Chappell v. Wallace Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

    No. 82-167

I n the

ĵ uprott? (&mxxt itf %  litttrit BMm
OCTOBER TERM, 1982 

------------------- ♦— — ———-

COMMANDER GEORGE C. CHAPPELL, et al.,

v.
Petitioners,

VERNON W ALLACE, et al,
Respondents.

On W rit of Certiorari to the United States 
Court of A ppeals for the Ninth  Circuit

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Courtney W. Howland 
3400 Chestnut Street 
Philadelphia, Pennsylvania 
(215) 898-6084

Jack Greenberg 
James M. Nabrit, III 
Steven L. W inter 
10 Columbus Circle 
Suite 2030
New York, NY 10019 
(212) 586-8397

Steven J. P hillips*
D iane M. P aolicelli 
K reindler & K reindler 
99 Park Avenue 
New York, New York 10016 
(212) 687-8181
Attorneys for the NAACP 
Legal Defense and Educa­
tional Fund, Inc. as Amicus 
Curiae
'*Counsel of Record



TABLE OF CONTENTS

INTEREST OF AMICUS......................  1
STATEMENT OF FACTS......................  2
SUMMARY OF ARGUMENT.....................  12
ARGUMENT
I.
THE MILITARY IS NOT AN EXTRA-CONSTITU­
TIONAL BRANCH OF GOVERNMENT............. 15
A. Like Every Other Department of 

Government, the Military is
Subject to the Rule of Law........  15

B. Military Necessity Does Not
Require Unaccountability to 
Civilian Authority................. 20

C. The Military is Ill-Suited to 
Police Racial Discrimination
Within its Ranks...................  23

II.
MILITARY OFFICIALS ARE ENTITLED TO 
QUALIFIED AND NOT ABSOLUTE IMMUNITY..... 25
A. This Court Should not Legislate 

Absolute Immunity for Military 
Officers When Congress has Con­
sistently Declined to Do So....... 26

Page



B Military Officers Are Entitled 
to Only Qualified Immunity Under 
Harlow v. Fitzgerald............

Page

31
III.
ENLISTED MEN HAVE A BIVENS ACTION
AGAINST THEIR SUPERIOR OFFICERS
FOR ACTS OF RACIAL DISCRIMINATION......  45
A. The Court Has Already Estab­

lished a Bivens Cause of Action 
for Discrimination in Violation 
of the Equal Protection Compo­
nent of the Due Process Clause....  45

B. There are no Special Factors
Counseling Hesitation...............  48

C. There is no Alternative Remedy
That Congress has Explicity 
Declared is a Substitute............ 50

D. There is no Equally Effective
Remedy.............................. 5 3

CONCLUSION............................... 56

IX



TABLE OF AUTHORITIES

Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. 252 (1977)....

Bates v. Clark, 95 U.S. (5 Otto)
204 (1877).......... .................

Bivens v. Six Unknown Federal Narcotics

Cases Page

Agents, 403 U.S. 383 (1971). 4, 14,
45, 46,
47, 50,
51, 52,
53, 54,
55

Bolling v. Sharpe, 347 U.S. 497 (1954).. 45
Brown v. Glines, 444 U.S. 348 (1980)___ 00 •>» 21
Burns v. Wilson, 346 U.S. 137 (1953 )___ 18, 19
Butz v. Economou, 438 U.S. 478 (1978) . . . 31, 32,

34, 37,
48

Carlson v. Green, 446 U.S. 14 (1980)___ 47, 48,
49, 50,
51, 53,
54, 55

Davis v. Passman, 442 U.S. 228 (1979) . . . 45, 47,
48, 49,
55

4

29

in



Cases Page
Dinsman v. Wilkes, 53 U.S. (12 How.)

390 (1351)............................. 20, 29,
36, 37, 
50, 52

Duncan v. Kahanamoky, 327 U.S. 304
(1946 )................................. 17

Eastland v. United States Servicemen's
Fund, 421 U.S. 491 (1975)............  33

Elliot v. Swarthout, 35 U.S.
(10 Pet. ) 137 (1836)................... 28

Ex parte Milligan, 71 U.S. (4 Wall.)
2 (1866)............................... 18

Feres v. United States, 340 U.S. 135
( 1950)................................. 37

Frontiero v. Richardson, 411 U.S. 677
(1973)................................. 18, 46

Gravel v. United States, 408 U.S. 606
(1972)................................. 35

Hamilton v. Kentucky Distilleries Co.,
251 U.S. 146 (1919)....................  18

Harlow v. Fitzgerald, U.S. ,
73 L . Ed. 2d 396 (1982 ).................  13, 14,

16, 20, 
21, 25, 
31, 32, 
33, 34, 
35, 37, 
42, 44, 
49, 57

IV



Harmon v. Brucker, 355 U.S. 579 (1958).. 18, 19,
22

Hernandez v. Koch, 443 F. Supp. 347
D.D.C. 1978 ).................. ........  30

Howel1 v. United States, 489 F. Supp.
147 (W.D. Tenn. 1980).................  30

Imbler v. Pachtman, 424 U.S. 409
(1976)............................   35

Johnson v. Alexander, 572 F.2d 1219 
(8th Cir.), cert, denied, 439 U.S.
986 (1978 )............................  55

Jones v. North Carolina Labor Union,
433 U.S. 119 (1977)...................  49

Little v. Barreme, 6 U.S. (2 Cranch)
170 (1804 )............................  29

IlcElroy v. United States, 361 U.S. 281
(I960)................................. 19

Nixon v. Fitzqerald, U.S. , 73
L . Ed .2d 349 (1982)........ 777........ 34, 35

Noyd v. Bond, 395 U.S. 683 (1969)......  19
Orloff v. Willoughby, 345 U.S. 83

(1953)................................. 4 3 , 44

Parisi v. Davidson, 405 U.S. 34 (1972).. 18
Parker v. Levy, 417 U.S. 733 (1974)..... 18, 21

Cases Page

v.



Cases Page
Pierson v. Ray, 386 U.S. 547 (1967)....  35
Reid v. Covert, 354 U.S. 1 (1957)......  19
Rostker v. Goldberg, 453 U.S. 57

(1981)................................. 18, 21
Scheuer v. Rhodes, 416 U.S. 232 (1974).. 4, 32
Stone v. Powell, 429 U.S. 874 (1976).... 19
Stump v. Sparkman, 435 U.S. 349 (1978).. 33, 34
The Mayor v. Cooper, 73 U.S. (6 Wall.)

247 (1867)............................  30
Toth v. Quarles, 350 U.S. 11 (1955)....  19
United States v. Matthews, Dkt. No.

43538/AR, CM 439064...................  2
United States v. Nixon, 418 U.S. 683

(1974)................................. 17
United States v. Robel, 389 U.S. 258

(1967)................................. 18
United States v. United States

District Court, 407 U.S. 297 (1972)... 18
Wallace v. Chappell, 661 F.2d 729

(1982 )................................. 3

vi



Cases Page
Wilkes v. Dinsman, 48 U.S. (7. How.)

89 (1849); Dinsman v. Wilkes, 53
U.S. (12 How.) 390 ( 1851)............. 20, 29,

31, 36, 
37, 46, 
50, 52

Wolff v. McDonald, 418 U.S. 539 (1974).. 49

U.S. Constitution
Article I, §8, cl. 11-16................ 26Fifth Amendment...............    13, 17,

44
Eighth Amendment........................  13

Statutes
10 U.S.C.:

Section 867(a)(1)..................  22
Section 938, Art. 138 Uniform

Code of Military Justice........  52, 53,
54

Section 1089........................  30
Section 1089(a)..................... 52
Section 1552 (Supp V).............. 22, 52,

5 3
22 U.S.C.:

Section 817(a)...................... 52
vii.



Statutes Page
28 U.S.C.:

Section 2679(b)....................  52
Section 2680 .......................  51

38 U.S.C.:
Section 4116(a)....................  51

42 U.S.C.:
Section 233(a).....................  51
Section 2458 (a)....................  51, 52
Section 2476 (k).................. 52

Act of February 4, 1815, §8,
3 Stat. 195, 198-199..................  28Act of March 2, 1833, 4 Stat. 632 
(current version 28 U.S.C. § 1442a
(1976))................................ 28

Act of March 3, 1863, Ch. 81, §4, 12
Stat. 755 (1863 ).......................  30

Act of March 3, 1863, Ch. 81, §5,
12 Stat. 756-57, as amended, Act 
of May 11, 1866, Ch. 80, §§3-4,
14 Stat. 46...........................  28

Act of August 29, 1916, §3, Art.
117, 39 Stat. 619, 669 ................ 28

South Carolina Ordinance of Nulli­
fication, 1 Stat. (S.C.) 329 
(November 24, 1832)...................  28

viii.



Other Sources Page
Bureau of Naval Personnel, The Negro 

in the Navy, reprinted in, VI Blacks 
in the United States Armed Forces —
Basic Documents 305 (M. McGregor &
B. Nalty ed. 1977)....................  4 , 5

Butler, Assessing Black Participation 
in the Army, 23 Social Problems 558 
(1976)................................. 11

Butler, Inequality in the Military;
An Examination of Promotion Time 
for Black and White Enlisted Men,
41 Am. Soc. Rev. 807 (1976)..........  11

Dep't of Navy News Release (Apr. 7 
1942), reprinted in, VI Blacks in 
the United States Armed Forces —
Basic Documents 103 (M. McGregor &
B. Nalty ed. 1977)....................  6

Granger, Racial Democracy -- The Navy
Way, 7 Common Ground 61 (1947).......  9, 10,

41
Hearings Before the General Board of 

the Navy 1942, reprinted in, VI 
Blacks in the United States Armed 
Forces —  Basic Documents 31 
(M. McGregor & B. Nalty ed. 1977)....  6

Memorandum Adlai E. Stevenson for 
the Secretary (Sept. 29, 1943), 
reprinted in, VI Blacks in the 
United States Armed Forces; Basic 
Documents 141 (M. McGregor & B.
Nalty ed. 1977).......................  9

IX.



Other Sources Page
Memorandum for the Chief of Naval 

Personnel, reprinted in, VI Blacks 
in the United States Armed Forces:
Basic Documents 142 (M. McGregor &
B. Nalty ed. 1977).....................  9

Memorandum for the Secretary of the 
Navy, reprinted in, VI Blacks in 
the United States Armed Forces;
Basic Documents 130 (M. McGregor 
& B. Nalty ed. 1977)..................  7

Memorandum from the Chief of the 
Bureau of Navigation to the Chief 
of Naval Operations (Oct. 24, 1941), 
reprinted in, VI Blacks in the 
United States Armed Forces -- 
Basic Documents 305 (M. McGregor &
B. Nalty ed. 1977 )................... . 23

Miller and Ransford, Inequality in 
the Military: Implications for
Organizations, Occupational Mobility 
and Social Stratification, 6 J. of 
Political & Military Soc. 65 (1978)... 11

Mueller, The Negro in the Navy, 24Social Forces 110 TINTS’)............... 4
Peck, The Justices and the Generals:

The Supreme Court and Judicial
Review of Military Activities, 70
M.I.L. Rev. 1 (1975)..................  19

Perry, An American Dilemma at Sea:
Race and Incarceration in the Naval 
Justice System, 41 Phylon 50 (1980)... 11

x.



Other Sources Page
Quinn, The United States Court o_f 

Military Appeals and Military Due 
Process, 35 St. John's L. Rev. 225 
(1961)................................. 17

Recruiting Circular Letter No. 86-42 
(May 18, 1942), reprinted in, VI 
Blacks in the United States Armed 
Forces -- Basic Documents 116
(M. McGregor & B. Nalty ed. 1977)....  6

Reddick, The Negro in the Navy in 
World War II, 32 J. of Negro Hist.
201 (1947)............................  40, 41

Report of the President's Commission 
on Civil Rights, _To Secure These 
Rights ( 1948 ).........................  8, 10

Segal and Nordlie, Racial Inequality 
in Army Promotion, 7 J. of Political & Military Soc. 135 (1979)............ 11

Stillman, Negroes in the Armed Forces,
30 Phylon 139 (1969).................. 8, 10

U.S. Dep't of Defense, Defense 81,
Special Alamanac Issue (Sept. 1981)... 7, 8,

11
Warren, The Bill of Rights and the 

Military, 37 N.Y.U.L. Rev. 181
( 1962 )................................. 17

96 Cong. Rec. 1035......................  22

xi



No. 82-167

IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1982

COMMANDER GEORGE C. CHAPPELL, et al., 
Petitioners,

v.
VERNON WALLACE, et al.,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

INTEREST OF AMICUS*

The NAACP Legal Defense and Educational 
Fund, Inc., ("LDF") is a non-profit corpora-

Letters of consent to the filing of 
this brief from counsel for the petitioner 
and the respondent have been filed with the 
Clerk of the Court.



tion incorporated under the laws of the 
State of New York in 1939. It was formed to 
assist blacks to secure their constitutional 
rights by the prosecution of lawsuits. LDF 
attorneys have represented parties and 
participated as amicus curiae in this Court 
and other courts in a broad range of cases 
involving the rights of black citizens. LDF 
attorneys have, historically, been active in 
protecting the rights of black servicemen 
and, recently, participated as amicus curiae 
in the Court of Military Appeals. United 
States v. Matthews, Dkt. No. 43538/AR, CM 
439064.

STATEMENT OF FACTS
Respondents are five black Navy en­

listed men who were subjected to an unre­
lenting pattern of systemic racial discrim­
ination on board their vessel, the U.S.S.

2.



Decatur. Their commanding officer system­
atically assigned them to the most menial of 
tasks [Complaint f 12] ; gave them adverse 
and unwarranted performance ratings [Com­
plaint 5S 19-22, 53, 113, 114]; denied them 
opportunities for advancement and training, 
which were instead offered to white sailors 
with less seniority and fewer qualifications 
[Complaint ff 53, 74, 75, 93, 94]; subjected 
them to intimidating, degrading and humili­
ating threats [Complaint ff 111, 112]; and 
unjustly disciplined them [Complaint 52, 
114] .

Respondents initially sought redress 
through existing naval channels. But their 
pleas for redress fell upon deaf ears.— ^

1/ The court of appeals found that re­
spondents had alleged exhaustion of admin­
istrative remedies and accordingly remanded 
to the trial court for a factual determina­
tion on this matter. 661 F.2d at 731 n.2.
[footnote continued]

3.



Respondents then turned to the only avenue 
of redress open to them. They filed a 
Bivens action seeking compensatory and 
punitive damages for the violations of their 
fifth amendment rights.

The government's argument that re­
spondents should be denied a remedy must be 
viewed against the background of pervasive 
and persistent racial discrimination in the 
military. See Arlington Heights v. Metro­
politan Housing Corp. , 429 U.S. 252, 267 
(1977). Although the meritorious service of 
blacks in the Navy dates to the Revolu- 
tionary War,—' in modern times, blacks have

[footnote continued!
Because this case is here on a motion to 
dismiss, all of the allegations must be 
taken as true. Scheuer v. Rhodes, 416 U.S. 
232, 236(1974).
2J Mueller, The Negro in the Navy, 24
Social Forces 110 (1945); Bureau of Naval
[footnote continued]

4



served primarily as messmen and stewards.—^
At the beginning of World War II, blacks
constituted only 2.9% of the Navy, and there
were only 6 blacks on active duty who were 

4 /not messmen.—
The Navy eventually yielded under 

presidential pressure and announced on 
April 7, 1942 that it would accept blacks

[footnote continued]
Personnel, The Negro in the Navy 1 ("Naval 
Personnel"), reprinted in VI Blacks in the 
United States Armed Forces; Basic Documents, 
305, 309 (M. McGregor & B. Nalty ed. 1977)
("McGregor & Nalty").
3/ Naval Personnel, supra, at 1 reprinted
in McGregor & Nalty, supra, at 309. In this 
regard, it is striking to note that three of 
the five respondents here, Cornelius Hickey, 
James Richardson, and George Shannon, all 
had ratings as messmen.
£/ Naval Personnel, supra, 1-2, reprinted
in McGregor & Nalty, supra, at 309-10.

5.



for "general service" in "[a]11 ratings."—  ̂
But it did not do so. Rear Admiral Jacobs, 
Chief of Naval Personnel, decreed that: "Ap­
prentice seaman is the only rating in which 
negroes may be enlisted except those messman 
ratings previously authorized."—  ̂ Additional 
presidential pressure —  applied after

5/ Dep't of Navy News Release (Apr. 7, 
1942), reprinted in McGregor & Nalty, supra, 
at 103. In rejecting the President's first 
proposal, that the Navy accept 5,000 blacks, 
a Marine general noted that "the negro race 
has every opportunity now to satisfy its 
aspirations for combat, in the Army —  a 
very much larger organization than the Navy 
or Marine Corps, —  and their desire to 
enter the naval service is largely, I think, 
to break into a club that doesn't want 
them." Hearings Before the General Board of 
the Navy 1942, reprinted in McGregor & 
Nalty, supra, at 49.
£/ Recruiting Circular Letter No. 86-42 
(May 18, 1942), reprinted in McGregor & 
Nalty, supra, at 116.

6.



noting the Navy's dismal record as compared 
with the Army—  ̂ —  forced the Navy to make 
some short-lived progress; it integrated 
auxiliary vessels toward the end of the war. 
But the Navy reverted to its prior pattern 
by 1947. At that time, only 4.4% of the 
Navy was black, and 80% of the blacks were 
serving as cooks, stewards or stewards 
mates. Less than 2% of the whites served in 
the same capacities. In contrast, the Armv 
was 8.2% black, 9% of which were in the top

]_/ In a memorandum for the Secretary of 
the Navy, President Roosevelt noted that the 
Army had met his directive that blacks be 
used in proportion to their numbers in the 
general population, "but the Navy is so far 
below...." reprinted in McGregor & Nalty, 
supra, at 130-131. At the time, the figure 
was 10%. While the Army met this goal in a 
matter of months, the Navy took 38 years to 
do so; it did not reach the 10% goal until 
1980. U.S. Dep't of Defense, Defense 81, 
Special Almanac Issue 21, 26 (Sept. 1981) 
(Navy was 9.7% black in Sept. 1979; 10.4% in 
Sept. 1980). By then the Army stood at 
29.6% black. Id.

7.



three grades. Report of the President's
Commission on Civil Rights, To Secure These
Rights 42, 45 (1948) ("Civil Rights Report").
This same pattern remains true today; the
Navy recruits fewer blacks than any other 

8/service.—

8/ See n.7 supra, and n.12 infra. Between 
1949 and 1965 the percentages of blacks 
increased from 12.4 to 13.4% in the Army, 
5.1 to 10.0% in the Air Force, 2.1 to 8.7% 
in the Marine Corps, and only 4.7 to 5.8% in 
the Navy. Stillman, Negroes in the Armed 
Forces, 30 PI ’ *'9, 143 (1969). Simi-
7,622 and 3,106 cadets each in ROTC units at 
15 major black colleges in 1964-65, there 
were no Navy ROTC programs at black schools. 
Id. at 145. Of course, the same pattern 
held true for non-commissioned officers. 
Between 1953 and 1965, the number of black 
non-commissioned officers in the Army rose 
from 14.7 to 16.3%, and from 11.1 to 13.1% 
in the Air Force and from 8 to 8.4% in the 
Marines. In contrast, the Navy only in­
creased from 4.3 to 5.8%. Id.

larly, while" and the Air Force had

8



The Navy's record in promoting blacks
to officer rank is no better. Under pres-
sure to promote blacks to officer,—7 the
Bureau of Naval Personnel could only bring
itself to concur on the following basis:

However unpalatable the idea may be, it 
is believed certain that . . . the Navy 
will be required to do so.... If the 
Navy prepares a limited program there 
is much less danger that it will be 
required to take much greater numbers 
of [black] officers .on any certain 
percental [sic] basis.— 7

By 1947, there was still no black officer
with a regular commission. Granger, Racial
Democracy —  The Navy Way, 7 Common Ground

9/ Undersecretary Adlai E. Stevenson 
observed that "one reason we have not had 
the best of the race is the suspicion of 
discrimination in the Navy." Memorandum 
(Sept. 29, 1943), reprinted in, McGregor &
Nalty, supra, at 141.
10/ Memorandum for the Chief of Naval 
Personnel, reprinted in, McGregor & Nalty, supra, at 142.

9.



61, 67 (1947). In 1948, there were but two 
black naval officers amongst 21,793 black 
enlisted men; while in contrast, there was 
one white officer for every seven white 
sailors. Similarly, the Coast Guard and the 
Marines had one and zero black officers 
respectively. This was an even worse record 
than the Army's, which had one black officer 
for every 70 black enlisted men, compared to 
a one to seven ratio for whites.— ^

Although the advent of the all volunteer 
forces of the 1970's has increased black

11/ Civil Rights Report at 42, 45. The 
persistence of this pattern is further 
evidenced by the fact that by 1965 the 
percentage of black officers in the Navy had 
only reached 0.3%. Stillman, supra, at 143.

10



n /participation m  most of the military,— '
the available data shows the persistence of
discrimination in promotions, job assign-

13 /ments and discipline.—  Indeed, one scho­
lar concluded that "it appears that being 
white in the Army is more important than 
doing well...."— ^

12/ As of September 30, 1980, 29.6% of the 
Army was black. U.S. Dep't of Defense, 
Defense 81, Special Almanac Issue (Sept. 
1981). Similarly, blacks constituted 20.6% 
of the Marine Corps, and 14.1% of the Air 
Force, but only 10.4% of the Navy. Id.
13/ Butler, Inequality in the Military: An 
Examination of Promotion Time for Black and 
White Enlisted Men, 41 Am. Soc. Rev. 807, 
817 (1976); See Butler, Assessing Black 
Participation in the Army, 23 Social Prob­lems 5 5 8, 56 5, T1976); Miller a"n3 Ransford, 
Inequality in the Military: Implications 
for Organizations, Occupational Mobility and 
Social Stratification, 6 J. of Political & 
Military Soc. 65, 68 (1978); Segal and 
Nordlie, Racial Inequality in Army Promo­
tions , 7 J. of Political &_ Military Soc. 135 
(1979); Perry, An American Dilemma at Sea: 
Race and Incarceration in the Naval Justice 
System, 41 Phylon 50, 56 (1980) .
14/ Butler, supra, 41 Am. Soc. Rev, at 817.

11



In sum, the American military has been 
plagued with entrenched and enduring racial 
discrimination. And the Navy has been, and 
continues to be, the greatest offender.

SUMMARY OF ARGUMENT
The government's argument that the 

action of military officers should not be 
reviewable by civilian courts goes beyond 
the grant of certiorari and the long line of 
cases in this Court holding the actions of 
the military, like other departments of the 
government, to the commands of the Constitu­
tion. It ignores the congressional scheme 
which emphasizes the accountability of the 
military to civilian authority. It ignores 
the fact that the military is particularlv 
unsuited to evaluate constitutional claims 
of service members and that the Court has 
already upheld the availability of a damage

12



action against military officers in a case 
involving the eighth amendment.

The demands of military discipline are 
adequately protected by the broad qualified 
immunity available to government officials
under Harlow v. Fitzgerald, ___ U.S. ___, 73
L.Ed.2d 396 (1982). The government would
have the Court create a new absolute immu­
nity for military officers that has no 
foundation either in common law precedent or 
constitutional heritage or structure. In 
over a century and a half of legislation 
dealing with suits against military and 
other government officers, Congress has 
consistently declined to provide absolute 
immunity to military officers other than 
medical personnel.

Servicemen have a cause of action 
directly under the fifth amendment for 
racial discrimination. There are no special

13



factors counseling hesitation. The concerns 
articulated by the government are already 
protected by the broad Harlow immunity. 
Congress has given no indication that the 
internal procedures available to servicemen 
were intended to be exclusive substi­
tutes for a Bivens cause of action. The 
internal military procedures are not as 
effective; they do not provide full compen­
satory or punitive damages or adequate 
deterrence to would be wrongdoers. Indeed, 
absent a Bivens remedy, a serviceman would 
have no effective remedy for violations of 
clear cut constitutional rights, such as the 
right to be free of racial discrimination.

14.



ARGUMENT
I.

THE MILITARY IS NOT AN EXTRA-CONSTITU­
TIONAL BRANCH OF GOVERNMENT

A. Like Every Other Department of Govern­
ment, the Military is Subject to the 
Rule of L a w __________________________
Under the government's argument, no 

matter how much extra-constitutional power a 
military officer arrogates to himself, and 
no matter how seriously he infringes the 
basic constitutional rights of another serv­
iceman, his actions would, be unreviewable in

15/a. "civilian" court.—  The only relief

15/ Despite the limited grant of certiorari 
to the question of the availability of a 
damage action, the government's position is 
that "civilian" courts can never take cogni­
zance of a serviceman's allegation of a 
constitutional violation by a military 
officer because review by civilian courts is 
disruptive of the military system. Brief 
for Petitioners at 26-29. The logic of the 
government's position would bar even injuc- 
tive relief against blatant constitutional 
violations.

15



available to the serviceman would be that
provided by the internal military structure 
itself.

The entire thrust of the government's 
argument that the military should be removed 
from the realm of the constitutional process 
is the demand of military necessity. But 
the Court has accommodated the special needs 
of the military while retaining the basic 
structure of the Constitution. In these 
circumstances, the special nature of mili­
tary service can be met by granting military 
officers qualified immunity under Harlow v.
Fitzgerald, ___ U.S. ___, 73 L.Ed.2d 396
(1982), and by sensitively applying the 
commands of the Constitution to the military 
context. The government's position of abso­
lute unaccountability, however, "would be 
contrary to the basic concept of separation

16.



of powers and the checks and balances that 
flow from the scheme of a tripartite govern­
ment," United States v. Nixon, 418 U.S. 683, 
704-705 (1974), (citing The Federalist, 
No. 47, at 313 (S. Mittel ed. 1938)). See 
also Duncan v. Kahanamoky, 327 U.S. 304, 
322-23 (1946).

By explicitly exempting the military 
from the grand jury requirement of the fifth 
amendment, the drafters made clear that the 
military is otherwise bound by the amend- 
ment.— ; This Court has repeatedly declined 
to allow "military necessity" to override 
the basic rule of law. E .g. , Duncan, 327 
U.S. at 322-323. "[Ejven the war power does 
not remove constitutional limitations safe-

16/ See Warren, The Bill of Rights and the 
Military, 37 N.Y.U.L. Rev. 181, 188-89, 193 
(1962); Quinn, The United States Court of 
Military Appeals and Military Due Process, 
35 St. John's L. Rev. 225 (1961).

17



guarding essential liberties." United 
States v. Robel, 389 U.S. 258, 263-264
(19 6 7); see Hamilton v . Kentucky Distill­
eries Co., 251 U.S. 146, 156 (1919); Ex
parte Milligan, 71 U.S. (4 Wall.) 2 (1866); 
see also United States v. United States 
District Court, 407 U.S. 297, 320 (1972).
The courts have traditionally been available
to vindicate the constitutional rights of

17 /service members.—  Contrary to the govern­
ment's assertion, in the area of habeas

17/ See, e.g . , Brown v. Glines, 444 U.S. 
348 (1980) (first amendment); Parker v.
Levy, 417 U.S. 733 (1974) (due process­
vagueness); Frontiero v. Richardson, 411 
U.S. 677 (1973) (equal protection); Parisi
v. Davidson, 405 U.S. 34 (1972 ); Burns v.
Wilson, 346 U.S. 137, 142 (1953 ) (due proc­
ess); cf. Rostker v. Goldberg, 453 U.S. 57 
(1981) (equal protection challenge to mili­
tary registration system); Harmon v. Brucker, 
355 U.S. 579, 581-82 (1958) (challenge to
less than honorable discharge: "judicial
(footnote continued)

18



corpus review of convictions for constitu­
tional error, the standard of review for 
courts-martial is the same as that for state 
court judgments. Compare Burns v. Wilson, 
346 U.S. 137 (1953), with Stone v. Powell,
429 U.S. 874 (1976) .

On the other hand, the lack of exper­
tise on the part of the military to evaluate
constitutional claims of service members has

18/often been recognized.—

(footnote continued)
relief is available to one who has been 
injured by an act of a government official 
which is in excess of his express or implied 
powers"). High level military officers in 
the Judge Advocate General's Corps have 
themselves recognized that the military will 
be held accountable to the Constitution. 
Peck, The Justices and the Generals: The
Supreme Court and Judicial Review of Mili­
tary Activities, 70 M.I,L, Rev. 1( 1975).
18/ Noyd v. Bond, 395 U.S. 683, 696 n.8
(1969); McElroy v. United States, 361 U.S.
281 (1960); Reid v. Covert, 354 U.S. 1
(1957); Toth v. Quarles, 350 U.S. 11 (1955).

19.



Indeed, the Court has already sustained 
the availability of a damage remedy against 
a military officer who had abused the rights 
of a serviceman. Wilkes v. Dinsman, 48 U.S. 
(7 How.) 89 (18 49) ("Wilkes I_") ; Dinsman v.
Wilkes, 53 U.S. (12 How.) 390 (1851)("Wilkes 
II"), see discussion, infra, at 29, 36-37.
The Wilkes court specifically refused to 
extend absolute immunity to military com­
manders: "[t]he humblest seaman or marine
is to be sheltered under the aegis of the 
law from any real wrong, as well as the 
highest in office." 48 U.S. at 123.

B. Military Necessity Does Not Require
Unaccountability to Civilian Authority
The qualified immunity articulated in 

Harlow, affords officials sufficient "breath­
ing room" to make necessary decisions; it 
even allows room for errors of judgment.

20.



Harlow protects government officials from
liability except for violations of clear-cut 
constitutional rights. Rather than "second- 
guessing" military commands, civilian courts 
would only be correcting clearly unconstitu­
tional conduct.

Moreover, civilian courts have repeat­
edly displayed their sensitivity to the 
specialized needs of the military. The 
decisions of this Court bear witness to the 
ability of civilian courts to appreciate
those needs and to shape constitutional

19 /doctrine to fit the military context.—  
Ultimate responsibility to civilian 

authority is the principle which Congress 
has consistently adopted in this area. So

19/ See, e.g . , Rostker v. Goldberg, 4 53 
U.S. 57 (1981) (upholding draft registration 
of males); Brown v. Glines, 444 U.S. 348 
(1980); Parker v. Levy, 417 U.S. 733 (1974).

21.



pervasive is the notion of civilian control
that, when Congress created a military court 
system for courts-martial, it staffed the 
highest appellate court of that system, the 
United States Court of Military Appeals, 
with civilian judges. 10 U.S.C. §867(a)(l). 
It did so even though it was presented with 
the same argument now put forth by the 
government —  that only those intimately 
acquainted with the special needs and mores 
of military life could sit in judgment of 
service members. See 96 Cong. Rec. 1305-
1306. Civilians review military actions and

20 /decisions in other contexts as well.—

20/ See, e.g ., Harmon v. Brucker, 355 U.S. 
579 (1958) (propriety of less than honorable 
discharge subject to judicial review); 10 
U.S.C. § 1552 (Board for Correction of 
Military Records composed of civilians).

22.



C. The Military is Ill-Suited to Police
Racial Discrimination Within its Ranks

The history of the military, particu­
larly the Navy, in dealing with black serv­
icemen is instructive. When the President 
directed the naval hierarchy to increase 
black enlistments, it resisted. Senior 
naval officers deemed it contrary to "the 
best interests of general ship efficiency" 
and "the national defense" to allow blacks

pi /to serve in other than the messman branch.-^— 
That senior military officials could perceive 
even minimal steps toward equal treatment as 
a threat to national security demonstrates 
the unsuitability of entrusting enforcement 
of basic constitutional provisions to those 
whose perceptions are shaped largely by the

21/ Memorandum From the Chief of the Bureau 
of Navigation to the Chief of Naval Opera­
tions, October 24, 1941, reprinted in
McGregor & Nalty, supra, at 11.

23.



exigencies of the moment. Officials need 
not be corrupt or morally bankrupt in order 
to disregard express and fundamental consti­
tutional requirements; they need only have 
their vision narrowed by their immediate 
concerns. Enforcement of fundamental prin­
ciples must thus be entrusted to institu­
tions and individuals better situated to 
obtain a wider perspective.

In sum, the government's claim would 
exempt the military from Article III review 
and make it unaccountable for violations of 
the fundamental constitutional rights of 
servicemen. The government is thus correct 
that there is a separation of powers issue 
here. It is, however, not that the judi­
ciary threatens to undermine the military 
"branch," but that the military wants to opt 
out of our system of checks and balances to

24.



avoid an "inefficient" concern for constitu­
tional rights. If military officers are 
unaccountable in a civil court for civil 
rights violations, then the parade of hor­
rors is endless because it makes large- 
scale, systematic violations of civil rights 
possible.

II.
MILITARY OFFICIALS ARE ENTITLED TO
QUALIFIED AND NOT ABSOLUTE IMMUNITY

The government argues for absolute 
immunity to protect the vigorous exercise of 
official authority. This ignores the frame­
work established by this Court for balancing 
this interest with the vindication of con­
stitutional guarantees. Harlow, 73 L.Ed.2d 
at 403-04, 407-08. It also ignores the fact 
that Congress has consistently declined to 
immunize military officers.

25.



A. This Court Should not Legislate Absolute
Immunity for Military Officers When Con-
gress has Consistently Declined to Do So
The Constitution gives Congress primary 

power and responsibility for the governance 
of the military. Article I, Section 8
empowers Congress "[t]o declare War," Cl. 
11, " [t]o raise and support Armies," Cl. 12, 
"[t]o provide and maintain a Navy," Cl. 13,
"[t]o make Rules for the Government and 
Regulation of the land and naval Forces," 
Cl. 14, " [t]o provide for calling forth the
Militia to execute the Laws of the Union," 
Cl. 15, and "[t]o provide for organizing, 
arming, and disciplining, the Militia...." 
Cl. 16. Congress's power over the armed 
forces extends to every aspect, and ex­
plicitly includes discipline. It is for 
Congress in the first instance, then, to 
determine if disciplinary needs require

26.



absolutelegislation granting officers 
immunity from damage suits by servicemen.— '’ 

Over two centuries, Congress has re­
peatedly addressed the question of the 
liability of officers for damages. Rather 
than providing for absolute immunity, it has

22/ The Court is not now faced with the 
issue of balancing a declaration by Congress 
that certain military officers are abso­
lutely immune from damages against anv 
particular civil rights violation, such as 
race discrimination. Even in that in­
stance, the Court should not abdicate its 
responsibility to review issues involving 
the military, but would have to balance 
Congress's special and explicit Article I 
power with the Court's Article III power to 
enforce the Bill of Rights. The Court, 
however, is being asked to create a conflict 
by legislating an absolute immunity where 
Congress has consistently declined to shield 
the military from the dictates of the Bill 
of Rights.

27.



traditionally provided for removal to a 
23 /federal court.—  When Congress passed the 

removal statutes, military officers were 
subject to liability even though their 
actions were strictly in compliance with 
orders from a superior officer, including

23/ Motivated by New England's resistence 
to the War of 1812, Congress passed the Act 
of February 4, 1815, § 8, 3 Stat. 195,
198-199, which provided for removal to 
federal courts for common law suits of 
assumpsit against the collectors of customs 
for overassessments. See Elliott v. 
Swarthout, 35 U.S. (10 Pet.) 137 (1836 ).
The South Carolina Ordinance of Nullifica­
tion, 1 Stat. (S.C.) 329 (Nov. 24, 1832),
required the courts of that state to resist 
enforcement of the Federal Tariff Act of 
July 14, 1832. Rather than confer absolute
immunity on officers in response to South 
Carolina, Congress instead provided for 
removal to a federal court. See Act of 
March 2, 1833, 4 Stat. 632, 633-34 (current 
version at 28 U.S.C. § 1442a (1976)).
Congress again chose removal rather than 
immunity even when nullification became 
secession. Act of March 3 , 1863, Ch. 81,
§ 5, 12 Stat. 756-57, as amended, Act of May 
11, 1866, Ch. 80, §§ 3-4, 14 Stat. 46. Re­
moval protection was later extended to mem­
bers of the armed forces. Act of August 29, 
1916, § 3, Art. 117, 39 Stat. 619, 669.

28.



7 4 /the President of the United States.— '
Wilkes _I and I_I were decided in 1849 

and 1851, respectively. Congress was aware 
of the holding of these cases that military 
officers were not absolutely immune from 
suits by servicemen. Yet it let these cases 
stand and, in acting 12 years later to pro­
tect military officers from suit, it declined 
to grant them absolute immunity but instead

2 4/ See, e.g. , Little v. Barreme, 6 U.S. (2 
Cranch) 170 (1804) (commander of warship
answerable in damages to any person injured 
even though commander was simply obeying 
orders from President); Bates v. Clark, 95 
U.S. (5 Otto) 204, 209 (1877) (militarv 
officer is liable in peacetime in trespass 
action despite fact that officer acted in 
good faith upon orders of superior).

29.



provided them with an "obedience to orders"
defense

To this day, Congress has only once 
exercised its power and granted absolute 
immunity to military personnel -- to medical 
officers. 10 U.S.C. § 1089 (1979). See
Howel1 v. United States, 489 F. Supp. 147 
(W.D. Tenn. 1980); Hernandez v. Koch, 443 
F. Supp. 347 (D.D.C. 1978). That Congress 
saw fit to single out medical personnel in 
the armed forces and provide them with abso­
lute immunity indicates that it acknowledged

25/ It was only during the Civil War that 
Congress provided officers with a defense 
when their actions were pursuant to an order 
issued by the President or Secretary of War. 
Act of March 3, 1863, ch. 81, § 4, 12 Stat. 755, 756 (1863). This defense "expired by 
its own limitation." The Mayor v. Cooper, 
73 U.S. (6 Wall.) 247, 254 (1867). Only 
the protection of removal to federal court 
remained. The need for discipline in the 
military was equally important during the 
Civil War, and, before that, when the coun­
try was still a fledging, young nation. Yet 
Congress refrained from granting absolute 
immunity even during the most tumultuous of 
times.

30.



both the continuing validity and wisdom of 
the Wilkes rule. This Court should not
disturb Congress's judgment.

B. Military Officers Are Entitled to Only
Qualified Immunity Under Harlow v.
Fitzgerald_____________________________
Twice in recent years the Court has 

considered and rejected the plea of execu­
tive officials that absolute immunity is 
critical to their ability to exercise dis­
cretion and to act decisively. Harlow, 73 
L . Ed. 2d at 4 07; Butz v. Economou, 4 38 U . S . 
478, 506 (1978). In each instance, the
Court adopted a doctrine of qualified immu­
nity, reasoning that it was critical: 
(1) to deter the officers from committing 
constitutional wrongs, Harlow, 73 L.Ed.2d 
at 404, 411; Butz, 438 U.S. at 505; (2) to
provide redress to the injured party, Harlow, 
73 L. Ed. 2d at 407-08, 411; Butz, 438 U.S.

31.



at 505; and (3) to avoid "drawfing] a dis­
tinction for purposes of immunity law be­
tween suits brought against state officials 
under § 1983 and suits brought directly 
under the Constitution against federal
officials." Harlow, 73 L. Ed. 2d at 404

26/(quoting Butz, 438 U.S. at 504 ).—  Most
important, the Court emphasized that, "[f]or 
executive officials in general, ... our 
cases make plain that qualified immunity 
represents the norm." Id_. at 403.

To be entitled to such an extra­
ordinary defense, the defendant

must show that the responsibilities of 
his office embraced a function so sen­
sitive as to require a total shield 
from liability. He then must demon­
strate that he was discharging the

2 6/ See Scheuer v . Rhodes, 416 U.S. 232
(1974) (state military officials have only 
qualified immunity in § 1983 actions).

32.



protected function when performing the 
act for which liability is asserted.

Id. at 407 (footnotes omitted).
The government's argument that the 

officers's functions are specially protected 
because they involve military functions is 
without support. Harlow itself involved a 
suit by an employee of the Department of the 
Air Force against senior aides and advisors 
of the President of the United States. 
Those officials were not entitled to abso­
lute immunity despite their high level 
status, the fact that the plaintiff was an 
Air Force employee, and the national secur­
ity concerns that informed their conduct.

Absolute immunity for special functions 
have been limited to legislative functions, 
see Eastland v. United States Servicemen * s 
Fund, 421 U.S. 491 (1975), judicial func­
tions, see Stump v. Sparkman, 435 U.S. 349

33.



(1978), adjudicative functions, Butz, 438
U.S. at 513-517, and the function of the
President of the United States. See Nixon
v. Fitzgerald, ___ U.S. ___, 73 L. Ed. 2d
349 (1982 ). As in Harlow, none of these

27 /special functions is present in this case.—  
While the government would have the Court 
create a new military function exception, it 
fails to identify either the historical or 
constitutional foundation that must support 
such a departure.

Any grant of absolute immunity must be 
premised on

considerations of public policy, the 
importance of which should be confirmed 
either by reference to the common law

27/ Although the government would like to 
raise the spectre of rebellion in the 
trenches and in the midst of battle, that 
has nothing to do with this case. Whether 
military decisions made in combat or wartime 
constitute a "special function" is not at 
issue here. These acts of race discrim­
ination occurred in a non-combat peacetime 
situation.

34.



or, more likely, our constitutional 
heritage or structure.

Harlow, 73 L.Ed.2d at 407 n.20. In each
case where the Court found absolute immuni­
ty, it identified either a common law ante­
cedent or a basis in constitutional text or 

2 8/structure.— ' Neither of these bases exist
here.

Common law precedent counsels strongly 
against the extension of an absolute immu­
nity to military officers. Cf. Pierson v. 
Ray, 386 U.S. 547, 555(1967)(police officers 
receive only qualified immunity as at common 
law). The common law explicitly refused to

2 8/ See, e.g ., Nixon v. Fitzgerald,
U.S. ___, 73 L .Ed.2d 349, 362-64 (1982)
(President's immunity rooted in "constitu­
tional heritage and structure" and is based 
on his "unique position in the constitu­
tional scheme"); Imbler v. Pachtman, 424 
U.S. 409, 422-23 (1976) ("common-lav/ immu­
nity of a prosecutor"); Gravel v. United 
States, 408 U.S. 606 (1972) (Speech and
Debate Clause); Pierson v. Ray, 386 U.S. 547 
(1967) (§ 1983 does not abrogate common law
absolute immunity of judges).

35.



give superior military officers absolute 
immunity from damage suits by servicemen. 
Wilkes I, 48 U.S. at 89; Wilkes II, 53 U.S. 
at 390.

In Wilkes, the commander refused to 
release a sailor upon expiration of his term 
of service and disciplined him when he 
refused to serve. Notwithstanding the 
officer's acquittal at court-martial, the 
Court permitted the sailor to sue his com­
manding officer for assault and battery, 
false imprisonment and cruel and unusual 
punishment in violation of the eighth amend­
ment. The Court recognized the importance 
of vindicating the officer's authority. 
Nonetheless, it noted that

the nation would be equally dishonored, if it permitted the humblest individual 
in its service to be oppressed and 
injured by his commanding officer, from 
malice or ill-will, or the wantonness 
of power, without giving him redress in 
the courts of justice.

Wilkes II, 53 U.S. at 403. The commander
36.



was therefore afforded only the then-
prevailing version of' qualified immunity.
Id. at 4 04. There is thus no common law
antecedent which would support absolute

29 /intra-military immunity.—
In sum, there is no common law confir­

mation for the public policy arguments 
advanced by the government. Whether read as 
precedent directly on point or as the common 
law antecedent to this case, Wilkes supports 
the application of the general rule of 
qualified immunity.

29/ Only recently, in the Butz decision, 
this Court emphasized that Wilkes had not 
been overruled and ultimately used it as a 
basis for denying absolute immunity to 
federal officers. 438 U.S. at 493 n.18,
494. See also Feres v. United States, 340 
U.S. 135, 141-42 n.10 (1950). The govern­
ment argues that Feres should persuade the 
Court to extend the absolute immunity 
granted to the government in that case to 
the officers in this case. But Feres had a 
strong foundation in the common law doctrine 
of sovereign immunity. There is no common 
law antecedent of absolute immunity for 
officers.

37.



Nor is there any support for the gov­
ernment's alleged public policy concerns in 
the "constitutional heritage or structure." 
Harlow, 73 L.Ed.2d at 407 n.20. See Points 
I. A. and II.A., supra. Rather, everything 
in the constitutional text, congressional 
practice, and the decisions of this Court 
establish that military officers are gov­
erned by the Constitution, civilian autho­
rity, and the courts.

Absent confirmation from either source, 
the government nevertheless advances public 
policy concerns which, it claims, justify 
absolute immunity. It argues that the 
possibility of damage suits will (1) en­
courage servicemen to disobey orders and 
(2) have a chilling effect on an officer's 
ability to act and give orders without hesi­
tation. But, allowing civilian courts to

38.



entertain damage actions will not undermine
military discipline. To the extent damage 
actions implicate discipline concerns at 
all, they presuppose obedience to orders. 
Even if the existence of a damage remedy 
could strain the relationship between of­
ficer and soldier, the existence of any
effective remedy, would have that same 

30/effect.—  But, it is questionable whether 
a decline in morale or discipline could ever 
be traced to the existence of a remedy. It 
would strain credulity to believe that a 
well-disciplined military unit with high 
morale would suddenly disintegrate or become 
disaffected merely because a remedy for 
serious injustice is created.

30/ See discussion, infra, at 54 n.37.

39.



Disaffection and disobedience are more
likely to result from the perpetuation of 
serious injustice such as racial discrimina­
tion than from the existence of a particular 
remedy.—  A graphic example is provided by 
the experience of black sailors during World 
War II. In March of 1944, Secretary of the 
Navy Forrestal appointed Lester B. Granger 
as his civilian aide on racial matters. In 
that capacity, he toured some 67 naval 
facilities at home and in the Pacific.

31/ As one authority observed:
Discipline, order, and routine are 
essentials to a military organization. 
Civilians from a democratic society, 
even an imperfectly democratic society, 
willingly submit themselves to such 
authoritarian direction only when they 
believe in the purpose and fairness of 
the system.

Reddick, The Negro in the Navy in World War 
II, 32 J. of Negro Hist. 201, 209 (1947).

40.



Granger, Racial Democracy -- The Navy Way, 7
Common Ground 61, 64 (1947). He reported
that "morale and the performance of the
Negro servicemen compared favorably with
that of whites except where rank discrimina-

32 /tion existed or was believed to exist."—  
Most notable was the reaction of a 

battalion of black Seabees, well known for 
their meritorious performance of duty, to 
wrongful treatment at the hands of their 
commander:

Charging unfair and racially discrim­
inatory treatment by the white com­
manding officer, they ... went on a 
hunger strike that lasted several 
days.... The strike ended with the 
[transfer] of the commanding officer in 
question, and the battalion was shortly 
shipped back overseas to Okinawa to 
resume meritorious performance.

Granger, supra, 7 Common Ground at 63.

32/ Reddick, supra, at 215.

41



Nor will allowing damage actions "chill" 
the officer's ability to give orders without
hesitation. In Harlow, the Court dropped 
the subjective "malice" element of the good 
faith defense and expanded the qualified 
immunity defense so that "government offi­
cials performing discretionary functions 
generally are shielded from liability for 
civil damages insofar as their conduct does 
not violate clearly established statutory or 
constitutional rights of which a reasonable 
person would have known." 73 L.Ed.2d at

33/ The government's other argument, the
fear of insubstantial or frivolous lawsuits, 
see Brief for Petitioners at 23-24; Brief of 
Amicus Curiae the Washington Legal Founda­
tion at 12, is unfounded because the Court 
modified the qualified immunity standard in
Harlow to meet exactly that concern. 73 
L.Ed.2d at 409-11. Thus, insubstantial
lawsuits not involving clear constitutional
violations are to be dealt with on summary 
judgment on the immunity issue before dis­
covery is allowed. Id. at 411.
[footnote continued]

42.



Officers will be free to act except in 
derogation of clear-cut constitutional 
rights. The government quotes Orloff v. 
Willoughby, 345 U.S. 83, 94 (1953), entirely 
out of context for the proposition that 
" [d]iscrimination is unavoidable in the 
Army. Some must be assigned to dangerous 
missions; others to soft spots." Brief for 
Petitioners at 25. Orloff was not sanction­
ing racial discrimination in the army. The 
government implies that blacks could, with­
out civil relief, be assigned to all "the 
dangerous missions," and whites to the "soft

[footnote continued!
This also dispels the government's 

floodgates argument. See Brief for Peti­
tioners at 26. While the nature of military 
life may inevitably give rise to tensions 
and unfairness, it is only claims of viola­
tions of clearly established rights —  not 
complaints ingeniously translated into 
constitutional claims, Brief for Petitioners 
at 23-24 —  that will survive a motion todismiss.

43.



spots," because that is part of the "extra­
ordinary demands that military life, in all 
its aspects, places on servicemen." Id. 
at 25. Although there are special obedience 
demands on servicemen, those demands do not 
require or suggest that orders given on the 
basis of race in violation of the fifth 
amendment should not be subject to relief in 
a civil court. The Harlow defense gives 
military officers adequate protection where 
they are entitled to it; it also properly 
denies them sanction for unconstitutional 
racial discrimination.

44.



III.
ENLISTED MEN HAVE A BIVENS ACTION 
AGAINST THEIR SUPERIOR OFFICERS 
FOR ACTS OF RACIAL DISCRIMINATION

A. The Court Has Already Established a 
Bivens Cause of Action for Discrimi­
nation in Violation of the Equal 
Protection Component of the Due 
Process Clause ________________
In a number of closely related contexts,
this Court has already settled that a 
cause of action may be implied directlv 
under the equal protection component of 
the Due Process Clause of the Fifth 
Amendment in favor of those who seek to 
enforce this constitutional right.

Davis v. Passman, 442 U.S. 228 , 242 (1979)
(citing Bolling v. Sharpe, 347 U.S. 497
(1954)). See also Davis, 442 U.S. at 234
and cases cited therein.

The Court, moreover, has already 
acknowledged that service members have a 
cause of action against their superiors for

45.



discrimination in violations of the fifth
amendment. In Frontiero v. Richardson, 411 
U.S. 677 (1973), United States Air Force
Lieutenant Sharron Frontiero sued the Secre­
tary of Defense for sex discrimination in 
the disbursement of statutory benefits for 
dependents. Thus, a service member has a 
constitutionally protected right to be free 
of discrimination and he has a cause of 
action against his superiors to effectuate
that right. Under Wilkes, he can also sue 

34 /for damages.—
Under Bivens v. Six Unknown Federal 

Narcotics Agents, 403 U.S. 388 (1971), and
its progeny, there is a presumption that the 
victim has an action for damages against a 
federal officer for the violation of a

34/ As discussed supra, at pp. 35-36, 
Wilkes involved a claim for damages for the 
violation of the serviceman's rights under 
the eighth amendment.

46.



442 U.S.constitutional right. Davis,
at 242, 245; Carlson v. Green, 446 U.S. 14,
18 ( 1980 ) . This cause of action may be
defeated in a particular situation only if
(1) there are "special factors counselling 
hesitation in the absence of affirmative 
action by Congress," Bivens, 403 U.S. at 
396; Davis, 442 U.S. at 245; Carlson, 446 
U.S. at 18, or (2) defendants show that 
"Congress has provided an alternative remedy 
which is explicitly declared to be a substi­
tute for recovery directly under the Consti­
tution and viewed as equally effective." 
Carlson, 446 U.S. at 18-19, (citing Bivens, 
403 U.S. at 397 ) (emphasis added); Davis, 
442 U.S. at 245-247. As we show below, none 
of these factors exists in this case.

47.



B. There are no Special Factors Counseling
Hesitation_____________________________ _
In Davis, the Court rejected the con­

gressman's "independent status in our con­
stitutional scheme," Carlson, 446 U.S. at 
19, and his immunity under the Speech and 
Debate Clause as special factors counselling 
hesitation. Davis, 442 U.S. at 246. In
Carlson, it rejected the fact that "requir­
ing [prison officials] to defend respon­
dent's suit might inhibit their efforts to 
perform their official duties," id., 446
U.S. at 19, as a special factor. In each 
case, it held that the available immunity 
adequately protected those concerns.

The case for finding a special factor 
here is even weaker than in Carlson or 
Davis. In Carlson, the Court found that the 
Butz qualified immunity was enough to pro­
tect the prison officer from any hesitation

48



xn performing his duty. 446 U.S. at 219.—  

Since then, however, the Court has signifi­
cantly strengthened that defense; officers 
would be protected even for malicious actions 
not in derogation of established constitu­
tional rights. See Harlow, 73 L. Ed. 2d at 
409-10. In Davis, the potential defendant

35/

3 5/ It should be pointed out that every 
argument advanced by the government with 
respect to the need for discipline in the 
military has an analogue in the prison 
context that is at least equally strong.

Prison life, and relations ... between 
the inmates and prison officials or 
staff, contains the ever present poten­
tial for violent confrontation or 
conflagration.

Jones v. North Carolina Labor Union, 433 
U.S. 119, 132 (1977). "Guards and inmates
exist in direct and intimate contact. 
Tension between them is unremitting." Wolff 
v. McDonald, 418 U.S. 539, 562 (1974).
Compare Brief for Petitioners at 31. The 
danger of a breakdown of discipline in 
prisons is, if anything, greater than that 
in the military, and a great deal more 
imminent. Yet damage actions were allowed 
in Carlson.

49.



had independent constitutional stature 
protected by an absolute immunity explicit 
in the constitutional text. Here, the 
military officer lacks any constitutional 
status that places him above the law and is, 
at most, entitled to a common law qualified 
immunity. See Wilkes I_ and II.

C. There is no Alternative Remedy That 
Congress has Explicity Declared is a 
Substitute___________________________
The statutory scheme for the armed

forces does not provide an alternative
remedy adequate to defeat the existence of a
Bivens cause of action. Under Carlson, the
test is whether

Congress has provided an alternative 
remedy which it explicitly declared to 
be a substitute for recovery directly 
under the Constitution and viewed as 
equally effective.

446 U.S. at 18-19 (emphasis added). The

50.



military statutory scheme fails to satisfy 
this part of the Bivens test. The govern­
ment does not even suggest that Congress has 
ever provided an alternative remedy which it 
explicitly declared to be a substitute for a 

Bivens remedy.
In Carlson, the prisoner could bring

suit against the United States under the
Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2680. Nevertheless, the Court held that
he had a Bivens action. It reasoned that
there was no indication in the FTCA or its
legislative history that Congress viewed the
FTCA as an exclusive remedy. Rather, there
was every indication that Congress considered

3 6 /the FTCA complementary to a Bivens remedy.—

36/ It noted that when Congress has wanted 
to indicate that the FTCA is an exclusive 
remedy, it has done so. See, e.g. , 38
U.S.C. § 4116(a), 42 U.S.C § 233(a), 42
(footnote continued)

51.



Here, there is no legislative indica­
tion or history that the internal military 
procedures —  the Board for the Correction 
of Naval Records, 10 U.S.C. §1552(& Supp. V) 
("the Board") and Article 138 of the Uniform 
Code of Military Justice 10 U.S.C. § 938 
("Article 138") —  were explicity or even 
implicitly intended by Congress to be exclu­
sive substitutes for a Bivens remedy. 
Congress has had more than a full century 
since Wilkes 1 and I_I to declare that these 
two statutory schemes are exclusive, but has 
not done so.

(footnote continued)
U.S.C. § 2458(a), 10 U.S.C. § 1089(a), and
22 U.S.C. § 817(a) (malpractice by certain 
government health personnel); 28 U.S.C. 
§ 2679(b) (operation of motor vehicles by 
federal employees); 42 U.S.C. § 2476(k) 
(manufacturers of swine flu vaccine).

52.



D. There is no Equally Effective Remedy
None of the existing internal military- 

procedures, either individually or collec­
tively, are as effective as a Bivens remedy. 
There are four factors to consider when 
evaluating whether the "alternative remedy" 
is "equally effective:" (1) whether the 
remedy has a deterrent effect; (2) whether 
punitive damages are allowed; (3) whether 
the plantiff has a right to a jury trial; 
and (4) whether uniform federal law applies. 
Carlson, 446 U.S. at 20-23. The two pro­
cedures that the government relies on only 
meet the last test. Neither the Board 
procedures nor Article 133 provides punitive 
damages, a jury trial, or full compensatory 
damages.

While the Board may award back pay in 
some instances, 10 U.S.C. § 1552(c), it can

53



do nothing to compensate for the more seri­
ous injuries suffered. A back pay award 
does not compensate an individual for the 
loss of four years of his life spent scrub­
bing kitchen stoves or toilets with a tooth­
brush when, for example, he was denied the 
opportunity to receive engineering or com­
puter training for racial reasons.

The Board procedures have no deterrent
effect on officers. While the Article 138

3 7/procedure might,—  its failings are that it

3 7/ While Article 138 may have a deterrent 
effect in theory, historically, it has not 
served this purpose with regard to race 
discrimination. In contrast, a civil damage 
action with compensatory and punitive dam­
ages will more surely deter misconduct. Of 
course, to the extent that Article 138 is an 
effective deterrent, a Bivens remedy will 
have no greater "chilling" effect upon 
discipline. In any event, Article 138 
cannot be said to be as effective as a 
Bivens remedy in light of the other aspects 
of the Carlson test.

54.



is solely an internal remedy and that it 
provides none of the damages available in a 
Bivens action.

The irony of this case is that the
plaintiffs here do not even have the FTCA or

3 8/other civil remedies normally available.—  
They are in a worse position than the pris­
oner in Carlson. According to the govern­
ment, enlisted men, who willingly joined the 
armed forces to serve this country honor­
ably, would have fewer rights than federal

38/ As the Government points out, Brief for 
Petitioners at 38 n.8, Title VII of the 
Civil Rights Act of 1964 does not cover the 
military. See Johnson v. Alexander, 572 
F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 
986 (1978 ). Thus, the plaintiff does not 
have Title VII as an alternative remedy. 
The fact that the military is not covered 
under Title VII does not affect the avail­
ability of a Bivens claim to servicemen. In 
Davis, a Bivens action was available to Ms. 
Davis even though employees of Congress were 
specifically exempted from Title VII.

55.



prisoners who have broken the laws of our 
country. It would be a cruel step for this 
Court to declare that servicemen are enti­
tled to less constitutional protection than 

39/prisoners.—

CONCLUSION
Ignoring constitutional structure, 

congressional action, common law precedent, 
and recent case law, the government would 
have this Court legislate a new absolute 
immunity for military officers. The impli­
cations of such an immunity would be un­
precedented. It would, for the first time,

39/ The government's argument is short 
sighted. The effect of the rule it advo­
cates will quickly filter through the ranks 
and affect efforts to recruit blacks into 
the Navy. But, then again, discouraging 
blacks is not a new approach for the Navy. 
See discussion, supra, 4-8, 9 n.9.

56.



exempt the military from the constitutional 
process and leave servicemen without a 
realistic remedy for violations of clear-cut 
constitutional rights. And it would do so 
without enhancing military discipline or 
morale.

Adopting the broad Harlow immunity in 
the military context would, in contrast, 
provide sufficient protection for military 
needs while preserving the fundamental 
protections of the Constitution.

Accordingly, the judgment of the court 
of appeals should be affirmed.

Respectfully submitted,
JACK GREENBERG 
JAMES M. NABRIT, III 
STEVEN L. WINTER 
10 Columbus Circle 
Suite 2030 
New York, New York 
(212) 586-8397

57.



STEVEN J. PHILLIPS*
DIANE M. PAOLICELLI 
KREINDLER & KREINDLER 
9 9 Park Avenue 
New York, New York 
(212) 687-8181
COURTNEY W. HOWLAND 
3400 Chestnut Street 
Philadelphia, Pennsylvania 
(215) 898-6084
Attorneys for the NAACP 
Legal Defense and Educational 
Fund, Inc. as Amicus Curiae

*Counsel of Record

58