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Former Air National Guard Staff Sergeant Donald J. Dibble may not sue the military superiors who discharged him and refused to allow his reenlistment, the 2d U.S. Circuit Court of Appeals ruled on Aug. 8. Dibble v. Fenimore, No. 00-6243. Dibble alleged that he was discharged in retaliation for his constitutionally protected activities as a union steward in his civilian workplace. He asked not for money damages, but for the equitable remedy of reinstatement to the Air National Guard. The circuit court never got to the merits of Dibble’s claim, ruling instead that his lawsuit was barred by “the doctrine of intra-military immunity.” In so ruling, 2d Circuit broke ranks with the 1st, 3d and 10th circuits, which have all held that intra-military immunity bars only claims for damages. By contrast, the 2d Circuit now stands shoulder-to-shoulder with the 5th, 7th and 8th circuits, which hold the military immune even from equitable lawsuits, except those that challenge military rules or regulations as unconstitutional on their face. ‘Feres’ and progeny The Supreme Court first enunciated the doctrine of intra-military immunity in a 1950 decision, Feres v. U.S., 340 U.S. 135. The court considered three claims brought under the Federal Tort Claims Act: two actions by the survivors of servicemen alleged to have died through government negligence, one in a barracks fire and another on a U.S. Army operating table, and an action by a former serviceman whose civilian doctors discovered a large towel in his abdomen marked “Medical Department U.S. Army.” Noting that military personnel have available an administrative compensation scheme analogous to workers’ compensation, the court held that “the Government is not liable under the Federal Tort Claims Act . . . where the injuries arise out of or are in the course of activity incident to service.” In 1983′s Chappell v. Wallace, 462 U.S. 296, the Supreme Court held that U.S. Navy enlisted men who were allegedly the victims of racial discrimination could not seek money damages from their superior officers under a civil rights cause of action that fell outside the ambit of the Federal False Claims Act. The court laid special emphasis on the danger that military discipline “would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command.” But at the same time, it declared that “[we have] never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.” The court extended intra-military immunity again in 1987′s U.S. v. Stanley, 483 U.S. 669, a case brought by a veteran unwittingly given LSD in a 1958 U.S. Army experiment. It ruled that “the unique disciplinary structure” of the military required a hands-off policy even when a civil rights damages claim implicated government officials who were not the alleged victim’s superior officers. Picking up language from Feres, the court said that the important question was whether the injury arose “incident to service.” In the view of one of the circuit court camps, the Feres/Chappell/Stanley line of cases gradually swallowed up all potential damages claims, but left untouched the equitable field. For instance, the 1st Circuit, in 2000′s Wigginton v. Centracchio, 205 F.3d 504, argued that equitable remedies like injunctions were the redress for constitutional violations promised to military personnel in Chappell. The other camp, which the 2d Circuit joined in the Dibble case, maintains that equitable remedies are only available when they would not disrupt the unique disciplinary structure of the armed services. They foresee such disruption when the courts second-guess the military’s application of its rules in individual situations, but not when courts consider the rules themselves. Young’s e-mail address is gyoungnlj.com.

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