The Justiciability of Claims Brought by National Guardsmen Under the Ciwl Rights Statutes for Injuries Suffered in the Course of hlilitary Service

• Author: by Lieutenant Commander E Roy Hawkens
• Pages: 03

1. INTRODUCTION

   The Supreme Court has not yet resolved whether a soldier in B

   state National Guard who 1s injured m the course of mllitary service may sue his supenor officer under the civil rights statutes Although the Supreme Court had the apportumty In Chappell 0. Wallace2 to resolve this issue, it declined to do so because the ISSW had not been adequately addressed by the court of appeals or by the part~es.~

   The

   civil rights statutes are braad remedial statutes of general appllcabllity. Literally read, they could be taken to permit sum by Guardsmen

   'id at305113

   MILITARY LAB REVIEW 1Yol 125

   for service-related injuries On the other hand the Supreme Courts rationale in Feres c C'nited States' and its progeny could be construed to praccnbe such suits The Feres doctrine generally bars soldiers suits for serwce.related mjunes absent an "express congressional command5 to the contrary After Feres, it could be argued that claims brought by Guardsmen under the cinl rights statures for in. juries incident to military service are not prtieiable' because Con. gress did not expressly command that these statutes be used for this purpose

   Because suits by Guardsmen under the civil rights statutes are not an infrequent occurrence. the answer to whether such suts are just!. ciable 1s of substantial practical importance Unfortunately. the courts of appeals have not provided a uniform anwer to this ques. lion. Indeed. a sharp split exlsts among the circuit8 regarding the justiciability of such suits 'And even the courts that agree euch suits may be reviewable disagree on the approach for determining jus. ticmbility 'This conflict poses a gross unfairness to litigants. because a Guardsman's claim under a cinl rights Statute may be found meritorious in one court, while an identical clam brought by a Guardsman in a different court may be immediately dismissed for failure to state a claim The Supreme Court should eliminate this

   19891 JUSTICIABILITY OF CLAIMS

   conflict so that Guardsmen's clalms under the civil nghts Statutes will be subject to a rule of law that IS both predictable and uniform

   This article will examine the current state of the law and then sug. gest how the Supreme Court may ultimately resolve the msue First, the article examines the National Guard, its unique statu in ourfederal system. and its vital role in our national defense. Next, the article enamines the rationale in Feres L. United States' and Its progeny in an effort to glean instructive prmclples for resolvmg whether suits brought by Guardsmen under the civil rights statutes for mju-ries incident to military sernce are justiciable. The article then can. vasses the various approaches taken by the courts of appeals that have considered the justiciability of such suits." Finally, the article concludes that, applying the Feres rationale, suits by Guardsmen un-der the civil nghts statutes for Injuries incident to service are nonJusticiable and should be dismmsed pursuant to Federal Rule of Civil Procedure 12rbX6) far failure to state a claim upon whlch relief can be granted."

   MILITARY LA&' REVIEW lV0l 126

   11. THE ROLE OF THE NATIONAL GUARD IN OUR FEDERAL SYSTEM

   "1

   8 Conif amend I1 The aecond amendment urmidei in full '.a %ell remlnwd

   19891 JUSTICIABILITY OF CLAIMS

   draft Guardsmer. ,nto federal sermce, at which time they were consid.

   ered discharged from the militia li

   In 1933 Congress made the National Guard a permanent part of the federal military by creating a "dual-enlistment" system.

   It did this by conferring a new status an the Guard, by constituting It a reserve component of the Army. to be known as the Kiational Guard of the United States. In its militia capacity. the National Guard was argmmzed and administered under the militia clause of the Constitution, and available only for limited duties. . . . [Iln Its capacity as a reserve component of the Army, 1ik.e National Guard1 tias orgamzed and was to be administered under the army clause

   In place of the former draft into federal service, as 3"-dwiduals. the Guard would be ordered into federal ~erviee as

   units.. Upon being relieved from federal service. ail individuals and units would revert to their National Guard status. . .

   Accordingly, the National Guard has today a dual atatus, and every Guardsman 1s a reservmt as well as a militia. man la

   In 1970 the National Guard ~sasincorporated into the Taral Forces

   Concept. which determines the total number of milltar>- personnel needed for our national defense and military commitments.'s Thus, the Guard plays a vital role in the nation's military readiness program For example, in the event of war. the Army National Guard nould provide. in whole or in part. 16 of 24 Army dinsions.'O The Air National Guard would prowde 73 percent of the nations an defense interceptor forces, 52 percent of tactical air reconnaissance. 34 per-cent of tactical airlift, 25 percent of tactical fighters, li percent of aerial refueling, 13 percent of air rescue and recover? farces. and 24

   Due to the Guards vital role in the Total Farces Concept. the Federal Government must ensure the Guard maintains a constant stace of mhtary readiness To this end. the Constitution empowers

   percent of tactleal alr support forces 21

   Congress to

   provide for orgamzmg arming, and diacipiining the Militia and for governing such Part of them as may be employed m the Service of the United States, reserving to the States re-specnvely. the Appointment of the Officers, and the Autharity of training the Yilitia according to the discipline pre-scribed by Congress ''

   Pursuant to this authorit>-. Congress has enacted leglalation foi equipping. training, and disciphmng state Guard units so that Guardsmen are 'anintegral part ofthe first line defenses ofthe United States 23 Congress also has created the liational Guard Bureau. an

   19891 JUSTICIABILITY OF CLAIRIS

   adjunct of the Departments of the Army and the Air Force, to oversee state Guard units and to ensure compliance with federal statutory and regulatory requirements regarding military training. discipline, and readiness." State Guard units that faii to camply are subject to forfeitures of federal funds and benefits." Thus, the Kational Guard stands ready topravide"trainedunitsandqua1ifiedpersons. . . foractiwduty in the armed forces, in the time af war or national emergency and at such other timea as the national security requires ""

   111. RELEVA4NT SUPREME COURT PRECEDENT: FERES AND ITS PROGENY

   In Feres v. Gnited Stales'- the Supreme Courr held that the govern. ment was nor liable under the Federal Tort Claims 4ct ~FTCAI for injuries to Servicemen where the injuries ''arise out of or are in the course of activity Incident to service ""The Court m Feres was faced with claims by active duty service members who sustained I~JWIW

   in

   the course of military service due to the negligence of other ~ervice

   members " Notably. the FTCA was a broad remedial statute that contained no explicit exception for claims by serv~ce members seeking to recowr for service.reiated ~njuries.~~

   Moreover, the Court found

   plinamurtcanfarmtotharafrhe~rfederaleounterparts,s~a32U

   S C 1501 11982, and that Guardsmen are iubpt to the Lbifarm Code of hlilifary Juetice See id $9 326. 333 Additionall). Congress has authorized the President to LSSW regulatiani and 01.der3 necessar? to ~rganne dlrclpline and govern the Sarmnal Guard See Id P 110 See also 10 b US

   C 105 119821 laufhoriring mspecuans of National Guards by Secretary of the Army and Secretary oithe A n Force to ensure Guard units am properly argannrd, uniformed, armed, eqmpped, trained, and inifrvcledi

   YO us c 9 3040 119821

   "Section 108 of Title 32 provides

   If, within B time to be fixed by the President. B state does not comply wth or enforce a requirement of, or replatian preaeribed under. this Title it8 National Guard LQ barred. whall) or partly as the Prealdent ma) pre-scribe. from recenlng mane? or any other ald. benefit, m prmlege au thanzed by la*,32L'SC 108,19821

   "10 U S C 3 262 119821 "340US 135~19508

   . . .

   . - . . . . . . . - .

   - . .

   that several factors strongly suggested that Congress intended the FTCA to apply to such claims.

   [The FTCAl does confer district court jurisdiction generally over claims for money damages against the United States founded on negligence 28 U.S.C. B 1346(bi It does con-template that the Government will sometimes respond for negligence of military personnel, for It defines "employee of the Government" to include "members of the military or naval forces of the United States," and provides that "'acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States. meansactinginlineafduty."28U S.C 9 2611.Itsexceptions might a180 imply ~nclus~onofclaims such as we have here. 28 U.S.C. S 268OQl excepts "any clam ansing out of the corn.botant activities of the military or naval forces, or the Coast Guard, duringtimeof~ar"(emphasissupplied), framwhich it is said we should infer allowance of claims arismg from non-combat activities inpeace. . .These considerations, Itissaid, should persuade us to cast upon Congress, as author of the confusion, the task of qualifying and clarifying Its language If the liability here asserted should prove so depleting of the public treasury as the Government

   The Supreme Court nevertheless concluded that, although the FTCA literally and implicitly could be read to allow tort suits against the United States for injuries suffered by a soldier Inservice, Congressdid not intend to subject the Government to such claims.

   Significant to the Court's decision was the fact that "no American law. . .ever ha[dlpermittedasoldiertorecoverfornegligenee.against

   elther his supenor officers or the Government he [was1Moreover. stated the Court, "claimantsene usno state. and we know of none which has permitted members of its militia to maintain tort actione for injuries suffered in the serv~ce Given this background. the...