Opposition Brief — Murphy v. Marcum

a

No. 91-1314

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

WILLIAM T. MURPHY, PETITIONER

PHILIP C. MARCUM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney Gene

ROBERT S. GREENSPAN

JEFFRICA JENKINS LEE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that the

Feres doctrine bars petitioner’s lawsuit against his

former superior officers for disciplinary action they

took against him while he was on active military

duty, allegedly in retaliation for his having written

to a member of Congress.

(I)

TABLE OF CONTENTS

Page

RNID COT occcccnnncesnccacorsccessse seciadddbibadaa nih nbenonaaites ane ]

Jurisdiction | SNR RO TCR nN TN 1

Statement .. 25 SPA eT Re TOT sclicbiasaaiidimpasieia 2

ai Saaleaicbeiatied LE ESE LIER REE UES 5

Conclusion ; $A A pH oR oP ten EO POLI ROT aT ERNE ; 13

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Agents of the Federal Bu-

reau of Narcotics, 403 U.S. 388 (1971) ............... 4, 5-6

Brown V. Glines, 444 U.S. 348 (1980) - anne 2,9

Brown v. United States, 739 F.2d 362 (8th Cir.

1984), cert. denied, 473 U.S. 904 (1985) 7,8

Bush v. Lucas, 462 U.S. 367 (1988) .........-... on 6

Chappell v. Wallace, 462 U.S. 296 (1983) ..... 5, 6, 9, 10

Durant v. Neneman, 884 F.2d 1350 (10th Cir.

1989), cert. denied, 493 U.S. 1024 (1990) .-...... 8,9

Feres v. United States, 340 U.S. 135 (1950) ......4, 5, 6, 12

Schweiker v. Chilicky, 487 U.S. 412 (1988) . 11

United States v. Brown, 348 U.S. 110 (1954) .. 7

United States v. Muniz, 374 U.S. 150 (1963) -......... 7

United States v. Stanley, 483 U.S. 669 (1987) 4, 6, 10, 12

nstitution and statutes:

U.S. Const. :

Art. | ; sascsiirs akaassamadeesaanien 12

§ 8, Cl. 14 wre (ane 12

Amend. I Pere NE OI eee a 4

Amend. V 4

Uniform Code of Military Justice, 10 U.S.C. 901

et seq.:

A A CE CUNIEEs SUID insncncecosnencnapstennensovnsnetnnssns 7

iss fel | 2S) | ee ener enree 5,9, 10, 11

BG U7, TOBE) 0G) CLGBB) nncnenccccccccscesessc.sss 1]

Federal Tort Claims Act, 28 U.S.C. 2671 ef seq...... 4

Miscellaneous:

Warren, The Bill of Rights and the Military, 37

PIR Ne Re: a a. | RE eerenenenenern 6

(IIT)

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1314

WILLIAM T. MURPHY, PETITIONER

v.

PHILIP C. MARCUM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A4-

A17) is unreported. The decision of the district

court (Pet. App. A18-A30) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on October 18, 1991. The petition for a writ of cer-

tiorari was filed on January 16, 1992. The jurisdic-

tion of this Court is invoked under 28 U.S.C.

1254(1).

(1)

TO Fr

_—

STATEMENT

This case concerns petitioner William Murphy’s

claim that, while he was on active duty in the United

States Army, he was wrongfully disciplined by his

superior officers.

1. In May of 1988, petitioner was a staff sergeant

at the Aberdeen Proving Grounds in Maryland. Peti-

tioner possessed a top secret security clearance and

worked in military intelligence. A white female pri-

vate, Melissa Unkenholt, told petitioner that respond-

ent Captain Sheila O’Connor, petitioner’s immediate

commanding officer, had telephoned Unkenholt’s par-

ents on two occasions to express reservations about

Unkenholt’s plans to marry a black man. Petitioner

was disturbed by this allegation and drafted a peti-

tion denouncing O’Connor’s actions. He intended to

circulate the petition among the troops and to present

it to the post’s Equal Opportunity Office for investiga-

tion, although valid military regulations prohibited

the circulation of such petitions. See Brown vy. Glines,

444 U.S. 348 (1980).

On May 20, 1988, Group Sergeant Major Chester

Leeth assembled the noncommissioned officers in pe-

titioner’s company and told them that he rezarded

the petition as mutinous. Pet. App. A88. A short

time later, respondent Lieutenant Colonel Philip

Marcum, the group commander, ordered a full in-

vestigation of the circumstances surrounding the peti-

tion. Jd. at A389. As a result of the investigation,

Mareum reprimanded petitioner on August 3, 1988,

for making false accusations of racism against O’Con-

nor. Jbid. Marcum told petitioner that, absent fur-

ther problems involving petitioner, the reprimand

would conclude the matter. Jbid. Petitioner then

went on leave for a period of 30 days. 7d. at A40.

3

Sometime before petitioner went on leave, he had

initiated an Inspector General investigation and a

congressional inquiry concerning a separate, unre-

lated matter in Marcum’s chain of command. Pet.

App. A40. Marcum learned of these inquiries when

the Department of the Army consulted him in the

preparation of the Army’s response to a letter from

the office of petitioner’s United States Senator. At

that time, petitioner was still on his 30-day leave in

August. Jbid.

When petitioner returned from leave on September

6, 1988, he learned that Marcum had relieved him of

his duty assignment and had suspended his security

clearance. Pet. App. A42. Marcum informed peti-

tioner that he was recommending revocation of peti-

tioner’s security clearance. bid. Respondent Captain

Daniel M. Baughman, who had succeeded O’Connor

as petitioner’s immediate superior officer during peti-

tioner’s absence, referred petitioner for a mental

evaluation. Jd. at A43. Pursuant to Baughman’s re-

ferral, respondent Major Dean M. Rueckert, Chief of

Community Health Services at Aberdeen, evaluated

petitioner and diagnosed him as suffering from “an

‘Lo]ecupational [p]roblem with passive aggressive

traits.’”’ Id. at A44. Rueckert’s report was sent to

Army authorities for use in evaluating the suspension

of petitioner’s security clearance. Jbid.

In the spring of 1989, petitioner was given orders

transferring him to Korea. Pet. App. A45. When

petitioner inquired about the status of his security

clearance, he was given the option of going to Korea

without resolving the matter or resigning. Jbid. Peti-

tioner chose to resign. Jd. at A46.

2. Petitioner instituted this action in district court

against respondents Marcum, O’Connor, Baughman

ee

—— SSS

4

and Rueckert in their individual capacities, asserting

a state law claim of defamation and two damages

claims for constitutional torts under Bivens v. Six

Unknown Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971). The amended complaint asserts

that respondents conspired to “force his resignation”

in violation of his rights under the Fifth Amendment

and to “retaliate against him for petitioning to his

elected representatives” in violation of his First

Amendment rights. Pet. App. A47.

Respondents moved to substitute the United States

as the party defendant and to dismiss the complaint

for failure to state a claim. Accepting the allegations

of the amended complaint as true for purposes of the

motion, the district court substituted the United States

and granted the motion to dismiss, holding that

“neither [petitioner’s] defamation claim nor his con-

stitutional claim are legally cognizable in this action.”

Pet. App. A24. Under this Court’s decisions in Feres

v. United States, 340 U.S. 135, 146 (1950), and

United States v. Stanley, 483 U.S. 669, 684 (1987),

the district court explained, “the sole question pre-

sented here is whether the injuries which [petitioner]

claims [to have suffered] were ‘incident to military

service.’ Pet. App. A25. It held that they were:

“The very gist of [petitioner’s] complaint,” the court

concluded, “is that he was wrongfully disciplined.”

Id. at A28. Because resolution of petitioner’s claims

on the merits would necessarily require it to “second-

guess military decisions,” the district court held that

dismissal of petitioner’s complaint was required. 7d.

at A28, A30.

3. The court of appeals affirmed. Pet. App. A4-

Al7. It held, in accord with Feres and its progeny,

that the United States is not liable under the Federal

Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., and

5

that superior officers are not liable under Bivens, 403

U.S. 388, “for injury to service personnel where the

injuries arise out of or are in the course of activity

incident to service.” Pet. App. Al2. The court also

rejected petitioner’s argument that respondents’ ac-

tions interfered with his right to communicate with

a member of Congress as provided for in former

Section 1034 of 10 U.S.C. (1982), stating:

Section 1034 provides that a service person may

write a member of Congress without sending the

communication through official channels. This

right was not interfered with. He wrote his let-

ter without sending it through official channels.

Pet. App. A14-A15. Concluding that “(t]he facts of

this case as alleged by [petitioner] bring it clearly

within the Feres doctrine,” the court of appeals af-

firmed the judgment of the district court. Jd. at A17.

ARGUMENT

The decision of the court of : ppeals is correct and

does not conflict with the decisions of this Court or

any court of appeals. As the Fourth Circuit observed

below, this case requires only the application of clear

principles that have been “restated and [re]affirmed

numerous times” by this Court and the courts of ap-

peals. Pet. App. Al2. Further review js therefore

unwarranted.

1. In Feres v. United States, 340 U.S. 135, 146

(1950), this Court held that “the Government is not

liable under the Federal Tort Claims Act for in-

juries to servicemen where the injuries arise out of

or are in the course of activity incident to service.”

340 U.S. at 146. Chappell v. Wallace, 462 U.S. 296,

305 (1983), extended that holding to bar recovery

for constitutional torts under Bivens vy. Six Unknown

6

Agents of the Federal Bureau of Narcotics, 403 U.S.

888 (1971), reasoning that the military’s unique

disciplinary structure, coupled with Congress’ provi-

sion of a “comprehensive internal system of justice

* * * for the review and remedy of complaints and

grievances such as those presented by [enlisted

men],”’ constituted “ ‘special factors’ which dictate[d]

that it would be inappropriate to provide enlisted

military personnel a Bivens-type remedy against their

superior officers.” Chappell, 462 U.S. at 302, 304 (cit-

ing Bush v. Lucas, 462 U.S. 367, 378 (1983)). The

military, it concluded, must be permitted “to deal with

its own personnel” because “courts are ill-equipped to

determine the impact upon discipline that any par-

ticular intrusion upon military authority might have.”

Chappell, 462 U.S. at 305 (quoting Warren, The Bill

of Rights and the Military, 37 N.Y.U. L. Rev. 181,

187 (1962) ). This Court subsequently “reaffirm[ed]”

that conclusion and reasoning in United States v.

Stanley, 483 U.S. 669, 683-684 (1987), holding once

again that “no Bivens remedy is available for injuries

that ‘arise out of or are in the course of activity

incident to service.’” Jd. at 684 (quoting Feres, 340

U.S. at 146).

There can be no doubt that the injury petitioner

alleges here in fact “‘ar[o]se out of” and was inflicted

“in the course of activity incident to service.” Feres,

340 U.S. at 146. As the district court pointed

out, “[t]he very gist of [petitioner’s] complaint is

that he was wrongfully disciplined.” Pet. App. A28.

It goes without saving that military discipline is an

integral part of, arises out of, and is incident to mili-

tary service; in fact, it lies at the heart of the Fevres

doctrine. As this Court has explained, the Feres doc-

trine prevents the courts from interfering with mili-

7

tary discipline and the “‘peculiar and special relation-

ship of the soldier to his superiors.” United States v.

Muniz, 374 U.S. 150, 162 (1963) (quoting United

States v. Brown 348 U.S. 110, 112 (1954)). Because

petitioner’s suit asks the courts to interfere in that

relationship by second-guessing disciplinary actions,

the decisions below declining to entertain the suit

were undeniably correct.’

2. Petitioner cites two court of appeals decisions

that he claims are in conflict with the decision below.

Pet. 28-31. Both decisions are, in fact, entirely con-

sistent with the Fourth Circuit’s decision in this case.

In Brown v. Umted States, 739 F.2d 362 (8th

Cir. 1984), cert. denied, 473 U.S. 904 (1985), several

noncommissioned officers subjected a black soldier to

a mock lynching at an off-duty party; the victim later

became so depressed that he attempted suicide. His

conservator brought a suit against the United States,

the soldiers who participated in the lynching, and the

commanding officer for civil rights violations. While

‘ There are other procedures for dealing with improper dis-

cipline. Article 1388 of the Uniform Code of Military Justice,

10 U.S.C. 938, provides:

Any member of the armed forces who believes himself

wronged by his commanding officer, and who, upon due

application to that commanding officer, is refused redress,

may complain to any superior commissioned officer, who

shall forward the complaint to the officer exercising gen-

eral court-martial jurisdiction over the officer against

whom it is made. The officer exercising general court-

martial jurisdiction shall examine into the complaint and

take proper measures for redressing the wrong com-

plained of; and he shall, as soon as possible, send to the

Secretary concerned a true statement of that complaint,

with the proceedings had thereon.

Thus, petitioner was not without a remedy; he just failed to

invoke it.

8

upholding the dismissal of the FTCA and constitu-

tional tort claims against the United States and the

superior officers as barred by Feres, the Eighth Cir-

cuit held that the individual soldiers who participated

in the incident were subject to suit: Reasoning that

“the preservation of military discipline is at the heart

of the Feres doctrine,” 739 F.2d at 368, the court

stated that “[t]he activity that is at issue in this

claim is of a distinctly non-military nature: the al-

leged participation of a group of men at a holiday

weekend drinking party in the mock lynching of a

young black man.” Jd. at 369. In contrast, the act

petitioner complains of here—being disciplined by a

superior officer—is uniquely military in nature. In

fact, the Brown court expressly so recognized: Under

the Feres doctrine, the court explained, the judiciary

may not “second-guess the military decisions as to

how an investigation into a disciplinary matter should

have been conducted.” Jbid. Petitioner here seeks

precisely the type of judicial “second-guessing”’ that

the Brown court recognized as prohibited.

Nor is the decision below inconsistent with the

Tenth Circuit’s decision in Durant v. Neneman, 884

F.2d 1350 (1989), cert. denied, 493 U.S. 1024 (1990).

In Durant, a service member driving his personal

vehicle struck and injured two other service mem-

bers on a military base while driving to his duty

station. In holding that plaintiffs’ negligence actions

against the driver were not barred by Feres, the

Tenth Circuit held that the soldier’s mere act of driv-

ing to his duty station was not a “military act”

that would implicate the function or authority of the

military. 884 F.2d at 1353-1354. But Durant does

not even remotely suggest that disciplining an al-

legedly mutinous officer such as petitioner is not a

9

“military act” implicating military authority. On

the contrary, the Durant court explained that “civil-

ian courts have a legitimate concern for protecting

the harmony of the military establishment to prevent

an erosion of discipline.” Jd. at 1354. Clearly, “the

need for unhesitating and decisive action by military

officers and equally disciplined responses by enlisted

personnel * * * would be undermined by a judicially

created remedy exposing officers to personal liability

at the hands of those they are charged to command.”

Id. at 1353 (quoting Chappel, 462 U.S. at 304). Ac-

cordingly, the appeals court ruling below does not

conflict with Durant, either.

3. Petitioner seeks to avoid clear Supreme Court

precedent and consistent circuit authority by arguing

that a federal statute, former 10 U.S.C. 1034 (1982),

takes his complaint outside the Feres doctrine. See

Pet. 23-24. Specifically, petitioner contends that the

discipline he received was, in law, not “incident to

service” because his superiors violated 10 U.S.C. 1034

by imposing it in retaliation for his communication

with a member of Congress. Neither 10 U.S.C. 1034

nor reason supports petitioner’s argument.

a. At the time the events in this case took place,

10 U.S.C. 1034 (1982) provided:

No person may restrict any member of an armed

force in communicating with a member of Con-

gress, unless the communication is unlawful or

violates a regulation necessary to the security of

the United States.

Congress enacted former Section 1034 “to ensure

that an individual member of the Armed Services

could write to his elected representatives without

sending his communication through official channels.”

Brown vy. Glines, 444 U.S. 348, 359 (1980). But

10

nothing in Section 1034 indicates a congressional in-

tent to create a judicial remedy where, under the

Feres doctrine, none would otherwise exist. Section

1034 does not mention damages awards. Nor does

it state that military discipline is reviewable in fed-

eral court. And nowhere does it state that discipline

allegedly imposed in violation of its directives is

“deemed” not “incident to service.” On the contrary,

as this Court pointed out in Stanley, statutes such as

Section 1034 are “designed to halt or prevent the con-

stitutional violation[s] rather than [to permit] the

award of money damages” after they occur. 483 U.S.

at 683. Section 1034 therefore provides no support

for petitioner’s arguments.

Indeed, petitioner’s argument proves far too much.

If petitioner’s argument were correct, any military

act allegedly committed in violation of federal law

would cease to be “incident to service.” But that is

not the law. Instead, even injuries imposed as a

result of clearly unconstitutional conduct—acts under-

taken in violation of the supreme law of the land—

can produce “injuries incident to service” that are

non-compensable under Feres. See, e.g., Stanley, 483

U.S. at 669; Chappell v. Wallace, 462 U.S. at 296. If

an action’s unconstitutionality does not take it outside

the Feres doctrine, a fortiori its mere illegality will

not either; instead, there must also be an indication

that Congress intended to create a damages remedy.

As explained above, there is no evidence of such an

intent here.

b. But even if petitioner’s interpretation of Sec-

tion 1034 were arguable—which it is not—the issue

would still not warrant review by this Court. Sec-

tion 1034 was amended in 1988 to provide a compre-

hensive remedial scheme for incidents of retaliation

Se

11

like that alleged by petitioner here. See 10 U.S.C.

1034(b)-(e) (1988). Whatever the circumstances

before the 1988 amendment, it is now clear that the

statute’s administrative scheme, not a Bivens-type

action in federal court, is the proper remedy for the

type of wrong petitioner alleges. Schweiker v. Chi-

licky, 487 U.S. 412, 423-429 (1988) (no Bivens rem-

edy where the “design of a Government program sug-

gests that Congress has provided what it considers

adequate remedial mechanisms.”’). Because the prior

version of Section 1034 is unlikely to be at issue in

many future cases, this Court’s consideration of its

interplay with the Feres doctrine is unwarranted.

4. Finally, petitioner argues that this Court should

grant certiorari “to determine for the lower federal

courts when, if at all, Congress may, by its own

enactments, counter and undermine any judicial im-

putation of its intent to confer upon constitutional

tort-feasors in the military an immunity from suit

by the soldiers subject to injury.” Pet. 44. But the

issue of how Congress may override the Feres doc-

trine is not presented by this case: As explained

above, Section 1034 does not represent an attempt

to do so; it does not evidence an intent to create a

damages remedy that would otherwise be barred by

Feres.

further review would still be unnecessary because this

Court has already offered sufficient guidance. In

Staniey, this Court explained:

lod Ly, no more than when we wrote ( yppell

do we see any reason why our judgment in the

Bivens context should be any less protective of

military concerns than it has been with respect

to FTCA suits, where we adopted an “incident

12

to service” rule. In fact, if anything we might

have felt freer to compromise military concerns

in the latter context, since we were confronted

with an explicit congressional authorization for

judicial involvement that was, on its face, un-

qualified; whereas here we are confronted with

an explicit constitutional authorization for Con-

gress “[t]o make Rules for the Government and

Regulation of the land and naval forces,” U.S.

Const., Art. I, § 8, cl. 14, and rely upon inference

for our own authority to allow money damages.

483 U.S. at 681-682 (footnote omitted). Thus, it is

clear that Congress may overrule Feres and Chap-

pell by “mak[ing] Rules for the Government and

Regulation of the land and naval Forces,” U.S. Const.

Art. I, § 8, Cl. 14, which provide damages remedies

to compensate service members for service-related in-

juries. It simply has chosen not to do so. This Court

decided Chappell nearly a decade ago, and Feres more

than three decades before that. Surely, if Congress

had intended superior officers to be subject to dam-

ages suits by their subordinates for constitutional

torts, it would have acted by now to correct this

Court’s misapprehension. Cf. Feres, 340 U.S. at 138

(Congress “possesses a ready remedy” to correct the

Court’s interpretation of the FTCA).

13

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

JEFFRICA JENKINS LEE

Attorneys

APRIL 1992