COMMANDER GEORGE C. CHAPPELL, ET AL., PETITIONERS V. VERNON
WALLACE, ET AL.

   No. 82-167

   In the Supreme Court of the United States

   October Term, 1982

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

   Brief for the Petitioners

                       PARTIES TO THE PROCEEDING

   The petitioners are Commander George C. Chappell, Lieutenant
Commander Kenneth Viafore, Lieutenant Clarence Schultz, Lieutenant
Barron Bianco, Lieutenant Kenneth Jordan, Engine Man Chief Richard
McCannon, Internal Communications Chief David Lamser, and Mess
Management Specialist Chief Lumberto Papa.  The respondents are Vernon
Wallace, Robert Lemons, Cornelius Hickey, James Richardson, and George
Shannon.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      A serviceman may not seek damages from his superior
      officers for alleged constitutional violations
      incident to military service
      A. Introduction
      B. This Court has not expended the remedies
         prescribed by Congress for servicemen alleging
         wrongs connected to military service

@ C. Damages actions by servicemen against their

         superiors are particularly disruptive of military
         discipline
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-20a) is reported
at 661 F.2d 729.  The order of the district court (Pet. App. 22a) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 2,
1981, and a petition for rehearing was denied on March 2, 1982 (Pet.
App. 21a).  On May 24, 1982, Justice Rehnquist extended the time in
which to file a petition for a writ of certiorari to and including
July 16, 1982, and on July 2, 1982, Justice Rehnquist further extended
the time in which to file a petition for a writ of certiorari to and
including July 30, 1982.  The petition was filed on July 30, 1982, and
was granted on November 1, 1982 (J.A. 73).  The jurisdiction of this
Code rests on 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether servicemen may sue their superior officers for damages for
alleged constitutional violations incident to military service.

                               STATEMENT

   1. Respondents, black enlisted men in the Navy serving on board the
U.S.S. Decatur (J.A. 3), brought this suit against petitioners, their
superior officers on the Decatur, in 1978.  /1/ They sought $10
million in compensatory and punitive damages from petitioners, as well
as declaratory and injunctive relief (J.A. 16-17).

   Respondents claimed that, because of their race, petitioners
mistreated them in a variety of ways.  Specifically, respondent
Shannon alleged in the complaint that one of the petitioners made him
and other servicemen "clean the stove in the galley with
toothbrushes," and "threatened * * * (to) strangle him with his bare
hands for keeping the refrigerator door open" (J.A. 14).  Respondent
Shannon further alleged that he was given "a very low evaluation
(that) * * * was totally unwarranted" (J.A. 15).  Respondent Lemons
complained that he "was constantly being assigned numerous tasks" by
certain of the petitioners "even though there were numerous enlisted
personnel who were not assigned tasks when they completed their old
tasks," and that he was "assigned to perform * * * tasks * * * it was
impossible to complete" (J.A. 8).  Respondent Lemons also complained
of having been fined $50 at Captain's Mast -- an informal disciplinary
proceeding -- because he had left his clothes in his workspace instead
of his locker (J.A. 9).  Respondent Wallace asserted that he was
unsuccessful in seeking various duty assignments to which, he claimed,
he was entitled (J.A. 6).  Respondent Hickey claimed that he was
unjustly denied a recommendation for a promotion and an opportunity
for certain schooling (J.A. 11).  Respondent Richardson asserted that
a white serviceman with less experience was given greater training
opportunities (J.A. 13).

   Each respondent alleged that the actions of which he complained
"deprived (him) of his rights under the Constitution and laws of the
United States, including the right not to be discriminated against
because of his race, color or previous condition of servitude, the
right not to be deprived of rights and privileges of the United States
Navy without due process, the right not to be limited in the rights
and privileges guaranteed by the statutes of the United States, and
the right to obtain equal employment opportunities while in the United
States Navy" (J.A. 7;  see J.A. 9, 11, 13, 15).  /2/

   2. The United States District Court for the Southern District of
California dismissed the complaint, ruling that "public policy
compels" that respondents' damages actions be barred by an
"intra-service immunity" (Pet. App. 22a).  The district court also
ruled that the actions of which respondents complained were
"nonreviewable military decisions" and that respondents had failed to
exhaust their administrative remedies (ibid.).

   The court of appeals reversed (Pet. App. 1a-20a).  The court noted
(id. at 2a n.1) that respondents, in seeking damages for alleged
violations of the Constitution, were relying on Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).  But
the court of appeals merely stated that "Bivens has been extended to
fifth amendment equal protection claims" (Pet. App. 2a n.1, citing
Davis v. Passman, 442 U.S. 228 (1979)) and did not address the
question whether Bivens empowered the court to confer on servicemen an
implied cause of action for damages against their superior officers.

   Instead, the court of appeals principally discussed the
"reviewability" of respondents' claims.  The court defined
"reviewability" as "whether a court may review a military decision to
determine whether a substantive wrong has been committed" (Pet. App.
4a).  In considering "reviewability," the court of appeals did not
distinguish between Bivens suits -- suits for damages brought against
military officials in their personal capacity -- and other litigation
involving the military.  Instead, the court stated that the question
of "reviewability" would "arise regardless of the identity of the
defendant, i.e., whether the defendant is the United States or an
individual federal official, and regardless of whether the remedy
sought is damages or some form of non-monetary relief" (ibid.).  The
court of appeals acknowledged that "(l)itigation is potentially
disruptive to military operations," that "(p)ermitting litigation can
make it difficult to maintain discipline," and that courts may "lack
the competence to weigh the factors that might enter into a military
decision" (id. at 6a).  But, the court asserted, these
"disadvantage(s) arise() from the litigation itself," not from the
identity of the defendant or the kind of relief sought (id. at 16a
n.9).  Consequently, the court of appeals stated, "(o)nce a claim has
been found reviewable, allowing a damages remedy (will) not exacerbate
* * * the disruption" (ibid.).

   The court of appeals then held (Pet. App. 19a) that respondents'
claims met the first criterion of "reviewability" because they alleged
the violation of "a 'recognized' constitutional right" that
"amount(ed) to more than a traditional state law claim" (id. at 10a).
Beyond that, the court held that the reviewability of military
decisions would depend on four factors (id. at 7a):

      (1) The nature and strength of the plaintiff's claim.  * * * (2)
      The potential injury to the plaintiff if review is refused.  (3)
      The extent of interference with military functions(,) * * *
      (although) interference per se should not preclude review
      because some degree of interference will always exist.  (4) The
      extent to which military discretion or expertise is involved.

   The court of appeals derived these factors from Mindes v. Seaman,
453 F.2d 197, 201-202 (5th Cir. 1971), which was not a Bivens action
but a suit by a serviceman seeking declaratory and injunctive relief
in connection with an allegedly erroneous performance evaluation.  See
453 F.2d at 198.  The court of appeals ordered the district court, on
remand, to assess the "reviewability" of respondents' claims by
considering the four Mindes factors (Pet. App. 20a).  /3/

   The court of appeals also addressed the question whether
petitioners are absolutely immune from damages liability.  In keeping
with its conclusion that imposing personal damages liability on
individual officiers presents no special concerns once a claim has
been found "reviewable," the court of appeals stated that "the
possibility that military operations will be disrupted, and the
possibility of courts usurping military functions that they lack the
competence to perform," are "inapplicable" to the inquiry into whether
military officials should be subject to suit for damages (Pet. App.
16a n.9).  The court did acknowledge that absolute immunity would
avoid a "threat to discipline" that is created when military officers
are subjected to potential monetary liability, but it considered this
a "marginal benefit" insufficient to "offset the substantial policies
opposing absolute immunity" (id. at 15a).  The court of appeals then
held that "except in unusual circumstances" -- such as, possibly, when
a suit challenged a military decision made in combat, or by an officer
acting in a judicial or prosecutorial role -- military officers would
be accorded only a qualified, not an absolute, immunity from personal
damages liability (id. at 14a, 16a-18a & n.10).

                          SUMMARY OF ARGUMENT

   A. In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Court ruled that it would, in some
circumstances, provide a personal damages remedy for a constitutional
violation even though Congress had not expressly authorized such
relief.  But Bivens and subsequent cases also held that a court should
not create a damages remedy if there are "special factors counselling
hesitation in the absence of" a clear expression of congressional
intent to afford such a remedy (id. at 396).

   The "peculiar and special relationship of the soldier to his
superior" (United States v. Brown, 348 U.S. 110, 112 (1954)) is such a
special factor.  The relationship between Congress and the courts in
the military area is radically different from their relationship in
the civilian sphere;  in particular, this Court has repeatedly
recognized the distinctly subordinate role that courts play in
regulating military life.  The Court has accordingly been unwilling to
allow any remedy that might interfere with military discipline unless
Congress has authorized the remedy with unusual clarity.  There is no
indication that Congress intended to permit servicemen to seek damages
from their superior officers.  Moreover, to allow servicemen to sue
their superiors for damages would seriously disrupt the hierarchical
relationships that are unique, and essential, to the military.

   B. The Court's unwillingness to expand the remedies Congress has
provided for aggrieved servicemen is reflected in many areas.  Under
the Federal Tort Claims Act, the government is generally liable for
the torts of its employees, and reasonable arguments can be made that
Congress intended to allow servicemen to recover from the United
States for the torts of other servicemen.  Nevertheless, in Feres v.
United States, 340 U.S. 135 (1950), the Court held that the demands of
military discipline override these indications of congressional intent
and preclude servicemen's suits for service-related injuries.
Similarly, the Court -- because of the demands of military discipline,
and in the absence of any express statutory requirement -- has
strictly limited the habeas corpus and injunctive relief available to
servicemen.

   C. A personal damages suit like respondents' is far more likely
than any of these other remedies to disrupt military discipline.  The
comparison with the Federal Tort Claims Act is particularly
instructive.  The basis of Feres is that a suit by a serviceman
against the government will present an unacceptable threat to military
discipline because it will cause servicemen to testify against each
other and force a civilian court to second-guess military decisions.
These dangers are vastly greater when a serviceman seeks damages not
from the government but from his superior officer personally.

   1. Several aspects of military life make servicemen's personal
damages actions against their superiors highly disruptive.  The need
for unhesitating, decisive action by a military officer is
particularly great, far greater than for any ordinary civilian
official;  exposing an officer to prolonged litigation and the threat
of ruinous personal liability at the hands of a subordinate will force
him to hesitate before ordering an action that military discipline
requires, but that a subordinate might resent.

   Moreover, the danger of unwarranted personal damages actions is
especially great in the military context.  Unlike a civilian, a member
of the armed forces is necessarily subject to a comprehensive
regimentation that affects many aspects of his life.  Such
regimentation will inevitably give rise to complaints of unfairness.
A small group of officers is often in command of the same group of
servicemen for an extended time;  in these circumstances, any
personality conflict or real or imagined grievance can spark a
lawsuit.  In addition, the military makes demands on its members that
are "without counterpart in civilian life" (Schlesinger v. Councilman,
420 U.S. 738, 757 (1975)) -- not only in combat, but in training and
in the everyday development of the morale, discipline, and habits of
obedience that are indispensable to an effective fighting force.
These extraordinary demands create tensions not found in civilian
life, particularly because servicemen may be unaccustomed to the
unique traditions and requirements of the military.

   2. Allowing a serviceman to bring a Bivens action against his
superior will also intrude civilian judges and juries into military
affairs.  Civilian judges and juries will reexamine decisions made in
a distinctively military context, often for reasons related to
military discipline.  In particular, a jury -- which apparently has
the power to award both punitive and compensatory damages in a Bivens
action -- will have to determine whether and to what extent a superior
officer should be penalized for acting improperly toward his
subordinates.  Civilian courts and juries are not well suited to make
this most difficult and delicate of military judgments.

   The court of appeals' approach, which would permit a Bivens action
if a serviceman states a "reviewable" claim, does not adequately deal
with these concerns.  The unpredictable balancing test the court
employed to define "reviewability" does not enable officers to issue,
decisively and without hesitation, orders that might be resented;  and
it places civilian courts in the position of deciding the extent to
which military judgment or military expertise entered into a
particular officer's decision -- precisely the decisions that civilian
courts are not equipped to make.

   3. Personal damages litigation is incompatible with military
discipline in an even more fundamental respect.  Military discipline
depends upon the development of the reciprocal bonds of trust and
mutual responsibility between a serviceman and an officer that make a
serviceman willing to obey his superior instinctively, even at the
cost of his life.  The tensions and demands of military life are
intended to help create this solidarity.  But the ability of the armed
forces to foster such relationships will be seriously impaired if a
serviceman can view his superior as a potential defendant, capable of
being brought before a civilian court and forced to account for his
actions under the threat of massive liability.  The attitudes and
habits of thought that damages litigation encourages, while acceptable
in many phases of civilian life, are inconsistent with proper military
discipline.

   Civil litigation for damages is, of course, not the only way to
redress grievances, and Congress has provided several alternative
remedies for servicemen.  Respondents, for example, could have sought
relief for most or all of their grievances before the civilian Board
for the Correction of Naval Records.  They also could have appealed up
the chain of command for relief from the allegedly improper acts of
their superiors;  or they could have invoked the special and elaborate
chain of command remedy the Navy has established for claims of racial
discrimination.  Officers guilty of racial discrimination are subject
to court-martial and to penalties ranging from censure to
imprisonment.

   These remedies established by Congress and the Navy provide a means
for a serviceman to obtain relief from a superior who is truly
arbitrary or discriminatory.  But unlike a Bivens remedy created by a
court, the remedies prescribed by Congress and the Navy preserve the
chain of command instead of undermining it, maintain the coherence of
the military community, and ensure that military judgments will be
reviewed by persons familiar with the mores and traditions of the
military.

   4. The court of appeals considered the special dangers of personal
damages actions against military officials only in connection with its
discussion of petitioners' immunity.  But the court did not address
the special concerns raised by servicemen's damages suits against
their superiors;  nor did it recognize the extent to which the
policies underlying the immunity doctrines suggest that such suits
should be precluded.  Moreover, the court of appeals wholly failed to
consider the separation of powers problems raised by its decision to
afford servicemen a personal damages remedy.  Congress has broad power
to create or deny a remedy even in the civilian context;  in the
military sphere, Congress's power is at its greatest, and a court
departs from its proper role when it creates, without statutory
authority, a remedy that interferes with military discipline.

                               ARGUMENT

 A SERVICEMAN MAY NOT SEEK DAMAGES FROM HIS SUPERIOR OFFICERS FOR
ALLEGED CONSTITUTIONAL VIOLATIONS INCIDENT TO MILITARY SERVICE

                            A. Introduction

   Although the Constitution establishes rights, it does not in
general specify the remedy for violations of those rights.  Congress
and the courts, therefore, must prescribe remedies for constitutional
violations where appropriate.  But it is axiomatic, even in a civilian
context, that unless the Constitution itself requires a particular
form of relief, a federal court cannot provide a remedy unless it is
authorized to do so, explicitly or implicitly, by statute.  See, e.g.,
Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-449 (1850);  United States
v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812);  Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 94 (1807) (Marshall, C.J.) ("(T)he
power to award the writ (of habeas corpus) by any of the courts of the
United States, must be given by written law.").

   In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), this Court held that federal law
enforcement officers may be sued for damages for allegedly violating a
citizen's Fourth Amendment rights.  The Court specifically noted that
it was not holding that the Constitution itself required the creation
of this remedy (403 U.S. at 397), and no Act of Congress explicitly
authorized such relief.

   The Court nonetheless ruled that a court with general jurisdiction
to entertain claims arising under the Constitution (see 28 U.S.C.
1331(a)) can provide a personal damages remedy against federal
officials.  See 403 U.S. at 396, quoting Bell v. Hood, 327 U.S. 678,
684 (1946);  403 U.S. at 405 (Harlan, J., concurring);  Nixon v.
Fitzgerald, No. 79-1738 (June 24, 1982), slip op. 27 (White, J.,
dissenting).  The Bivens Court explained that a general jurisdictional
statute can be a sufficient basis for an implied damages remedy
because damages is a "remedial mechanism normally available in the
federal courts" (403 U.S. at 397).  Justice Harlan, in his concurring
opinion, similarly reasoned that "a court of law vested with
jurisdiction over the subject matter of a suit has the power -- and
therefore the duty -- to make principled choices among traditional
judicial remedies" (403 U.S. at 408 n.8) and that "a traditional
judicial remedy such as damages is appropriate to the vindication of
the personal interests" at stake in a suit such as Bivens (id. at
399).  See also Montana-Dakota Utilities Co. v. Northwestern Public
Service Co., 341 U.S. 246, 261 (1951) (Frankfurter, J., dissenting)
("Courts, unlike administrative agencies, are organs with historic
antecedents which bring with them well-defined powers.  They do not
require explicit statutory authorization for familiar remedies * *
*.").

   The Court in Bivens recognized, however, that a grant of
jurisdiction will not always be a sufficient basis for the judicial
creation of a damages remedy for constitutional violations.  Bivens
suggested, and subsequent cases have established (see Carlson v.
Green, 446 U.S. 14, 18 (1980);  Davis v. Passman, 442 U.S. 228, 245
(1979)), that the Court will not create such a remedy if there are
"special factors counselling hesitation in the absence of affirmative
action by Congress" (403 U.S. 396) -- that is, in the absence of some
"affirmative" congressional action that releals an intent to create a
damages remedy more clearly than a general jurisdictional statute.
See also Nixon v. Fitzgerald, supra, slip op. 22 n.37.

   The "peculiar and special relationship of the soldier to his
superiors" (United States v. Brown, 348 U.S. 110, 112 (1954)) is such
a special factor.  Military affairs are characterized by a
relationship between the courts and Congress that is far different
from the relationship prevailing in the civilian sphere.  In the
military context, the Court has always been reluctant to accord a
remedy that Congress has not expressly authorized.  "Traditional
judicial remedies" that are "familiar" and "normally available in the
federal courts" to civilians are often not available to servicemen
seeking relief for alleged wrongs related to military service.
Specifically, the Court's decisions reflect the principle that it will
not accord a remedy that may interfere with the relationship between a
serviceman and his superior, or that may endanger military discipline,
unless Congress not only has taken "affirmative" action but has
clearly authorized such a remedy.  Consequently, whatever the
justification for viewing this Court's decisions subsequent to Bivens
-- Davis v. Passman, supra, and Carlson v. Green, supra -- as
establishing a presumption in favor of implied damages relief for
constitutional violations in the civilian context, there is no
justification for extending that presumption to suits between
servicemen and their superiors.

   Congress has not clearly or affirmatively authorized personal
damages suits by servicemen against their superior officers for
constitutional violations.  Moreover, such suits disrupt proper
military relationships and subvert military discipline.  For
essentially these reasons, every court of appeals that has considered
the issue -- except the court below -- has refused to allow a
serviceman to sue his superior officer for damages for a
constitutional violation.  See, e.g., Jaffee v. United States, 663
F.2d 1226, 1235 (3d Cir. 1981) (en banc), cert. denied, 456 U.S. 972
(1982) ("(S)uits based on service injuries involve, as a general
matter 'special factors counseling hesitation.'");  Rotko v. Abrams,
455 F.2d 992 (2d Cir. 1972), aff'g and adopting 338 F. Supp. 46, 48
(D. Conn. 1971);  Laswell v. Brown, 683 F.2d 261, 268-269 (8th Cir.
1982) petition for cert. pending, No. 82-5574 (filed Oct. 19, 1982);
Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923
(1967);  Sigler v. LeVan, 485 F. Supp. 185, 189-192 (D. Md. 1980),
appeal dismissed, Nos. 80-1160 and 80-1202 (4th Cir. Apr. 29, 1980).
See also Lombard v. United States, 690 F.2d 215, 226-227 (D.C. Cir.
1982);  Scales v. United States, 685 F.2d 970, 973 (5th Cir. 1982);
Thornwell v. United States, 471 F. Supp. 344, 347-348 (D.D.C. 1979);
Misko v. United States, 453 F. Supp. 513, 515 (D.D.C. 1978), aff'd,
593 F.2d 1371 D.C. Cir. 1979);  Birdwell v. Schlesinger, 403 F. Supp.
710, 718 (D. Colo. 1975);  Roach v. Shields, 371 F. Supp. 1392, 1393
(E.D. Pa. 1974);  Calhoun v. United States, 604 F.2d 647 (9th Cir.
1979), aff'g and adopting 475 F. Supp. 1, 4 (S.D. Cal. 1977), cert.
denied, 444 U.S. 1078 (1980);  Hass v. United States, 518 F.2d 1138,
1142-1143 (4th Cir. 1975);  Bailey v. Van Buskirk, 345 F.2d 298 (9th
Cir. 1965).  For the same reasons, this Court should not permit
implied constitutional damages actions by servicemen against their
superiors.

 B. This Court Has Not Expanded The Remedies Prescribed By Congress
For Servicemen Alleging Wrongs Connected To Military Service

   The Constitution gives Congress the power "(t)o raise and support
Armies," "(t)o provide and maintain a Navy," "(t)o make Rules for the
Government and Regulation of the land and naval Forces." Article I,
Section 8, Clauses 12-14.  These powers are "broad and sweeping"
(United States v. O'Brien, 391 U.S. 367, 377 (1968)), and it is well
established that, in the regulation of the military, the role of the
courts is decidedly subordinate to that of Congress.  "(P)erhaps in no
other area has the Court accorded Congress greater deference.  * * *
Not only is the scope of Congress' constitutional power in this area
broad, but the lack of competence on the part of the courts is
marked." Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981).  "(I)t 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." Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (emphasis
omitted).

   In view of these constitutional principles, it would plainly be
inappropriate for courts to exercise the same freedom to create
remedies in the military sphere as they do in other contexts.
Servicemen have invoked a variety of statutes -- not only general
jurisdictional provisions, but also the Federal Tort Claims Act and 28
U.S.C. 2241, which authorizes habeas corpus relief -- in efforts to
gain relief from alleged wrongs incident to military service.  Far
from creating remedies when Congress has been silent, this Court has
repeatedly declined to provide any remedy that might interfere with
military discipline, even when reasonable arguments might be made that
Congress specifically authorized the relief sought by the serviceman.

   Under the Federal Tort Claims Act, for example, the government is
liable for the torts of its employees in a wide range of cases.  See
28 U.S.C. (& Supp. V) 1346(b) and 2671 et seq.  Congress specifically
included "members of the military or naval forces" in its definition
of "(e)mployee of the government" (28 U.S.C. 2671), thus revealing
that it expected the torts of military officials to give rise to
liability in some contexts.  Moreover, the FTCA contains several
express exceptions, including an exception for "combatant activities
of the military or naval forces * * * during time of war" (28 U.S.C.
2680(j)).  The FTCA contains no express exception for torts committed
by one serviceman against another.  Cf. Carlson v. Green, supra, 446
U.S. at 20 (applying maxim of expressio unius to FTCA).

   In Feres v. United States, 340 U.S. 135 (1950), the Court
nonetheless held that the FTCA does not permit servicemen to sue the
United States for service-related injuries.  The principal basis of
Feres was 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, 162 (1963),
quoting United States v. Brown, 348 U.S. at 110, 112 (1954).  See also
Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673
(1977).  The Court ruled that these concerns overrode the contrary
indications of congressional intent to allow servicemen's tort suits
(see 340 U.S. at 138-139).  Feres is firmly established law;  the
Court has recently reaffirmed it (Stencel Aero Engineering Corp. v.
United States, supra), and Congress not only has left Feres untouched
for over 30 years while amending the FTCA in other respects (see
Lorillard v. Pons, 434 U.S. 575, 580-581 (1978);  Flood v. Kuhn, 407
U.S. 258, 282-283 (1972)) but has expressly indicated its approval of
the Feres doctrine (see, e.g., H.R. Rep. No. 97-384 (Pt. I), 97th
Cong., 1st Sess. 5 (1981)).

   Similarly, the Court -- acting in the absence of any express
congressional mandate and on the basis of its concerns about military
discipline -- has given a narrow interpretation to the scope of
federal habeas corpus relief available to servicemen.  The rules of
collateral estoppel apply far more stringently to a serviceman
challenging a court-martial conviction than to a state prisoner
challenging his conviction, even though there is no express statutory
basis for such a distinction.  See Burns v. Wilson, 346 U.S. 137, 142,
144 (1953) (plurality opinion) ("(W)hen a military decision has dealt
fully and fairly with an allegation raised in (a habeas corpus)
application, it is not open to a federal civil court to grant the writ
simply to re-evaluate the evidence.  * * * It is the limited function
of the civil courts to determine whether the military have given fair
consideration to each of these claims.").  Indeed, the Court's
affirmation of these limits on military habeas corpus occurred at
almost the same time as its expansion of federal habeas corpus relief
from state convictions.  Compare ibid. and Hiatt v. Brown, 339 U.S.
103 (1950), with Brown v. Allen, 344 U.S. 443 (1953);  see P. Bator,
P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal
Courts and the Federal System 1538 (2d ed. 1973) ("Prior to Hiatt v.
Brown, supra, most lower courts assumed that the widening range of
habeas review in civilian cases was equally relevant to military
cases").  The Court's principal reason for limiting the scope of
military habeas corpus review in this way was again the "overriding
demands of discipline and duty." Burns v. Wilson, supra, 346 U.S. at
140.

   The habeas corpus relief available to a serviceman is also strictly
limited when he is challenging not a court-martial conviction but some
other military decision.  For example, even if a service is
statutorily obligated to provide certain drafted servicemen -- such as
doctors -- with a particular duty classification, "it is not within
the power of (the) Court by habeas corpus to determine whether
specific assignments to duty fall within the (required) basic
classification" (Orloff v. Willoughby, 345 U.S. 83, 93 (1953)).  The
reason for this limitation, the Court explained, is that "there must
be a wide latitude allowed to those in command.  * * * (W)e have found
no case where this Court has assumed to revise duty orders as to one
lawfully in the service(, and) * * * (i)t is not difficult to see that
the exercise of such jurisdiction * * * would be a disruptive force as
to affairs peculiarly within the jurisdiction of the military
authorities." Id. at 93-95.

   Finally, the Court has limited the ability of servicemen to obtain
injunctive relief for alleged wrongs, including constitutional
violations.  In Schlesinger v. Councilman, 420 U.S. 738 (1975), a
serviceman -- suing, like respondents, under 28 U.S.C. 1331(a) --
sought to enjoin court-martial proceedings on the ground that the
court-martial lacked jurisdiction to hear the charge against him.
This Court ruled that federal district courts generally "must refrain
from intervention, by way of injunction or otherwise" in court-martial
proceedings.  420 U.S. at 758.  The basis of this holding was not
primarily the historic limits on equitable relief (see id. at 755) or
the requirement that administrative remedies be exhausted (see id. at
757);  instead, the Court relief principally on the special status of
the military and "military exigencies" (id. at 757-758) as its reasons
for declining to afford equitable relief.  See also Gilligan v.
Morgan, supra (that a requested injunction would require judicial
supervision of a State National Guard is a factor making the claim
nonjusticiable).  Notably, the Court in Councilman expressly equated
the "vital role" of the military with the constitutionally-based
"demands of federalism" that justify a similar preclusion (see Younger
v. Harris, 401 U.S. 37 (1971)) of suits to enjoin state prosecutions.
See Carlson v. Green, supra, 446 U.S. at 19 (A defendant's
"independent status in our constitutional scheme * * * suggest(s) that
judicially created remedies * * * might be inappropriate.").

   In sum, the Court has held that a variety of remedies -- damages
relief against the government, as well as the more traditional
remedies of habeas corpus and injunction -- either are not available
in the military context, or are available only in strictly limited
circumstances.  These decisions reflect the principle that the
relationship between Congress and the courts is radically different in
the military context, and in particular that the Court will be
reluctant to afford a remedy that may interfere with the relationship
between a serviceman and his superior or undermine military discipline
-- even in those instances where Congress has arguably authorized such
a remedy.  It follows a fortiori that the Court should be unwilling to
create an implied remedy in the absence of any explicit congressional
authorization, when the remedy will seriously disrupt military order.

 C. Damages Actions By Servicemen Against Their Superiors Are
Particularly Disruptive Of Military Discipline

   Respondents' Bivens actions seek $10 million in compensatory and
punitive damages from individual naval officers.  Of all the remedies
that a serviceman might invoke, a personal damages action of this sort
is obviously the most likely to disrupt military discipline and the
command relationship.

   1. In Feres v. United States, as we have noted, the Court held that
servicemen may not bring damages actions against the United States.
The Court was principally "concern(ed) with the disruption of '(t)he
peculiar and special relationship of the solider to his superiors'
that might result if the soldier were allowed to hale his superiors
into court." Stencel Aero Engineering Corp. v. United States, supra,
431 U.S. at 676 (Marshall, J., dissenting), quoting United States v.
Brown, supra, 348 U.S. at 112.  See United States v. Muniz, supra, 374
U.S. at 162.  The Court specifically noted that "(t)he trial (of such
a claim) would * * * involve second-guessing military orders, and
would often require members of the Armed Services to testify in court
as to each other's decisions and actions." Stencel Aero Engineering
Corp. v. United States, supra, 431 U.S. at 673.

   These concerns are incomparably greater when a serviceman, instead
of seeking damages from the United States, "hale(s) his superiors into
court" as defendants and threatens them with massive personal
liability.  See Carlson v. Green, supra, 446 U.S. at 21 (threat of
personal liability has a greater impact on officials' behavior than
the possibility that the government will be held liable);  Owen v.
City of Independence, 445 U.S. 622, 653 n.37, 655-656 (1980) (same);
Jaffee v. United States, supra, 663 F.2d at 1234.  Such a lawsuit pits
members of the armed forces directly against each other in court.
Commanding officers will be in the position of defending not only
their actions but their own financial well-being against the attacks
of those they are responsible for commanding.  If "the effect of (a;
FTCA) action upon military discipline" (Stencel Aero Engineering Corp.
v. United States, supra, 431 U.S. at 673) justified the Court in
precluding an FTCA action against the United States -- in spite of the
colorable arguments that Congress intended to allow such suits --
surely servicemen should not be allowed to seek damages from their
superior officers personally, in the absence of a strong indication
that Congress favors such a remedy.

   Personal damages actions would disrupt military discipline for a
number of reasons.  Even an officer who is confident that he is acting
lawfully will know that if he issues an order that his subordinates
are likely to resent, he risks prolonged litigation with its financial
and psychological burdens and the threat of massive personal
liability.  See Harlow v. Fitzgerald, No. 80-945 (June 24, 1982), slip
op. 13.  While these risks confront many public officials, the costs
of forcing military officers to hesitate before issuing commands that
their subordinates dislike are particularly great.  The central
feature of military life is that "the right to command and the duty to
obey ordinarily must go unquestioned" (Brown v. Glines, 444 U.S. 348,
357 (1980)).  "No question can be left open as to the right to command
in the officer, or the duty of obedience in the soldier." In re
Grimley, 137 U.S. 147, 153 (1980).  See also United States ex rel.
Toth v. Quarles, 350 U.S. 11, 22 (1955) ("(W)ithin the military ranks
there is need for a prompt, ready-at-hand means of compelling
obedience and order.");  Falbo v. United States, 320 U.S. 549, 554
(1944);  Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30-31 (1827) (Story,
J.) (allowing officers to be sued for actions in the line of duty
"would be subversive of all discipline, and expose the best-disposed
officers to the chances of ruinous litigation").  Whatever the virtues
or dangers of encouraging other public officials to be cautious, it is
the particular responsibility of military officials to command, and
undue hesitancy or trepidation on their part is wholly unacceptable.
"(C) ommand indulgence of an undisciplined rank and file can decimate
a fighting force." Parker v. Levy, 417 U.S. 733, 763 (1974) (Blackmun,
J., concurring).

   In addition, the distinctive characteristics of military life make
the danger of unwarranted damages actions especially great.  See
Stencel Aero Engineering Corp. v. United States, supra, 431 U.S. at
670 ("(T)he relationship between a sovereign and the members of its
Armed Forces is unlike any relationship between private
individuals.").  Civilians generally are subject to the discretionary
acts of government officials only on occasion;  by contrast, the armed
forces regulate, on a continual basis, "aspects of the conduct of
members of the military which in the civilian sphere are left
unregulated." Parker v. Levy, supra, 417 U.S. at 749.  See Middendorf
v. Henry, 425 U.S. 25, 38 (1976) ("the difference between the diverse
civilian community and the much more tightly regimented military
community").  As this Court has explained (Parker v. Levy, supra, 417
U.S. at 751):

      (T)he * * * relationship of the Government to members of the
      military * * * is not only that of lawgiver to citizen * * *.
      (U)nlike the civilian situation, the Government is often
      employer, landlord, provisoner, and lawgiver rolled into one. *
      * * (W)ithin the military community there is simply not the same
      autonomy as there is in the larger civilian community.

   Such comprehensive regimentation -- which no one can deny is an
essential aspect of military life -- will inevitably give rise to
complaints of unfairness.  See Orloff v. Willoughby, supra, 345 U.S.
at 93-94.  It takes little ingenuity to translate such a complaint
into a constitutional claim.  Moreover, a small group of officers will
often be in command of the same group of servicemen for an extended
time.  Those officers are responsible for each serviceman's living
conditions, career advancement, working conditions, discipline, duty
assignments, training regime, and performance evaluations, as well as
for many other matters of great importance to the serviceman.
Especially on a ship, they will be in constant and close contact.  In
these circumstances, any personality conflict or real or imagined
grievance can easily spark a lawsuit.  Both the complaint and
declarations filed by respondents in this case, for example, reveal
that respondents have a wide range of grievances, ranging from those
that, if true, are serious to those that are unquestionably petty.
See pages 2-3, supra;  J.A. 28-29.

   In addition to the comprehensiveness of military discipline -- and
as important a source of litigation if Bivens actions are allowed in
the military context -- is the extraordinary nature of the demands
that the military places on servicemen.  "To prepare for and perform
its vital role, the military must insist upon a respect for duty and a
discipline without counterpart in civilian life." Schlesinger v.
Councilman, supra, 420 U.S. at 757.  For this reason, the Court "has
long recognized that the military is, by necessity, a specialized
society separate from civilian society.  * * * (T)he military has,
again by necessity, developed laws and traditions of its own during
its long history.  The differences between the military and civilian
communities result from the fact that 'it is the primary business of
armies and navies to fight or be ready to fight wars should the
occasion arise.'" Parker v. Levy, supra, 417 U.S. at 743, quoting
United States ex rel. Toth v. Quarles, supra, 350 U.S. at 17.  See
also Department of the Air Force v. Rose, 425 U.S. 352, 367 (1976),
quoting Orloff v. Willoughby, supra, 345 U.S. at 94 ("(T)he military *
* * 'constitutes a specialized community governed by a separate
discipline from that of the civilian'");  Burns v. Wilson, supra, 346
U.S. at 140.

   It is in combat, of course, that servicemen are subject to the most
dramatic demands.  In training exercises, as well, servicemen may be
required to take extraordinary physical risks.  But "(l)oyalty,
morale, and discipline are essential attributes of all military
service," and "those restrictions necessary for the inculcation and
maintenance of basic discipline and preparedness are as justified on a
regular basis in the United States as on a training base or a
combat-ready installation in the Pacific" (Brown v. Glines, supra, 444
U.S. at 356-357 n.14 (emphasis added;  citations omitted)).

   The extraordinary demands that military life, in all its aspects,
places on servicemen, will inevitably give rise to tensions not found
in nonmilitary contexts.  See Orloff v. Willoughby, supra, 345 U.S. at
94 ("Discrimination is unavoidable in the Army.  Some must be assigned
to dangerous missions;  others find soft spots.").  Moreover,
commanding officers, who are responsible for insisting on military
discipline, frequently must deal with servicemen who are unaccustomed
to "the longstanding customs and usages of the services" (Parker v.
Levy, supra, 417 U.S. at 746-747) and the "laws and traditions
governing (military) discipline" (Schlesinger v. Councilman, supra,
420 U.S. at 757).  The military must "ingrain * * * reflexes"
(Department of the Air Force v. Rose, supra, 425 U.S. at 368);  the
habit of automatic obedience that will lead a serviceman to risk his
life in combat cannot be taught through the ordinary educational
methods of civilian life.  Servicemen will, therefore, be required to
follow procedures and to adopt routines that may strike a civilian as
quite arbitrary but that are, in the judgment of military officials,
important in instilling the habits that create an effective fighting
force.  See also Parker v. Levy, supra, 417 U.S. at 763 (Blackmun, J.,
concurring) ("The subtle airs that govern the command relationship are
not always capable of specification.").

   For all of these reasons, if servicemen are granted an implied
constitutional damages remedy against their superiors, unwarranted
personal damages suits are likely to be common.  Indeed, as we noted
in the petition, servicemen are bringing Bivens actions against their
superiors with increasing frequency (see Pet. 16 n.11 (citing cases)).
 The likely result is that military officers, whose responsibility it
is to command and to act decisively, will be hesitant.

   2.a. Allowing servicemen to bring Bivens actions will also
undermine military discipline by intruding civilian judges and juries
(see Carlson v. Green, supra, 446 U.S. at 22-23) into military
affairs.  As we discuss (see pages 32-35, infra), Congress has
provided alternative remedies for servicemen who raise claims like
respondents';  those remedies enable military officials, or civilians
with expertise in military affairs, to address servicemen's
service-related grievances, subject to limited judicial review.  But
in a Bivens suit, a civilian judge and jury will necessarily be
required to "second-guess() military orders" (Stencel Aero Engineering
Corp. v. United States, supra, 431 U.S. at 673).  /4/ They will have
to reexamine decisions made in a distinctively military context, often
for reasons that are related to military discipline and are "without
counterpart in civilian life" (Schlesinger v. Councilman, supra, 420
U.S. at 757).  See also Noyd v. Bond, 395 U.S. 683, 694 (1969) ("(M)
ilitary decisions * * * must accommodate the demands of individual
rights and the social order in a context which is far removed from * *
* the ordinary run of civilian litigation.");  Sutton v. Johnstone, 99
Eng. Rep. 1215, 1243 (1786) (Lord Mansfield) ("A military tribunal is
capable of feeling all the () circumstances, and understanding that
the first, second, and third part of a solider is obedience.  But what
condition will a commander be in, if, upon the exercising of his
authority, he is liable to be tried by a common law judicature?").

   In this case, for example, a jury would have to consider such
questions as whether respondents' performance in certain military
specialties was properly evaluated, and whether the minor disciplinary
actions allegedly taken against some of the respondents -- such as
ordering one to help clean a stove with a toothbrush -- were justified
by the special needs of military discipline.  It is most unlikely that
civilian courts and jurors are qualified to make these judgments.  See
Butz v. Economou, 438 U.S. 478, 503 (1978), citing Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S.
at 409 (Harlan, J., concurring) (in deciding whether to create a
Bivens remedy, a court must consider "whether the courts are qualified
to handle the types of questions raised by the plaintiff's claim").
Moreover, there is no reason to believe that in enacting a general
jurisdictional statute, Congress -- which has "repeatedly * * *
recognized" (Schlesinger v. Councilman, supra, 420 U.S. at 757) that
the military "constitutes a specialized community" (Orloff v.
Willoughby, supra, 345 U.S. at 94) -- intended to authorize civilian
courts and juries to play this role in military life.

   In addition, respondents are in effect asking a civilian court and
jury to punish petitioners -- their superior officers -- for
petitioners' actions toward them.  Respondents seek punitive damages
(see Carlson v. Green, supra, 446 U.S. at 21-22), and even an award of
compensatory relief has a deterrent purpose and a punitive effect
(see, e.g., Carey v. Piphus, 435 U.S. 247, 256-257 (1978)).  Few
questions are more vital to military discipline than whether and to
what extent a superior officer should be punished for a particular
action toward a serviceman;  not only is it difficult to assess the
propriety of the officer's actions, but maintaining a correctly
balanced relationship between an officer and a serviceman -- in which
the officer demonstrates his commitment to the serviceman's well-being
in a way that elicits the serviceman's instinctive obedience -- is of
crucial importance to the military.

   This Court has repeatedly emphasized that civilian courts should
take care not to interfere with internal military determinations
concerning the discipline to impose on a member of the armed forces
for actions that jeopardize military interests.  See, e.g., United
States ex rel. Toth v. Quarles, supra, 350 U.S. at 18;  Burns v.
Wilson, supra, 346 U.S. at 140.  Such a determination -- particularly
when it concerns an officer's actions toward a subordinate -- is
surely an excellent example of the "complex, subtle, and professional
decisions as to the composition, training, * * * and control of a
military force'" about which this Court has said, "'(i)t is difficult
to conceive of an area of governmental activity in which the courts
have less competence.'" Rostker v. Goldberg, supra, 453 U.S. at 65-66,
quoting Gilligan v. Morgan, supra, 413 U.S. at 10.  Congress could not
have intended that a grant of general jurisdiction would give civilian
courts and juries the power to make such a determination and then, if
they decide that the officer has acted improperly, to levy what
amounts to a crushing fine.  As the Court has cautioned (Orloff v.
Willoughby, supra, 345 U.S. at 93-94):

         We know that from top to bottom of the Army the complaint is
      often made, and sometimes with justification, that there is
      discrimination, favoritism or other objectionable handling of
      men.  But judges are not given the task of running the Army.
      The responsibility for setting up channels through which such
      grievances can be considered and fairly settled rests upon the
      Congress and upon the President of the United States and his
      subordinates.

   b. Plainly the court of appeals' approach -- which would grant a
serviceman a Bivens remedy if he stated a "reviewable" claim -- does
not adequately deal with these concerns.  The court of appeals would
allow servicemen to threaten their superior officers with damages
liability;  the officer would know whether the suit was barred only
after a court had applied a complex and inherently unpredictable
balancing test that essentially permits it to consider every relevant
factor.  See Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)
("An uncertain privilege, or one that results in widely varying
applications by the courts, is little better than no privilege at
all.").  However, many suits the court of appeals' reviewability
criteria actually preclude, those criteria are poorly designed to
provide officers with the degree of assurance they need to issue
commands unhesitatingly in an environment that inevitably creates a
degree of fear and resentment.

   Moreover, the court of appeals' criteria would be applied by a
civilian court;  a civilian court would decide "(t)he extent to which
military discretion or expertise is involved" in a decision, and
"(t)he extent of interference with military functions" if a Bivens
action is allowed -- subject to the court of appeals' admonition that
"interference per se should not preclude review because some degree of
interference will always exist" (Pet. App. 7a;  emphasis omitted).  As
we have said, however, it is these very determinations that civilian
courts are not equipped to make.  "Military functions" differ
fundamentally from their apparent civilian counterparts, and "military
expertise" enters into officers' decisions in ways that civilians are
unlikely fully to understand.

   3.a. Personal damages litigation is wholly incompatible with
military discipline in an even more fundamental way.  Military
discipline is not simply a matter of a superior officer imposing his
will on subordinates.  Instead, the object of military discipline and
training is to develop the reciprocal bonds of trust that make a
serviceman willing to obey his superior instinctively, even at the
cost of his life.  The military's "internal law of command and
obedience invests the military officer with 'a particular position of
responsibility.' * * * Within this discipline, the accuracy and effect
of a superior's command depends critically upon the specific and
customary reliability of subordinates, just as the instinctive
obedience of subordinates depends upon the unquestioned specific and
customary reliability of the superior." Department of the Air Force v.
Rose, supra, 425 U.S. at 367-368 (footnote omitted), quoting Parker v.
Levy, supra, 417 U.S. at 744.  See In re Grimley, supra, 137 U.S. at
153 ("Vigor and efficiency on the part of the officer and confidence
among the soliders in one another are impaired if any question be left
open as to their attitude to each other.").

   Allowing personal damages litigation between servicemen will
significantly impair the ability of the armed forces to foster these
relationships.  As we have said, military life inevitably creates
tensions and imposes burdens on servicemen.  These tensions will not
be resolved in a way that gives rise to the necessary bonds of
obedience and mutual responsibility if servicemen are permitted to
view their superiors as potential defendants, capable of being brought
before a civilian court and forced to account for their actions under
the threat of massive liability.  The availability of civil litigation
encourages certain attitudes and habits of thought -- that a
superior's orders are subject to challenge, review, and
second-guessing;  that a superior can be called to account, at the
behest of a subordinate and on almost any matter, before outside
authorities who do not share the military perspective;  /5/ and that a
serviceman can impose serious inconvenience on a superior and
effectively threaten him with financial ruin.  While comparable
attitudes toward authority may or may not be acceptable in civilian
life, merely to describe these attitudes is to demonstrate their
incompatibility with military discipline.

   Civil damages litigation is only one "particular private remedy for
alleged misconduct";  it may be precluded in certain contexts "in
order to advance compelling public ends." Nixon v. Fitzgerald, supra,
slip op. 25.  "(I)t is not true that our jurisprudence ordinarily
supplies a remedy in civil damages for every legal wrong." Id. at 22
n.37.  Just as certain incidents of adversary criminal procedure are
not suited to the military (see Ex parte Quirin, 317 U.S. 1, 40
(1942)), so the attitudes spawned by the availability of adversary
civil litigation for damages are inconsistent with the proper
relationship between a military superior and his subordinates.  See
Middendorf v. Henry, 425 U.S. 25, 35-37 (1976), citing In re Gault,
387 U.S. 1 (1967) (comparing certain military proceedings to juvenile
proceedings).

   b. We emphasize in this connection the remedies that Congress has
specifically prescribed for servicemen with grievances like
respondents'.  First, the Board for the Correction of Naval Records,
which is composed of civilians appointed by the Secretary of the Navy,
provides a forum in which a serviceman is entitled to challenge, among
other things, an allegedly discriminatory performance evaluation or
promotion decision.  See 10 U.S.C. (& Supp. V) 1552.  The Board may
hold a hearing on a serviceman's claim, and if it denies the claim it
must provide the serviceman a statement of its reasons.  See 32 C.F.R.
723.3(e)(2), (4), (5), 723.4, 723.5.  Congress has vested the
Secretary of the Navy, acting through the Board, with plenary power to
"correct an error or remove an injustice" (10 U.S.C. (& Supp. V)
1552(a));  in appropriate cases the Board may issue orders leading to
a retroactive promotion or an award of back pay.  See 10 U.S.C.
1552(c).  Board decisions are subject to judicial review and can be
set aside if they are arbitrary and capricious or not based on
substantial evidence.  See, e.g., Grieg v. United States, 640 F.2d
1261 (Ct. Cl. 1981), cert. denied, 455 U.S. 907 (1982);  Thornton v.
Coffey, 618 F.2d 686, 692 (10th Cir. 1980);  Knehans v. Alexander, 566
F.2d 312, 315 (D.C. Cir. 1977), cert. denied, 435 U.S. 995 (1978).

   Another, even more comprehensive military remedy is Article 138 of
the Uniform Code of Military Justice, 10 U.S.C. 938, which provides
that "(a)ny member of the armed forces who believes himself wronged by
his commanding officer," and who is denied relief by that officer,
"may complain to any superior commissioned officer, who shall forward
the complaint to the officer excercising general court-martial
jurisdiction over the officer against whom it is made." See 10 U.S.C.
822.  The officer exercising general court-martial jurisdiction "shall
examine into the complaint," and is authorized to "take proper
measures for redressing the wrong complained of * * *." This chain of
command grievance procedure enables a serviceman to challenge even
actions that are not reflected in military records.  Congress has also
provided that servicemen who consider informal disciplinary actions
taken under 10 U.S.C. 815 -- such as the $50 fine imposed on
respondent Lemons -- to be "unjust or disproportionate" may "appeal to
the next superior authority," and the appeal "shall be promptly
forwarded and decided" (10 U.S.C. 815(e)).  The superior officer may
mitigate the punishment or set it aside.  10 U.S.C. 815(d) and (e).

   The armed forces have devoted special attention to racial
discrimination.  The Navy, for example, requires each command to
establish a Human Relations Council that includes representatives of
the ethnic and racial groups within the command, and has assigned a
full-time equal opportunity assistant to each command;  the assistants
and councils consider problems relating to discrimination and advise
commanders on the effectiveness of their antidiscrimination and
affirmative action efforts.  Office of the Chief of Naval Operations,
Department of the Navy, Equal Opportunity Manual II-1 to II-3 (1978).
The Navy also specifically enjoins all forms of discrimination, /6/
requires the reporting of racial incidents, and provides a chain of
command procedure for the consideration of servicemen's complaints of
discrimination (id. at IV-1 to IV-2;  V-1 to V-2).  An officer who
discriminates against his subordinates or otherwise mistreats them can
be punished, by court-martial if appropriate, under any of several
Articles of the Uniform Code of Military Justice (10 U.S.C. 892, 893,
933, 934) and subject to penalties ranging from censure to
imprisonment.

   These remedies established by Congress and the Navy, unlike the
Bivens remedy created by the court of appeals, preserve the military
chain of command.  If officers act wrongfully toward servicemen, they
are subject to discipline imposed by their military superiors.  The
military remedies provide a means for servicemen to gain relief from
an arbitrary or discriminatory act by a superior officer, but they do
so in a way that does not disrupt the internal coherence of the
military community or subvert the hierarchical relationships that are
essential to military discipline.  The Corrections Board provides a
civilian forum -- although one familiar with the mores of the military
(see Noyd v. Bond, supra, 395 U.S. at 694) -- in which a serviceman
will be able to seek relief for almost any significant grievance, and
its decisions are subject to judicial review.  While some servicemen
would undoubtedly prefer to seek large damages awards from their
superior officers, there is no reason to doubt that the remedies
established by Congress and the military will provide adequate relief
for legitimate complaints of unlawful conduct.

   4. The court of appeals considered the special dangers of personal
damages litigation only in connection with its discussion of
petitioners' immunity.  See Pet. App. 4a, 16a n.9.  For a number of
reasons, its consideration of these dangers was inadequate.  First,
the court of appeals did not distinguish between damages suits against
military officials brought by servicemen and damages suits brought by
civilians.  Cf. Scheuer v. Rhodes, 416 U.S. 232 (1974).  As we have
explained, suits brought by servicemen are an especially great threat
to military discipline, and the policy considerations supporting an
absolute bar against such suits are particularly compelling.  /7/ The
Court has said that public officials will be accorded an absolute
immunity if they exercise "special functions" (Harlow v. Fitzgerald,
supra, slip op. 7;  Butz v. Economou, supra, 438 U.S. at 507), and the
functions of military commanders are without parallel in our society:
their commands require strict and immediate obedience, and they must
prepare their subordinates for, and often subject them to,
extraordinary risks.  Moreover, military commanders' functions are
central to the protection of the national security.  See Harlow v.
Fitzgerald, supra, slip op. 11 & nn.18, 19.  It is therefore
particularly important to protect them "from undue interference with
their duties and from potentially disabling threats of liability" so
as to ensure "the unhesitating performance of functions vital to the
national interest" (id. at 5, 11).

   For these reasons, the court of appeals erred in failing to
recognize that the policies underlying immunity doctrines also
strongly oppose the imposition of damages liability on military
officers for acts taken in their official capacity, at least in suits
brought by servicemen.  Indeed, these policies, in addition to
counselling against the creation of a Bivens remedy, can be understood
to justify an absolute immunity protecting military commanders from
their subordinates' suits for damages;  several courts have ruled that
servicemen's suits against their superior officers are precluded by an
"intra-military immunity." See, e.g., Laswell v. Brown, supra, 683
F.2d at 262, 268-269;  Thornwell v. United States, 471 F. Supp. 344,
347-348 (D.D.C. 1797);  Misko v. United States, 453 F. Supp. 513, 515
(D.D.C. 1978), aff'd, 593 F.2d 1371 (D.C. Cir. 1979).  See also Hass
v. United States, 518 F.2d 1138, 1142-1143 (4th Cir. 1975);  Bailey v.
DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923 (1967).
The terminology is unimportant:  whether the question is viewed as one
of immunity or of the appropriateness of a Bivens remedy, these
courts, unlike the court of appeals, have correctly recognized that
the special concerns arising in the military context require that
servicemen not be allowed to sue their superior officers for damages.

   The more fundamental defect in the court of appeals' approach,
however, was its failure to consider the separation of powers problems
raised by its decision to accord servicemen a personal damages remedy
against military commanders.  See Harlow v. Fitzgerald, supra, slip
op. 5 n.10, 19 n.36 (distinguishing between question whether an
implied right of action for damages should be created and immunity
question);  Butz v. Economou, supra, 438 U.S. at 486, 503 (same).
Congress has broad power to create or preclude remedies for
constitutional violations.  See, e.g., Cary v. Curtis, 44 U.S. (3
How.) 236, 250 (1845);  Hart, The Power of Congress to Limit the
Jurisdiction of Federal Courts:  An Exercise in Dialectic, 66 Harv. L.
Rev. 1362, 1366-1367 (1953).  As we have shown (see pages 15-20,
supra), the primacy of Congress in creating remedies is greatest in
the military context, and the Court has been unwilling to allow any
remedy that might interfere with military discipline or undermine the
command relationship, even when an Act of Congress arguably permitted
that remedy.  Congress has given no indication that it intended to
grant servicemen a personal damages remedy against their superiors;
/8/ instead, it has established remedies that have a structure
fundamentally inconsistent with that of a Bivens remedy.  By assuming
that respondents may bring a Bivens action and considering instead the
question of petitioners' immunity from damages liability, the court of
appeals obscured the extent to which courts depart from their proper
role when they create, in the military context, a remedy that
interferes with military discipline.  See Burns v. Wilson, supra, 346
U.S. at 140 (footnote omitted):

      (T)he rights of men in the armed forces must perforce be
      conditioned to meet certain overriding demands of discipline and
      duty, and the civil courts are not the agencies which must
      determine the precise balance to be struck in this adjustment.
      The Framers expressly entrusted that task to Congress.

   For similar reasons, Wilkes v. Dinsman, 48 U.S. (7 How.) 83 (1849),
on writ of error after a new trial, 53 U.S. (12 How.) 389 (1851) -- on
which both the court of appeals (Pet. App. 5a, 13a) and respondents
(Br. in Opp. 8, 10-11) relied -- is of limited relevance to this case.
 In Wilkes, the plaintiff alleged a common law tort (see 48 U.S. (7
How.) at 89, 121), not a constitutional violation.  The question
whether a damages remedy should be created under the Constitution was,
therefore, not presented in that case.  Moreover, Wilkes arose at a
time when the armed forces were far smaller, and when Congress had not
addressed the question of how to remedy servicemen's grievances and
had not established the elaborate alternative remedial schemes that
were available to respondents.  In those circumstances, there was far
more justification for a court to allow a civil damages action, based
on ancient common law principles, to go forward.  The court of
appeals, by contrast, created a new remedy, unauthorized by Congress,
in the context of a large standing military, carefully regulated by
Congress and the Executive Branch, in which the problems of
maintaining order and discipline are proportionately greater, and in
which servicemen are far more likely to resort to litigation.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL McGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   ROBERT E. KOPP

   JOHN F. CORDES

      Attorney

   JANUARY 1983

   /1/ Petitioner Chappell was the Commanding Officer of the Decatur;
petitioner Schultz, the Engineering Officer;  petitioner Viafore, the
Executive Officer;  petitioner Jordan, the Operations Officer;
petitioner Bianco, the Supply Officer;  Petitioner McCannon, the Chief
of the Engineering Department;  petitioner Lamser, the Chief of the
Electrical Division;  and petitioner Papa, the Chief of the Supply
Department.  J.A. 4-5.

   /2/ Each respondent also alleged a conspiracy among certain of the
petitioners "to deprive (him) of his rights under the Constitution and
laws of the United States in violation of" 42 U.S.C. 1985.  J.A. 8,
10, 12, 14, 16.

   We note that several black servicemen on board the Decatur,
including the ship's equal employment opportunity officer, not only
did not join respondents' suit but filed affidavits in support of
petitioners.  Excerpt of Documents (filed in the court of appeals)
40-45.

   /3/ The court of appeals also held that respondents were required
to exhaust their administrative remedies, but it vacated the district
court's decision that they had not done so here and instructed the
district court to reconsider the issue (Pet. App. 3a n.2, 20a).

   /4/ The court of appeals required that a serviceman exhaust his
military remedies before bringing a constitutional damages action.
See Pet. App. 7a, 10a.  Respondents have not challenged this
requirement in this Court, and we agree that, if servicemen are to be
permitted to bring Bivens actions, they should first be required to
exhaust military remedies.  See, e.g., Schlesinger v. Councilman,
supra;  Noyd v. Bond, 395 U.S. 683 (1969);  Gusik v. Schilder, 340
U.S. 128 (1950).  While the military remedies will not enable
plaintiffs to recover everything they might seek in a Bivens action, a
complaining serviceman may be satisfied by the relief he receives
through the administrative procedures, and the dispute may therefore
be settled without resort to litigation.

   Nonetheless, if a serviceman were not satisfied by the relief he
obtained through military channels, and persisted in his Bivens suit,
the trial of his claim would necessarily require a judicial
reexamination of military decisions and orders.  See also Kremer v.
Chemical Construction Corp., 456 U.S. 461 (1982);  United States v.
Utah Construction & Mining Co., 384 U.S. 394, 399, 421-422 (1966).

   /5/ See Jefferson v. United States, 178 F.2d 518, 520 (4th Cir.
1949), aff'd sub nom.  Feres v. United States, supra ("(E)ssential
military discipline would be impaired by subjecting the command to the
public criticism and rebuke of any member of the armed forces who
chose to bring a suit.").

   /6/ The Equal Opportunity Manual specifies, for example (at II-10),
that "(c)ommanders should not attempt to avoid any unpleasantness or
friction with local citizens through practices such as segregating
shore patrol teams (or) assigning minority service members to shore
patrol duty only in minority sections of town * * *."

   /7/ For this reason, in this case, unlike Davis v. Passman, supra,
442 U.S. at 246, and Carlson v. Green, supra, 446 U.S. at 19, the
special factors counselling hesitation in according servicemen a
damages action against military officials are far broader than -- not
"coextensive" with -- the officials' immunity against all personal
damages actions challenging their official acts.

   /8/ Indeed, Congress did not extend Title VII of the Civil Rights
Act of 1964 to the military.  Johnson v. Alexander, 572 F.2d 1219 (8th
Cir.), cert. denied, 439 U.S. 986 (1978).  Title VII provides
comprehensive administrative and judicial remedies for racial
discrimination in federal employment (see 42 U.S.C. (& Supp. IV)
2000e-16), but certain features of those remedies, including de novo
judicial review (see Chandler v. Roudebush, 425 U.S. 840 (1976)),
obviously are incompatible with military requirements, for the reasons
we discuss in the text.

   Respondents have claimed damages under 42 U.S.C. 1985(3).  It is
questionable whether that statute, passed during Reconstruction, was
meant to apply to federal officials.  Compare Mack v. Alexander, 575
F.2d 488, 489 (5th Cir. 1978), with Gillespie v. Civiletti, 629 F.2d
637, 641 (9th Cir. 1980).  Moreover, the court of appeals, following
this Court's approach to 42 U.S.C. 1983, a similar, broad remedial
statute (see Butz v. Economou, supra, 438 U.S. at 500-501, 504), held
that respondents' claim under 42 U.S.C. 1985(3) would be governed by
the same principles that apply to implied constitutional causes of
action.  See Pet. App. 8a-9a n.5.  In any event, in light of the
Court's decision in Feres that Congress did not intend the Federal
Tort Claims Act to permit servicemen to sue the government for
damages, it is wholly implausible to suggest that Congress intended
Section 1985(3) -- which, unlike the FTCA, reflects no indication
whatever of congressional intent to permit servicemen's suits -- to be
the basis of far more disruptive suits by servicemen against
individual officials.