Anthony Towne, Appellant, v. North Dakota National Guard, Appellee, 52 F.3d 331 (8th Cir. 1995)

Anthony Towne appeals from the district court's¹  order dismissing his action against the North Dakota National Guard. Towne sought damages under 42 U.S.C. § 1983 for alleged incidents of harassment by fellow service personnel and his superior officers during his enlistment from 1985 to 1987, and wrongful discharge, naming only the National Guard as defendant.

Towne's claim against the National Guard, whether properly construed as arising under section 1983, the Federal Tort Claims Act,²  or Bivens,³  is nonjusticiable because his allegations involve injuries which "arise out of or are in the course of activity incident to service." Wood v. United States, 968 F.2d 738, 739-40 (8th Cir. 1992); See also Lovell v. Heng, 890 F.2d 63, 64-65 (8th Cir. 1989) (National Guard member's claim for damages and injunctive relief for wrongful discharge nonjusticiable); Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1008 (8th Cir. 1989) (suits by guardsmen under section 1983 claiming damages incident to military service precluded under Chappell v. Wallace, 462 U.S. 296 (1983)). Towne's claim does not fall within either of the exceptions to the nonjusticiability of intra-service claims. See Wood, 968 F.2d at 739-40 (redress in civilian courts not barred for facial challenges to constitutionality of military regulations or statutes, and claims seeking limited judicial review of final agency action).

Accordingly, we affirm.