
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1206                                  RICHARD L. WRIGHT,                                Plaintiff, Appellant,                                          v.                               ERNEST C. PARK, ET AL.,                                Defendants, Appellees.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                                                                     _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                     _________________________               Peter A. Anderson for appellant.               _________________               Michael M. DuBose,  Assistant United  States Attorney,  with               _________________          whom  Jay P.  McCloskey,  United States  Attorney, and  George P.                _________________                                 _________          Dilworth, Assistant  United States  Attorney, were on  brief, for          ____________________________________________          appellees.                                                                                     _________________________                                   October 4, 1993                                                                                     _________________________                    SELYA,  Circuit  Judge.   This  appeal  requires us  to                    SELYA,  Circuit  Judge.                            ______________          consider whether  civil rights actions can  be maintained against          military officers  in the chain  of command  by persons  employed          under the National Guard Technician Act of 1968 (Technician Act),          32  U.S.C.    709  (1988).   The  district court  granted summary          judgment   because   it   deemed   plaintiff's   claims   to   be          nonjusticiable.   See  Wright v. Park,  811 F. Supp.  726 (D. Me.                            ___  ______    ____          1993).  Although  our reasoning  differs from that  of the  court          below, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    The  facts,  insofar  as   they  are  germane  to  this          proceeding,  are  not  seriously disputed.    Plaintiff-appellant          Richard L. Wright served  from 1970 to 1990  in a dual  civilian-          military capacity as a technician at the Air National Guard (ANG)          base  in Bangor,  Maine.   Wearing  his  civilian hat,  appellant          served during the  last three years of the period  as an aircraft          maintenance  specialist.   Wearing  his military  hat, he  served          during  that same  period  as deputy  commander for  maintenance,          101st Air  Refueling Wing, and as a colonel in the Maine ANG.  In          these  positions, appellant supervised  approximately 450 persons          attached to the maintenance unit, including 130 technicians.  His          primary  mission was to keep  Bangor-based military aircraft in a          state of combat preparedness, and to train others to do the same.                    On March  2, 1990,  Major General Ernest  Park notified          appellant  of his  forthcoming  reassignment to  the position  of          flight  instructor.    In  compliance  with  Technician Personnel                                          2          Regulation No. 15,  2-5,1  Park's letter informed appellant that,          if  he abjured reassignment, the letter itself would be deemed to          operate as  a  30-day  termination  notice.   Appellant  did  not          welcome  the news:  while the proposed shift in duties endangered          neither his pay nor his benefits,  it promised to remove him from          the  maintenance  unit  and  divorce  him  from  all  supervisory          responsibilities.      Consequently,   appellant   rejected   the          reassignment.  In due course, the threatened termination became a          reality.  Park  relieved appellant  of his duties  as a  civilian          aircraft  maintenance  specialist  and  as deputy  commander  for          maintenance, while leaving intact his military rank.                    His  several  hats  askew,  appellant  brought  suit in          federal district court against General Park and others presumably          responsible  for cashiering him.   He  claimed that  his habitual          whistleblowing   during his tenure as maintenance officer, he had          filed  repeated reports of safety violations, as well as a report          charging  General  Park with  the  unauthorized  use of  military          aircraft   prompted a cabal of high-ranking officers to retaliate          against him and,  ultimately, strip him of his job.2   His second          amended complaint  (the  operative  document  for  our  purposes)          alleges  that the named defendants    Generals Park, Eremita, and                                        ____________________               1Regulation No.  15, promulgated  by the Secretaries  of the          Army and Air Force pursuant to 32 U.S.C.   709(a) (1988),  covers          a wide range of personnel matters.  Section 2-5 thereof addresses          non-disciplinary,  management-directed  reassignments of  persons          employed under the Technician Act.               2Defendants deny these  charges, contending that appellant's          reassignment  was justified  by  discipline problems  within  the          maintenance unit and by the need to bolster flagging morale.                                          3          Durgin, and  Colonel Hessert   thereby violated  the Civil Rights          Act, 42  U.S.C.    1983,  1985 (1988), the  federal whistleblower          statute,   5  U.S.C.        2301-2302  (1988),   and  the   state          whistleblower law, 26 M.R.S.A.    831-840 (1988).                    The federal district court consolidated the case with a          related  case.3    On   January  26,  1993,  the  court   granted          defendants'  motion for  summary judgment,  holding  in substance          that the dispute concerned a nonjusticiable military controversy.          See Wright v. Park, 811 F. Supp.  at 732.  It reached this result          ___ ______    ____          by applying  the analytic framework first suggested  in Mindes v.                                                                  ______          Seaman, 453  F.2d 197, 201-02  (5th Cir. 1971),  and subsequently          ______          adopted by this court in Penagaricano v. Llenza, 747 F.2d 55, 60-                                   ____________    ______          61 (1st Cir. 1984).                    The appeal  from the district court's judgment presents          a pair of interrelated  issues:  separability and justiciability.          Thus,  we   must  make   two  inquiries:     Assuming  defendants          discriminated against  appellant, can  appellant be said  to have          suffered injury in his capacity as a civilian worker, independent          of  his military  role?    (2) If  not,  i.e.,  if appellant  was                                                   ____                                        ____________________               3An investigator for the Maine Human Rights Commission found          reason  to   believe   that  defendants   discriminated   against          appellant, and the Commission joined with appellant to bring suit          in federal district court.   A parallel state action  was removed          to federal court and then consolidated with  the original action.          After  the Maine  Supreme  Judicial  Court  held that  the  state          whistleblower law  does not pertain to  National Guard personnel,          see  Maine  Human  Rights Comm'n  v.  Maine  Dep't  of Defense  &          ___  ___________________________      ___________________________          Veterans'  Servs.,  627  A.2d  1005 (Me.  1993),  the  Commission          _________________          dropped  its appeal from the  judgment below.   The parties agree          that the state-law issues  are now moot and, consequently,  we do          not address them.                                          4          injured, rather, in  his military capacity,  can his injury  form          the  basis  for a  justiciable  civil  rights claim  against  the          defendants (all  of whom are  military officers)?   To complicate          matters, answering the  second query will require us to reexamine          our governing precedent on justiciability in light of recent case          law elsewhere.          II.  AN OFFICER AND A GENTLEMAN          II.  AN OFFICER AND A GENTLEMAN                    Appellant,  who remains  a colonel  in the  ANG, argues          strenuously that, for purposes of  this case, his civilian status          may  be disentangled from his military status, and that he should          be  free to sue for  discrimination implicating the  former.  But          this balkanization  of technicians' work is  belied by Congress's          description  of the functions that  ANG technicians serve, by the          unmistakable intendment  of the Technician Act  (the statute that          Congress  enacted in 1968 to regulate such personnel), and by the          resulting  ties  that  bind technicians'  civilian  and  military          roles.                    The  Technician  Act  makes  technicians  eligible  for          military employment  benefits and, in so doing,  seeks to improve          national  security by  facilitating the recruitment  of qualified          individuals.   See American Fed'n of Gov't Employees v. FLRA, 730                         ___ _________________________________    ____          F.2d  1534,  1542-47  (D.C.  Cir.  1984)  (analyzing  legislative          history).  The Act provides in relevant part that persons may  be          employed as technicians  only "[u]nder regulations prescribed  by          the Secretary  of  the [relevant  military branch].  . .  ."   32          U.S.C.   709(a).  Each such technician "shall, while so employed,                                          5          be  a member of  the National Guard  and hold the  military grade          specified  by the  Secretary concerned  for that  position."   32          U.S.C.     709(b).    In  substance,  then,  the  Technician  Act          evidences  Congress's intention that technicians, while retaining          their positions as civil  employees outside the competitive civil          service,  will   serve  simultaneously   as   employees  of   the          appropriate military department, subject to its regulation.                    It  is axiomatic that the National Guard is military in          character.   See  H.R.  Rep.  No.  1823,  90th  Cong.  2d  Sess.,                       ___          reprinted  in  1968  U.S.C.C.A.N.  3318,  3319  (recognizing  the          _________  __          "military characteristics of  the National Guard").   We think it          follows that technicians are martial in character.  Indeed, under          the   Technician  Act's   composite   regime,   technicians   are          considerably   more  than   nominal  members   of   the  military          establishment.   In  referring to  the National  Guard's mission,          Congress termed it "essential"  as a matter of  "military policy"          that "the strength and organization of the [National Guard] as an          integral part  of the first line defenses of the United States be          maintained and assured at all times."  32 U.S.C.    102.  Because          National Guard technicians serve as the Guard's support staff and          are, in  fact, those whose job  it is to maintain  and assure the          Guard's strength and organization, they are indispensable to this          nation's  defense.  See, e.g.,  32 U.S.C.    709(a) (assigning to                              ___  ____          technicians  such  distinctively  military  tasks   as  "(1)  the          administration and training  of the National  Guard; and (2)  the          maintenance and repair  of supplies issued to the  National Guard                                          6          or the armed services").  Nor do technicians merely perform tasks          that have a military ring to them; the record reflects that fully          one-half  of appellant's  outfit, the  101st Air  Refueling Wing,          served in Operation Desert Storm or Desert Shield.                    Given this  mise-en-scene, it is  unsurprising that, no                                ____ __ _____          matter  the  context,  every  court having  occasion  closely  to          consider  the   capacity  of   National  Guard  technicians   has          determined that  capacity to  be irreducibly military  in nature.          See, e.g., Stauber v. Cline, 837 F.2d 395, 399 (9th  Cir.), cert.          ___  ____  _______    _____                                 _____          denied,  488 U.S. 817 (1988);  Illinois Nat'l Guard  v. FLRA, 854          ______                         ____________________     ____          F.2d 1396, 1398  (D.C. Cir.  1988); American Fed'n,  730 F.2d  at                                              ______________          1545-46; New Jersey Air  Nat'l Guard v.  FLRA, 677 F.2d 276,  279                   ___________________________     ____          (3d  Cir.), cert. denied, 459 U.S. 988 (1982); Nesmith v. Fulton,                      _____ ______                       _______    ______          615  F.2d 196, 200-01  (5th Cir. 1980).   We, too, conclude that,          since  National  Guard  technicians'  positions  are  encompassed          within  a military  organization and  require the  performance of          work  directly related  to national  defense, such  positions are          themselves military in nature.                    Appellant strives valiantly to  elude the grasp of this          logic.  He says that his situation is different; it falls outside          the mine  run of  previous cases because  he was ousted  from his          civilian employment  without being  terminated from  his military          post.  This asseveration cannot withstand scrutiny.                    For  one  thing,  appellant  mischaracterizes  his  own          situation:  though he retains his commission as  a colonel in the          ANG, the  injury  of which  he  complains has  had  repercussions                                          7          beyond  the  loss  of his  civilian  mantle.   He  also  has been          dismissed from the post  of deputy commander for maintenance    a          post which he admits is  military in nature.  For another  thing,          appellant's self-portrait, even as  he has painted it, is  not an          original.    In  Nesmith,  for example,  the  plaintiff  lost his                           _______          civilian  post prior to the  eventual loss of  his military post.          Nesmith, 615 F.2d  at 197.   The court took  care to analyze  the          _______          initial dismissal independently, yet  reached the same conclusion          as  other courts  that  have considered  the  question:   an  ANG          technician's  two identities are not  scissile.  See  id. at 201;                                                           ___  ___          see  also  Stauber,  837 F.2d  at  399  (holding  that an  injury          ___  ____  _______          occurring in the course of plaintiff's civilian employment  as an          ANG  technician  arose incident  to  military  service); cf.  New                                                                   ___  ___          Jersey  Air  Nat'l  Guard, 677  F.2d  at  279  (holding that  the          _________________________          Technician Act grants adjutants general final discretion relating          to discipline and discharge of ANG technicians).                    We  rule, therefore, that while a technician's job is a          composite, containing  both  civilian and  military  pieces,  the          job's dual aspects are inseparable; they are, like Chang and Eng,          joined at the  chest.  And  from the fact  that the  technician's          several roles  are inextricably intertwined, it  follows that the          adverse   employment  action  against  which  appellant  inveighs          necessarily  implicates  his military  as  well  as his  civilian          status.  In other words, Colonel Wright, for present purposes, is          both an officer and a gentleman.          III.  NO CLEARANCE FOR TAKEOFF          III.  NO CLEARANCE FOR TAKEOFF                                          8                    Having   answered  the  separability  question  in  the          negative,  we  proceed to  the  question  of justiciability.  The          touchstone  of our inquiry is  Chappell v. Wallace,  462 U.S. 296                                         ________    _______          (1983).    Chappell  held  that  "[t]aken  together,  the  unique                     ________          disciplinary   structure  of   the  Military   Establishment  and          Congress'  activity  in the  field  constitute `special  factors'          which dictate that it would be  inappropriate to provide enlisted          military  personnel  with  a  Bivens-type  remedy  against  their                                        ______          superior  officers."    Id.  at 304  (citation  omitted).4    The                                  ___          Chappell Court  placed particular emphasis on the  first of these          ________          two factors:                    The  special nature  of  military life    the                    need for unhesitating and decisive  action by                    military  officers  and  equally  disciplined                    responses  by enlisted  personnel    would be                    undermined  by  a  judicially created  remedy                    exposing  officers  to personal  liability at                    the  hands  of  those  they  are  charged  to                    command.    Here,  as  in  Feres  [v.  United                                               _____       ______                    States,  340 U.S.  135  (1950)],  we must  be                    ______                    "concern[ed]  with  the disruption  of `[t]he                    peculiar  and  special  relationship  of  the                    soldier to his  superiors' that might  result                    if  the  soldier  were  allowed  to hale  his                    superiors into court."          Id. (citations omitted).          ___                    Chappell broke new ground, and courts across the nation                    ________                                        ____________________               4When the Chappell Court wrote about a "Bivens-type" remedy,                         ________                      ______          it had  in mind Bivens v. Six Unknown Named Agents of the Federal                          ______    _______________________________________          Bureau  of Narcotics,  403 U.S. 388  (1971).  Bivens  is the case          ____________________                          ______          establishing,  as  a  general  proposition,  that  victims  of  a          constitutional violation  perpetrated by a federal  actor may sue          the  offender for damages in federal court despite the absence of          explicit statutory authorization for such suits.  See  Carlson v.                                                            ___  _______          Green, 446 U.S. 14, 18 (1980) (restating Bivens rule); Morales v.          _____                                    ______        _______          Ramirez, 906 F.2d 784, 786 (1st Cir. 1990) (same).          _______                                          9          vigorously debated  whether to  read  it narrowly,  based on  its          holding, or  to read  it broadly,  based on  its reasoning.   See                                                                        ___          Jorden v. National Guard Bureau, 799 F.2d 99,  107 (3d Cir. 1986)          ______    _____________________          (surveying  case law), cert. denied, 484 U.S. 815 (1987).  Within                                 _____ ______          a year  after Chappell emerged, this  court decided Penagaricano,                        ________                              ____________          747 F.2d  55, a case  involving facts  similar to  those we  sift          today.  There, an ANG technician, having been discharged, alleged          a conspiracy  to  end  his  employment  in  retaliation  for  his          political ideas  and affiliations.  See id.  at 58.  In upholding                                              ___ ___          the dismissal of plaintiff's claim, we took pains to  acknowledge          the relevance  of Chappell's emphasis  on "the importance  of the                            ________          military's decisionmaking autonomy," id. at 59, took into account                                               ___          the   factors  identified  by  Chappell  as  counselling  against                                         ________          justiciability in the military context,  id. at 59-60, and  noted                                                   ___          that Chappell suggested a "predisposition to decline review," id.               ________                                                 ___          at  64.   Nevertheless,  believing that  the holding  in Chappell                                                                   ________          should be  confined to  the context of  enlisted personnel  suing          superior  officers, we  declined to  cede it  controlling effect.          See id. at 59.  Thus, although we ultimately found Penagaricano's          ___ ___          claim to be nonjusticiable, we based that finding not on Chappell                                                                   ________          but on an application of the  balancing test limned by the  Fifth          Circuit in Mindes,  453 F.2d  at 201-02.   See Penagaricano,  747                     ______                          ___ ____________          F.2d at 60-61.                    Time has shed new  light on the debate over  Chappell's                                                                 ________          doctrinal  reach.   In  United States  v.  Stanley, 483  U.S. 669                                  _____________      _______          (1987)    a case which the Court accepted for review specifically                                          10          to  resolve  the  controversy   over  the  proper  dimensions  of          Chappell,  see id. at 676   the Justices came down on the side of          ________   ___ ___          the broad constructionists.  While conceding that "no holding can          be broader than the facts before it," and that some of Chappell's                                                                 ________          language focused explicitly on the officer/subordinate dichotomy,          id. at 680, the Stanley Court pointed out that Chappell had self-          ___             _______                        ________          consciously patterned its  analysis after Feres    the case  that                                                    _____          barred tort liability  for injuries that "arise out of  or are in          the course of activity incident to [military] service."  Stanley,                                                                   _______          483 U.S. at  684 (quoting Feres,  340 U.S. at  146).  Given  this                                    _____          symbiotic  relationship between Feres  and Chappell,  the Stanley                                          _____      ________       _______          Court concluded  that the Chappell  approach should apply  to all                                    ________          activities performed "incident to  service" rather than merely to          activities  performed  within  the   officer/subordinate  sphere.          Stanley, 483 U.S. at  680-81.  In this sense,  then, Stanley both          _______                                              _______          "reaffirm[ed]  the reasoning  of  Chappell," id.  at 683-84,  and                                            ________   ___          widened the scope of its holding.                    Of  critical importance  for present  purposes, Stanley                                                                    _______          makes pellucid that the exception to Bivens liability established                                               ______          by Chappell is  coextensive with the exception  to tort liability             ________          established by Feres and its progeny.5  Consequently,  "no Bivens                         _____                                       ______          remedy is available for injuries that "arise out of or are in the                                        ____________________               5To   call   the  Feres   doctrine   an   exception  is   an                                 _____          oversimplification.    Feres is  a  judge-made  exception to  the                                 _____          Federal Tort Claims  Act, 28  U.S.C.    1346,  2671-2680 (1988  &          Supp.  II 1990), itself a statutory  waiver of sovereign immunity          from  tort liability.  Thus, if tort liability is the rule, Feres                                                                      _____          created an exception to an exception to an exception.                                          11          course of activity  incident to service."   Id. at  684.  We  now                                                      ___          join several of our sister circuits in accepting this bright-line          rule  as the definitive statement on  the justiciability of civil          rights  claims in  the military  context, including  the National          Guard.6  And, being  reluctant to leave "derelicts on  the waters          of  the law," Alabama Pub. Serv.  Comm'n v. Southern Ry. Co., 341                        __________________________    ________________          U.S. 341,  357 (1951) (Frankfurter, J.,  concurring), we overrule          Penagaricano to the extent that it mandates a different rule.7          ____________                                        ____________________               6See, e.g.,  Maddick v.  United  States, 978  F.2d 614,  615                ___  ____   _______     ______________          (10th  Cir. 1992); Kitowski v. United States, 931 F.2d 1526, 1529                             ________    _____________          (11th  Cir.),  cert. denied,  112 S.  Ct.  371 (1991);  Watson v.                         _____ ______                             ______          Arkansas Nat'l Guard, 886  F.2d 1004, 1006-07, 1009-10  (8th Cir.          ____________________          1989).  We would add, moreover, that several courts, even without          the benefit  of Stanley's clarification of  Chappell, anticipated                          _______                     ________          Stanley  and  adopted a  per  se prohibition  of  damages actions          _______                  ___  __          brought  against  military  officers  for alleged  violations  of          subordinates'  civil rights.  See, e.g., Jorden, 799 F.2d at 107;                                        ___  ____  ______          Trerice  v. Summons, 755 F.2d 1081, 1084 (4th Cir. 1985); Mollnow          _______     _______                                       _______          v.  Carlton, 716 F.2d 627, 630 (9th Cir. 1983), cert. denied, 465              _______                                     _____ ______          U.S. 1100 (1984);  see also  Martelon v. Temple,  747 F.2d  1348,                             ___ ____  ________    ______          1350 (10th Cir. 1984), cert. denied,  471 U.S. 1135 (1985).  Most                                 _____ ______          significantly for our purposes,  the Fifth Circuit, progenitor of          the Mindes multifactor test, has abandoned that approach in favor              ______          of a per se prohibition.  See Crawford v. Texas Army Nat'l Guard,               ___ __               ___ ________    ______________________          794 F.2d 1034,  1036 (5th Cir. 1986).  In  short, Mindes has been                                                            ______          banished from its homeland.               7Although  panel  decisions  of this  court  are  ordinarily          binding on newly constituted panels, that rule does not obtain in          instances where, as here, a departure is compelled by controlling          authority.  In such relatively rare instances, we  have sometimes          chosen  to  circulate  the  proposed overruling  opinion  to  all          members of the court prior to publication even though the need to          overrule  precedent  is reasonably  clear.    See, e.g.,  Trailer                                                        ___  ____   _______          Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5  (1st          ______________________    ______________          Cir. 1992).  This procedure is, of course, informal, and does not          preclude a suggestion of rehearing en banc on any issue.               We have followed that  praxis here and can report  that none          of the judges of this court has objected to the  panel's analysis          or to  its conclusion  that the justiciability  regime limned  in          Penagaricano has outlived its usefulness as precedent.            ____________                                          12                    Of course,  Wright's suit invoked the  Civil Rights Act          rather  than following the Bivens  route.  But  absent a specific                                     ______          statutory provision to the contrary, there is no principled basis          for  according state  actors  sued  under  42  U.S.C.     1983  a          different  degree  of immunity  than  would  be accorded  federal          actors sued  for an identical abridgement of rights under Bivens.                                                                    ______          See Butz v. Economou, 438 U.S. 478, 500 (1978).   Thus, while the          ___ ____    ________          Stanley Court's clarification of Chappell occurred in the context          _______                          ________          of  a  Bivens action,  Stanley can  only  be understood  to apply                 ______          _______          equally  to civil  rights  claims against  state officials  under          section 1983 and, for  that matter, under kindred statutes.   See                                                                        ___          Watson v. Arkansas  Nat'l Guard,  886 F.2d 1004,  1007 (8th  Cir.          ______    _____________________          1989) (collecting  cases construing Chappell rule  to cover suits                                              ________          brought under section 1983).   The federal whistleblower statute,          5 U.S.C.    2301-2302, relied on by appellant in association with          his  civil  rights claims,  is a  statute that  falls comfortably          within this generality.   Hence, the district court appropriately          declined to clear the case for trial.          IV.  CONCLUSION          IV.  CONCLUSION                    We need go no further.  Since a technician's dual roles          are  too tightly  imbricated to  be pried  apart at  a litigant's          whim,  appellant  necessarily suffered  the  injury  of which  he          complains in his military capacity.  See supra Part II.  For that                                               ___ _____          reason, the injury arose incident to military service.  See supra                                                                  ___ _____          Part III.   In these circumstances,  Stanley applies, and,  under                                               _______          the  Stanley   rule,  the   statements  of  claim   contained  in               _______                                          13          appellant's   second  amended   complaint   fail   the  test   of          justiciability.8          Affirmed.          Affirmed.          ________                                        ____________________               8Because appellant's  suit  is nonjusticiable,  we need  not          consider other potential deficiencies  in appellant's case, e.g.,                                                                      ____          whether the defendants can  be said to have acted  under color of          state law.                                          14
