Amicus Curiae Brief — Sonnenberg v. United States

Supreme Court,

REREDQ

Jan 4 OR

QOGERU FE. SPANIOL, JR.

3 CLEriq

No. 90-539"

IN THE

Supreme Court of the United States

October Term, 1990

CAROLYN SONNENBERG, GORDON SONNENBERG,

MARY CARHOUN McCORMICK, JEFF CARHOUN

SCOTT CARHOUN, GERRY CARROLL,

KATHERINE CARROLL, CHRISTOPHER CARROLL,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA AND

CONCERNED AMERICANS FOK MILITARY

IMPROVEMENT

IN SUPPORT OF PETITIONERS

Michael C. Maher, Esq. Russell H. Putnam, Jr.*

1050 31st St., N.W. ' 1022 Calhoun St.

Washington, DC 20007 Columbia, S.C. 29211

(202) 965-3500 ¢ (803) 799-9435

President, Association of Attorney for Amici Curiae

Trial Lawyers of America *Counsel of Record

i

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT ............

I. THE FERES DOCTRINE IS UNSOUND AS A

MATTER OF MILTARY POLICY AND

SOEs ASV VEG ial FAP bie CRE vec eeee

A. PRESERVATION OF MILITARY DISCIPLINE

DOES NOT JUSTIFY BARRING

SERVICEMEMBERS’ FROM RECOVERY

og

B. THE AVAILABILITY OF BENEFITS UNDER

THE VETERANS BENEFITS ACT DOES

NOT JUSTIFY THE FERES DOCTRINE ...

C. THE FEDERAL RELATIONSHIP/

UNIFORMITY RATIONALE DOES NOT

JUSTIFY THE FERES DOCTRINE .......

Il. THE ALMOST UNIVERSAL CRITICISM AND

CONDEMNATION OF THE FERES

DOCTRINE WARRANT REEXAMINATION

OF THE DOCTRINE BY THIS COURT ...

III. THE FACT THAT CONGRESS HAS NOT

OVERTURNED THE FERES DOCTRINE

SHOULD NOT PRECLUDE ITS

REEXAMINATION BY THIS COURT .....

ei 6 SR ee eae he Teak CLE

ii

TABLE OF AUTHORITIES

CASES Page

Brooks v. United States, 337 U.S. 49 (1949) ......... 13, 14

Chappel v. Wallace, 462 U.S. 296 (1983) .............. 5

Executive Jet Aircraft, Inc. v. City of Cleveland,

a oa a wo 6n.5:0.0.y 9 9 0.4 17

Feres v. United States, 340 U.S. 135 (1950) ........ 3, 12, 14

Harvey v. United States, 884 F.2d 854 (Sth Cir. 1989) .... 14

Helvering v. Hallock, 309 U.S. 106 (1940) ............. 17

Henninger v. United States, 473 F.2d 814 (Sth Cir. 1973) ... 5

Hunt v. United States, 636 F.2d 580 (D.C. Cir. 1980) .... 13

In Re “Agent Orange’ Product Liability Litigation,

580 F. Supp. 1242 (E.D.N.Y. 1984) ........... 16

Indian Towing Co. v. United States, 350 U.S. 61 (1955) ... 15

Jaffee v. United States, 592 F.2d 712 (3rd Cir. 1979) ...... 5

McCarty v. McCarty, 453 U.S. 210 (1981) ............. 12

Orken v. United States, 239 F.2d 850 (6th Cir. 1956) ..... 16

Sapp v. United States, 153 F. Supp. 496 (W.D. La. 1957).. 16

Southwestern Brewery & Ice Co. v. Schmidt,

SPS A ree eee 13

Stencel Aero Engineering Corp. v. United States,

ee UE i ihn 6-56 544 we ca we be 020 14, 15

Trammel v. United States, 445 U.S. 40 (1980) .......... 17

United Airlines v. Wiener, 335 F.2d 379 (9th Cir.),

cert. dism., 379 US. 951 (1964) .............. 16

United States v. Brown, 348 U.S. 110 (1954) ............ 5

United States v. Calley, 22 C.M.A. 534,

Se ~

United States v. Johnson, 481 U.S. 681 (1987) ... 3, 10, 12, 16

United States v. Muniz, 374 U.S. 150 (1963) ........ 5, 6, 15

United States v. Reliable Transfer Co.,

NE 17

United States v. Shearer, 473 U.S. 52 (1985) .......... 5,

Watt v. United States, 246 F. Supp. 386 (E.D.N.Y. 1965) .. 12

Youngstown Sheet & Tube Co. v. Sawyer,

RS a a 16

;

STATUTES

RS ie 0 oor us alia 11

I oh nk ne cn svavenes 13

i ics vo cvk ne ouemeevesese 3

Veterans’ Benefit Act, 72 Stat. 1118, as amended 38 U.S.C.

ee. ae ao. Oe oie as ws wee 13

OTHER AUTHORITIES

J. Baynes, Morale: A Study of Men and Courage (1967) .. 7

Bennett, The Feres Doctrine, Discipline and the

Weapons of War, 29 St. Louis U.LJ. 383 (1985) .. 11

D. Cortright, Soldiers in Revolt (1975) ............... 7

DeDominicis, Atornic Vets Take Their Case to Court,

Pe EEE Wa Seca via cdesecsccese 16

Department of the Army Field Manual 22-100,

Military Leadership (Oct. 1983) ................ 9

Department of the Army Field Manual 1005,

EE 9

A. Du Picgq, Battle Studies: Ancient and

NS nk ns is occ ee ose ces 8

J. English, A Perspective on Infantry (1981) ........... 9

H.R. Rep. No. B, accompanying H.R. 536 (June 15, 1989),

I I, dictiw epic bbiv bdes.ca'ecese 12

V. Hanson, The Western Way of War: Infantry Battle

ee See 8

Howland, The Hands-Off Policy and Intramilitary

sare, 7) Eee Eee. SE Cee)... .......... 13

J. Keegan, The Face of Battle (1976) .............. 6,9

Little, Buddy Relations and Combat Performance,

in The New Military Changing Patterns of

Organizations (M. Janowitz, ed. 1964) .......... 8

S. Marshall, Men Against Fire (1947) ................ 6

Vv

Note, Jn Support of the Feres Doctrine and a

Better Definition of "Incidence to Service’,

56 St. John’s L. Rev. 485 (1982) .............. 5

Note, United States v. Stanley: Has the Supreme Court

Gone a Step Too Far?, :

ka Se sy 11

Note, Congress Should Not Legislatively Repeal

sa ‘Shane Struggle in Equity,

18 Tex. Tech. L. Rev. 819 (1967) .............. 5

R. Rivkin, The Rights of Servicemen (1987) ........... 8

W. Rehnquist, The Supreme Court: How It Was,

EE Ee ee 16

Rhodes, The Feres Doctrine After Twenty-Five Years,

eS re 11

S. Stouffer, Suchman, L. DeVinney, S. Star &

R. Williams, Jr., The American Soldier:

Adjustment During Army Life (1949) .......... 7

S. Stouffer, The American Soldier: Combat and Its

po ES ee 7

J. Tomes, The Servicemember’s Legal Guide (1987) ..... 8

Zillman, Intramilitary Tort Law: Incidence to Service

Meets Constitutional Tort,

op Le» 5 10

“The Military’s New Stars,” .

U.S. News & World Rep. (April 18, 1988) ....... 11

No. 90-539

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

CAROLYN SONNENBERG, GORDON SONNENBERG,

MARY CARHOUN McCORMICK, JEFF CARHOUN

SCOTT CARHOUN, GERRY CARROLL,

KATHERINE CARROLL, CHRISTOPHER CARROLL,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA AND

IDENTITY AND INTEREST OF AMICI CURIAE

This amicus curiae brief supports the position of

Petitioner. Letters from all parties to this action granting

their consent to the filing of this brief are on file with the

Clerk of this Court.

.

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[ATLA] is a voluntary bar association of approximately

65,000 trial attorneys from across the country. ATLA

members primarily represent injured victims of tortious

conduct, as well as in civil rights actions and

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the Feres doctrine and its rationale will assist this Court in

its assessing the merits of the Petition.

PT ap dpetaieey ge amy gan dy damned

CAMI is actively involved in to persuade Congress

to amend the Federal Tort Claims Act to permit active

duty servicemembers and their families to maintain actions

for medical malpractice. In addition, CAM] ci as

amicus curiae in Cortez v. United States, 884 F.2d (Sth

by

Temporary Disability Retirement List of the Armed Forces.

a

the ri of servicemembers under the FTCA will be

dir affecied by this Court's action with respect to the

Feres doctrine.

REASONS FOR GRANTING THE WRIT

1. THE FERES DOCTRINE 1S UNSOUND AS A MATTER

OF MILTARY POLICY AND LAW.

When it enacted the Federal Tort Claims Act

481 US. 681, 692 (1987)(Scalia, J. ). In clear

lenguadh, Gulepaannaibed nammanserteaaiiod :

by the negligence of a government employee acting within

twelve to the general waiver of immunity. 28

USL. . Hf one or more of the exceptions applies,

recovery is barred. Id.

following its establishment, the Court has never subjected

the Feres doctrine to a critical analysis and review.

in United States v. Johnson, 481 US. 691 (1987), the

4

Court emphasized that three broad rationales support the

Feres doctrine:

(1) The distinctively federal nature of the

relationship between the government and _ its

servicemembers. (The Federal Relationship/

Uniformity Rationale);

(2) The existence of disability and death benefits

(Veterans’ Benefits Rationale); and

(3) The fear that negligence actions by

servicemembers would require judicial involvement

in sensitive military affairs at the expense of military

discipline (Military Discipline Rationale).

Id. at 688-90.

Amici contend that none of these bases for the

Feres doctrine can withstand critical analysis. This

contention is based on the results of research into the

factors which motivate men and women in combat. It is

also premised on scholarly and judicial criticism of the

Feres doctrine and on the plain language of the FTCA.

Amici urge this Court to overrule the Feres doctrine.

Alternatively, the Court should limit its scope so that it

does not bar the claims of servicemembers arising from off-

duty activities or recreational accidents. Further, the Feres

doctrine should not bar a servicemember’s medical

malpractice claim which arises from pregnancy, elective

surgery, or self-referral for treatment.

A. PRESERVATION OF MILITARY DISCIPLINE DOES

NOT JUSTIFY BARRING SERVICEMEMBERS FROM

RECOVERY UNDER THE FTCA.

5

1. High Morale, Not Discipline, Is The Factor Which Is

Critical To Ensuring The Successful And Efficient

Functioning Of The Armed Services.

The Military Discipline rationale was not one of the

foundations for the doctrine set forth in Feres v. United

States, 340 U.S. 135 (1950). Perhaps sensing the inherent

flaws in the first two Feres rationales, the Court later

articulated the Military Discipline Rationale as the best

support for the doctrine. United States v. Brown, 348 U.S.

110, 112 (1954); United States v. Shearer, 473 U.S. 52, 57

(1985); Chappel v. Wallace, 462 U.S. 296, 299 (1983);

United States v. Muniz, 374 U.S. 150, 162 (1963). Brown

explained that the Military Discipline Rationale was based

on a fear that FTCA suits by service personnel may have

an adverse impact on military discipline. 348 U.S. at 112.

In reality, this rationale is the weakest and most erroneous

of the Feres rationales.

The inherent error and theoretical weakness of the

Military Discipline Rationale are reflected in the attempts

of lower courts to justify and defend it. Some have stated

that suits by service personnel would erode the security and

defense of the country. See, e.g., Jaffee v. United States, 592

F.2d 712, 717 (3rd Cir. 1979). Others have indicated that

"it is the suit, not the recovery, that would be disruptive of

military discipline.” Henninger v. United States, 473 F.2d

814, 815 (Sth Cir. 1973). Significantly, these explanations

are presented as self-evident, without evidence or logic to

support them. Nor have those commentators who approve

of Feres offered any evidence to support the Discipline

Rationale beyond citation to prior decisions. See, e.g., Note,

Why Congress Should Not Legislatively Repeal the Feres

Doctrine - A Struggle in Equity, 18 Tex. Tech. L. Rev. 819

(1987); Note, Jn Support of the Feres Doctrine and a Better

Definition of "Incidence to Service’, 56 St. John’s L. Rev. 485

(1982).

These pronouncements purport to advance a theory

that it is coercion which motivates service personnel. This

is the kind of conjecture which this Court rejected in

Muniz, 374 U.S. at 161 (problems of prison administration

caused by FTCA suits are “more a matter of conjecture

than reality”).

Even at the time Feres was decided, overwhelming

evidence existed which refuted the premise of the

Discipline Rationale. This evidence was the fruit of the

research of the Army’s histor «al teams during the Second

World War. Their interviews of thousands of soldiers fresh

from combat represent the first systematic attempt to study

human behavior in combat situations. J. Keegan, The Face

of Battle 70-71 (1976).

This research produces some startling findings. Most

important is that soldiers in combat do not view themselves

as part of a hierarchical military organization. Rather, they

see themselves as rough equals within small groups of six

or seven. Keegan, at 51.

Both General S.L.A. Marshall and Samuel Stouffer

have relied on these studies in their seminal works on

armies in combat. General Marshall concluded that an

army is a social mechanism which is governed by its own

laws, customs, and mores. Accordingly, discipline imposed

from above is of limited utility in motivating men to fight.

Consequently, General Marshall argued that an army

should strive to forge and nurture close bonds of friendship

which are centered on an individual who is identified as a

“natural fighter.” Such relationships will ensure that no one

shrinks or runs away from battle. S. Marshall, Men Against

Fire (1947).

Stouffer reached an almost identical conclusion. He

7

found that 39% of enlisted men surveyed reported that

they were motivated by a desire to end the task. Group

- solidarity was cited by 14% of enlisted personnel and 15%

of officers. Only 1% of enlisted men cited discipline as a

motivating factor. S. Stouffer, The American Soldier:

Combat and Its Aftermath 108-09 (1949).

Both officers and enlisted men, however, recognized

the importance of strong personal relationships between

officers and enlisted personnel. Each group also recognized

that an officer’s sincere concern for his men was a key

component of successful leadership. Ninety-seven percent

of the officers believed that a personal concern for the

individual welfare of their men was “absolutely necessary.”

2 S. Stouffer, Suchman, L. DeVinney, S. Star & R.

Williams, Jr., The American Soldier: Adjustment During

Army Life 385-88 (1949).

Like General Marshall, Stouffer concluded that it

was the personal relationship between members of a

combat team which was the crucial factor in battle; formal

discipline played little, if any, role in the effective

functioning of a combat team. Jd at 127. See also, J.

Baynes, Morale: A Study of Men and Courage 253-545

(1967)(listing the factors which created high morale and

performance of the 2nd Scottish Rifles in the Battle of

Neuve Chappelle, March 9-15, 1915).

Research conducted during the Korean and Vietnam

actions confirmed these conclusions. The desire to “get it

over and to return home” and identification with a small

group were primary motivations of soldiers under fire. This

research produced no evidence that “the traditional

structure of military discipline contributes to combat

effectiveness.” D. Cortright, Soldiers in Revolt 225 (1975).

Though a soldier’s identification with his friends was

8

often at odds with military authorities, it contributed to

combat effectiveness. Little, Buddy Relations and Combat

Performance, in The New Military Changing Patterns of

Organizations 195 (M. Janowitz, ed. 1964). Rigid discipline

actually erodes morale, loyalty, and efficiency. Jd. at 225-

26. Similar conclusions have been reached concerning the

motivation of ancient Greek armies. See generally, V.

Hanson, The Western Way of War: Infantry Battle in

Classical Greece (1989). “In the last analysis,” a leading

military theorist has stated, “success in battle is a matter of

morale.” Ardant Du Picq, Battle Studies: Ancient and

Modern Battle (1946).

Significantly, the keen emphasis by some courts on

the importance of military discipline is not reflected in

military doctrine or law. For example, neither military

doctrine nor law demands unquestioning obedience to

orders. Both require servicemembers to ignore or disobey

illegal orders. United States v. Calley, 22 C.M.A. 534, 48

C.M.R. 19 (1973); see generally, R. Rivkin, The Rights of

Servicemen 105 (1987); J. Tomes, The Servicemember’s

Legal Guide 24-25 (1987).

Additionally, Army doctrine recognizes the value of

initiative, rather than blind obedience:

[Initiative] requires a willingness and ability

to act independently within the framework of the

higher commander’s intent . . . [I]nitiative requires

audacity which may involve risk-taking and an

atmosphere which supports it... . In the chaos of

- battle, it is essential to decentralize decision

authority to the lowest practical level because

overcentralization slows action and leads to inertia.

... Decentralization demands subordinates who are

willing and able to take risks and superiors who

nurture that willingness and ability in_ their

subordinates.

Department of the Army Field Manual 1005, Operations

(May 1986) at 15.

Indeed, the power of modern weaponry and the

vulnerability of communications systems during battle have

made decentralization and initiative, rather than blind

obedience to orders, a key operational concept for modern

armies. Jd. One scholar has stated:

Decentralization of tactical control forced on

land forces has been one of the most significant

features of modern war. In the confused and often

chaotic battlefield environments of today, only the

smallest of groups are likely to keep together,

particularly during crucial movements. . . . Small

groups and their leaders must be capable of going

it alone...

J. English, A Perspective on Infantry 282-83 (1981). The

United States Army has responded to these studies by

reorganizing its structure to take advantage of the dynamics

and friendships of small groups. J. Keegan, The Face of

Battle 51 (1976).

Morale, the Army recognizes, is the glue which

binds such groups together into cohesive military units.

Cohesion results from the respect, confidence, caring

and communication that binds members of a unit

together - mentally, emotionally and spiritually. The

level of cohesion depends upon how well the unit

can work as a smoothly functioning team to

accomplish all missions in peace or war.

Department of the Army Field Manual 22-100, Military

10

Leadership (Oct. 1983), at 156. (Emphasis added). A

soldier’s courage and will under stress will be strengthened

by the belief that his leaders and peers will try “to help

him because they care for him.” Jd.

An important element of caring is remedial action

to redress wrongs. For example, a leader is required to

apologize to a soldier he or she has wronged. /d. at 279-

82. Similarly, the government should be obligated to

compensate, fully and fairly, soldiers injured by its

negligence.

The Feres doctrine obviously undermines the

military's goal of fostering high morale and cohesiveness

among servicemembers. What is the impact on

servicemembers of the judicial announcement that they are

excluded from the full benefits of the system of justice they

are willing to fight for? In his dissent in Johnson, Justice

Scalia provided the clear answer:

After all, the morale of Lieutenant Commander

Johnson’s comrades-in-arms will not likely be

boosted by news that his widow and children wiil

receive only a fraction of the payment that they

might have recovered had he been piloting a

commercial helicopter at the time of his death.

481 U.S. at 700.

2. Suits By Servicemembers Do Not Undermine Military

Discipline Nor Involve The Judiciary In Sensitive Areas.

Despite the fact that their lawsuits are frequently

dismissed, servicemembers continue to press claims for

relief under the FTCA. See Zillman, /ntramilitary Tort Law:

Incidence to Service Meets Constitutional Tort, 60 N.C.L.

Rev. 489, 511 nn. 129 & 130 (1982)(of 147 Feres cases

11

decided between 1955 and 1981, only eight were decided

in the plaintiffs favor); Note, United States v. Stanley: Has

the Supreme Court Gone a Step Too Far?, 90 W. Va. L.

Rev. 473 (1987)(in 81 cases during 1981-87, only eight

plaintiffs prevailed). Servicemembers have also brought suit

under other statutes, such as the Privacy Act, 5 U.S.C.

§552(a).

One commentator has observed:

[There is no evidence that negligence actions

by servicemembers over the past twenty-five years

have degraded the military mission.

The military soldier has also been litigious in

other areas. Although this litigation has not been

particularly productive for the plaintiffs,

servicemembers have vigorously asserted their

positions in direct court actions against high ranking

Officials. The proliferation of this constitutional

litigation has apparently not interfered substantially

with military operations.

Rhodes, The Feres Doctrine After Twenty-Five Years, 18

A.F.L. Rev. 24, 42 (1976). The government has never

produced evidence that an FTCA suit has affected military

discipline. See Bennett, The Feres Doctrine, Discipline and

the Weapons of War, 29 St. Louis U.LJ. 383 (1985). In fact,

the services report that discipline is at an all-time high.

See, “The Military’s New Stars,” U.S. News & World Rep.

(April 18, 1988) at p. 32.

Nor does the available evidence suggest that FTCA

suits by service personnel would precipitate a flood of

litigation which would embroil the judiciary in sensitive

military matters.

Although a servicemember continues to serve after

12

retirement and his or her treatment at a military medical

facility is deemed incident to that service, McCarty v.

McCarty, 453 U.S. 210, 221-22 (1981), the Feres doctrine

has never barred FTCA suits by retired service personnel

for medical malpractice by government employees. See,

e.g., Watt v. United States, 246 F. Supp. 386, 388 (E.D.N.Y.

1965). It appears that the armed forces settle most

meritcrious claims quickly, fairly, and efficiently at the

administrative level. See H.R. Rep. No. B, accompanying

' H.R. 536 (June 15, 1989), 101st Cong., ist Sess. at 8.

(“During fiscal years 1984-1988, the government paid about

$60 million per year in malpractice settlements to

dependents and retirees.”) None of the concerns expressed

by the Court in Feres and Johnson have materialized. There

is no reason to believe that the result would be different in

cases which Feres currently bars.

B. THE AVAILABILITY OF BENEFITS UNDER THE

VETERANS BENEFITS ACT DOES NOT JUSTIFY THE

FERES DOCTRINE.

In Feres, the Court found that Congress’ provision

for compensation under the Veterans’ Benefit Act, 72 Stat.

1118, as amended 38 U.S.C. § 301 [VBA], to servicemen

killed or injured in the line of duty, in the absence of an

express provision to adjust for dual recoveries under the

VBA and the FTCA, indicated that Congress did not

foresee FTCA recovery by servicemembers. 340 U.S. at

144. The continued vitality of this Veterans’ Benefits

Rationale is not entirely clear. Compare United States v.

Johnson, 481 U.S. at 689-90 (citing Rationale) with United

States v. Shearer, 473 U.S. 52, 58 n.4 (1985)(indicating that

this rationale is “no longer controlling”) In any event,

Amici suggest that the Veterans’ Benefits Rationale does

not support the continued existence of the Feres doctrine.

Congress was not obliged in provide an express

a elt ON Ah ee TE aaa

13

mechanism to avoid dual recovery under VBA and the

FTCA. The FTCA makes the United States liable for the

negligence of its employees “to the same extent as a

private individual under like circumstances.” 28 U.S.C.

§2674. At the time of enactment, it was well settled that

payments made by a tortfeasor to an injured party may be

shown in mitigation or reduction of recovery. See, e.g.,

Southwestern Brewery & Ice Co. v. Schmidt, 226 U.S. 162

(1912).

In Brooks v. United States, 337 U.S. 49 (1949), the

Court permitted two servicemen who were injured in an

off-duty accident caused by a government employee to

recover under the FTCA. The Court stressed that “nothing

in the Torts Claim Act or the veterans laws . . . provides

for exclusiveness of remedy.” 373 U.S. at 53 Moreover, the

Court observed that while the FTCA contained three

exclusive provisions, 28 U.S.C. §§ 2672, 2676, and 2679, the

Act is silent with respect to servicemembers as plaintiffs.

Id. The Brooks Court indicated that VBA compensation

would be offset against any FTCA recovery awarded a

servicemember. Jd. at 53-54. Upon remand, the Fourth

Circuit ordered such an offset or adjustment. Brooks v.

United States, 176 F.2d 482 (4th Cir. 1949). This result

complies with the language of section 2674.

Moreover, the Veterans’ Benefit Rationale proves

too much. VBA benefits are not limited to injuries that

are “incident to service.” 38 U.S.C. §105. Yet the Feres

bars only such claims.

Finally, the benefits that VBA provides are a grossly

inadequate substitute for full recovery in tort. See Howland,

The Hands-Off Policy and Intramilitary Torts, 71 lowa L.

Rev. 92, 133-37 (1985). The existence of veterans’ benefits

may salve society’s conscience and make the Feres doctrine

more palatable, Hunt v. United States, 636 F.2d 580, 598

14

(D.C. Cir. 1980). However, the availability of such partial,

conditional alternative benefits does not justify depriving

servicemembers of congressionally provided rights under

the FTCA.

C. THE FEDERAL RELATIONSHIP/UNIFORMITY

RATIONALE DOES NOT JUSTIFY THE FERES

DOCTRINE.

The original stated purpose of the Federal

Relationship/Uniformity Rationale was to _ protect

servicemembers who are unable to control their places of

assignment from the vagaries of local law. Accordingly, the

Court explained that Congress had substituted the certainty

of recovery under the Veterans Benefits Acts for the

possibility of nonuniform state court judgments. Feres v.

United States, 340 U.S. 135, 140 (1950). Twenty-seven years

later, the Court subtly shifted the emphasis of this

rationale.

In Stencel Aero Engineering Corp. v. United States,

431 U.S. 666 (1977), the Court explained the Federal

Relationship/Uniformity Rationale by stating that “as the

Court held in Feres it makes no sense to permit the fortuity

of the situs of the alleged negligence to affect the liability

of the Government to a servicemember who sustains

service-connected injuries.” /d. at 672.

Again the rationale offered in support of Feres

proves too much. The relationship between the

Government and a servicemember does not lose its

distinctively federal nature when he or she suffers an injury

that is mot incident to service. Nor is local law any more

uniform. Yet recovery is permitted for such injuries. See,

e.g., Brooks v. United States, 337 U.S. 49 (1949); Harvey v.

United States, 884 F.2d 854 (Sth Cir. i989).

su. ee en

15

Additionally, there is no reason to believe that the

military’s need for uniformity in this area is any different

or superior to that of other federal agencies which have

‘uniq

Corp. v. United States, 431 U.S. 666, 675 (1977)(Marshall,

J., dissenting). Yet all other federal agencies are subject to

negligence suits by citizens, the outcomes of which are

dictated by the vagaries of local law. Jd. The military itself

is subject to suit suits by civilians. See, eg., Indian Towing

Co. v. United States, 350 U.S. 61 (1988).

Finally, this Court has itself recognized the logical

bankruptcy of the Federal Relationship/Uniformity

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

the Court permitted federal prisoners, who have even less

control over their geographical location, to recover under

the FTCA. The Court concluded that any problems of

prison administration due to nonuniform recoveries “were

more a matter of conjecture than reality.” /d. at 161. At

any rate, nonuniform recoveries could not be more

prejudicial to the prisoners than uniform nonrecovery. /d.

at 162.

The law has thus arrived at a cruel anomaly. Those

who dedicate and risk their lives in the defense of America,

its Constitution and its laws are deprived of those rights

under the FTCA which are afforded even to those who

have been convicted of violating and subverting the law.

Amici respectfully suggest that granting the petition for

certiorari in this case would afford this Court the

opportunity to remove this anomaly by overruling the Feres

doctrine or limiting its scope. :

Il. THE ALMOST UNIVERSAL CRITICISM AND

CONDEMNATION OF THE FERES DOCTRINE

WARRANT REEXAMINATION OF THE DOCTRINE BY

THIS COURT.

Johnson has served only to increase this criticism. See

Petition for Certiorari at 10-11 (collecting authorities).

serviceman’s claim for negligence arising out of the crash

of a military aircraft into his off-post home. Sapp v. United

States, 153 F. Supp. 496 (W.D. La. 1957). See also United

Airlines v. Wiener, 335 F.2d 379, 404 (9th Cir.), cert. dism..

379 U.S. 951 (1964)(civilian passengers on an airliner which

was negligently struck by an Air Force plane could recover

Dh Ree EF i 8

i7

under the FTCA, but servicemember passengers could not).

The persistence of the Feres doctrine in the face of

such inequitable results and the well-founded criticisms of

the overwhelming of commentators undermines

the public confidence in fundamental fairuess of the

a

States v. Reliable Transfer Co., 420 U.S. 397, 410-11 (1975);

PRECLUDE ITS REEXAMINATION BY THIS COURT.

Congressional silence concerning the Feres doctrine,

while unfortunate, hardly provides a sound basis for

continuing this harsh rule. ion simply sheds no light on

legislative intent. This Court has acknowledged that “we

walk on quicksand when we try to find in the absence of

corrective legislation a controlling legal —

Helvering v. Hallock, 309 U.S. 106, 121 (1940). Moreover,

the Feres doctrine is, after all, a judicial, not legislative

creation. “It would require very persuasive circumstances

enveloping Congressional silence to debar this Court from

re-examining its own doctrines.” /@. at 119.

The fact is that Congress has enumerated the

exceptions to the FTCA. In engrafting an additional

exception onto the Act, the Court has introduced needless

complexity and inequity into Congress’ provisions for

compensation of citizens injured by the negligence of

government employees. Surely the task of rectifying the

inequitable treatment of servicemembers under the Act

18

does not fall solely to the Congress.

Servicemembers and their families sacrifice much

for their country and ask little in return. Petitioners in this

case seek no special treatment due to their military status.

They seek only the same right to seek compensation for

the negligence of a governmental employee that is afforded

all other citizens. Indeed, this case presents a particularly

stark demonstration of the inequity of the Feres doctrine.

It was purely fortuitous that civilians were not injured or

killed in the vehicular accident which took the lives of

decedents. Those civilians or their families would have

been entitled to maintain an action under the FTCA, while

petitioners’ actions were barred. Moreover, none of the

rationales advanced in support of the Feres doctrine

justifies this discrimination under such circumstances.

Amici urge this Court to end the treatment of

servicemembers as second-class citizens by overruling

Feres. Alternatively, this Court should limit the scope of

Feres to bar only suits for on-duty injuries arising from the

mission essential operations of the Armed Forces. It should

exclude from the scope of Feres suits for injuries arising

from off-duty accidents, recreational accidents, and medical

malpractice in connection with self-referral or elective

procedures.

Atesed,

eee ee eee ee

19

CONCLUSION

For these reasons, amici urge this Court to grant the

Petition for a Writ of Certiorari in this case.

Respectfully submitted,

Russell H. Putnam, Jr.*

1022 Calhoun St.

Columbia, S.C. 29211

(803) 799-9435

Attomey for Amici Curiae

Jan. 4, 1991