In previous posts (original, update) regarding the MRFF lawsuit against Jeremy Hall’s superior officer and the Defense Department, it has been noted that the American judicial system has been loathe to interfere with the separate judiciary of the military.  It has also been noted that, to this point, it does not appear Hall utilized the in-place grievance systems.

So as not to depend on “urban legend” and rumor, a little research resulted in finding the Supreme Court case of Chappell v. Wallace (1983), which addresses both of these concerns, and is quoted extensively below.

In Chappell v. Wallace, 462 U.S. 296 (1983), which can be referenced in its entirety here, the US Supreme Court held that superiors could not be sued by their subordinates because

1. there is a separate military system
2. civilian judicial interference could inhibit the proper functioning of the military,
3. and the Constitution charged the Congress with making military law, which it did.

From the case:

Enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.  The special status of the military has required, the Constitution has contemplated, Congress has created, and this Court has long recognized two systems of justice: one for civilians and one for military personnel.

The need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command.

Moreover, Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers.  Any action to provide a judicial response by way of such a remedy would be inconsistent with Congress’ authority.

The Court also quoted Orloff v. Willoughby, which basically said that Congress runs the military, not the judiciary (“Judges are not given the task of running the Army…”) and Rostker v. Goldberg, which made the point that the Supreme Court has consistently given great leeway to the military justice system created by Congress (In no other area has the Court accorded Congress greater deference…).

Finally, the Supreme Court also pointed out that Congress had, as directed by the Constitution, generated not only a justice system but also systems for complaints and grievances.  The court even gave a specific example of how a military member was to act if their superior refused redress:

Congress has exercised its plenary constitutional authority over the military, has enacted statutes regulating military life, and has established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure. The resulting system provides for the review and remedy of complaints and grievances such as those presented by respondents. Military personnel, for example, may avail themselves of the procedures and remedies created by Congress in Art. 138 of the UCMJ, 10 U.S.C. 938, which provides:

“Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising 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.”

In a one-line addition, the Court did note that

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.

The fact remained, though, that the subordinates were told they could not pursue their lawsuit against their superiors.

It appears Weinstein has his work cut out for him.  Not only does he have to prove that it is permissible for the subordinate to sue his superior for the case to even stand, he also has to prove institutional bias for the case to proceed–a task that will be difficult if the institution did not have the opportunity to address the wrong.