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The commander of the New York Air National Guard is immune from suit for refusing to allow the re-enlistment of a staff sergeant who was a union shop steward, the 2nd U.S. Circuit Court of Appeals has ruled. Choosing sides on an issue that has split other circuits, the court said that under U.S. Supreme Court precedent it was declining to “insert itself into military decisionmaking in such an intrusive manner.” The decision in Dibble v. Fenimore, 00-6243, concerned whether such a suit was non-justiciable under the doctrine of intramilitary immunity, which the court said developed because of the unique relationship between military personnel and their superior officers and the military’s need to maintain discipline in the ranks. Staff Sgt. Donald J. Dibble was honorably discharged from the New York Air National Guard in 1994. When he was denied an opportunity to re-enlist, he filed suit in the Northern District charging Maj. Gen. John H. Fenimore with retaliation for his protected activities as a union steward. Judge Lawrence E. Kahn denied Fenimore’s motion to dismiss and the case moved to the 2nd Circuit, where the threshold issue was whether the circuit could decide the case at all. In an opinion by Judge Pierre Leval, the court decided that the order to dismiss was “immediately appealable as a collateral order.” “Intramilitary immunity is designed to protect a defendant from the obligation to participate in the litigation, and not merely from an adverse result,” he said. “The loss of such a benefit cannot be vindicated by appeal from an adverse judgement.” Judge Leval then addressed the central question, whether the suit was justiciable under the U.S. Supreme Court’s decision in Feres v. United States, 340 U.S. 135 (1950), where the Court held that military personnel cannot sue the government for injuries that “arise out of or are in the course of activity incident to service.” The doctrine, Leval said in quoting the Supreme Court, created a “judicial exception to the Federal Tort Claims Act’s broad waiver of sovereign immunity,” one that has been expanded over the last half century. “The scope of the intramilitary immunity doctrine is not precisely defined,” Leval said. “While it is clear that military personnel may not sue superior officers for damages, it is also clear that the military’s freedom from suits brought by servicemembers is not absolute.” The line between suits the courts will, or will not entertain, he added, “has never been precisely defined by the Supreme Court.” While five circuit courts allow challenges to personnel decisions “only when they constitute facial challenges to the constitutionality of military regulations, and not in the cases of individualized actions,” he said, three others have allowed such equitable actions even where facial challenges are not involved. The 2nd Circuit, he said, agreed with the majority of the other circuits and embraced the view of the 5th Circuit, which has held that it is the nature of intramilitary lawsuits that renders cases justiciable, and not whether the relief sought is money damages or an injunction. “Moreover, even if officers faced with the prospect of judicial interference would nonetheless feel free to make command decisions, the availability of injunctive relief from a civilian court would undoubtedly affect military discipline,” he said. “Suits by enlisted soldiers bypassing the hierarchy of the armed services seeking injunctions to overturn personnel decisions of their superiors in civilian court could substantially alter and interfere with” what the Supreme Court has called the “peculiar and special relationship of the soldier to his superiors.” Cautioning that the court was not adopting a “categorical rule” on intramilitary suits, Leval said the case must be dismissed. “For the District Court to find that the Guard violated Dibble’s constitutional rights by discharging him, it would be forced to make a particularized inquiry into the mindset of his superior officers,” he wrote. Judges Amalya Kearse and Robert Katzmann joined in the opinion. Assistant Solicitors General Michael S. Buskus and Nancy A. Speigel, and senior counsel Peter H. Schiff represented Fenimore. Daniel M. Schember of Gaffney & Schember in Washington, D.C., represented Dibble.

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