Petition for Writ of Certiorari — Kitowski v. United States

\ Supreme Court, U.S

91-208 FILED

| AUG 1 1991

NO. OFFICE OF THE CLERK

———

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1991

ELAINE M. KITOWSKI, as

Personal Representative of

THE ESTATE OF “EE WILLIAM

MIRECKI, deceased,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARTIN H. LEVIN, ESQ. ROSS M. GOODMAN, ESQ.

Levin, Middlebrooks, et. al. Counsel of Record

226 S. Palafox Place Levin, Middlebrooks, et. al.

P.O. Box 12308 226 S. Palafox Place

Pensacola, FL 32581 Pensacola, FL 32581

(904) 435-7116 (904) 435-7068

Attorney for Petitioner Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

A. WHETHER THE FERES DOCTRINE APPLIES IN A

FEDERAL TORT CLAIMS ACTION WHEN THE ACTS

CAUSING DEATH ARE SO EGREGIOUS THAT THEY GO

‘“‘BEYOND THE BOUNDS OF HUMAN DECENCY”

B. WHETHER AIRMAN RECRUIT LEE WILLIAM MIRECKI

WAS EFFECTIVELY DISCHARGED FROM THE NAVY AT

THE TIME OF HIS DEATH

C. WHETHER THE FERES DOCTRINE SHOULD BE

OVERRULED

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ..............-. i

TABLE OF AUTHIORITIES .. «2... c cc cccccccccceess . lii-vil

CIS TL 5 ono oS Vasc cee execebanvevevassees Vill

STATEMENT AS TO JURISDICTION .................-. ix

CONSTITUTIONAL PROVISIONS INVOLVED........... x

STATEMENT OF THE PACU. « oo csccee ene wes tens sss 1-6

ARGUMENT FOR GRANTING THE WRIT............ 7-25

THE HISTORY OF THE FERES DOCTRINE........ 7-12

APPLICATION OF THE LAW TO FACTS........ . 12-25

Egregious Nature of Facts Prevent Feres from Applying.... 13-21

Mirecki was Effectively Discharged at the Time of his Death 21-24

Fevers Ghoul be OQuarmdlad . 5c oo vce cvuesvsesaees 24-25

CNC LISI . 5 os 5 o's cal cdcvuwisuseny ee eee 26

WPITEIGA « « www nce éncsvesseeeeeaueeeeeeeeee Al-A6

TABLE OF AUTHORITIES

CASE LAW

SUPREME COURT CASES

Bivens v. Six Unknown Named Agents of Federal Bureau of

peroatics. Sos U.S. FES CISTI). . cece ccc ccccess 13, 14

Brooks v. United States, 337 U.S. 49 (1949)........ 8-9, 25

Butz v. Economou, 438 U.S. 478 (1978)................ 20

Feres v. United States, 340 U.S. 135 (1950)....... 5-18, 23

Mitchell v. Forsyth, 472 U.S. 511 (1985)............... 20

Owens v. City of Independence, 100 S. Ct. 1398 (1980). ..19

Stencel Aero Engineering Corp. v. United States,

Ns on vtec ec ctncerescesecaves'es 1]

United States v. Brown, 348 U.S. 110 (1954)......... 11-12

United States v. Johnson, 481 U.S. 681

a REE ree ee a, be, 19, FF

United States v. Muniz, 374 U.S. 150 (1963)............ 17

United States v. Shearer, 473 U.S. 52 (1985) ........... 13

United States v. Stanley, 483 U.S. 669 (1987) .. 7, 13-17, 20

Wilkes v. Dinsman, 7 How. 89, 48 U.S. 89 (1849)....... 16

APPELLATE COURT DECISIONS

Adams v. United States, 728 F.2d 736 (Sth Cir. 1984)... . 21

TABLE OF AUTHORITIES (Continued)

Bankston v. United States, 480 F.2d 495 (Sth Cir. 1973).21, 23

Bridgeford v. United States, 550 F.2d 978 (4th Cir. 1977)... 18

Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987)... .25

Feres v. United States, 177 F.2d 535 (2d Cir. 1949), aff'd,

+ Fe on oe et ec enc eeueeueres 10

Flowers v. United States, 764 F.2d 759 (11th Cir. 1985)... .24

Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), cert.

denied, 339 U.S. 951 (1950), rev'd, 340 U.S. 135

Cs ee Gee run Ker cae eater eReaG Eee es 10

Harvey v. United States, 884 F.2d 857 (Sth Cir. 1989)...... 21

Hinkie v. United States, 715 F.2d 96 (3d DCA 1983),

cost. Gonted, G65 U.S. 1075 CGO) oo occ cc cece tec saes 15

Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981),

cert. denied, 456 U.S. 972 (19GZ) .. ccc ccc ccess 15, 20

Kitowski v. United States, 5 FLW Fed. C882

io Re A Ns pe ae ee ee Ee ge |

Parker v. United States, 611 F.2d 1007 (Sth Cir. 1980)...... 8

Williams v. United States, 435 F.2d 804 (Ist Cir. 1970)..... 18

DISTRICT COURT DECISIONS

Jefferson v. United States, 74 F. Supp. 209 (D. Md. 1947). . 10

Jones v. United States, 236 F. Supp. 756 (E.D. N.C. 1964) . 18

iV

a

TABLE OF AUTHORITIES (Continued)

MILITARY COURTS

United States v. Calley, 22 U.S.C.M.A. 534, 48 C.M.R. 19

IN tinted aad eww casas «aera ENS 0 ee EES 19

United States v. Kinder, 14 C.M.R. 742 (1954)............ 20

United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R.

PE vcs ced auuwh de uda cere beatae cee k eee cus 17

UNITED STATES STATUTES

RE, IIE Sei co hanuvereseccaucucekekel oe ix

oe Rc eT A Pen D8 Abe 5 5,8

ee soos naa eee eee 8-9, 14, 25

ese eee eee eee 8-9, 14, 25

if oe | ees RPI Ad San in esl 11

ea os ora ee ee ee 11

eee. Sa... Beate Sambo eee 11

es ook es oe eae 19

CONGRESSIONAL BILLS

H.R. 12178, 68th Cong., 2d Sess. (1925)............0000.. 8

H.R. 12179, 68th Cong., 2d Sess. (1925).................. 8

V

TABLE OF AUTHORITIES (Continued)

S. 1912, Gah Cong... let Sons. (IFES). «20 ec ccvccccvccevess 8

H.R. 6716, 69th Cong., Ist Sess. (1926) ................-. 8

H.R. 8914, 69th Cong., Ist Sess. (1926) .................. 8

H.R. 9285, 70th Cong., Ist Sess. (1928) .................. 8

S. 4377, Tict Canty... 28 Sons. (USSG) . «ow scceccccccccccess 9

H.R. 15428, 71st Cong., 3d Sess. (1931)............--+... 4

H.R. 16429, 7ist Cong., 3d Sess. (1931)..........-...-.+.-- y

H.R. ‘17168, 7ist Cong., 3d Seas (1931)... 0... cc ceeceTeces 9

H.R. 5065, 72nd Cong., Ist Sess. (1932)..............+..-- 9

Sp fe Pe G0 |... eer y

S. 4567, 72nd Cong., 1st Seas. (193Z) .. 2. ccccccccvcceees y

S. 1653, Ted Comp... 1ot Seas. (IGSS). «00 cc ccccccvcccssess y

H.R. 129, 730d Cong., Ist Seas (1933)... 0... cc eccccccess 9

H.R. 8561, 730d Cong., 26 Seas. (1934)... 2. ccc cccccvens 9

H.R. 2028, 740s Cong., Ist Seas. (1955) ..... 2. cceccecess a

S. 0063, 74th Comp., tot Sans. (IGSS).. ce cvccccvccsecccs: 9

H.R. Rep. No. 1287, 79th Cong., Ist Sess. 1-2 (1945)....... 8

RULES OF COURT

ee: OP, BBG. 06 cccadeteecsevecsneasens seas 7

vi

TABLE OF AUTHORITIES (Continued)

BOOKS

W. HARRIS, TYRANNY ON TRIAL (1954) Pee ee eee ee

RESTATEMENT OF LAW

Restatement (Second) of Torts § 895A, comment a (1979)... .

LAW REVIEW ARTICLES

Mahoney, United States v. Stanley: Has the Feres Doctrine Become

a Grant of Absolute Immunity ?, 23 NEW ENGLAND L. REV. 767

Sain oot NGiciad scree he asecie vers eerace 8, 17, 19

Note, The Effect of the Feres Doctrine on Tort Actions Against the

United States By Family Members of Servicemen, 50 FORDHAM L.

fg, ee ee ds Ke ORR RES ES 8

Schwartz, Making Intramilitary Tort Law More Civil: A Proposed

Reform of the Feres Doctrine, 95 Yale L.J.

Gag caccsurascdacuseeeecy set oeeseeecaeeest 20

Warren, The Bill of Rights and the Military, 37 N.Y.U.

SS 4 = Be ee ee rk

vil

OFFICIAL AND UNOFFICIAL REPORTS AND

OPINIONS IN THIS CASE

Kitowski v. United States, 5 FLW Fed. C882 (11th Cir.

May 29, 1991).

Kitowski v. United States, No. 90-30024, Memorandum Decision

(N.D. Fla. Aug. 9, 1990).

Vill

a,

STATEMENT AS TO JURISDICTION

Pursuant to 28 U.S.C. § 1254, the Supreme Court has the power

to review a final judgment of a federal court of appeals. On May

29, 1991, the United States Court of Appeals, Eleventh Circuit, issued

its final order affirming the district court's dismissal of Petitioner’s

cause of action.

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment:

No persons shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the militia, when in actual service in time of war or public

danger; nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself; nor be

deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without

just compensation.

Fourteenth Amendment Section 1:

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection

of the laws.

I. STATEMENT OF THE FACTS

The facts of this case are not in dispute.' On May 29, 1987,

Airman Recruit Lee William Mirecki enlisted in the United States

Naval Reserve under the Delayed Entry/Enlistment Program, and

entered active duty with the Navy on September 21, 1987. He signed

a Five Year Obligor School Guarantee Program agreement which

guaranteed him specialized training as an Aviation Anti-Submarine

Warfare Operator (hereinafter AW). According to the agreement,

if Mirecki became ineligible to continue the specialized training, he

could choose between reassignment to a program for which he was

qualified, or separation from the Navy.

After completing recruit training, Mirecki reported to the Naval

Aircrew Candidate School in Pensacola, Florida. The next day,

November 24, 1987, the Navy informed him, for the first time, that

the Rescue Swimmer School (RSS) at the Naval Air Station was a

part of his specialized training. He then signed an agreement which

gave him the right to drop the course on request. If he did, however,

he would be disenrolled from the AW curriculum and waive any

guarantee to further training as an AW. He then had the option under

his contract to be reassigned, or leave the Navy without penalty.

After graduating from Aircrew Candidate School, Mirecki~

enrolled in RSS and began iraining on February 1, 1988. On February

3, Mirecki experienced difficulties with lifesaving procedures in a

drill referred to as ‘‘sharks and daisies.’’ During this two hour drill,

students swam in a circle with their hands behind their backs.

Instructors, who acted as panicking victims, grabbed the students

in either a front or rear head hold. If the student correctly performed

the release procedure, the student continued swimming in a circle

and other instructors repeated the scenario. If the student failed to

perform successfully, he was taken aside for intensive individual

instruction.

'See Kitowski v. United States, 5 FLW Fed. C882 (11th Cir. May 29, 1991).

Because of Mirecki’s fear of being held while in the water, a

fear that developed when he almost drown as a child when two boys

held his head under water, he panicked and said he wanted to

voluntarily withdraw from training, generally referred to as ‘*drop-

on-request’’ (DOR). The Navy permitted him to do so, because

Mirecki’s contract with the Navy guaranteed him the right. Mirecki

then signed an acknowledgement of his intent to DOR stating that

he was not willing to go back into the water. He stated he was scared

to go through the class again.

Mirecki was then sent to undergo a series of counseling sessions

and examinations. The primary purpose of these sessions was to

evaluate Mirecki’s physical and psychological ability to continue in

RSS. At the end of the sessions, the counselors found Mirecki

physically unqualified to return to the RSS course. Yet, Mirecki was

mistakenly informed that he had the option to return. At first Mirecki

refused to continue, but later he agreed to go back. The reason for

his change of mind is because Mirecki was informed by instructors

that if he withdrew from the RSS he would lose his aircrew status

and his right to further advanced training, and he would be sent to

a fleet in an undesignated status. In fact, the instructors themselves

reminded Mirecki of the consequences of withdrawing from the

training course through a series of counseling sessions that focused

on the negative effects on a student’s future assignments after a

withdrawal. To Mirecki, this meant that if he withdrew from the

swimming class, but did not choose under his contract to

simultaneously withdraw from the Navy, his chances of advancement

would be ruined, and his career would be reduced to years of manual

labor as a boatswain’s mate. Therefore, Mirecki told a friend that

if he were unable to pass the swimming school the second time, he

had no alternative but to withdraw from the Navy and return to

civilian life.

Based on these facts, Mirecki re-enrolled in the RSS class. On

March 2, 1988, at approximately 2:00 p.m., Mirecki and his

classmates began the ‘‘sharks and daisies’’ lifesaving drill. At least

two of the instructors present on this day knew of Mirecki’s prior

nN

Ne

problems: one had initialed the counseling sheet prepared when

Mirecki first decided to drop-on-request and another had been the

| one working with Mirecki when he panicked in the earlier class.

Prior to the drill beginning, Mirecki was visibly shaking and stated

he did not want to go in the pool or be there. Approximately fifteen

(15) minutes into the drill, Mirecki had trouble performing the escape

procedures and again began to panic. He grabbed the edge of the

pool, stating he was tired and dizzy and wanted to quit. Three in-

structors forced him from the wall and took him to the center of

the pool to continue with the exercise. Mirecki again failed to per-

form the procedure properly, and started showing extreme fear by

swimming on his back, yelling ‘‘Help!, Help!,’’ *‘I DOR,’ ‘‘I

QUIT.”’

The instructors, however, did not let him go or terminate training,

as Mirecki’s contract provided. Instead, the instructors decided to

perform an act on Mirecki known as ‘‘smurfing.’’ This act involved

the instructors forcibly holding a recruit under water until the recruit

reached a semi-conscious state and started turning blue. A few of

the instructors in the pool the day of Mirecki’s death were experienced

at this, having done it to several other recruits over the years. In

fact, prior to the Mirecki incident, at least a half-dozen recruits had

to be physically revived when the instructors decided to ‘‘smurf”’

them.

Thus, the act of ‘‘smurfing’’ began, and apparently once the act

begins, no matter what a recruit did after that point, and no matter

what he said, the recruit was not allowed to withdraw from the course,

or the Navy, until the act was completed. Therefore, even though

Mirecki was screaming for help, was screaming to quit, was scream-

ing to DOR, and was screaming for his life, the instructors forced

him back into a rear head-hold and into the water.

During the act, Mirecki was able to break free momentarily and

swim to the pool side. He then climbed out, and removed some of

his swimming equipment. Several instructors began to converge on

Mirecki. He crawled approximately five (5) feet to the stationary

equipment rack and wrapped his arms around it. While holding onto

the rack, Mirecki was in a state of panic and started shouting such

statements as ‘‘I Quit,’’ ‘‘I DOR,’’ ‘‘Please Don’t Put Me Back in

the Water,’’ “‘HELP!, HELP!.”’

At this time, one of the instructors directed the class, which had

already been ordered out of the pool, to turn away from Mirecki

and sing the ‘‘National Anthem’’ as loud as they could. The purpose

of doing this was to prevent the students from hearing Mirecki scream

and from seeing what was being done to him.

Mirecki was pulled from the rack and forced back into the pool

but was able to break away again and grab the floating rope that

divided the shallow end of the pool from the deep end. Several in-

structors again converged on him. When he refused to let go of the

rope, one of the instructors swam to the side of the pool and released

one end of the rope. Mirecki, however, continued to cling to it, and

continued to plead to let him quit and DOR. Eventually, using a com-

bination of dunking and prying Mirecki’s hands, the instructors got

him off the rope.

Mirecki was next put into a rear head-hold and dragged to the

deep end of the pool where he was forced under water in 10-15 second

intervals for an extended period of time. Mirecki was in a semi-

conscious state at this point, and was starting to turn blue. Even

though Mirecki was unable to perform any tasks at this point, the

instructors continued to force Mirecki back under water in a rear

head-hold. Eventually, Mirecki went totally unconscious, and an

instructor on the pool deck gave the sign to get him out of the water.

When Mirecki was removed from the pool, he was unconscious,

his lips and face were blue, and his eyes were rolled back in his

head. Mirecki never regained consciousness. Mirecki was pronounced

dead at 4:35 p.m.

The next day, three Navy men informed Mirecki’s mother that

Mirecki died in an accident. Two days later, Mirecki’s body was

returned to Wisconsin for burial, accompanied by Petty Officer Ist

Class David J. Smith, one of the instructors who was in the pool

the day Mirecki died. Officer Smith was sent to Wisconsin to escort

Mirecki’s coffin at the funeral, and later to visit with the family.

Over dinner at Mirecki’s home, Officer Smith told the family that

Mirecki died after simply failing to swim to the edge of the training

pool during normal swimming classes. He said there was nothing

out of the ordinary about the death. The Navy further released

statements a day after Mirecki’s death that provided the death was

due to natural causes, and was simply accidental.

The family pursued the matter, however, because several students

who were in the pool the day Mirecki died started leaving anonymous

messages that the true story was not being released. Also, the family

could not understand how a student in training could drown with

seven instructors in and around the pool where the drowning

occurred. Therefore, the family contacted several Congressmen in

order to force an independent and complete investigation.

Finally, two-months after the incident and the Congressional

investigation, the Navy confirmed that Mirecki’s death was more

than accidental. The Navy stated that Mirecki’s death was diagnosed

as heart failure brought on by extreme fright, fatigue, and lack of

air. The government even admitted that the early statements to

Mirecki’s family, the press and the replies to Congressional inquiries

were largely erroneous, not based on the results of any substantive

investigation, and clearly misleading.

On January 25, 1990, Petitioner ELAINE KITOWSKI, as per-

sonal representative of the Estate of Lee Mirecki, filed a wrongful

death action in the United States District Court, Northern District

of Florida pursuant to the Federal Tort Claims Act, 28 U.S.C. §

1346(b). In response to the complaint, Respondent UNITED STATES

OF AMERICA (hereinafter the Government) filed a Motion to

Dismiss for Lack of Subject Matter Jurisdiction arguing that Petitioner

Kitowski’s cause of action was barred by the doctrine enunciated

in Feres v. United States, 340 U.S. 135 (1950). On August 9, 1990,

the district court judge ruled that Petitioner Kitowski’s cause of action

was bared under the Feres doctrine. Pursuant to 28 U.S.C. § 1291,

Petitioner KITOWSKI timely challenged this ruling to the United

States Court of Appeals, Eleventh Circuit. On May 29, 1991, the

Eleventh Circuit affirmed the district court judge’s opinion. The

Eleventh Circuit specifically ruled that: (1) it had no power to over-

rule the Feres doctrine; (2) Mirecki was on active duty at the time

of his death; and (3) it had no power to create an exception to the

Feres doctrine for egregious conduct.

Il. ARGUMENT FOR GRANTING THE WRIT

The Supreme Court may grant a writ of certiorari when ‘‘a United

States court of appeals has decided an important question of federal

law which has not been, but should be, settled by the [Supreme

Court].’’? The instant case presents such a question because it is the

first opportunity for the Supreme Court to decide whether the Feres

doctrine bars a Federal Tort Claims Action when the government

has performed an egregious and torturous act on a member of the

military.

For the first time, this Court may answer the question whether

the Feres doctrine grants immunity to the United States government

when military superiors, through egregious conduct, kill a military

recruit during peace tir © on United States soil. Previous cases before

this Court have addressed this issue only in dicta. In these cases,

five justices have implied that an exception should exist and that the

issue would be addressed when the right case was presented.’ It is

submitted that Mirecki is the right case.

Based on the arguments presented below, Petitioner respectfully

requests the Supreme Court accept certiorari and grant Mirecki the

honor of having the highest court in the country redress his untimely

death.

A. THE HISTORY OF THE FERES DOCTRINE

Under the common law, the United States government enjoyed

the protection of the sovereign immunity doctrine.* Pursuant to this

doctrine, a United States citizen injured in tort by a government

2Sup. CT. R. 10.3.

3See United States v. Stanley, 107 S. Ct. 3054 (1987); United States v. Johnson,

107 S. Ct. 2063 (1987).

*See Feres v. United States, 340 U.S. 135, 139 (1950).

employee had the singular remedy of petitioning Congress to pass

a private bill for relief.* Because these claims were absolutely barred

absent such legislative consent, this unwieldy system eventually

proved to be an inadequate method of handling tort claims against

the government. In fact, by the 1930's, Congress had to rule on over

200 such bills each year.®

In an effort to ‘‘provide remedies for wrongful government actions

through a waiver of sovereign immunity and to relieve Congress of

the burden, and the public of the inequities, of private bills . . .,”’

Congress enacted the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671-2680.’ This Act allows civil actions against the

United States for:

personal injury or death caused by the negligent or wrongful

act or omission of any employee of the Government while acting

within the scope of his office or employment, under circum-

stances where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place

where the act or omission occurred.*®

Prior to passing the FTCA, Congress considered at least eighteen

tort claim proposals. All but two of these proposals expressly denied

recovery to members of the armed forces.? Yet, when Congress

SFeres, 340 U.S. at 140; RESTATEMENT (SECOND) OF Torts § 895A,

comment a (1979).

*Note, The Effect of the Feres Doctrine on Tort Actions Against the United States

By Family Members of Servicemen, 50 FORDHAM L. REV. 1242, 1243 (1982)

(citing H.R. Rep. No. 1287, 79th Cong., Ist Sess. 2 (1945)).

"See Parker v. United States, 611 F.2d 1007 (Sth Cir. 1980).

828 U.S.C. § 1346(b) (emphasis added).

*Mahoney, United States v. Stanley: Has the Feres Doctrine Become a Grant of

Absolute Immunity? 23 NEW ENGLAND L. REV. 767, 775 n.80 (1988-89) (citing

Brooks v. United States 337 U.S. 49, 51 (1949); H.R. 12178, 68th Cong. , 2d Sess.

(1925); H.R. 12179, 68th Cong., 2d Sess. (1925); S. 1912, 69th Cong., Ist Sess.

(1925); H.R. 6716, 69th Cong., Ist Sess. (1926); H.R. 8914, 69th Cong., Ist Sess.

(1926); H.R. 9285, 70th Cong., Ist Sess. (1928); S. 4377, 71st Cong.,

finally enacted the FTCA, it settled on specifically including members

of the military within the Act. In fact, Congress included a specific

definition in the Act to make it clear that ‘‘in the case of a member

of the military . . . [the FTCA applies to those servicemen] acting

in line of duty.’’'® The only specific exception Congress provided

to this rule was for a ‘claim arising out of the combatant activities

of the military or naval forces, or the Coast Guard, during time of

war. ""!

Subsequent to the passage of the FTCA, the Supreme Court chose

to confront the issue as to whether military personnel could recover

for injuries under the Act. In Brooks v. United States, 337 U.S. 49

(1949), two servicemen brought suit under the FTCA for serious

and fatal injuries sustained when a United States Army truck

negligently struck their automobile. The Supreme Court permitted

the servicemen to assert a claim under the FTCA. The Court reasoned

that because Congress considered eighteen versions of the bill bet-

ween 1925 and 1935, and included within the Act specific detailed

exceptions to it, [i]t would be absurd to believe that Congress did

not have the servicemen in mind in 1946, when this statute was

passed.’” /d. at 51. Thus, the Court concluded that if Congress had

intended to absolutely bar servicemen from redress under the FTCA

it would have stated so. The Court, however, declined to rule on

the issue whether servicemen could recover under the FTCA if their

injuries arose out of their military service and activity. /d. at 52.

In 1950, just one year after the Brooks decision, the Court

addressed this issue. In Feres v. United States, 340 U.S. 135 (1950),

2d Sess. (1930); H.R. 15428, 71st Cong., 3d Sess. (1931); H.R. 16429, 71st Cong.,

3d Sess. (1931); H-R. 17168, 71st Cong., 3d Sess (1931); H.R. 5065, 72nd Cong.,

Ist Sess. (1932); S.211, 72nd Cong., Ist Sess. (1932); S. 4567, 72nd Cong., Ist

Sess. (1932); S. 1833, 73rd Cong., Ist Sess. (1933); H.R. 129, 73rd Cong., Ist

Cong. Ist Sess (1933); H.R. 8561, 73rd Cong., 2d Sess. (1934); H.R. 2028, 74th

Cong., Ist Sess. (1935); S. 1043, 74th Cong., Ist Sess. (1935)).

1028 U.S.C. § 2671

'228 U.S.C. § 2680(j) (emphasis added).

the Court consolidated three separate and independent cases in order

to resolve the question. The first case, Feres v. United States, 177

F.2d 535 (2d Cir. 1949), aff'd, 340 U.S. 135 (1950), was an action

for negligence brought under the FTCA for the death of Rudolf J.

Feres, a serviceman on active duty who died in a barracks fire. The

second case, Jefferson v. United States, 74 F. Supp. 209 (D. Md.

1947), involved an army surgeon's malpractice in leaving a thirty-

by-eighteen inch towel in Arthur K. Jefferson's stomach during an

operation he was required to undergo while in the service. The third

case, Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), rev'd,

340 U.S. 135 (1950), also involved an action brought under the FTCA

for medical negligence.

The Court stated that the issue presented in all three cases was

whether the FTCA was meant to remedy an injury sustained by a

serviceman in the course of military service, which under other

circumstances, would be an actionable wrong. Feres, 340 U.S. at

138. After an analysis of the facts, the Court held that ‘‘the

Government is not liable under the Federal Tort Claims Act for

injuries to servicemen where the injuries arise out of or are in the

course of activity incident to service. "’ Id. at 146 (emphasis added).

In reaching its decision, the Court relied on three rationales.

The first rationale, termed the ‘‘parallel private liability”’

rationale, or the ‘‘novel and unprecedented liability’’ rationale,

recognized that, under the FTCA, the United States could only be

liable ‘‘in the same manner and to the same extent as a private

individual under like circumstances.’’ Feres, 340 U.S. at 141. The

Court noted that no parallel private liability could exist in an active

military situation since no American law has ever *‘permitted a soldier

to recover for negligence against either his superior officers or the

government he is serving.’’ /d. Additionally, the Court stated that

there could be no liability ‘‘under like circumstances’’ since *‘no

private individual has power to conscript or mobilize a private army.”’

Id. Finding no theory of private liability ‘‘even remotely analogous’’

to negligence actions brought by soldiers against their superior

officers, the Court concluded that ‘‘in the absence of express

10

congressional command,’’ Congress did not intend to waive immunity

for service-connected injuries and make a ‘‘radical departure from

established law.’’ /d. at 141, 146.

The second rationale the Court relied upon was its belief that

the ‘‘distinctively federal’’ relationship between the United States

and its enlisted military personnel would be undermined if the federal

government was exposed to local and geographically diverse tort

laws as applied under the FTCA. Feres, 340 U.S. at 143. The Court

thought it made no sense to permit the fortuity of the situs of the

alleged negligence to affect the liability of the Government to the

serviceman. The Court further believed *‘[i]t would hardly be a ra-

tional plan of providing for those disabled in service . . . [if their

recovery was] dependent upon geographic considerations over which

they have no control. . . ."’ /d. at 142-43. See also United States

v. Johnson, 107 S. Ct. 2063, 2067 (1987); Stencel Aero Engineering

Corp. v. United States, 431 U.S. 666, 672 (1977).

The third rationale for the Feres doctrine focused on the existence

of the Veterans Benefits Act (VBA),'? a compensation system for

injured military personnel. Feres, 340 U.S. at 144-45. This Act

provides compensation to any veteran injured in the line of duty,'?

and pays death benefits to the surviving spouse or children of any

veteran who dies as the result of injury incurred in the line of duty.'4

The Feres Court thought it unlikely that Congress intended to permit

additional recovery under the FTCA over and above that provided

in the VBA. Thus, the Court found that the VBA was an exclusive

remedy. /d. at 146. See also Johnson, 107 S. Ct. at 2068-69.

Four years later in United States v. Brown, 348 U.S. 110 (1954),

the Court recognized a fourth rationale for Feres. This rationale

emphasizes the peculiar and special relationship of the soldier to his

1232 U.S.C. §§ 101-5228

'§38 U.S.C. § 331.

'*38 U.S.C. § 341.

superiors and the effects of the maintenance of such suits on military

discipline. In Brown, an honorably discharged veteran brought suit

against the United States under the FTCA for the negligent post-

service medical treatment of a service connected disability provided

by a veterans hospital. The Court held that because Brown sustained

his subsequent injury after his discharge, he was not barred by Feres

and could sue under the FTCA. /d. at 113. The Court reasoned that

his civilian status at the time of the injury in question precluded the

injury’s classification as one arising out of military activity. /d. at 112.

The Court, however, stressed that Congress did not intend the

FTCA to ‘‘cover injuries to servicemen where the injuries arise out of

or_are in the course of activity incident to service.’’ /d. at 112

(emphasis added). The Court stated that if servicemembers could

bring suit alleging negligence against other servicemembers, military

discipline would be undermined and civilian courts would be required

to second-guess military decision making. Specifically, the Court

asserted:

The peculiar and special relationship of the soldier to his

superiors, the effects of the maintenance of such suits on

discipline, and the extreme results that might obtain if suits

under the Tort Claims Act were allowed for negligent orders

given or negligent acts committed in the course of military duty,

led the [Feres| Court to read that Act as excluding claims of

that character.

Id. at 112 (emphasis added).

B. APPLICATION OF THE LAW TO FACTS

Today, anytime a court is faced with the possibility Feres might

apply, the court must determine whether the individual bringing the

suit was injured ‘‘incident to service’’. Although this initially might

seem an easy task, the problem arises when the court attempts to

determine what ‘‘incident to service’’ means. Even the Supreme

12

Court has admitted that there is no universal definition for the phrase

‘incident to service,’’ and that the ‘‘Feres doctrine cannot be reduced

to a few brightline rules. . . . [Instead], each case must be examined

in light of the [facts].’’ United States v. Shearer, 473 U.S. 52, 57

(1985).

The facts of the instant case are one of first impression. The

Supreme Court has never been presented with the following question:

‘*Does the Feres doctrine apply in a Federal Tort Claims Action when

the acts causing death are so egregious and torturous that they go

‘beyond the bounds of human decency’’’? The only case even close

to being on point is United States v. Stanley, 107 S. Ct. 3054 (1987).

However, as shown below, there is a significant difference between

Stanley and the instant case. Stanley was brought under a Bivens

action, whereas the instant case is a Federal Tort Claims Action.

Plaintiff submits that based on the arguments below, Feres should

not apply in an FTCA action when the facts causing injury are

egregious and torturous.

(1) EGREGIOUS NATURE OF FACTS PREVENT

FERES FROM APPLYING

In Stanley, James B. Stanley, a master sergeant in the Army,

volunteered to participate in a program designed to test the

effectiveness of protective clothing and equipment as a defense against

chemical warfare. He was released from his duties and sent to the

Army’s Chemical Warfare Laboratories in Maryland for a one month

period. During the month, Stanley was administered doses of lysergic

acide diethylamide (LSD) on four separate occasions pursuant to an

Army plan to study the effects of the drug on human subjects. Twelve

years later, Stanley began complaining that the four doses of LSD

caused him to suffer personality changes which resulted in his

discharge from the military and his divorce. Over fifteen years after

the incident, Stanley filed a Bivens action!’ against the military

'SBivens v. Sic Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971) (creating a cause of action for monetary damages against six agents

13

personnel responsible for administering the LSD.'* In a 5-4 decision,

the Supreme Court denied the Bivens action applying a Feres type

rationale.

Although the Stanley case appears, on first reading, to bar FTCA

causes of action based on egregious factual scenarios, Stanley, along

with a predecessor case, actually stands for the opposite conclusion.

The Stanley decision merely provides that the Feres doctrine bars

a Bivens action when the iacts alleged are egregious. The Stanley

decision does not provide that an FTCA cause of action, such as

this one, will also be barred under egregious and torturous

circumstances. On the contrary, the Stanley Court specifically

discussed the difference between applying the Feres doctrine to a

congressionally enacted cause of action, such as the FTCA, and a

judicially created cause of action, such as Bivens. The Stanley Court

emphasized that it judicially created the cause of action which is now

known as Bivens.'’ Therefore, the Court ruled it could refuse to

expand the action to include members of the military. The Court

noted, however, that Congress enacted the Federal Tort Claims Act,

and that the wording is unambiguous and unqualified in_ its

application.'* For this reason, the Court stated that it possessed much

less power to create an exception.'? In fact, Justice Scalia, who

of the Federal Bureau of Narcotics who made a warrantless entry of plaintiff's home

and arrested him without probable cause while acting under color of federal

authority).

‘Stanley had originally filed suit against the United States government under the

Federal Tort Claims Act, but amended his complaint to proceed solely against the

military personnel after several appeals on the issue.

"Bivens, 403 U.S. 388 (1971).

'8See Stanley, 107 S. Ct. at 3062 & n.5.

‘When Congress enacted the FTCA, it included a specific definition in the Act

to make it clear that *‘in the case of a member of the military. . . [the FTCA applies

to those servicemen] acting in line of duty.’’ See 28 U.S.C. § 2671. The only specific

exception Congress provided to this rule was for a ‘‘claim arising out of the com-

batant activities of the military or naval forces, or the Coast Guard, during time

of war.’* 28 U.S.C. § 2680(j) (emphasis added). If the Court rules that a member

of the military has no right to bring a cause of action against the United States

government for the egregious conduct of one of its employees, then the Court is,

14

authored the majority opinion in Stanley, wrote in a separate decision

that Feres should never apply in an FTCA action, and that ‘‘Feres

[as it applies to an FTCA action] was wrongly decided and heartily

deserves the ‘widespread, almost universal criticism’ it has

received.’’?° The question which therefore arises in this case is

whether Feres applies in an FTCA cause of action when a serviceman

is injured by the egregious conduct of his superiors.

In Stanley, Justice O’Connor explained that there are some

military acts and commands that are ‘‘so far beyond the bounds of

human decency that as a matter of law’’ the acts cannot occur

‘‘incident to service,’’ and “‘the very least that society can do is to

see that the victims are compensated .. . .’’ Stanley, 107 S. Ct.

at 3065 (O’Connor, J., dissenting). Otherwise, members of the armed

forces, without legal authority and with no sufficient legitimate

military or other purpose, could violate the following Acts without

ever being held liable to the victims or being subject to prosecution,

unless the government deemed proper: (1) the Universal Declara-

tion of Human Rights; (2) the International Covenant on Civil and

Political Rights; (3) the Geneva Convention; (4) the Declaration on

the Protection of all Persons from Being Subjected to Torture and

Other Cruel, Inhumane or Degrading Treatment or Punishment; and

(5) the Nuremberg Code.?' This would, for all intents and purposes,

bestow absolute immunity on all military officials, entitling them

to intentionally and maliciously violate the constitutional rights of

servicemen, without fear of retribution. Stanley, 107 S. Ct. at 3068-76

(Brennan, J., dissenting with Marshall, J., joining).

As Justice Brennan noted, the law cannot be such that the military

has absolute immunity to perform any action they desire. The military

must be liable when it knows, or should know, its actions violate

in effect, avoiding the unambiguous and unqualified language of the act.

20United States v. Johnson, 107 S. Ct. 2063, 2074 (1987) (Scalia, J. dissenting,

with Brennan, J., Marshall, J., and Stevens, J., joining).

2! Hinkie v. United States, 715 F.2d 96, 98 n.3 (3d Cir. 1983) (citing Jaffee v. United

States, 663 F.2d 1226, 1248-50 (3d Cir. 1981) (Gibbons, J., dissenting), cert

denied, 456 U.S. 972 (1982)).

15

the serviceman’s clearly established constitutionally protected rights.

This is the only way to balance the ‘‘need to protect officials who

are required to exercise their discretion’’ against the need to provide

a damage remedy in deterring federal officials from committing

constitutional wrongs against citizens. Stanley, 107 S. Ct. at 3070

(Brennan, J., dissenting).

This fact is so well recognized that even under the common law,

military superiors received no exemption from the general rule that

officials may be held accountable for intentional, malicious actions.

As an example, in Wilkes v. Dinsman, 7 How. 89, 48 U.S. 89,

(1849), the Court permitted a Navy seaman to bring a claim against

his superior officer for injuries resulting from willful torts. Although

the Court suggested that the commander was entitled to a jury charge

providing some immunity, it refused to confer absolute immunity

from liability for intentional torts. The Court stated:

It must not be lost sight of . . . that, while the chief agent of

the government, in so important a trust, when conducting with

skill, fidelity, and energy, is to be protected under mere errors

of judgment in the discharge of his duties, . . . he is not to

be shielded from responsibility if he acts out of his authority

or jurisdiction, or inflicts private injury either from malice,

cruelty, or any species of oppression, found on consideration

independent of public ends.

The humblest seaman or marine is to be sheltered under the

aegis of the law from any reaj wrong, as well as the highest

in office.

7 How. at 123, 48 U.S. at 123.

In addition, if the court rules that a serviceman does not have

the right to recover for injuries he receives because of the egregious

conduct of his superiors, then the Court is completely denying the

serviceman constitutional rights provided to civilians. The law cannot

be such that citizens forfeit their constitutional rights by enlisting

16

a

in the armed forces.?? This is especially true in light of the fact that

the Supreme Court has held that federal prisoners can sue the federal!

government under the FTCA to recover damages for personal injuries

sustained during confinement in a federal prison and resulting from

the negligence of a governmental employee.?* Are the courts rea!ly

willing to hold that prisoners have more constitutional rights than

individuals serving in our armed forces? As former Chief Justice

Earl Warren had occasion to note: ‘‘our citizens in uniform may

not be stripped of basic rights simply because they have doffed their

civilian clothes.”’ Warren, The Bill of Rights and the Military, 37

N.Y.U. L. REV. 181, 188 (1962).

Based on the foregoing, it is understandable why Justice

O’Connor, Justice Brennan and Justice Marshall have advocated an

exception to the Feres doctrine when the facts are such that injury

arises Out of the egregious conduct of superiors,** and it is equally

understandable why Justice Scalia and Justice Stevens have

recommended that Feres be overruled altogether in FTCA causes

of action.?5 Considering that Justice O'Connor, Justice Marshall,

Justice Scalia, Justice Stevens, and former Justice Brennan appear

to agree that Feres doesn’t apply under an egregious FTCA factual

scenario, and considering that Justice Kennedy and Justice Souter

have not had the opportunity to address the issue, this Court should

accept certiorari and look at the egregious facts in this case to

determine if Feres should apply.

22Mahoney, United States v. Stanley: Has the Feres Doctrine Become a Grant of

Absolute Immunity?, 23 NEW ENGLAND L. REV. 767, 811 (1988-89) (quoting

United States v. Tempia, 16 U.S.C.M.A. 629, 633, 37 C.M.R. 249, 253 (1967)

(‘The time is long since past. . .when this Court will lend an attentive ear to the

argument that members of the armed forces are, by reason of their status, ipso

facto deprived of all protections of the Bill of Rights.”’)

23United States v. Muniz, 374 U.S. 150 (1963)

24Stanley, 107 S. Ct. at 3065-3077 (O’Connors, J., Brennan, J., Marhsall, J.,

dissenting).

25Johnson, 107 S. Ct. at 2074 (Scalia, J., dissenting with Stevens, J., joining)

17

Plaintiff anticipates that the Government will argue that this Court

should not accept certiorari because the Court should not become

involved in acts occurring in the military. The Government will likely

argue that suits against the military involve the judiciary in-sensitive

military affairs at the expense of military discipline and effectiveness,

and that the vigor of military decision making will be hindered if

damages are awarded for incorrect choices.

However, the Court must recognize that military affairs are subject

to scrutiny, and that military decisions are second-guessed, every

time a civilian, who is not subject to the Feres doctrine, sues a military

official. Yet in these cases, there is never any mention of interfer-

ing with military discipline.?® Equally important is Justice Scalia’s

insight that:

[i]t is strange that Congress’ ‘‘obvious’’ intention to preclude

Feres suits because of their effect on military discipline was

discerned neither by the Feres Court nor by the Congress that

enacted the FTCA (which felt it necessary expressly to exclude

recovery for combat injuries). Perhaps Congress recognized

that the likely effect of Feres suits upon military discipline is

not as clear as we have assumed, but in fact has long been

disputed. . . . Or, perhaps Congress assumed that the FTCA’s

explicit exclusions would bar those suits most threatening to

military discipline. . . . Or perhaps—most fascinating of all

to contemplate—Congress thought that barring recovery by

servicemen might adversely affect military discipline. After all,

the morale of a [serviceman] . . . will not likely be boosted

by news that his widow and children will receive only a fraction

of the amount they might have recovered had the [serviceman]

2°Bridgeford v. United States, 550 F.2d 978, 979-80 (4th Cir. 1977) (retired military

officer's dependent injured as a result of medical malpractice); Williams v. United

States, 435 F.2d 804, 805 (1st Cir. 1970) (serviceman’s child died after being refused

admission to military hospital); Jones v. United States, 236 F. Supp. 756, 757-59

(E.D. N.C. 1964) (serviceman’s wife injured in auto accident).

18

been piloting a commercial helicopter at the time of his death

[rather than a military helicopter].

Johnson, 107 S. Ct. at 2073-2074. (Scalia, J., dissenting).

It must also be remembered that a soldier is not permitted to act

upon the commands of his superior before first reflecting on the

lawfulness of the order. As the military court in United States v.

Calley, 22 U.S.C.M.A. 534, 541, 48 C.M.R. 19, 26 (1973) stated,

‘*the obedience of a soldier is not the obedience of an automaton.

A soldier is a reasoning agent, obliged to respond, not as a machine,

but as a person.’’?’ If a soldier fails to act in a lawful manner, he

may be prosecuted for war crimes perpetrated under the rubric of

obedience to orders.?*

In addition, because this lawsuit is against the Government, and

not the individuals causing injury, there really isn’t a fear that

individual decision making is going to be hindered. For example,

in Owens v. City of Independence, 100 S. Ct. 1398 (1980), the

Supreme Court held that a city was not immune from liability under

42 U.S.C. § 1983, even though the individual officials were. The

Court stated that the rationale relied upon for the creation of individual

immunity ‘‘is less compelling, if not wholly inapplicable, when the

liability of the municipal entity is at issue.’” Owens, 100 S. Ct. at

1416. In the first instance, liability “‘could have an undue chilling

effect on the exercise of [officials’] decision making responsibilities,”’

while in the second instance, ‘‘no such pernicious consequences were

likely to flow from the possibility [of liability] from public funds.”

Id. at 1417 n.37. In sum, suits against individuals have a far greater

potential for chilling responsible decision making than those against

27Mahoney, United States v. Stanley: Has the Feres Doctrine Become a Grant of

Absolute Immunity?, 23 NEW ENGLAND L. REV. 767, 810 (1988-89) (quoting

United States v. Calley, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973)).

28Mahoney, United States v. Stanley: Has the Feres Doctrine Become a Grant of

Absolute Immunity?, 23 NEW ENGLAND L. REV. 767, 810 (1988-89) (quoting

Calley, 22 U.S.C.M.A. at 541-44, 48 C.M.R. at 26-29 (defendant could not rely

19

the government. Jaffee v. United States, 663 F.2d 1226, 1234 (3d

Cir. 1981), cert. denied, 456 U.S. 972 (1982).

The Court should also reject the Government's anticipated

argument that the judiciary is unable to question military decisions.

Like all aspects of a democratic society there must be a system of

checks and balances over each governmental branch. We must

remember that military personnel have not always been able to

monitor themselves and maintain an effective, yet just, system. For

example, between 1945 and 1963, an estimated 250,000 military

personnel were exposed to large doses of radiation while engaged

in maneuvers designed to determine the effectiveness of combat troops

in nuclear battlefield conditions. Soldiers were typically positioned

one to three miles from nuclear detonation. The soldiers were issued

no protective clothing, although Atomic Energy Commission

personnel were, nor were the soldiers warned as to the possible

dangers of radiation. The soldiers were merely instructed to cover

their eyes. At detonation the soldiers *‘could see the bones in their

forearms.”’ Stanley, 107 S. Ct. at 3068 n.6 (citing Schwartz, Making

Intramilitary Tort Law More Civil: A Proposed Reform of the Feres

Doctrine, 95 YALE L.J. 992, 994 n.16 (1986)).

The Court must recognize that the only way to assure that basic

constitutional guarantees will be protected when national security

is involved is for the court to be willing to question military decisions.

Butz v. Economou, 438 U.S. 478 (1978). As the Court stated in

Mitchell v. Forsyth, 472 U.S. 511 (1985), ‘‘it is far more likely that

actual abuses will go uncovered [when national security is involved]

than . . . abuses will give rise to unfounded and burdensome litiga-

tion.”’ /d. at 522. When national security is involved, there is always

a ‘‘danger that high federal officials will disregard constitutional rights

in their zeal to protect the national security.’’ /d. at 523.

on obedience to superiors’ orders where he should have known that order to kil!

civilians was illegal); United States v. Kinder, \4 C.M.R. 742, 770-73 (1954) (obe-

dience to orders no defense where soldiers executed order to shoot subdued prisoner

at South Korean airbase).

20

The simple truth is that the military is sometimes unable to monitor

itself, and correct its own problems, and in fact, is willing to

purposely cover-up the truth. ‘‘Smurfing’’ went on for years until

the Mirecki family convinced Congress to conduct an independent

investigation. There must be a system of checks and balances. It is

simple logic that you don’t allow the individuals denying constitu-

tional rights to be the sole judge of their actions. This is the very

reason we have cc rt systems, and the very reason Congress enacted

the FTCA. As Justice Robert H. Jackson stated when referring to

the Nuremberg trials ‘‘[t]o expect the Germans to bring these Ger-

mans to justice was out of the question.’” W. HARRIS, TYRRANY

ON TRIAL at xxxi (1954).

Feres has been widely criticized for over forty years. The time

has arrived to address the final and remaining issue regarding the

controversial doctrine. Mirecki at least deserves the honor of having

the United States Supreme Court address his case.

(ii) MIRECKI WAS EFFECTIVELY DISCHARGED

AT THE TIME OF HIS DEATH

The Court should also accept certiorari in this case in order to

determine whether Mirecki was on ‘‘active duty”’ at the time of his

death. For if Mirecki was not on active duty, then Feres is

inapplicable. Harvey v. United States, 884 F.2d 857 (Sth Cir. 1989);

Adams v. United States, 728 F.2d 736 (Sth Cir. 1984); Bankston

v. United States, 480 F.2d 495 (Sth Cir. 1973).

As stated in the fact section in this petition, when Mirecki enlisted

in the Navy on May 29, 1987, he signed a contract which guaranteed

him specialized training as an AW. According to the agreement, if

Mirecki became ineligible to continue the specialized training, he

could freely choose to either be reassigned to a program that had

a vacancy for which he was qualified, or be separated from the Navy.

Six months later, Mirecki reported to Naval Aircrew Candidate

School at Pensacola, Florida, where he was informed for the first

21

—

time that the Rescue Swimmer School (RSS) was a part of his

specialized training. He then signed an agreement which gave him

the right to drop the course on request. If he did, however, he would

be disenrolled from the AW curriculum, and would then have to

make the decision whether to be reassigned within the Navy or volun-

tarily withdraw.

Prior to his death, Mirecki had made his intentions absolutely

clear that he would choose the latter. Specifically, prior to his death,

Mirecki was counseled on several occasions on the negative effects

on a student’s future assignments after a withdrawal. Mirecki was

informed that if he withdrew from the swimming class, but did not

choose under his contract to simultaneously withdraw from the Navy,

his chances of advancement would be ruined, and his career would

be reduced to years of manual labor as a boatswain’s mate. Just prior

to his death, Mirecki even told his friends that if he were unable

to pass the swimming school, he had no alternative but to withdraw

from the Navy and return to civilian life.

When Mirecki rejoined the class on March 2, 1988, his fears

quickly overtook him when the course began. He rolled onto his

back in the water and started yelling ‘‘I quit,’’ ‘‘I DOR,*’ ‘‘please

don’t put me back in the water,’’ “‘HELP!, HELP!.’’ The instruc-

tors, however, did not let him go or terminate training, as Mirecki’s

contract provided. Instead, the instructors decided to perform the

act of ‘‘smurfing.’’ During this act, Mirecki was clearly in a state

of panic, shouting ‘‘I quit,’’ and ‘I DOR.”’ Yet the instructors refused

to honor Mirecki’s contracts, and let him withdraw from the course.

Instead, the instructors converged on Mirecki and started forcing

him in head-holds and dunking him under water, until eventually

Mirecki went unconscious and died.

Based on these facts, it is clear that Mirecki was trying to withdraw

from the Navy at the time of his death, a right he had pursuant to

the contracts he signed when entering the Navy and the RSS course.

Under these contracts, Mirecki had a unilateral right to withdraw

22

from the swimming course and the Navy upon the simple request

to do so. This right was not contingent on any factors besides

Mirecki’s intent to quit.

For this reason, Plaintiff submits that Mirecki was effectively

discharged at the time of his death. As support for the argument,

Plaintiff cites to Bankston v. United States, 480 F.2d 495 (Sth Cir.

1973). In Bankston, the decedent, just prior to his formal discharge

from the Army, was injured in an automobile accident. The accident

occurred on the exact day the serviceman was to be discharged from

the service. He was treated in the United State Public Heath Service

Hospital in New Orleans, where he subsequently died because of

hepatitis which he caught as the result of a negligent blood transfusion.

The former Eleventh Circuit concluded that there was a ‘‘factual

issue whether the serviceman had been discharged from military

service at the time of the claimed negligence . . . .’’ /d. at 495. The

court specifically held that ‘‘the controlling fact in the case at bar

is whether . . . [Bankston’s] status was tantamount to being

discharged for the purpose of asserting this claim.’’ /d. at 497

(emphasis added). The case was remanded to the trial judge to make

the determination as to whether the serviceman was injured incident

to service, or whether he had been effectively discharged from the

armed services prior to incurring his injury. /d. at 498.

The Government will likely argue that Plaintiff has no direct proof

of Mirecki’s intent to withdraw from the Navy at the time of his

death, and thus, cannot assert that Mirecki’s status was tantamount

to being discharged. The government is correct on one point. Plain-

tiff has no direct proof of Mirecki’s intent. The Government prevented

the Plaintiff from ever obtaining this proof when the Government

took Mirecki’s life.

The Government should obviously not receive the benefit of

having the Court hold that Mirecki’s intent is now undiscernible.

More important, Plaintiff doesn’t have to present direct evidence

of Mirecki’s intent for the Court to conclude that Mirecki was

attempting to withdraw from the Navy at the time of his death. This

23

is because the circumstantial evidence in this case is overwhelming.

Mirecki was in a state of panic just prior to his death. He was being

forced under water, he was losing consciousness, and he was turning

blue because of lack of oxygen. Mirecki was trying to do anything

he could to get out of the situation he was in. He obviously knew

that the only sure way was to withdraw from the Navy altogether,

otherwise, the instructors holding him underwater would still be his

superiors. Thus, he started yelling, *‘I Quit!”’ ‘*I Quit!’’ These words

are clear when considering the state of panic Mirecki was in at the

time. Moreover, Mirecki had told his friends just prior to his death

that he would withdraw from the Navy if he could not finish the

‘‘AW”’ training program on this attempt.

Based on the foregoing, the Court should accept certiorari and

find that Mirecki was effectively discharged at the time of his death.

It would be unjust for the Government to be able to argue that if

it physically prevents an individual from being discharged at the

moment that he attempts to withdraw, and has the automatic right

to, that the individual is not effectively discharged. If this were not

true, then the Government could theoretically attempt to deter

discharges by shooting every serviceman who appeared to sign his

discharge papers, and then argue the Feres doctrine barred recovery

because the serviceman was ‘“‘active duty”’ at the time of his death.

(iii) FERES SHOULD BE OVERRULED

The final reason to accept certiorari in this case is for the Court

to decide whether the time has come to reconsider the Feres doctrine.

Due to the uncertainty as to how courts should interpret the phrase

“incident to service,’’ and because of the various tests implemented

by judges throughout the country, federal courts all over the country

are constantly reaching ‘‘unjust’’ decisions in FTCA decisions

involving some relation, no matter how remote, to the military. For

example, in Flowers v. United States, 764 F.2d 759 (11th Cir. 1985),

a serviceman was barred from seeking recovery under the FTCA

when a military bus collided with him on a state road running across

24

federal property while the serviceman was off-duty and driving his

personal vehicle. See also Del Rio v. United States, 833 F.2d 282

(11th Cir. 1987) (an infant was found capable of recovering damages

against a Navy doctor for injuries received during child birth; yet

the mother, who also suffered injuries during the birth as a result

of the same negligence, was not able to seek recovery).

As stated at the beginning of this brief, Congress considered at

least eighteen tort claim proposals between 1925 and 1935 prior to

enacting the FTCA. All but two of these proposals expressly denied

recc very to members of the armed forces. Yet, after all these various

proposals, Congress settled on specifically including members of

the military within the FTCA. In fact, Congress included a special

definition in the Act to make it clear that ‘‘in the case of a member

of the military . . . [the FTCA applies to those servicemen] acting

in line of duty.’’*° The only exception Congress provided to this

rule for military personnel was for a ‘‘claim arising out of the com-

batant activities of the military or naval forces, or the Coast Guard,

during time of war.’”*'

This sequence of events demonstrates that Congress specifically

considered, and provided what it thought needful for, the special

requirements of the military.’’ Johnson, 107 S. Ct. at 2070. (Scalia,

J., dissenting). In fact, the Supreme Court itself has stated that **[i]t

would be absurd to believe that Congress did not have the servicemen

in mind’’ when passing the FTCA. Brooks, 337 U.S. at 51.

The language of the FTCA shows that Congress intended the

United States to be held liable to all persons, including servicemen,

injured by the negligence of government employees. The time has

come to reconsider an inequitable doctrine.

28 U.S.C. § 2671

128 U.S.C. § 2680(j) (emphasis added)

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Ill. CONCLUSION

The last words Lee Mirecki ever heard was the singing of the

‘*National Anthem,’’ a song which praises our forefathers for their

bravery and courage in fighting for our freedom, which among these

is our right to life. Lee Mirecki’s death does not have to be just

another military statistic. This Court has the power to allow Mirecki

to be remembered as the recruit whose death helped to create equal

rights for our military personnel. Plaintiff prays that Lee Mirecki

did not die in vain, and that this Court will permit him the honor

to present his case befgre the highest court in the country.

MARTIN H. LEVIN, : ROSS M. GOODMAN, ESQ.

Leyin, Middlebrooks, et. al. Counsel of Record

226 S. Palafox Place Levin, Middlebrooks, et. al.

P.O. Box 12308 226 S. Palafox Place

Pensacola, FL 32581 Pensacola, FL 32581

(904) 435-7116 (904) 435-7068

Attorney for Petitioner Attorney for Petitioner

26

Elaine M. KITOWSKI, as Personal Representative

of the Estate of Lee William Mirecki, deceased,

Plaintiff-Appellant,

Vv.

UNITED STATES of America,

Defendant-Appellee.

No. 90-3744

United States Court of Appeals,

Eleventh Circuit.

May 29, 1991

This is a suit under the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 1346(b), 2671-80 (1988), by the mother of a Navy enlisted

man who died during a training exercise. The complaint sought

damages for wrongful death. The district court determined that it

lacked subject matter jurisdiction and dismissed the action. The

district court reached this conclusion by applying the holding in Feres

v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950),

which states that the FTCA does not permit claims for injuries to

active duty military personnel that ‘‘arise out of or are in the course

of activity incident to service.’’ /d. at 146, 71 S.Ct. at 159.

On appeal the Plaintiff argues that the Feres doctrine does not

bar an action under the FTCA when the acts causing injury to active

duty military personnel are ‘‘egregious.’’ Finding no authority for

such an exception to Feres, we affirni.

I.

The facts are not in dispute. Lee Mirecki was an Airman Recruit

in the United States Navy. He died on March 2, 1988, while

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participating in sea rescue training at the Naval Air Station, Pen-

sacola, Florida. Mirecki enlisted in the Navy and entered active duty

in 1987. Under his enlistment contract, he was guaranteed specialized

training as an Aviation Anti-Submarine Warfare Operator (AW).

According to this agreement, if Mirecki became ineligible to con-

tinue the specialized training due to some personal fact of which he

was unaware, he could choose either to be reassigned to another

program or to be separated from the Navy.

As part of this specialized training as an AW, Mirecki was

required to complete a program at the Rescue Swimmer School (RSS)

at the Naval Air Station in Pensacola. Before beginning the course

at the RSS, he signed an agreement that permitted him to drop the

course on request at any time, generally referred to as ‘‘drop-on-

request’ or ‘‘DOR.”’ If he dropped the course, he would no longer

be eligible for AW training and would have to decide at that time

whether he wished reassignment or discharge from the Navy. The

RSS program involved rigorous training to prepare recruits for

retrieving downed aircraft carrier-based airmen under wartime

conditions.

As part of the RSS program, the recruits must participate in a

drill known as ‘‘sharks and daisies,’’ in which students, wearing

only swim fins and no safety equipment, swim in a circle with their

hands behind their backs. Instructors grab the students in either a

front or rear head hold in an attempt to simulate panicking victims

in need of rescue. If a student correctly performs the release pro-

cedure, he continues swimming in a circle and other instructors repeat

the scenario. If a student fails to perform the maneuver correctly,

he is given additional instruction.

Mirecki had a fear acquired in childhood of being held under

the water, and this fear prevented him from succeeding in the sharks

and daisies drill. In February 1988 Mirecki was unable to complete

the drill and voluntarily withdrew from the RSS. At that time, he

underwent a series of physical and psychological exams and was

placed on *‘medical hold.’’ Soon thereafter, Mirecki exercised his

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option to return to the RSS program, allegedly because of pressure

from RSS instructors. Mirecki was re-enrolled in the RSS class, and

on the day of his death, March 2, 1988, he was once again undergoing

the rigors of the sharks and daisies drill. According to the plaintiff,

at least two of the instructors on duty that day were aware of Mirecki’s

earlier problem with the drill. Once again, Mirecki had extreme

difficulty with the drill and requested that he be dropped from the

course and not be forced to re-enter the pool. Instead of honoring

his request, the instructors seized him and forced him back in to the

water, and began ‘‘smurfing’’ him—holding him under the water

until he was unconscious and had turned blue. At this time, other

recruits were commanded to line up, turn their backs and sing the

national anthem. After being held under the water for a considerable

length of time, Mirecki died from heart arrhythmia, ventricular

fibrilation and decreased oxygen.

In addition to the foregoing facts surrounding Mirecki’s death,

the complaint alleged that for two months after Mirecki’s death, the

Navy maintained that his death was caused by accidental drowning.

After hearing from other trainees who were present that day at the

pool that the Navy was not revealing all the circumstances of

Mirecki’s death, the family contacted members of Congress and the

press. After several inquiries from the press and members of Con-

gress, the Navy finally admitted the circumstances surrounding

Mirecki’s death. On January 25, 1990, Mirecki’s mother, Elaine

Kitowski, as personal representative of his estate, filed this wrongful

death action under the Federal Tort Claims Act in district court for

the Southern District of Florida. She appeals from the judgment of

dismissal.

Il.

In Feres the Supreme Court held that the government ‘‘is not

liable under the Federal Tort Claims Act for injuries to servicemen

where the injuries arise out of or are in the course of activity inci-

dent to service.”’ 340 U.S. at 146, 71 S.Ct. at 159. Feres announced

a judicially created immunity doctrine that had the effect of limiting

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the general waiver of governmental immunity for torts established

by the FTCA.

In applying Feres, this court has identified three factors to be

considered in determining whether the particular activity of a member

of a military service at the time of injury is ‘‘incident to service.’’

These factors are: (1) the duty status of the service member, (2) the

place where the injury occurred, and (3) the activity the serviceman

was engaged in at the time of the injury.”’ Pierce v. United States,

813 F.2d 349, 353 (11th Cir. 1987); Parker v. United States, 611

F.2d 1007, 1013 (Sth Cir. 1980).' In this case the district court held,

‘*the undisputed facts established that decedent was on active duty

participating in training exercises at NAS when the fatal injury was

inflicted, and thus such injuries were obviously incident to his duties

in the USN.”’

Il.

The plaintiff makes three arguments on appeal: (1) that her son

had been effectively discharged at the time of his death; (2) that the

Supreme Court has recognized an exception to the Feres doctrine

where the conduct of military superiors is egregious; and (3) that

Feres should be overruled.

A.

Turning to the third argument first, we clearly have no authority

to overrule a decision of the Supreme Court. In Feres, Justice Jackson

noted that if the Court had misinterpreted the FTCA, ‘‘at least Con-

gress possesses a ready remedy.’ 340 U.S. at 138, 71 S.Ct. 155.

In the more than forty years since Feres, Congress has not indicated

that Feres misinterpreted the Act. Furthermore, the Supreme Court

'The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc) adopted as precedents decisions of the former Fifth Circuit

rendered prior to October 1, 1981.

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has continued to apply Feres strictly when lower courts have sought

to give the ‘‘doctrine’’ more elasticity in cases where the facts were

different from those considered in Feres. See, e.g., United States

v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987);

United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d

550 (1987). It is true that there now appears to be some support on

the Supreme Court for overruling Feres. See Justice Scalia’s dis-

sent in Johnson, 481 U.S. at 692-703, 107 S.Ct. at 2069-2075. It

seems clear, however, that a majority of the Justices do not agree

at this time.

B

With respect to the first argument, the only conclusion can be

that Mirecki was on active duty at the time he started RSS training

again on March 2, 1988. He had not been discharged from the Navy

or even transferred from the RSS program. If we assume that his

oral request to ‘‘DOR’’ was effective to remove him from the

program, he continued to be a navy serviceman until a decision was

made either to discharge him or to transfer him to other duties. He

could not effect his discharge unilaterally by merely withdrawing

from the RSS program.

i.

In making his second argument—that there is an exception to Feres

where egregious conduct caUses an injury—the plaintiff contends that

a careful reading of recent Supreme Court decisions supports her

position. We disagree. Justice O’Connor, dissenting in Stanley, wrote

that, in her view, ‘‘conduct of the type alleged’’ in this case is so

far beyond the bounds of human decency that as a matter of law

it simply cannot be considered a part of the military mission.’’ 483

U.S. at 709, 107 S.Ct. at 3065. The conduct referred to was sub-

jecting a soldier to medical experimentation without his knowledge

or consent.

The Supreme Court considered Stanley only as a direct action

for violation of constitutional rights as recognized in Bivens v. Six

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Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999,

29 L.Ed.2d 619 (1971), not as an FTCA case. The majority in

Stanley, however, did apply the Feres rationale and held that ‘‘no

Bivens remedy is available for injuries that ‘arise out of or are in

the course of activity incident to service.”’’ 483 U.S. at 684, 107

S.Ct. at 3064. Thus, Stanley forecloses a direct Bivens-type action

by a member of the military if the injury results from an activity

incident to service. Justice O’Connor would hold that injury resulting

from conduct ‘*beyond the bounds of human decency’’ just cannot

be considered ‘‘incident to service’’ because such conduct is not part

of the military mission.

Presumably Justice O’Connor would apply the same reasoning

to similar conduct in an FTCA case. Furthermore, Justices Mar-

shall and Stevens, who joined Justice Brennan’s dissent in Stanley

on the ground that military discipline should not be a ‘‘special factor

counselling hesitation’’ when a remedy is required for a constitu-

tional violation, might agree to an ‘‘egregious conduct’’ exception

to Feres. Nevertheless, a majority of the Supreme Court has not

established such an exception and this court is powerless to do so.

IV.

Three separate appeals were decided in Feres. The common

denominator of the cases was that a person on active duty had ‘‘sus-

tained injury due to negligence of others in the armed forces.’’ 340

U.S. at 138, 71 S.Ct. at 155. Although the instructors intentionally

subjected Mirecki to ‘‘smurfing,’’ his death resulted from their

negligence in persisting in that exercise, not from the intention to

kill him. The Supreme Court and the lower federal courts have wrestl-

ed with the application of the ‘‘doctrine’’ in numerous cases since

it was announced. Despite the extreme circumstances surrounding

Mirecki’s death, we cannot escape the fact his death arose out of

an activity incident to his military service. All three factors applied

by this court in determining whether an activity is incident to ser-

vice were present: Mirecki was on active duty; his death occurred

on a Navy base; and he was engaged in a prescribed training exercise.

AFFIRM.

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