selection boards be convened. Thus, even if § 628 is not meant necessarily to encompass only active-duty officers, if the Secretary chooses to restrict the use of special selection boards to active-duty officers, he may do so.
The Court reaches this conclusion despite the more general language found in § 277. If it were clear on its face that § 628 applied to all officers, the Secretary would be required, pursuant to § 277, to administer § 628 in a non-discriminatory manner. But this is not the case. Section 628 does not provide any right to all officers generally. Rather, it allows the Secretary to convene special selection boards at his discretion. Even assuming arguendo that the Secretary may convene special selection boards for reserve officers pursuant to § 628, that section does not compel the Secretary to convene special selection boards for reserve officers. Accordingly, the Secretary's decision not to convene a special selection board in this case is not contrary to law, but rather, a valid exercise of the discretion granted him by statute.
The Court is not persuaded by the plaintiffs' argument that because other branches of the service routinely provide special selection boards for reserve officers that the Secretary of the Navy must likewise provide such boards for reserve officers. The plaintiff in Etheredge also argued that because the Air Force and the Army provide such boards, so must the Navy. The Etheredge court rejected this argument. The plaintiffs in this case have provided no reason why, given that each Secretary has discretion as to when to convene special selection boards, it is necessary that each Secretary reach the same conclusion, i.e., that special selection boards should be available to reserve officers.
The Court concludes that the Board was correct that, by regulation, it did not have the authority to grant the plaintiffs a special selection board. The Secretary acted within his statutory discretion in promulgating a regulation which restricted the availability of special selection boards to active-duty officers. Plaintiffs Allen, Horne, Lyman, and Mantis have already received all of the relief to which they are entitled by statute and by regulation.
The remaining claims, which are asserted by all of the plaintiffs, do not require much discussion. The plaintiffs have no legitimate constitutional claim. Military personnel are precluded from bringing Bivens-type claims against superior officers. Chappell v. Wallace, 462 U.S. 296, 304 (1983). Further, even a civilian could not prevail in on a Bivens claim in this case. No individual has been named who is directly responsible for any specific allegedly unconstitutional behavior. The unconstitutional behavior alleged, in order to survive a motion to dismiss, must have been accompanied by unconstitutional intent. None has been alleged in this case.
Plaintiffs' counsel has made sweeping allegations, couched in conspiratorial overtones, that certain unnamed officers have deprived the plaintiffs of constitutional rights; counsel seeks to take discovery in an effort to prove these assertions. The Court declines to sanction a fishing expedition. There have been no concrete allegations of any constitutional deprivation that can survive the motion to dismiss.
The Court will grant the government's motion to dismiss. The plaintiffs have presented no claims over which the Court presently has jurisdiction and for which relief can be granted. Accordingly, an Order dismissing this case will be filed herewith.
Thomas A. Flannery
UNITED STATES DISTRICT COURT
ORDER - May 18, 1992, Filed
This matter came before the Court on the defendants' motion to dismiss. The parties have fully briefed the issues and the Court held an oral hearing on this motion on March 16, 1992. Upon careful consideration of the written and oral arguments of the parties and for the reasons set forth in the Memorandum Opinion filed herewith, it is by the Court this 18th day of May, 1992
ORDERED the motion of the defendants to dismiss be, and hereby is, granted.
Thomas A. Flannery
UNITED STATES DISTRICT JUDGE