462 U.S.

296
103 S.Ct. 2362
76 L.Ed.2d 586

George C. CHAPPELL, et al., Petitioners

v.
Vernon WALLACE et al.
No. 82-167.
Argued April 26, 1983.
Decided June 13, 1983.

Syllabus
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 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. 298-305.
661 F.2d 729 (9th Cir., 1981), reversed and remanded.
J. Paul McGrath, Washington, D.C., for petitioners.
John Murcko, San Francisco, Cal., for respondents.
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.

* 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 U ited States, including the right not to be discriminated against
because of [their] race, color or previous condition of servitude. . . ." App. 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.

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 (CA9 1981). The Court of Appeals assumed that Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971), authorized the award of damages for the constitutional

violations alleged in their complaint, unless the actions complained of were

either 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.
6

We granted certiorari, --- U.S. ----, 103 S.Ct. 292, 75 L.Ed.2d ---- (1982), and
we reverse.

II
7

This Court's holding in Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 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 counselling hesitation" are present. Id., at
396, 91 S.Ct., at 2005. See also Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct.
1468, 1471, 64 L.Ed.2d 15 (1980). Before a Bivens remedy may be fashioned,
therefore, a court must take into account any "special factors counselling
hesitation." See Bush v. Lucas, --- U.S. ----, ----, 103 S.Ct. 2404, 2411, 75
L.Ed.2d --- (1983).

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, 71 S.Ct. 153, 95 L.Ed. 152 (1950). There 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 138, 71 S.Ct., at 155. 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 142, 71 S.Ct., at 157, 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 personnelnoting that no such liability existed
before the Federal Tort Claims Actand 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 144, 71 S.Ct., at
158. As the Court has since recognized, "[i]n the last analysis, Feres seems best
explained by the 'pecu iar and special relationship of the soldier to his
superiors, [and] the effects on the maintenance of such suits on discipline . . . .'
" United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1858, 10 L.Ed.2d
805 (1963), quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141,
143, 99 L.Ed. 139 (1954). See also Parker v. Levy, 417 U.S. 733, 743-744, 94
S.Ct. 2547, 2555-2556, 41 L.Ed.2d 439 (1974); Stencel Aero Engineering
Corp. v. United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 2058-2059, 52
L.Ed.2d 665 (1977). Although this case concerns the limitations on the type of
nonstatutory damage 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.
9

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, 417 U.S., at 743-744, 94 S.Ct.,
at 2555-2556; Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97
L.Ed. 842 (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, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (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, 348 U.S., at 112, 75
S.Ct., at 143; see In re Grimley, 137 U.S. 147, 153, 11 S.Ct. 54, 55, 34 L.Ed.
636 (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, 140, 73 S.Ct. 1045, 1048, 97
L.Ed. 1508 (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 has 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.
10

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 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 has 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.

11

Congress' authority in this area, and the distance between military and civilian
life, was summed up by the Court in Orloff v. Willoughby, supra, 345 U.S., t
93-94, 73 S.Ct., at 540:

12

"[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."

13

Only recently we restated this principle in Rostker v. Goldberg, 453 U.S. 57,
64-65, 101 S.Ct. 2646, 2651, 69 L.Ed.2d 478 (1981):

14

"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."

15

In Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (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" of a state's National Guard. In denying relief we stated:

16

"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 responsibleas the Judicial Branch is notto 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 10, 93 S.Ct., at 2446
(emphasis in original).
17

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 Article 138
of the Uniform Code of Military Justice, 10 U.S.C. 938, which provides:

18

"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
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."

19

The Board for the 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 challenged within the framework of this intramilitary
administrative procedure. Under the Board's procedures, one ggrieved 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. The Board is empowered to order retroactive
back pay 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, 640 F.2d 1261
(Ct.Cl.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444
(1982); Sanders v. United States, 594 F.2d 804 (Ct.Cl.1979).1
20

The special status of the military has required, the Constitution contemplated,
Congress has created and this Court has long recognized two systems of justice,
to some extent parallel: one for civilians and one for military personnel. Burns
v. Wilson, supra, 346 U.S., at 140, 73 S.Ct., at 1047-1048. 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, supra,
431 U.S., at 676, 97 S.Ct., at 2060 (MARSHALL, J., dissenting), quoting
United States v. Brown, supra, 348 U.S., at 112, 75 S.Ct., at 143.

21

Also, Congress, the constitutionally authorized source of authority over the

military system of justice, has not provided a damage 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.

22

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, supra.

III
23

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." E. 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, 100 S.Ct. 609, 62 L.Ed.2d 540 (1980); Parker v. Levy, 417 U.S. 733, 94
S.Ct. 2547, 41 L.Ed.2d 439 (1974); Frontiero v. Richardson, 411 U.S. 677, 93
S.Ct. 1764, 36 L.Ed.2d 583 (1973). But the special relationships that define
military life have "supported the military establishment's 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." E. Warren, supra, 37 N.Y.U.L.Rev., at 187.
24

We hold that enlisted military personnel may not maintain a suit to re over
damages from a superior officer for alleged constitutional violations.2 The
judgment of the Court of Appeals is reversed and the case is remanded for
further proceedings consistent with this opinion.3

25

Reversed and Remanded.

The record shows that one of the respondents availed himself of his remedy
before the Board for the 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.

Respondents and the Court of Appeals rely on Wilkes v. Dinsman, 7 How. 89

(1849), 12 How. 389, 12 L.Ed. 618 (1851). 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.

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.