and accordingly cannot accept counsels' conclusions based thereon.
While military service possesses some of the characteristics of ordinary civilian employment, it differs materially from such employment in a number of respects that immediately spring to mind, and the peculiar status of uniformed personnel of our armed forces has frequently been recognized by the courts.
Johnson, 572 F.2d at 1223-24, quoted in Milbert, 830 F.2d at 358.
Accordingly, plaintiff's complaint brought under Title VII will be dismissed for lack of subject matter jurisdiction.
In response to defendants' motion to dismiss, plaintiff has moved to file a first and a second amended complaint. Plaintiff seeks to add a Count III, alleging a claim directly under the Fifth and Fourteenth Amendments to the Constitution and demanding "compensatory damages in an unspecified amount." Because the proposed claim is legally insufficient on its face, leave to amend will be denied. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Ampicillin Litigation, 82 F.R.D. 647, 650 (D.D.C. 1979); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1487 at 637 (1990).
Although it is not entirely clear, plaintiff's proposed Count III appears to be against defendants in their official capacities. It challenges, for example, "the manner in which the Navy implemented its regulations as relates to [plaintiff's] discrimination complaint" and "the defendants' policies and practices" as violative of the due process and equal protection guarantees of the Constitution. Construed as a claim against defendants in their official capacities, Count III is in reality a claim against the United States, because any favorable judgment "would expend itself on the public treasury." Dugan v. Rank, 372 U.S. 609, 620-21, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963); Land v. Dollar, 330 U.S. 731, 738, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947). In a suit against the United States, "there cannot be a right to money damages without a waiver of sovereign immunity." United States v. Testan, 424 U.S. 392, 400, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976). No waiver of sovereign immunity, however, permits a plaintiff to assert a damages claim against the United States for a constitutional tort. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 410, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (Harlan, J., concurring); Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1985), cert. denied, 475 U.S. 1010, 89 L. Ed. 2d 300, 106 S. Ct. 1183 (1986); Laswell v. Brown, 683 F.2d 261, 268 (8th Cir. 1982), cert. denied, 459 U.S. 1210, 75 L. Ed. 2d 446, 103 S. Ct. 1205 (1983); Norton v. United States, 581 F.2d 390, 393 (4th Cir.), cert. denied, 439 U.S. 1003, 58 L. Ed. 2d 678, 99 S. Ct. 613 (1978). Plaintiff therefore may not assert the proposed claim for damages in Count III against defendants in their official capacities.
On the other hand, plaintiff's second amended complaint may be attempting to assert a Bivens-type claim for damages against defendants in their individual capacities. However, under Chappell v. Wallace, 462 U.S. 296, 298, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983), uniformed members of the military may not bring constitutional tort claims against their superior officers. See also Bois v. Marsh, 255 U.S. App. D.C. 248, 801 F.2d 462, 469 (D.C. Cir. 1986). In Chappell, five enlisted men in the Navy attempted to maintain a suit against their superior officers on a claim nearly identical to that asserted by plaintiff. The plaintiffs alleged that the officers had discriminated against them on account of their race in violation of the Constitution by, among other things, threatening them and giving them low performance evaluations. Chappell, 462 U.S. at 297. The Supreme Court unanimously rejected the plaintiffs' claim, concluding that "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 a Bivens-type remedy for the enlisted men against their superior officers. Id. at 304. The Court's decision in Chappell dictates the same result in this case. Thus, plaintiff's proposed amended complaint fails to set forth a basis for relief.
* * * * *
For the foregoing reasons, an accompanying Order denies plaintiff's motions to amend the complaint and grants defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1).
Dated: Feb. 8, 1993
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 814 F. Supp. 130.
ORDER - February 8, 1993, Filed
For the reasons stated in the accompanying Memorandum, it is this 8th day of February, 1993, hereby
ORDERED: that plaintiff's Motion to Amend the Complaint and Second Motion to Amend the Complaint should be, and are hereby, DENIED; and it is further
ORDERED: that defendants' Motion to Dismiss should be, and is hereby, GRANTED; and it is further
ORDERED: that this action is DISMISSED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE