Respondent Navy enlisted men brought an action for damages and
other relief in Federal District Court against petitioner superior
officers, alleging that petitioners in making duty assignments and
performance evaluations and in imposing penalties had discriminated
against respondents because of their race in violation of their
constitutional rights. The District Court dismissed the complaint
on the grounds that the actions complained of were nonreviewable
military decisions, that petitioners were entitled to immunity, and
that respondents had failed to exhaust their administrative
remedies. The Court of Appeals reversed.
Held: Enlisted military personnel may not maintain a
suit to recover damages from a superior officer for alleged
constitutional violations. The special status of the military has
required, the Constitution has contemplated, Congress has created,
and this Court has long recognized two systems of justice: one for
civilians and one for military personnel. 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. Moreover, Congress, the
constitutionally authorized source of authority over the military
system of justice, has not provided a damages remedy for claims by
military personnel that constitutional rights have been violated by
superior officers. Any action to provide a judicial response by way
of such a remedy would be inconsistent with Congress' authority.
Taken 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 a
Bivens-type remedy
against their superior officers. Pp.
462 U. S.
298-305.
661 F.2d 729, reversed and remanded.
BURGER, C.J., delivered the opinion for a unanimous Court.
Page 462 U. S. 297
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to determine whether enlisted military
personnel may maintain suits to recover damages from superior
officers for injuries sustained as a result of violations of
constitutional rights in the course of military service.
I
Respondents are five enlisted men who serve in the United States
Navy on board a combat naval vessel. Petitioners are the commanding
officer of the vessel, four lieutenants, and three noncommissioned
officers.
Respondents brought action against these officers seeking
damages, declaratory judgment, and injunctive relief. Respondents
alleged that, because of their minority race, petitioners failed to
assign them desirable duties, threatened them, gave them low
performance evaluations, and imposed penalties of unusual severity.
App. 5-16. Respondents claimed,
inter alia, that the
actions complained of
"deprived [them] of [their] rights under the Constitution and
laws of the United States, including the right not to be
discriminated against because of [their] race, color or previous
condition of servitude. . . ."
Id. at 7, 9, 11, 13, 15. Respondents also alleged a
conspiracy among petitioners to deprive them of rights in violation
of 42 U.S.C. § 1985.
Page 462 U. S. 298
The United States District Court for the Southern District of
California dismissed the complaint on the grounds that the actions
respondents complained of were nonreviewable military decisions,
that petitioners were entitled to immunity, and that respondents
had failed to exhaust their administrative remedies.
The United States Court of Appeals for the Ninth Circuit
reversed. 661 F.2d 729 (1981). The Court of Appeals assumed that
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.
S. 388 (1971), authorized the award of damages for the
constitutional violations alleged in their complaint, unless either
the actions complained of were not reviewable or petitioners were
immune from suit. The Court of Appeals set out certain tests for
determining whether the actions at issue are reviewable by a
civilian court and, if so, whether petitioners are nonetheless
immune from suit. The case was remanded to the District Court for
application of these tests.
We granted certiorari, 459 U.S. 966 (1982), and we reverse.
II
This Court's holding in
Bivens v. Six Unknown Fed. Narcotics
Agents, supra, authorized a suit for damages against federal
officials whose actions violated an individual's constitutional
rights, even though Congress had not expressly authorized such
suits. The Court, in
Bivens and its progeny, has expressly
cautioned, however, that such a remedy will not be available when
"special factors counseling hesitation" are present.
Id.
at
403 U. S. 396.
See also Carlson v. Green, 446 U. S.
14,
446 U. S. 18
(1980). Before a
Bivens remedy may be fashioned,
therefore, a court must take into account any "special factors
counseling hesitation."
See Bush v. Lucas, post at
462 U. S.
378.
The "special factors" that bear on the propriety of respondents'
Bivens action also formed the basis of this Court's
decision in
Feres v. United States, 340 U.
S. 135 (1950). There
Page 462 U. S. 299
the Court addressed the question
"whether the [Federal] Tort Claims Act extends its remedy to one
sustaining 'incident to [military] service' what under other
circumstances would be an actionable wrong."
Id. at
340 U. S. 138.
The Court held that, even assuming the Act might be read literally
to allow tort actions against the United States for injuries
suffered by a soldier in service, Congress did not intend to
subject the Government to such claims by a member of the Armed
Forces. The Court acknowledged "that, if we consider relevant only
a part of the circumstances and ignore the status of both the
wronged and the wrongdoer in these cases,"
id. at
340 U. S. 142,
the Government would have waived its sovereign immunity under the
Act and would be subject to liability. But the
Feres Court
was acutely aware that it was resolving the question of whether
soldiers could maintain tort suits against the Government for
injuries arising out of their military service. The Court focused
on the unique relationship between the Government and military
personnel -- noting that no such liability existed before the
Federal Tort Claims Act -- and held that Congress did not intend to
create such liability. The Court also took note of the various
"enactments by Congress which provide systems of simple, certain,
and uniform compensation for injuries or death of those in the
armed services."
Id. at
340 U. S. 144.
As the Court has since recognized,
"[i]n the last analysis,
Feres seems best explained by
the 'peculiar and special relationship of the soldier to his
superiors, [and] the effects of the maintenance of such suits on
discipline. . . .'"
United States v. Muniz, 374 U.
S. 150,
374 U. S. 162
(1963), quoting
United States v. Brown, 348 U.
S. 110,
348 U. S. 112
(1954).
See also Parker v. Levy, 417 U.
S. 733,
417 U. S.
743-744 (1974);
Stencel Aero Engineering Corp. v.
United States, 431 U. S. 666,
431 U. S. 673
(1977). Although this case concerns the limitations on the type of
nonstatutory damages remedy recognized in
Bivens, rather
than Congress' intent in enacting the Federal Tort Claims Act, the
Court's analysis in
Feres guides our analysis in this
case.
Page 462 U. S. 300
The need for special regulations in relation to military
discipline, and the consequent need and justification for a special
and exclusive system of military justice, is too obvious to require
extensive discussion; no military organization can function without
strict discipline and regulation that would be unacceptable in a
civilian setting.
See Parker v. Levy, supra, at
417 U. S.
743-744;
Orloff v. Willoughby, 345 U. S.
83,
345 U. S. 94
(1953). In the civilian life of a democracy, many command few; in
the military, however, this is reversed, for military necessity
makes demands on its personnel "without counterpart in civilian
life."
Schlesinger v. Councilman, 420 U.
S. 738,
420 U. S. 757
(1975). The inescapable demands of military discipline and
obedience to orders cannot be taught on battlefields; the habit of
immediate compliance with military procedures and orders must be
virtually reflex, with no time for debate or reflection. The Court
has often noted "the peculiar and special relationship of the
soldier to his superiors,"
United States v. Brown, supra,
at
348 U. S. 112;
see In re Grimley, 137 U. S. 147,
137 U. S. 153
(1890), and has acknowledged that "the rights of men in the armed
forces must perforce be conditioned to meet certain overriding
demands of discipline and duty. . . ."
Burns v. Wilson,
346 U. S. 137,
346 U. S. 140
(1953) (plurality opinion). This becomes imperative in combat, but
conduct in combat inevitably reflects the training that precedes
combat; for that reason, centuries of experience have developed a
hierarchical structure of discipline and obedience to command,
unique in its application to the military establishment and wholly
different from civilian patterns. Civilian courts must, at the very
least, hesitate long before entertaining a suit which asks the
court to tamper with the established relationship between enlisted
military personnel and their superior officers; that relationship
is at the heart of the necessarily unique structure of the Military
Establishment.
Many of the Framers of the Constitution had recently experienced
the rigors of military life, and were well aware of the differences
between it and civilian life. In drafting the
Page 462 U. S. 301
Constitution, they anticipated the kinds of issues raised in
this case. Their response was an explicit grant of plenary
authority to Congress "To raise and support Armies"; "To provide
and maintain a Navy"; and "To make Rules for the Government and
Regulation of the land and naval Forces." Art. I, § 8, cls. 12-14.
It is clear that the Constitution contemplated that the Legislative
Branch have plenary control over rights, duties, and
responsibilities in the framework of the Military Establishment,
including regulations, procedures, and remedies related to military
discipline; and Congress and the courts have acted in conformity
with that view.
Congress' authority in this area, and the distance between
military and civilian life, was summed up by the Court in
Orloff v. Willoughby, supra, at
345 U. S.
93-94:
"[J]udges are not given the task of running the Army. The
responsibility for setting up channels through which . . .
grievances can be considered and fairly settled rests upon the
Congress and upon the President of the United States and his
subordinates. The military constitutes a specialized community
governed by a separate discipline from that of the civilian.
Orderly government requires that the judiciary be as scrupulous not
to interfere with legitimate Army matters as the Army must be
scrupulous not to intervene in judicial matters."
Only recently, we restated this principle in
Rostker v.
Goldberg, 453 U. S. 57,
453 U. S. 64-65
(1981):
"The case arises in the context of Congress' authority over
national defense and military affairs, and perhaps in no other area
has the Court accorded Congress greater deference."
In
Gilligan v. Morgan, 413 U. S.
1,
413 U. S. 4
(1973), we addressed the question of whether Congress' analogous
power over the militia, granted by Art. I, § 8, cl. 16, would be
impermissibly compromised by a suit seeking to have a Federal
District Court examine the "pattern of training, weaponry and
orders"
Page 462 U. S. 302
of a State's National Guard. I n denying relief, we stated:
"It would be difficult to think of a clearer example of the type
of governmental action that was intended by the Constitution to be
left to the political branches directly responsible -- as the
Judicial Branch is not -- to the electoral process. Moreover, it is
difficult to conceive of an area of governmental activity in which
the courts have less competence. The complex, subtle, and
professional decisions as to the composition, training, equipping,
and control of a military force are essentially professional
military judgments, subject
always to civilian control of
the Legislative and Executive Branches. The ultimate responsibility
for these decisions is appropriately vested in branches of the
government which are periodically subject to electoral
accountability."
Id. at
413 U. S. 10
(emphasis in original).
Congress has exercised its plenary constitutional authority over
the military, has enacted statutes regulating military life, and
has established a comprehensive internal system of justice to
regulate military life, taking into account the special patterns
that define the military structure. The resulting system provides
for the review and remedy of complaints and grievances such as
those presented by respondents. Military personnel, for example,
may avail themselves of the procedures and remedies created by
Congress in Art. 138 of the Uniform Code of Military Justice, 10
U.S.C. § 938, which provides:
"Any member of the armed forces who believes himself wronged by
his commanding officer, and who, upon due application to that
commanding officer, is refused redress, may complain to any
superior commissioned officer, who shall forward the complaint to
the officer exercising general court-martial jurisdiction over the
officer against whom it is made. The officer exercising
Page 462 U. S. 303
general court-martial jurisdiction shall examine into the
complaint and take proper measures for redressing the wrong
complained of; and he shall, as soon as possible, send to the
Secretary concerned a true statement of that complaint, with the
proceedings had thereon."
The Board for Correction of Naval Records, composed of civilians
appointed by the Secretary of the Navy, provides another means with
which an aggrieved member of the military
"may correct any military record . . . when [the Secretary of
the Navy acting through the Board] considers it necessary to
correct an error or remove an injustice."
10 U.S.C. § 1552(a). Respondents' allegations concerning
performance evaluations and promotions, for example, could readily
have been made within the framework of this intramilitary
administrative procedure. Under the Board's procedures, one
aggrieved as respondents claim may request a hearing; if the claims
are denied without a hearing, the Board is required to provide a
statement of its reasons. 32 CFR §§ 723.3(e)(2), (4), (5), 723.4,
723.5 (1982). The Board is empowered to order retroactive backpay
and retroactive promotion. 10 U.S.C. § 1552(c). Board decisions are
subject to judicial review, and can be set aside if they are
arbitrary, capricious, or not based on substantial evidence.
See Grieg v. United States, 226 Ct.Cl. 258, 640 F.2d 1261
(1981),
cert. denied, 455 U.S. 907 (1982);
Sanders v.
United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979). [
Footnote 1]
The special status of the military has required, the
Constitution has contemplated, Congress has created, and this Court
has long recognized two systems of justice, to some extent
Page 462 U. S. 304
parallel: one for civilians and one for military personnel.
Burns v. Wilson, 346 U.S. at
346 U. S. 140.
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, 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,"
Stencel Aero Engineering Corp. v. United States, 431
U.S. at
431 U. S. 676
(MARSHALL, J., dissenting), quoting
United States v.
Brown, 348 U.S. at
348 U. S.
112.
Also, Congress, the constitutionally authorized source of
authority over the military system of justice, has not provided a
damages remedy for claims by military personnel that constitutional
rights have been violated by superior officers. Any action to
provide a judicial response by way of such a remedy would be
plainly inconsistent with Congress' authority in this field.
Taken 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 a
Bivens-type remedy against their superior officers.
See Bush v. Lucas, post, p.
462 U. S. 367.
III
Chief Justice Warren had occasion to note that "our citizens in
uniform may not be stripped of basic rights simply because they
have doffed their civilian clothes." Warren, The Bill of Rights and
the Military, 37 N.Y.U.L.Rev. 181, 188 (1962). This Court has 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.
See, e.g., Brown v.
Glines, 444 U. S. 348
(1980);
Parker v. Levy, 417 U. S. 733
(1974);
Frontiero
v.
Page 462 U. S. 305
Richardson, 411 U. S. 677
(1973). But the special relationships that define military life
have
"supported the military establishment's broad power to deal with
its own personnel. The most obvious reason is that courts are
ill-equipped to determine the impact upon discipline that any
particular intrusion upon military authority might have."
Warren,
supra, at 187.
We hold that enlisted military personnel may not maintain a suit
to recover damages from a superior officer for alleged
constitutional violations. [
Footnote 2] The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion. [
Footnote 3]
Reversed and remanded.
[
Footnote 1]
The record shows that one of the respondents availed himself of
his remedy before the Board for Correction of Naval Records by
filing an application for correction of naval records. The request
for relief was denied by the Board based on a failure to exhaust
administrative remedies and to present sufficient relevant
evidence. App. 67. The applicant was informed of his right to
pursue an appeal from this decision,
ibid., and the record
does not reflect whether any further action was taken.
[
Footnote 2]
Respondents and the Court of Appeals rely on
Wilkes v.
Dinsman, 7 How. 89 (1849), after remand,
Dinsman v.
Wilkes, 12 How. 390 (1852).
Wilkes,
however, is inapposite, because it involved a well-recognized
common law cause of action by a marine against his commanding
officer for damages suffered as a result of punishment, and did not
ask the Court to imply a new kind of cause of action. Also, since
the time of
Wilkes, significant changes have been made
establishing a comprehensive system of military justice.
[
Footnote 3]
We leave it for the Court of Appeals to decide on remand whether
the portion of respondents' suit seeking damages flowing from an
alleged conspiracy among petitioners in violation of 42 U.S.C. §
1985(3) can be maintained. This issue was not adequately addressed
either by the Court of Appeals or in the briefs and oral argument
before this Court.