2.23.2009

10th Cir. Concurrence Notes Split Re Justiciability of Employment Claims Brought by National Guardsmen

Per Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. Sep 10, 2008) (Gorsuch, J., concurring):

Interpreting the Supreme Court's guidance as I have, and consistent with our decision in Costner, the vast majority of circuits have held that, while judicial review may be had of congressionally authorized BCMRs, direct suits against military superiors challenging discharge and other discrete personnel decisions are not congressionally authorized and therefore would represent an inappropriate intrusion into matters textually and prudentially committed to the political branches. They have frequently done so, moreover, in the very context here-suits brought by National Guard members challenging their dismissal by the relevant adjutant general. See, e.g., Watson v. Ark. Nat'l Guard, 886 F.2d 1004, 1009 (8th Cir.1989); Crawford v. Tex. Army Nat'l Guard, 794 F.2d 1034, 1036 (5th Cir.1986); Speigner v. Alexander, 248 F.3d 1292, 1296-98 (11th Cir.2001); Kreis, 866 F.2d at 1511; Dibble v. Fenimore, 339 F.3d 120, 127-28 (2d Cir.2003); Knutson v. Wisc. Air Nat'l Guard, 995 F.2d 765, 770-71 (7th Cir.1993); Christoffersen v. Wash. State Air Nat'l Guard, 855 F.2d 1437, 1440-45 (9th Cir.1988); Scott v. Rice, 1993 WL 375664, at *2 (4th Cir. Sept.23, 1993); see also E. Roy Hawkins, The Justiciability of Claims Brought by National Guardsmen Under the Civil Rights Statutes for Injuries Suffered in the Course of Military Service, 125 Mil. L.Rev. 99, 128-32 (1989); Christopher G. Froelich, Comment, Closing the Equitable Loophole: Assessing the Supreme Court's Next Move Regarding the Availability of Equitable Relief for Military Plaintiffs, 35 Seton Hall L.Rev. 699 (2005). But see Wigginton v. Centracchio, 205 F.3d 504, 512-13 (1st Cir.2000); Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 109-11 (3d Cir.1986). By holding Col. Hanson's claim justiciable and reaching its merits, the majority cements not only an intra- but also an inter-circuit split on a significant point of law and does so without affording the consideration due this substantial body of learning from our sister circuits.

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