatement, its analysis supports the view that Chappell ruled out only claims for damages, not injunctive relief. Moreover, Gant and Penagaricano, which did involve claims for reinstatement, held that Chappell leaves available suits for reinstatement by discharged military personnel.

50

One of the concerns underlying Chappell is the need for military officers' uninhibited decisionmaking, and the threat to such decisionmaking if officers fear personal liability. The threat of personal liability for damages poses a unique deterrent to vigorous decisionmaking. See generally, P. Schuck, Suing Government (1983). On the other hand, the possibility that an officer may be compelled by a court to cease applying a particular regulation in an arbitrary manner, or to reinstate an improperly discharged soldier, poses much less of a threat to vigorous decisionmaking. Indeed, it is for this reason that government officials are often immune from damages but susceptible to injunctions. See, e.g., Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 737, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980) ("Prosecutors enjoy absolute immunity from damages liability ... but they are natural targets for Sec. 1983 injunctive suits.").

51

Our analysis of Chappell, however, does not end the case. For while Chappell did not require the district court to dismiss Jorden's claim for reinstatement, it did not require the court to hear the claim. Absent a decree from the Supreme Court to the contrary, lower courts must apply their own jurisprudence to determine whether claims for injunctive relief against the military are appropriate. For example, after finding that Chappell did not bar plaintiff's claim, the First Circuit in Pengaricano dismissed the claim by virtue of First Circuit law on reviewability of claims involving the military. Thus, the question whether the district court erred in dismissing Jorden's claim for reinstatement turns on this court's approach to the availability of claims for injunctive relief against military officials.

52

As noted, the law in this circuit, established in Dillard v. Brown, heavily disfavors finding injunctive claims against the military non-reviewable.14 Dillard involved a woman Guard member who was discharged from the Guard because of a regulation that forbade the enlistment of single parents. She alleged that the Guard had applied the regulation in an unconstitutionally discriminatory manner.15 The district court had held that this military matter was not reviewable in the civilian courts. This court reversed, holding that suits against the military are non-cognizable in federal court only in the rare case where finding for plaintiff "require[s] a court to run the military." 652 F.2d at 322. We gave as one example Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), in which the plaintiffs asked the court to engage in ongoing regulatory supervision of the Guard. Absent such an extreme case, "[i]f the military justification outweighs the infringement of the plaintiff's individual freedom, we may hold for the military on the merits, but we will not find the claim to be non-justiciable." Dillard, at 323-24 (emphasis added).16

53

Like the plaintiff in Dillard, Jorden alleges that he was discharged in violation of his constitutional rights. Also like plaintiff in Dillard, if Jorden establishes a constitutional violation, the remedy will be a court-ordered reinstatement, rather than the kind of ongoing judicial oversight held inappropriate in Gilligan. Under Dillard, Jorden's claims for reinstatement are reviewable.

54

As we have explained above, Chappell neither required nor forbade the district court from dismissing Jorden's claims for reinstatement. We believe the law of this circuit, supported by considerations of policy, dictates that these claims should not have been dismissed.17

IV. Conclusion

55

For the reasons stated above, we hold that the district court was correct in dismissing Jorden's damages claims, but incorrect in dismissing his claims for reinstatement. Thus, on remand, if Jorden can demonstrate that the discharges violated his constitutional rights, he is entitled to reinstatement.

56

We shall affirm the judgment of the district court insofar as it dismisses plaintiff's damages claims and dismisses all claims against the NGB. We shall reverse the judgment of the district court insofar as it dismisses plaintiff's claims for injunctive relief against the individual defendants, and shall remand this case for further proceedings.

57

GIBBONS, Circuit Judge, dissenting.

58

I join the opinion of the court to the extent that it reverses the district court's dismissal of Jorden's claims for injunctive relief. However, I disagree with the majority's disposition of the damage claims, and I dissent on this point.

59

The issue presented by Jorden's appeal of the district court's dismissal of his damage claims is whether a state national guard official is immune from a section 1983 suit brought by another member of the national guard unit. The Supreme Court frequently has addressed claims bearing on immunities available to section 1983 defendants and in doing so has delineated a relatively straightforward analysis for assessing such claims. Resort to that controlling analysis in this case makes quite clear that the defendants here are not immune from damage liability under section 1983.

60

In assessing immunity claims by 1983 defendants, the Court first has looked to see if any relevant immunity existed prior to the enactment of section 1983. If such immunity did exist, the Court has then looked at the legislative history that accompanied enactment of section 1983 to see if it reveals any congressional intent to abolish that immunity. Should no such intent manifest itself, the Court finally has weighed policy considerations relevant to the asserted immunity. Only when all three conditions have been satisfied--the existence of preexisting immunity, the absence of congressional intent to abolish that immunity, and the absence of policies disfavoring immunity--has the Court held the defendant to be immune. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-71, 101 S.Ct. 2748, 2755-62, 69 L.Ed.2d 616 (1981) ("Because absolute immunity from such damages obtained at common law and was undisturbed by the 42d Congress, and because that immunity is compatible with both the purposes of Sec. 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. Sec. 1983."); Imbler v. Pachtman, 424 U.S. 409, 417-29, 96 S.Ct. 984, 988-94, 47 L.Ed.2d 128 (1976) (employing same analysis in holding that state prosecutors are immune from section 1983 damage suits in certain circumstances); Schueur v. Rhodes, 416 U.S. 232, 238-49, 94 S.Ct. 1683, 1687-93, 40 L.Ed.2d 90 (1974) (employing same analysis in holding that a state governor, senior state national guard officers, and the president of a state-controlled university were not absolutely immune from section 1983 damage suits in certain circumstances); Pierson v. Ray, 386 U.S. 547, 553-57, 87 S.Ct. 1213, 1217-19, 18 L.Ed.2d 288 (1967) (employing same analysis in holding that a state judicial officer was absolutely immune and state police officers had good-faith immunity from section 1983 damage suits in certain circumstances); cf. Tenney v. Brandhove, 341 U.S. 367, 372-76, 71 S.Ct. 783, 786-88, 95 L.Ed. 1019 (1951) (employing similar analysis in holding that immunity-like privilege accorded legislators immunized state legislators from section 1983 damage suits in certain circumstances).

61

In this case, in which state national guard officers contend that they are absolutely immune from a damage suit brought by a subordinate, one cannot progress past the first step of the analysis. Not only were military officers not immune from such damage actions prior to enactment of section 1983, the Supreme Court, in a case decided shortly before the passage of section 1983, held expressly that they were liable in such actions. See Wilkes v. Dinsman, 48 U.S. 93, 135-37, 7 How. 88, 128-30, 12 L.Ed. 618 (1849) (reversing trial court dismissal of enlisted man's suit against superior officer and holding that defendant officer was not absolutely immune from damage action).1 Thus, unless Judge Becker is prepared to argue that in enacting section 1983 Congress created a new immunity available to the defendants in this case, controlling precedent precludes any holding that the defendants in this case are immune to the section 1983 damage claim.

62

To his credit, Judge Becker acknowledges the Supreme Court's methodology for evaluating immunity claims asserted by state officials defending section 1983 suits, at 106, and notes that prior to the enactment of section 1983 military officials were not immune from damage suits, at 105. However, other than to note that his holding is "troublesome in one respect," at 103, he offers no explanation of how the holding squares with the acknowledged methodology or with the noted immunity law.

63

What Judge Becker does offer in defense of his holding is Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). More specifically, he asserts first that Butz stands for the proposition that the immunity available to section 1983 defendants is the same as that available to similar defendants sued under a Bivens theory. From this he argues that, because, according to him, the Supreme Court held in Chappell that federal military officers are immune from Bivens' suits, state national guard officers are thus immune from section 1983 damage suits. At 105-106. This argument is without merit.

64

First, Judge Becker mischaracterizes the holding of Butz. In that case the plaintiffs brought a Bivens action against officials of the executive branch of the federal government. The district court and the court of appeals had rejected the defendants' assertions that they were absolutely immune, and the defendants had appealed. In assessing the defendants' claim to absolute immunity, the Court canvassed one hundred and fifty years of Supreme Court case law that had held federal executive branch officials to be liable in damage suits in various circumstances, see id. 438 U.S. at 486-89, 98 S.Ct. at 2900-02, and also reviewed cases that had held that state officials were not absolutely immune from section 1983 damage actions, see id. at 496-504, 98 S.Ct. at 2905-09. Relying on these two lines of cases, the Court held that the defendants were not absolutely immune from Bivens damage liability. In so holding the Court, using the language quoted by Judge Becker, at 106, rejected the defendants' assertion that they were entitled to greater immunity than were their state counterparts.

65

Judge Becker reads Butz to stand for the "unequivocal command ... that Bivens' claims and Sec. 1983 suits are to be treated as identical for the purpose of immunity." At 106. To the extent that statement suggests--as Judge Becker's analysis indicates--that Butz holds that any state defendant sued for damages under section 1983 is absolutely immune if that defendant's federal counterpart would be absolutely immune to a Bivens claim, he is distorting Butz. Furthermore, implicit in such a suggestion is the assertion that Butz modifies the cases in which the Court has delineated pellucidly the analysis--discussed above--appropriate for determining when state officials are immune from section 1983 damage actions. Nothing in Butz, or in Fact Concerts, which was decided after Butz, supports such a novel assertion.

66

Even if one were to assume for the purposes of argument that Butz establishes the proposition for which Judge Becker cites it, the reasoning underlying his resolution of the immunity issue is still flawed. Judge Becker argues that in light of Butz the state national guard defendants are immune from this section 1983 suit because, he asserts, the Supreme Court held in Chappell that federal military officials are immune to Bivens suits. Yet this argument is unavailing, for Chappell does not hold what Judge Becker suggests it does.

67

In Chappell enlisted naval men filed a Bivens suit against their superior officers, seeking damages for alleged constitutional violations. The district court dismissed the plaintiffs' complaint on the grounds that the underlying military actions could not be reviewed by a civilian court, that the defendants were immune, and that the plaintiffs had failed to exhaust administrative remedies. 462 U.S. at 298, 103 S.Ct. at 2364-65. The Court of Appeals for the Ninth Circuit reversed, holding that the district court had incorrectly assessed the justiciability and immunity claims. Id. The defendants then appealed to the Supreme Court.

68

In a unanimous decision the Court reversed the Ninth Circuit. However, contrary to the necessary implication of Judge Becker's argument, that reversal was not predicated on the conclusion that the defendants were immune from suit. Indeed, it is quite clear that the Court did not address the issue of the defendants' immunity. Rather, the decision dealt only with the propriety of extending the judicially-created Bivens remedy to the plaintiffs, as the Court focused exclusively on whether the "special factors counselling hesitation" were present. See id. at 298-304, 103 S.Ct. at 2364-68. This reading of Chappell is corroborated by the Court's express reference to Wilkes, which it distinguished on the grounds that "it involved a well-recognized common-law cause of action ... and did not ask the Court to imply a new kind of cause of action." Id. at 305 n. 2, 103 S.Ct. at 2368 n. 2.

69

Finally, the issue remains whether the state national guard officials whose liability we consider here are the same as the federal naval officers whose liability the Court considered in Chappell. Resolution of this issue is critical because, even if Judge Becker's interpretation of Butz and Chappell were correct, that interpretation would allow one to conclude that the defendants here are immune from suit only if one concluded that they are state equivalents of the federal officials who were the defendants in Chappell.

70

Judge Becker does not attempt to argue that for the purposes of his analysis state national guard officials are the same as federal military officers. Rather, he sidesteps the issue by asserting blithely that we cannot "evade the command of Butz by stating that, as a matter of policy, immunity for federal military officers is more important than immunity for state military officers." At 106. This position is contrary to Supreme Court precedent. In Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the Court in considering the President's immunity to civil liability, faced the argument that, because it had held in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), that governors were not absolutely immune from civil liability, the President, by virtue of the similarity of his position to that of a governor, also was not absolutely immune. The Court expressly rejected this argument, choosing instead to assess the propriety of absolute immunity in light of the President's specific constitutional responsibilities. Id. 457 U.S. at 749-50, 102 S.Ct. at 2701. The Court's resort to this analysis makes clear that the Courts of Appeals, when considering granting to state officials immunities conferred upon their federal analogues, should not, as Judge Becker does, automatically immunize the state officials.

71

Turning to the substance of the matter, the federal military and state national guards differ in obvious and significant ways. As the Court explained in Chappell, the principal rationale for barring intramilitary damage actions by federal personnel is the concern for "disruption of the peculiar and special relationship of the soldier to his superiors that might result if the soldier were allowed to hale his superiors into court." 462 U.S. at 304, 103 S.Ct. at 2637 (citations and internal punctuation omitted). Whatever one might think of the validity of this reasoning as it pertains to the federal military, it simply is not relevant to state national guards. While those organizations have their military aspects, they are principally civilian in character, and the interrelationships of their members are principally civilian in character. The specifics of this case highlight these facts. Jorden was hired by the PaANG as a civilian technician, and he enlisted only because membership in the guard was a prerequisite to civilian employment. As a member he was required to serve in a military capacity for only fifteen days out of the year. During the rest of the time he served as a civilian employee and was not subject to military command. Thus it is quite clear that the attenuated concern for military discipline in this context bears no resemblance to the concern for such in the federal context. Consequently, the rationale for shielding federal military officers from damage suits does not support shielding state national guard officials from similar suits.2

72

Judge Becker's argument that the Supreme Court's holdings in Butz and Chappell compel the conclusion that the state national guard officers who are the defendants in the case before us are immune to a section 1983 damage suit is indefensible. Further, controlling Supreme Court precedent governing the recognition of immunities available to section 1983 defendants makes clear that these defendants are not absolutely immune from a section 1983 suit for damages. I therefore dissent from the majority opinion to the extent it holds otherwise.

1

It is useful at the outset to distinguish among several terms that arise in cases involving the military. First, courts usually invoke the term "immunity" to refer only to whether particular defendants are susceptible to or are free from damages actions, while using "reviewability" to refer more generally to the appropriateness of a civilian court hearing cases that involve military matters. See Wallace v. Chappell, 661 F.2d 729, 734 (9th Cir.1981), rev'd on other grounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). We shall follow this path (notwithstanding the fact that the term "immunity" could be understood more broadly to apply to claims for both damages and injunctive relief). Thus, in Part Two, which concerns Jorden's damages claims, we use the term "immunity," while in part three, which concerns his claims for reinstatement, we use "reviewability." In addition, in the context of claims against the military, "justiciability," is sometimes used interchangeably with "reviewability" to denote generally the propriety of a court's hearing a particular claim. Dillard v. Brown, 652 F.2d 316, 322 n. 4 (3d Cir.1981). Because "justiciability" has a more specific meaning in other contexts, we use "reviewability." As the foregoing suggests, the nomenclature in this area is flexible, and while our choice of terms may seem arbitrary, it is designed to minimize confusion

2

Thus, in Johnson v. Orr, 780 F.2d 386 (3d Cir.1986), we held that the New Jersey Adjutant General and technician supervisory personnel acted under the color of state law for the purpose of 42 U.S.C. Sec. 1983 in dismissing Guard technicians. That case involved a certified question concerning the "color of state law" issue. Although amici contended that defendants were immune from a damages suit by virtue of their military status, we declined to reach that issue because it was not part of the question certified by the district court. Id. at 389 n. 6. The district court had held that, because the case arose almost entirely in a civilian context, the doctrine of military immunity was inapplicable

3

Because Jorden asserted no proper jurisdictional basis for a suit against the NGB, the NGB was properly dismissed as a defendant. The NGB is an agency of the United States and is thus protected from lawsuits unless there has been a waiver of sovereign immunity. The Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 702 et seq. (1982), constitutes such a waiver, but Jorden does not make an APA challenge to actions of the NGB, whose only official action, the withdrawal of recognition of Jorden in ANGUS, was ministerial. Jorden does not dispute that, once he was removed from PaANG, he automatically lost his status in ANGUS. Rather, he intimated to the district court that certain currently unknown employees of the NGB (in addition to Walker) were aware of the conspiracy against him and acquiesced in it in violation of 42 U.S.C. Sec. 1986. However, while such individuals may be sued, the NGB is not a "person" within Sec. 1986. Nor is it necessary to include the NGB as a defendant to enable the implementation of a court order of injunctive relief. State defendants can reinstate Jorden to PaANG, and defendant Walker, Chief of the NGB, can reinstate Jorden to ANGUS

4

The district court's opinion did not distinguish 12(b)(1) and (6), and its order did not specify whether the dismissal was pursuant to (1) or (6)

5

In a conclusory footnote, the court held that Jorden's failure to exhaust administrative remedies was an additional basis for dismissal. We disagree. It is true that Jorden has recourse to the Air Force Board for the Corrections of Military Records ("AFBCMR") under 10 U.S.C. Sec. 1552. (Jorden has petitioned for relief under Sec. 1552 and the petition is pending.) Some courts have dismissed actions because plaintiffs had not availed themselves of this remedy, see, e.g., Sanders v. McCrady, 537 F.2d 1199 (4th Cir.1976). However, this court has not adopted a per se exhaustion requirement for military personnel. Indeed, in Nelson v. Miller, 373 F.2d 474, 479-80 (3d Cir), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980 (1967), we explicitly rejected a rule that would require recourse to 10 U.S.C. Sec. 1552 before military personnel could bring a claim. Rather, we said, exhaustion depends on the potential adequacy of that remedy in the particular case. Nelson is consistent with our approach to exhaustion generally, see, e.g., First Jersey Securities Inc. v. Bergen, 605 F.2d 690, 696 (3d Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980), which favors exhaustion but does not require it where the administrative remedy would be inadequate. In this case, the AFBCMR cannot afford Jorden satisfactory relief. As defendants concede, the AFBCMR, a federal Board, cannot order Jorden's reinstatement to the state Guard. See Penagaricano v. Llenza, 747 F.2d 55, 57 (1st Cir.1984). Moreover, the AFBCMR is a military Board that is arguably not empowered to reinstate Jorden to his civilian technician position in any event. See Rolles v. Civil Service Commission, 512 F.2d 1319, 1326 (D.C.Cir.1975) (" [T]he Board does not have the authority or the power to order the reinstatement with back pay of an employee to a civilian position. The Board performs a purely military function.")

Neither the district court nor defendants contend that there are adequate state remedies, and, in any event, the exhaustion of state administrative remedies is not required in Sec. 1983 actions, Patsy v. Florida Board of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 2568, 73 L.Ed.2d 172 (1982).

6

Prior to Monroe it was widely believed that Sec. 1983's "color of law" requirement was met only where the state had authorized the conduct in question. Monroe clarified that the "color of law" requirement extended to "any official conduct--whether valid under state law or not." P. Schuck, Suing Government 48

7

We shall focus our analysis on Chappell because we find that Jaffe v. United States, 663 F.2d 1226 (3d Cir.1982) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982) ("Jaffe II" ), offers no additional illumination on the relevant questions. The district court and all of the parties similarly focused on Chappell

8

It bears emphasis that in both Brown and Martelon, as in the instant case, the military officers were National Guard officers whose training and military exercises are generally integrated with the National defense

9

One commentator made this point in criticizing Harlow v. Fitzgerald, supra, for treating Sec. 1983 and Bivens claims as identical for immunity purposes:

The abrogation of the subjective element of immunity in Harlow, however, was premised solely upon the Court's assessment of public policy. While this may be appropriate for Bivens actions, which are largely a creation of the judiciary, the Court does not have the discretion to depart from the intent of the legislature and apply its own notions of policy to section 1983 actions.

As previously discussed, immunity to section 1983 liability is founded in Congress' presumed adoption of immunities that were established at common law. Therefore, the paramaters of the qualified immunity under section 1983 must be defined by reference to the common law.... The judicial abolition of the subjective element of the immunity for Bivens actions ... cannot and should not simply be extended to section 1983 actions. Only Congress may properly determine whether public policy mandates amending section 1983 ... for the immunity defense.

Gildin, The Standard of Culpability In Section 1983 and Bivens Actions: The Prima Facie Case, Qualified Immunity And The Constitution, 11 Hofstra L.Rev. 557, 587-88 (1983).

The question whether Sec. 1983 and Bivens actions should be treated identically for immunity purposes turns, in part, on how much significance ought be attached to the fact that Congress has provided explicit statutory remedies against state officers but not against federal officers. Compare majority opinion in Butz, 438 U.S. at 502-03 n. 30, 98 S.Ct. at 2908-09 n. 30 (stating that the fact that Congress created actions against state and not federal officers is a function of historical contingencies of 1871 and is no longer relevant) with dissenting opinion (Rehnquist, J.) at 525-26, 98 S.Ct. at 2920 (attaching great significance to Congress' choice to make state, but not federal, officers liable for constitutional violations and concluding that the notion "that there should be no difference in immunity between state and federal officials remains subject to serious doubt.")

10

Judge Gibbons would apparently limit Butz to its facts, and not read it to require that federal officials and state officials be treated alike for immunity purposes. However, he overlooks the significance of the Court's extensive discussion, see supra p. 105, designed to show that logic dictates that federal officials and their counterpart state officials should be equally susceptible or insusceptible to suit. Given this lesson of Butz, Judge Gibbons' other point, that Chappell is not actually an immunity decision, is insignificant. Chappell limits the availability of Bivens damages actions against federal military officials, and we would therefore contradict the logic of Butz if we did not similarly limit the availability of Sec. 1983 damages actions against state military officials

On the basis of Nixon v. Fitzgerald Judge Gibbons argues in his dissent that, as a general matter, analogy between the immunities accorded state and federal officials is improper. The Nixon Court did in fact reject such an analogy, but it did so because of "[t]he President's unique status under the Constitution." 457 U.S. 731 at 750, 102 S.Ct. 2690 at 2701, 73 L.Ed.2d 349 (1982) (emphasis added). Nothing in Nixon suggests that the state/federal analogy is improper for any other official, and as we have already discussed, at 105, Butz explicitly directs us to reason in this manner.

11

Jorden relied on the opinion of the Florida district court, because it was not affirmed until after the briefing and oral argument in this case had already occurred. However, the Eleventh Circuit adopted the district court's reasoning

12

Jorden sought damages under 42 U.S.C. Secs. 1985(3) and 1986 as well. Having determined that defendants are immune from a damages action under Sec. 1983, we cannot see any basis for holding them susceptible to suit under Secs. 1985 and 1986. See Mollnow v. Carlton, 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984) (extending Chappell to bar claim under Sec. 1985); Elliot v. Perez, 751 F.2d 1472 (5th Cir.1985) (treating Sec. 1983 and Sec. 1985 together for immunity purposes)

In addition, we must dismiss Jorden's common law cause of action. Chappell hinted that the common law cause of action in Wilkes v. Dinsman may remain viable, 462 U.S. at 305 n. 2, 103 S.Ct. at 2368 n. 2. However, Wilkes involved an oppressive and malicious flogging. Especially in light of the recent decisions of the Court restricting the availability of damages actions against the military, we are unwilling to extend Wilkes beyond its facts. See Trerice v. Summons, 755 F.2d 1081, 1084 (4th Cir.1985). Jorden's allegations--that defendants gave him unfavorable treatment for unconstitutional reasons--resemble plaintiffs' allegations in Chappell, in which the Court found Wilkes inapposite, 462 U.S. at 305 n. 2, 103 S.Ct at 2368 n. 2. Cf. Trerice v. Pedersen, 769 F.2d 1398, 1404 (9th Cir.1985) (Wilkes no longer viable).

It is worth noting that we do not determine the availability of a damages action in a case like Johnson v. Orr, supra n. 2, where a Guard technician is dismissed from his civilian employment for circumstances arising wholly in the civilian context.

13

The Eighth Circuit assumed without deciding that the district court was correct in finding that Chappell did not bar the injunctive claim

14

It is clear that Dillard was not overruled by either Chappell or Jaffe II. We have already discussed at length the fact that Chappell does not bar claims for injunctive relief. Similarly, in Jaffe II we explicitly stated that "what we are called upon to decide is simply whether plaintiffs are entitled to money damages." 663 F.2d at 1240

15

She also alleged that the regulation was facially unconstitutional, a claim this court appeared to regard as frivolous. 652 F.2d at 324 n. 6

16

In Dillard we explicitly rejected the test set forth by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for determining whether a court should hear a particular claim involving the military. See Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984) (praising Dillard as superior approach to Mindes). The Mindes test requires balancing, inter alia, the importance of the constitutional right asserted and the anticipated extent to which review will interfere with the military mission. We note that Jorden's claim would likely be reviewable under a Mindes balance. He alleges race discrimination and retaliation for the exercise of politically-related speech, both of which are very important constitutional claims. Moreover, reviewing the military order in question, an unusual order affecting only one individual and occurring not only off the battlefield but during a time when the plaintiff was not in active service, is not likely to have a deleterious effect on military decisionmaking generally

17

Obviously, the claims for reinstatement against state defendants are properly brought under Sec. 1983. Jurisdiction over defendant Walker, Chief of the NGB, is maintainable either under Sec. 1983 or directly under the Constitution. See Knights of the Klu Klux Klan v. East Baton Rouge Parish, 735 F.2d 895, 900 (5th Cir.1984) (federal officials who conspire or act jointly with state officials may be liable under Sec. 1983); Reuber v. United States, 750 F.2d 1039, 1061 (D.C.Cir.1984) (Federal injunctive relief is available directly under the Constitution against federal actors committing constitutional violations)

1

The Court subsequently affirmed this holding in Dinsman v. Wilkes, 53 U.S. 414, 428, 430, 12 How. 402-03, 404-05, 13 L.Ed. 1036 (1851)

2

Judge Becker attempts to equate state national guards with the federal military by pointing out that national guards are federal reserve components and by noting that they might be involved in hostilities in case of a "surprise attack" on this country. At 106-107. By this reasoning, the military-discipline rationale of Chappell would bar conscriptable male civilians from suing military officials for damages, for they are as likely to be involved in hostilities as is any member of a state national guard

Furthermore, Judge Becker's effort to equate state national guards with the federal military ignores the important differences in the roles of those two organizations. State national guards serve to protect the states from domestic, civil disorder. By contrast the federal military--and the national guards, when federalized--serve to protect the country from external threats. Indeed, federal law prohibits the federal military from participating in domestic security operations. See Posse Comitatus Act, 18 U.S.C. Sec. 1385 (1982).