# Opposition Brief — Murphy v. Marcum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0195%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 504 U.S. 909 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0195%3A2. Public record. Not legal advice.