Wright v. Park

• Court: Court of Appeals for the First Circuit
• Decided: October 4, 1993
• Docket: 93-1206
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-1206

RICHARD L. WRIGHT,

                                Plaintiff, Appellant,

                                          v.

                               ERNEST C. PARK, ET AL.,

                                Defendants, Appellees.

_________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

_________________________

                                        Before

                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________

_________________________

               Peter A. Anderson for appellant.
               _________________
               Michael M. DuBose,  Assistant United  States Attorney,  with
               _________________
          whom  Jay P.  McCloskey,  United States  Attorney, and  George P.
                _________________                                 _________
          Dilworth, Assistant  United States  Attorney, were on  brief, for
          ____________________________________________
          appellees.

_________________________

October 4, 1993

_________________________

SELYA,  Circuit  Judge.   This  appeal  requires us  to
                    SELYA,  Circuit  Judge.
                            ______________

          consider whether  civil rights actions can  be maintained against

          military officers  in the chain  of command  by persons  employed

          under the National Guard Technician Act of 1968 (Technician Act),

          32  U.S.C.    709  (1988).   The  district court  granted summary

          judgment   because   it   deemed   plaintiff's   claims   to   be

          nonjusticiable.   See  Wright v. Park,  811 F. Supp.  726 (D. Me.
                            ___  ______    ____

          1993).  Although  our reasoning  differs from that  of the  court

          below, we affirm.

          I.  BACKGROUND
          I.  BACKGROUND

                    The  facts,  insofar  as   they  are  germane  to  this

          proceeding,  are  not  seriously disputed.    Plaintiff-appellant

          Richard L. Wright served  from 1970 to 1990  in a dual  civilian-

          military capacity as a technician at the Air National Guard (ANG)

          base  in Bangor,  Maine.   Wearing  his  civilian hat,  appellant

          served during the  last three years of the period  as an aircraft

          maintenance  specialist.   Wearing  his military  hat, he  served

          during  that same  period  as deputy  commander for  maintenance,

          101st Air  Refueling Wing, and as a colonel in the Maine ANG.  In

          these  positions, appellant supervised  approximately 450 persons

          attached to the maintenance unit, including 130 technicians.  His

          primary  mission was to keep  Bangor-based military aircraft in a

          state of combat preparedness, and to train others to do the same.

                    On March  2, 1990,  Major General Ernest  Park notified

          appellant  of his  forthcoming  reassignment to  the position  of

          flight  instructor.    In  compliance  with  Technician Personnel

2

Regulation No. 15,  2-5,1  Park's letter informed appellant that,

          if  he abjured reassignment, the letter itself would be deemed to

          operate as  a  30-day  termination  notice.   Appellant  did  not

          welcome  the news:  while the proposed shift in duties endangered

          neither his pay nor his benefits,  it promised to remove him from

          the  maintenance  unit  and  divorce  him  from  all  supervisory

          responsibilities.      Consequently,   appellant   rejected   the

          reassignment.  In due course, the threatened termination became a

          reality.  Park  relieved appellant  of his duties  as a  civilian

          aircraft  maintenance  specialist  and  as deputy  commander  for

          maintenance, while leaving intact his military rank.

                    His  several  hats  askew,  appellant  brought  suit in

          federal district court against General Park and others presumably

          responsible  for cashiering him.   He  claimed that  his habitual

          whistleblowing   during his tenure as maintenance officer, he had

          filed  repeated reports of safety violations, as well as a report

          charging  General  Park with  the  unauthorized  use of  military

          aircraft   prompted a cabal of high-ranking officers to retaliate

          against him and,  ultimately, strip him of his job.2   His second

          amended complaint  (the  operative  document  for  our  purposes)

          alleges  that the named defendants    Generals Park, Eremita, and
                              
          ____________________

               1Regulation No.  15, promulgated  by the Secretaries  of the
          Army and Air Force pursuant to 32 U.S.C.   709(a) (1988),  covers
          a wide range of personnel matters.  Section 2-5 thereof addresses
          non-disciplinary,  management-directed  reassignments of  persons
          employed under the Technician Act.

               2Defendants deny these  charges, contending that appellant's
          reassignment  was justified  by  discipline problems  within  the
          maintenance unit and by the need to bolster flagging morale.

                                          3

Durgin, and  Colonel Hessert   thereby violated  the Civil Rights

          Act, 42  U.S.C.    1983,  1985 (1988), the  federal whistleblower

          statute,   5  U.S.C.        2301-2302  (1988),   and  the   state

          whistleblower law, 26 M.R.S.A.    831-840 (1988).

                    The federal district court consolidated the case with a

          related  case.3    On   January  26,  1993,  the  court   granted

          defendants'  motion for  summary judgment,  holding  in substance

          that the dispute concerned a nonjusticiable military controversy.

          See Wright v. Park, 811 F. Supp.  at 732.  It reached this result
          ___ ______    ____

          by applying  the analytic framework first suggested  in Mindes v.
                                                                  ______

          Seaman, 453  F.2d 197, 201-02  (5th Cir. 1971),  and subsequently
          ______

          adopted by this court in Penagaricano v. Llenza, 747 F.2d 55, 60-
                                   ____________    ______

          61 (1st Cir. 1984).

                    The appeal  from the district court's judgment presents

          a pair of interrelated  issues:  separability and justiciability.

          Thus,  we   must  make   two  inquiries:     Assuming  defendants

          discriminated against  appellant, can  appellant be said  to have

          suffered injury in his capacity as a civilian worker, independent

          of  his military  role?    (2) If  not,  i.e.,  if appellant  was
                                                   ____

____________________

               3An investigator for the Maine Human Rights Commission found
          reason  to   believe   that  defendants   discriminated   against
          appellant, and the Commission joined with appellant to bring suit
          in federal district court.   A parallel state action  was removed
          to federal court and then consolidated with  the original action.
          After  the Maine  Supreme  Judicial  Court  held that  the  state
          whistleblower law  does not pertain to  National Guard personnel,
          see  Maine  Human  Rights Comm'n  v.  Maine  Dep't  of Defense  &
          ___  ___________________________      ___________________________
          Veterans'  Servs.,  627  A.2d  1005 (Me.  1993),  the  Commission
          _________________
          dropped  its appeal from the  judgment below.   The parties agree
          that the state-law issues  are now moot and, consequently,  we do
          not address them.

                                          4

injured, rather, in  his military capacity,  can his injury  form

          the  basis  for a  justiciable  civil  rights claim  against  the

          defendants (all  of whom are  military officers)?   To complicate

          matters, answering the  second query will require us to reexamine

          our governing precedent on justiciability in light of recent case

          law elsewhere.

          II.  AN OFFICER AND A GENTLEMAN
          II.  AN OFFICER AND A GENTLEMAN

                    Appellant,  who remains  a colonel  in the  ANG, argues

          strenuously that, for purposes of  this case, his civilian status

          may  be disentangled from his military status, and that he should

          be  free to sue for  discrimination implicating the  former.  But

          this balkanization  of technicians' work is  belied by Congress's

          description  of the functions that  ANG technicians serve, by the

          unmistakable intendment  of the Technician Act  (the statute that

          Congress  enacted in 1968 to regulate such personnel), and by the

          resulting  ties  that  bind technicians'  civilian  and  military

          roles.

                    The  Technician  Act  makes  technicians  eligible  for

          military employment  benefits and, in so doing,  seeks to improve

          national  security by  facilitating the recruitment  of qualified

          individuals.   See American Fed'n of Gov't Employees v. FLRA, 730
                         ___ _________________________________    ____

          F.2d  1534,  1542-47  (D.C.  Cir.  1984)  (analyzing  legislative

          history).  The Act provides in relevant part that persons may  be

          employed as technicians  only "[u]nder regulations prescribed  by

          the Secretary  of  the [relevant  military branch].  . .  ."   32

          U.S.C.   709(a).  Each such technician "shall, while so employed,

5

be  a member of  the National Guard  and hold the  military grade

          specified  by the  Secretary concerned  for that  position."   32

          U.S.C.     709(b).    In  substance,  then,  the  Technician  Act

          evidences  Congress's intention that technicians, while retaining

          their positions as civil  employees outside the competitive civil

          service,  will   serve  simultaneously   as   employees  of   the

          appropriate military department, subject to its regulation.

                    It  is axiomatic that the National Guard is military in

          character.   See  H.R.  Rep.  No.  1823,  90th  Cong.  2d  Sess.,
                       ___

          reprinted  in  1968  U.S.C.C.A.N.  3318,  3319  (recognizing  the
          _________  __

          "military characteristics of  the National Guard").   We think it

          follows that technicians are martial in character.  Indeed, under

          the   Technician  Act's   composite   regime,   technicians   are

          considerably   more  than   nominal  members   of   the  military

          establishment.   In  referring to  the National  Guard's mission,

          Congress termed it "essential"  as a matter of  "military policy"

          that "the strength and organization of the [National Guard] as an

          integral part  of the first line defenses of the United States be

          maintained and assured at all times."  32 U.S.C.    102.  Because

          National Guard technicians serve as the Guard's support staff and

          are, in  fact, those whose job  it is to maintain  and assure the

          Guard's strength and organization, they are indispensable to this

          nation's  defense.  See, e.g.,  32 U.S.C.    709(a) (assigning to
                              ___  ____

          technicians  such  distinctively  military  tasks   as  "(1)  the

          administration and training  of the National  Guard; and (2)  the

          maintenance and repair  of supplies issued to the  National Guard

6

or the armed services").  Nor do technicians merely perform tasks

          that have a military ring to them; the record reflects that fully

          one-half  of appellant's  outfit, the  101st Air  Refueling Wing,

          served in Operation Desert Storm or Desert Shield.

                    Given this  mise-en-scene, it is  unsurprising that, no
                                ____ __ _____

          matter  the  context,  every  court having  occasion  closely  to

          consider  the   capacity  of   National  Guard  technicians   has

          determined that  capacity to  be irreducibly military  in nature.

          See, e.g., Stauber v. Cline, 837 F.2d 395, 399 (9th  Cir.), cert.
          ___  ____  _______    _____                                 _____

          denied,  488 U.S. 817 (1988);  Illinois Nat'l Guard  v. FLRA, 854
          ______                         ____________________     ____

          F.2d 1396, 1398  (D.C. Cir.  1988); American Fed'n,  730 F.2d  at
                                              ______________

          1545-46; New Jersey Air  Nat'l Guard v.  FLRA, 677 F.2d 276,  279
                   ___________________________     ____

          (3d  Cir.), cert. denied, 459 U.S. 988 (1982); Nesmith v. Fulton,
                      _____ ______                       _______    ______

          615  F.2d 196, 200-01  (5th Cir. 1980).   We, too, conclude that,

          since  National  Guard  technicians'  positions  are  encompassed

          within  a military  organization and  require the  performance of

          work  directly related  to national  defense, such  positions are

          themselves military in nature.

                    Appellant strives valiantly to  elude the grasp of this

          logic.  He says that his situation is different; it falls outside

          the mine  run of  previous cases because  he was ousted  from his

          civilian employment  without being  terminated from  his military

          post.  This asseveration cannot withstand scrutiny.

                    For  one  thing,  appellant  mischaracterizes  his  own

          situation:  though he retains his commission as  a colonel in the

          ANG, the  injury  of which  he  complains has  had  repercussions

7

beyond  the  loss  of his  civilian  mantle.   He  also  has been

          dismissed from the post  of deputy commander for maintenance    a

          post which he admits is  military in nature.  For another  thing,

          appellant's self-portrait, even as  he has painted it, is  not an

          original.    In  Nesmith,  for example,  the  plaintiff  lost his
                           _______

          civilian  post prior to the  eventual loss of  his military post.

          Nesmith, 615 F.2d  at 197.   The court took  care to analyze  the
          _______

          initial dismissal independently, yet  reached the same conclusion

          as  other courts  that  have considered  the  question:   an  ANG

          technician's  two identities are not  scissile.  See  id. at 201;
                                                           ___  ___

          see  also  Stauber,  837 F.2d  at  399  (holding  that an  injury
          ___  ____  _______

          occurring in the course of plaintiff's civilian employment  as an

          ANG  technician  arose incident  to  military  service); cf.  New
                                                                   ___  ___

          Jersey  Air  Nat'l  Guard, 677  F.2d  at  279  (holding that  the
          _________________________

          Technician Act grants adjutants general final discretion relating

          to discipline and discharge of ANG technicians).

                    We  rule, therefore, that while a technician's job is a

          composite, containing  both  civilian and  military  pieces,  the

          job's dual aspects are inseparable; they are, like Chang and Eng,

          joined at the  chest.  And  from the fact  that the  technician's

          several roles  are inextricably intertwined, it  follows that the

          adverse   employment  action  against  which  appellant  inveighs

          necessarily  implicates  his military  as  well  as his  civilian

          status.  In other words, Colonel Wright, for present purposes, is

          both an officer and a gentleman.

          III.  NO CLEARANCE FOR TAKEOFF
          III.  NO CLEARANCE FOR TAKEOFF

8

Having   answered  the  separability  question  in  the

          negative,  we  proceed to  the  question  of justiciability.  The

          touchstone  of our inquiry is  Chappell v. Wallace,  462 U.S. 296
                                         ________    _______

          (1983).    Chappell  held  that  "[t]aken  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  with  a  Bivens-type  remedy  against  their
                                        ______

          superior  officers."    Id.  at 304  (citation  omitted).4    The
                                  ___

          Chappell Court  placed particular emphasis on the  first of these
          ________

          two factors:

                    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  [v.  United
                                               _____       ______
                    States,  340 U.S.  135  (1950)],  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."

          Id. (citations omitted).
          ___

                    Chappell broke new ground, and courts across the nation
                    ________

____________________

               4When the Chappell Court wrote about a "Bivens-type" remedy,
                         ________                      ______
          it had  in mind Bivens v. Six Unknown Named Agents of the Federal
                          ______    _______________________________________
          Bureau  of Narcotics,  403 U.S. 388  (1971).  Bivens  is the case
          ____________________                          ______
          establishing,  as  a  general  proposition,  that  victims  of  a
          constitutional violation  perpetrated by a federal  actor may sue
          the  offender for damages in federal court despite the absence of
          explicit statutory authorization for such suits.  See  Carlson v.
                                                            ___  _______
          Green, 446 U.S. 14, 18 (1980) (restating Bivens rule); Morales v.
          _____                                    ______        _______
          Ramirez, 906 F.2d 784, 786 (1st Cir. 1990) (same).
          _______

                                          9

vigorously debated  whether to  read  it narrowly,  based on  its

          holding, or  to read  it broadly,  based on  its reasoning.   See
                                                                        ___

          Jorden v. National Guard Bureau, 799 F.2d 99,  107 (3d Cir. 1986)
          ______    _____________________

          (surveying  case law), cert. denied, 484 U.S. 815 (1987).  Within
                                 _____ ______

          a year  after Chappell emerged, this  court decided Penagaricano,
                        ________                              ____________

          747 F.2d  55, a case  involving facts  similar to  those we  sift

          today.  There, an ANG technician, having been discharged, alleged

          a conspiracy  to  end  his  employment  in  retaliation  for  his

          political ideas  and affiliations.  See id.  at 58.  In upholding
                                              ___ ___

          the dismissal of plaintiff's claim, we took pains to  acknowledge

          the relevance  of Chappell's emphasis  on "the importance  of the
                            ________

          military's decisionmaking autonomy," id. at 59, took into account
                                               ___

          the   factors  identified  by  Chappell  as  counselling  against
                                         ________

          justiciability in the military context,  id. at 59-60, and  noted
                                                   ___

          that Chappell suggested a "predisposition to decline review," id.
               ________                                                 ___

          at  64.   Nevertheless,  believing that  the holding  in Chappell
                                                                   ________

          should be  confined to  the context of  enlisted personnel  suing

          superior  officers, we  declined to  cede it  controlling effect.

          See id. at 59.  Thus, although we ultimately found Penagaricano's
          ___ ___

          claim to be nonjusticiable, we based that finding not on Chappell
                                                                   ________

          but on an application of the  balancing test limned by the  Fifth

          Circuit in Mindes,  453 F.2d  at 201-02.   See Penagaricano,  747
                     ______                          ___ ____________

          F.2d at 60-61.

                    Time has shed new  light on the debate over  Chappell's
                                                                 ________

          doctrinal  reach.   In  United States  v.  Stanley, 483  U.S. 669
                                  _____________      _______

          (1987)    a case which the Court accepted for review specifically

10

to  resolve  the  controversy   over  the  proper  dimensions  of

          Chappell,  see id. at 676   the Justices came down on the side of
          ________   ___ ___

          the broad constructionists.  While conceding that "no holding can

          be broader than the facts before it," and that some of Chappell's
                                                                 ________

          language focused explicitly on the officer/subordinate dichotomy,

          id. at 680, the Stanley Court pointed out that Chappell had self-
          ___             _______                        ________

          consciously patterned its  analysis after Feres    the case  that
                                                    _____

          barred tort liability  for injuries that "arise out of  or are in

          the course of activity incident to [military] service."  Stanley,
                                                                   _______

          483 U.S. at  684 (quoting Feres,  340 U.S. at  146).  Given  this
                                    _____

          symbiotic  relationship between Feres  and Chappell,  the Stanley
                                          _____      ________       _______

          Court concluded  that the Chappell  approach should apply  to all
                                    ________

          activities performed "incident to  service" rather than merely to

          activities  performed  within  the   officer/subordinate  sphere.

          Stanley, 483 U.S. at  680-81.  In this sense,  then, Stanley both
          _______                                              _______

          "reaffirm[ed]  the reasoning  of  Chappell," id.  at 683-84,  and
                                            ________   ___

          widened the scope of its holding.

                    Of  critical importance  for present  purposes, Stanley
                                                                    _______

          makes pellucid that the exception to Bivens liability established
                                               ______

          by Chappell is  coextensive with the exception  to tort liability
             ________

          established by Feres and its progeny.5  Consequently,  "no Bivens
                         _____                                       ______

          remedy is available for injuries that "arise out of or are in the

____________________

               5To   call   the  Feres   doctrine   an   exception  is   an
                                 _____
          oversimplification.    Feres is  a  judge-made  exception to  the
                                 _____
          Federal Tort Claims  Act, 28  U.S.C.    1346,  2671-2680 (1988  &
          Supp.  II 1990), itself a statutory  waiver of sovereign immunity
          from  tort liability.  Thus, if tort liability is the rule, Feres
                                                                      _____
          created an exception to an exception to an exception.

                                          11

course of activity  incident to service."   Id. at  684.  We  now
                                                      ___

          join several of our sister circuits in accepting this bright-line

          rule  as the definitive statement on  the justiciability of civil

          rights  claims in  the military  context, including  the National

          Guard.6  And, being  reluctant to leave "derelicts on  the waters

          of  the law," Alabama Pub. Serv.  Comm'n v. Southern Ry. Co., 341
                        __________________________    ________________

          U.S. 341,  357 (1951) (Frankfurter, J.,  concurring), we overrule

          Penagaricano to the extent that it mandates a different rule.7
          ____________

____________________

               6See, e.g.,  Maddick v.  United  States, 978  F.2d 614,  615
                ___  ____   _______     ______________
          (10th  Cir. 1992); Kitowski v. United States, 931 F.2d 1526, 1529
                             ________    _____________
          (11th  Cir.),  cert. denied,  112 S.  Ct.  371 (1991);  Watson v.
                         _____ ______                             ______
          Arkansas Nat'l Guard, 886  F.2d 1004, 1006-07, 1009-10  (8th Cir.
          ____________________
          1989).  We would add, moreover, that several courts, even without
          the benefit  of Stanley's clarification of  Chappell, anticipated
                          _______                     ________
          Stanley  and  adopted a  per  se prohibition  of  damages actions
          _______                  ___  __
          brought  against  military  officers  for alleged  violations  of
          subordinates'  civil rights.  See, e.g., Jorden, 799 F.2d at 107;
                                        ___  ____  ______
          Trerice  v. Summons, 755 F.2d 1081, 1084 (4th Cir. 1985); Mollnow
          _______     _______                                       _______
          v.  Carlton, 716 F.2d 627, 630 (9th Cir. 1983), cert. denied, 465
              _______                                     _____ ______
          U.S. 1100 (1984);  see also  Martelon v. Temple,  747 F.2d  1348,
                             ___ ____  ________    ______
          1350 (10th Cir. 1984), cert. denied,  471 U.S. 1135 (1985).  Most
                                 _____ ______
          significantly for our purposes,  the Fifth Circuit, progenitor of
          the Mindes multifactor test, has abandoned that approach in favor
              ______
          of a per se prohibition.  See Crawford v. Texas Army Nat'l Guard,
               ___ __               ___ ________    ______________________
          794 F.2d 1034,  1036 (5th Cir. 1986).  In  short, Mindes has been
                                                            ______
          banished from its homeland.

               7Although  panel  decisions  of this  court  are  ordinarily
          binding on newly constituted panels, that rule does not obtain in
          instances where, as here, a departure is compelled by controlling
          authority.  In such relatively rare instances, we  have sometimes
          chosen  to  circulate  the  proposed overruling  opinion  to  all
          members of the court prior to publication even though the need to
          overrule  precedent  is reasonably  clear.    See, e.g.,  Trailer
                                                        ___  ____   _______
          Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5  (1st
          ______________________    ______________
          Cir. 1992).  This procedure is, of course, informal, and does not
          preclude a suggestion of rehearing en banc on any issue.

               We have followed that  praxis here and can report  that none
          of the judges of this court has objected to the  panel's analysis
          or to  its conclusion  that the justiciability  regime limned  in
          Penagaricano has outlived its usefulness as precedent.  
          ____________

                                          12

Of course,  Wright's suit invoked the  Civil Rights Act

          rather  than following the Bivens  route.  But  absent a specific
                                     ______

          statutory provision to the contrary, there is no principled basis

          for  according state  actors  sued  under  42  U.S.C.     1983  a

          different  degree  of immunity  than  would  be accorded  federal

          actors sued  for an identical abridgement of rights under Bivens.
                                                                    ______

          See Butz v. Economou, 438 U.S. 478, 500 (1978).   Thus, while the
          ___ ____    ________

          Stanley Court's clarification of Chappell occurred in the context
          _______                          ________

          of  a  Bivens action,  Stanley can  only  be understood  to apply
                 ______          _______

          equally  to civil  rights  claims against  state officials  under

          section 1983 and, for  that matter, under kindred statutes.   See
                                                                        ___

          Watson v. Arkansas  Nat'l Guard,  886 F.2d 1004,  1007 (8th  Cir.
          ______    _____________________

          1989) (collecting  cases construing Chappell rule  to cover suits
                                              ________

          brought under section 1983).   The federal whistleblower statute,

          5 U.S.C.    2301-2302, relied on by appellant in association with

          his  civil  rights claims,  is a  statute that  falls comfortably

          within this generality.   Hence, the district court appropriately

          declined to clear the case for trial.

          IV.  CONCLUSION
          IV.  CONCLUSION

                    We need go no further.  Since a technician's dual roles

          are  too tightly  imbricated to  be pried  apart at  a litigant's

          whim,  appellant  necessarily suffered  the  injury  of which  he

          complains in his military capacity.  See supra Part II.  For that
                                               ___ _____

          reason, the injury arose incident to military service.  See supra
                                                                  ___ _____

          Part III.   In these circumstances,  Stanley applies, and,  under
                                               _______

          the  Stanley   rule,  the   statements  of  claim   contained  in
               _______

13

appellant's   second  amended   complaint   fail   the  test   of

          justiciability.8

Affirmed.
          Affirmed.
          ________

____________________

               8Because appellant's  suit  is nonjusticiable,  we need  not
          consider other potential deficiencies  in appellant's case, e.g.,
                                                                      ____
          whether the defendants can  be said to have acted  under color of
          state law.

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