Amicus Curiae Brief — Richards v. United States

Supreme Court, U.S.

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DEC 29 $59

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CLERK

No. 99-73

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

E SHAMARRA RICHARDS, INDIVIDUALLY AND AS THE

PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR., AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ Of Certiorari to the United States

Court Of Appeals For The Third Circuit

BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

AND

PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF THE PETITIONER

RICHARD H. MIDDLETON, JR.. CLIFFORD A. RIEDERS*

1050 31st St., N.W. ROBERT H. VESELY

Washington, DC 20007 161 W. Third St.

(202) 965-3500 Williamsport, PA 17701

(507) 323-8711

President, The Association Attorneys for Amici Curiae

of Trial Lawyers of America *Counsel of Record

ASTER

TABLE OF CONTENTS

TABLE OF AUTHORITIES...

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT.

REASONS FOR GRANTING THE WRIT

I. THE FEDERAL CIRCUITS ARE CONFUSED

AND HOPELESSLY IN CONFLICT. AS A

RESULT THEY ARE APPLYING HUGELY

DIFFERING STANDARDS TO WHAT IS

SUPPOSEDLY A UNIFORM RULE OF LAW......

II. THE TEST OF TIME HAS DEMONSTRATED

THAT THE FERES DOCTRINE, DUE TO ITS

UNSUPPORTABLE AND ILLOGICAL

UNDERPINNINGS, SHOULD BE ABOLISHED...

CONCLUSION ...

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TABLE OF AUTHORITIES

Cases

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

Day v Massachusetts Air Nat '] Guard, 167 F. 3d 678

CUR Cae: TIE cvcscccsciessetretsacstinateceencasrounneees 5, 10

Dreier v United States, 106 F.3d 844 (9th Cir. 1996) ...3, 5

Feres v. United States, 340 U.S. 135 (1950).............. passim

Indian Towing v United States, 350 U.S 61 (1955) ............ 9

Lauer v United States, 968 F.2d 1428 (1st Cir.),

cert. denied, 506 U.S. 1033 (1992) ..........c.ssccssssssersers 6

Miller v United States, 643 F.2d 481 (8th Cir. 1981).......... 6

Monaco v United States, 661 F.2d 129 (9th Cir. 1981).....10

Parker v United States, 611 F.2d 1007 (Sth Cir. 1980) ......6

Rayonier v United States, 352 U.S. 315 (1957) .........ss0008 8

Richards v United States, 176 F.3d 652 (3rd Cir. 1999) ....4

Taber v Maine, 67 F.3d 1029 (2d Cir. 1995)........ 3, 5, 9, 10

United States v Brown, 340 U.S. 110 (1954). 00... eee 9

United States v Johnson, 481 U.S. 681 (1987) ............ 3,5,9

Statutes

28 US.C.A. 1B RD iiccianicimnininieeindcciiiiicnas t i

BB ULS.C.A, BBFE GR GIG sccesecsinciotatntanencoessssnibnreclistocceiinaes 7

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POOR AM, MOO is oe i 9

vad a” ERE Sane ae en ee ae) eae 7,9

IN THE

Supreme Court of the United States

October Term, 1999

No. 99-731

E SHAMARRA RICHARDS, INDIVIDUALLY AND AS THE

PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR., AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ Of Certiorari to the United States

Court Of Appeals For The Third Circuit

BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

AND PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF THE PETITION

IDENTITY AND INTEREST OF AMICI CURIAE!

The Association of Trial Lawyers of America

(“ATLA”) is a voluntary national bar association of

' Pursuant to Rule 37.6, Amici disclose that no counsel for a party

authored any part of this brief, nor did any person or entity other than

amici curiae, their members, or their counsel make a monetary

contribution to the preparation or submission of this brief.

approximately 50,000 trial attorneys from across the country.

ATLA members primarily represent injured victims of

tortious conduct, as well as plaintiffs in civil rights actions

and criminal defendants. ATLA members frequently

represent members of the Armed Services and their families

in their effort to obtain civil redress for injury. Many ATLA

members, particularly those active in ATLA’s Military Law

Section, are themselves members of the Armed Services and

are familiar with the special legal problems faced by service

members.

ATLA believes that the mght to seek just

compensation for negligently or wrongfully inflicted injury is

a fundamental element of our civil justice system. That

service members are deprived of a remedy for governmental

negligence which is afforded other citizens is a grave

inequity. The fact that many service members are presently

called upon to make the ultimate sacrifice for their country

heightens the need to ensure their fair treatment under the

law.

The Pennsylvania Trial Lawyers Association

(“PATLA”) is a non-profit organization with a membership

of 3,500 women and men of the trial bar of the

Commonwealth of Pennsylvania. For 20 years, PATLA has

promoted the nghts of individual citizens by advocating the

compensation of innocent victims, and the maintenance of a

free and independent judiciary. The organization opposes, in

any format, special privileges for any individual, group or

entity.

Through its Amicus Curiae Committee, the

Pennsylvania Trial Lawyers Association strives to maintain a

high profile in the Commonwealth and federal courts by

promoting, through advocacy, the rights of individuals and

the goals of its membership.

Letters from both parties granting consent to the

filing of this brief have been filed with this Court.

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_ SUMMARY OF ARGUMENT

In Feres v. United States, 340 U.S. 135 (1950), the

Judicial Branch fashioned a rule of new “common law” that

on its face appeared to be inconsistent with Statutory

language enacted by Congress. Since that time the lowers

courts have struggled to apply Feres in a way that would be

predictable and fair. The battle to find logical and sound

underpinnings for the Feres decision have continued over the

life of the doctrine. The courts have repeatedly and

distressfully noted the basic problem created by the fact that

the ever-changing justifications for ignoring the clear

Statutory language have rendered the decision of dubious

value.

The basic inconsistencies of this doctrine were set

forth in detail by Justice Scalia in a 1985 dissenting opinion

that was joined by three other members of the Court. United

States v Johnson, 481 U. S. 681, 692 (1985) (Scalia, J.,

dissenting). The continuing nature of the problem was

recently recognized in exhaustive opinions from the Second

and Ninth Circuits. Dreier v United States, 106 F.3d 844 (9th

Cir. 1996); Taber v Maine, 67 F.3d 1029 (2d Cir. 1995).

Finally, in the case which the petitioner now seeks

to bring before the Court, the opinion below, as well as four

Judges of the Third Circuit who would have granted en banc

consideration, joins the chorus of federal judges who have

throughout the existence of this doctrine urged this Court to

reconsider the need, propriety and desirability of this

doctrine, particularly in light of its questionable foundation.

There can be little dispute that the circuits have and

are continuing to apply differing standards to the application

of the doctrine and that the treatment of an individual’s claim

will often depend on the circuit where his cause of action is

considered. There can also be little dispute that the doctrine

has and continues to be subject to reasoned, logical and

constant criticism, largely because of its unfairness, changing

SSCS S'S

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justifications and ignoring of what would appear to be clear

statutory language. Despite its age the doctrine remains as

troubled and questionable as the day it was announced and

this is perhaps precisely because its basic foundations were

wrong from their inception.

In light of the conflict in the circuits, the lack of

clarity in the rule of law to be applied and the fundamental

incorrectness of this doctrine, amici would respectfully

suggest that the Court grant the petition for certiorari to either

abolish this doctrine or render an opinion that can be fairly

and consistently applied to those service members and their

families who have and will suffer serious injuries as the

result of governmental employees negligence.

REASONS FOR GRANTING THE PETITION

I. THE FEDERAL CIRCUITS ARE CONFUSED AND

HOPELESSLY IN CONFLICT. AS A RESULT

THEY ARE APPLYING HUGELY DIFFERING

STANDARDS TO WHAT IS SUPPOSEDLY A

UNIFORM RULE OF LAW.

As set forth by the judges whose opinion is being

appealed and who held that Feres barred the plaintiff's suit

[W]e are ieft with a counter-intuitive and inequitable

result simply because of Private Richards’s military

status. It is because Feres too often produces such

curious results that members of this court repeatedly

have expressed misgivings about it. . . . Again, we

“express this concern and note that the result we reach

does not actually advance the philosophy behind Feres.

Richards v United States, 176 F.3d 652 at 657-58 (3rd Cir.

1999).

Such misgivings have not been limited to the Third

Circuit but have been echoed by Justices of this Court and

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other circuits and have lead to a plethora of varying

approaches to this troubled doctrine. See United States v

Johnson, 481 U.S. 681, 692 (1985) (Scalia, J., dissenting);

Day v Massachusetts Air Nat’! Guard, 167 F.3d 678 (1st Cir.

1999); Taber v Maine, supra. (2d Cir. 1995). These

approaches have caused a non- uniformity of decision leading

to conflict among the circuits and unequal treatment of

servicemen and their families. This is particularly troubling

in light of the fact that the supposed need for uniformity

formed a primary justification for the doctrine. A very brief

review of some of the case law will demonstrate the clear

split in the circuits.

Only three years ago, the Ninth Circuit in Dreier v

United States, 106 F.3d 844 (9th Cir. 1996), addressed a

situation where an off-duty serviceman was injured on the

base due to a dangerous condition of the land in an area that

_ Was restricted to military personnel. The court found the

Feres doctrine did not apply because the plaintiff was not in

any real way subject to the compulsion of military orders, nor

was he performing any sort of military mission. The court

authored an extremely lengthy opinion directly noting that its

opinion and earlier opinions of the Ninth Circuit were likely

in conflict with decisions of other circuits. Jd at 854 n.9.

In Taber v Maine, 67 F.3d 1029 (2d Cir. 1995), the

Second Circuit found itself forced “into that singular tangle

of seemingly inconsistent tulings and rationales known as the

Feres doctrine.” Jd. at 1032. After recognizing the “willful

and arguably misguided origins” of the doctrine, id. at 1039,

and acknowledging that it did not have the power to abolish

the doctrine, the court attempted through lengthy analysis to

find some basis for consistently applying the doctrine.

Ultimately, the court held that Feres was inapplicable to the

plaintiff's suit. However, the court added,

[W]e would be less than candid if we did not admit that

the Feres doctrine has gone off in so many different

directions that it is difficult to know precisely what the

doctrine means today.

Id. at 1032.

In Parker v United States, 611 F.2d 1007 (Sth Cir.

1980), the court held that an off-duty serviceman, who was

injured on base while driving a civilian vehicle towards his

home off the military reservation, was not performing any

military function and therefore the Feres doctrine did not bar

an FTCA claim.

In contrast to the above opinions, the First Circuit in

Lauer v United States, 968 F.2d 1428 (1st Cir.), cert. denied,

506 U.S. 1033, 113 S. Ct. 812 (1992), found the doctrine to

preclude a claim by an off-duty serviceman who was injured

off base on a road maintained by the Navy. This gentleman

was not engaged in any military mission or in any real sense

subject to the compulsion of military orders, nor was he

acting within the scope of his employment. His claim was

nevertheless held to be precluded by Feres.

The Eighth Circuit in Miller v United States, 643

F.2d 481 (8th Cir. 1981)(en banc), held that an off-duty

serviceman performing off-duty work for a private contractor

was barred from recovery by the Feres doctrine because the

power line that his ladder touched was maintained by the

Army. Again, this gentleman was not acting within the scope

of his employment nor subject in any real sense to the

compulsion of military orders. Nevertheless, his claim was

also held to be barred under the Feres doctrine.

While lawyers could parse syllables about the

differing facts of these cases, there can be little question that

different rules were and are being applied by the different

circuit courts. These rules of decision are unquestionably

outcome determinative and cause a complete lack of

uniformity in the decisions with regard to whether a

serviceman or his surviving family can pursue a claim for

damages.

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Certainly the plaintiff in the case at bar was not

engaged in activities that fell within the scope of his military

employment. Nor was he in any real way subject to the

compulsion of military orders or performing a military

mission at the time of the accident. He was off-duty and

driving home on a roadway maintained by the state,

Kentucky Highway 1638. Yet in the 3rd, 1st and 8th circuits

he would be barred from proceeding, while in the 2d, 5th and

9th circuits his claim would go forward. This is only a small

sample of the conflicting decisions and, rhetorical

machinations aside, it beggars reason to state that plaintiff's

claim or those of any service members or their families will

receive evenhanded, similar treatment in the federal circuits.

This case and the Feres doctrine itself represent the

Classic case of a clear conflict in the circuits with regard to a

doctrine whose raison d’étre is supposed to be uniformity of

application of the law. As such it is imperative that this court

grant certiorari to resolve this conflict to assure that those

who serve their country receive a fair and uniform

application of the law.

Il. THE TEST OF TIME HAS DEMONSTRATED

THAT THE FERES DOCTRINE, DUE TO ITS

UNSUPPORTABLE AND ILLOGICAL

UNDERPINNINGS, SHOULD BE ABOLISHED.

In 1946 the Congress passed the Federal Tort

Claims Act, (hereinafter referred to as the FTCA), 28

U.S.C.A. § 2671 et seg. The FTCA stated that, absent certain

specifically defined exceptions, it applied to personal injury

caused by an employee of the Government while acting

within the scope of his employment. 28 U.S.C.A. § 1346(b).

Among the areas specifically considered and legislated upon

by the Congress with regard to the FTCA’s coverage was a

provision limiting military liability. 28 U.S.C.A. § 2680(j). It

was and is therefore clear that Congress had considered

application of the Act to the military.

Despite these facts and the clear wording of the

statute, the Court determined that Congress did not mean

what it had said and that the FTCA should be read to include

further exceptions for the military than those enacted by

Congress. These exceptions, in essence drafted and legislated

by the Court, are what have come to be known as the Feres

doctrine.

Unfortunately, because courts are not designed to

function as legislative bodies, the need for and ramifications

of such a doctrine could not be fully evaluated and

considered prior to the Court’s decision. As a result of this, it

soon became evident that the rationales for Feres, even

putting aside the direct conflict with the statute, did not bear

up under logical and reasoned scrutiny.

The first factor, which concerned the fact that

military personnel already received certain benefits, ran

directly afoul of another decision of the Court as well as the

fact that neither the FTCA or the benefits statutes made even

the slightest mention of the desire and need for such an

exclusivity provision. Brooks v United States, 337 U.S. 49

(1949). Further, such a provision could be easily stated and

was one with which the drafters of the FTCA could be fairly

said to be acquainted with if they desired to enact such a

provision. See, 28 U.S.C.A. §§ 2672, 2676, and 2679. In fact,

in the decision of Brooks v United States, supra, the Court

had upheld the bringing of an FTCA claim by a member of

the military where he had received such military benefits.

The second factor, that the creation of a cause of

action for a peculiarly governmental activity should not be

treated in the same manner as a private cause of action

because private individuals do not raise armies, though

supposedly based on the text of the statute, was also soon

discredited by the decisions of the Court. See Rayonier v

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United States, 352 U.S. 315 (1957); Indian T. owing v United

States, 350 U.S. 61 (1955). This was not surprising in light of

the fact that to accept this premise one had to ignore the fact

that Congress had carefully crafted exceptions to the FTCA,

not only for the military but for other peculiarly

governmental functions. See, e.g., 28 U.S.C.A. §§ 2680 (b),

2680 (c), 2680 (f), and 2680 (j).

The third factor, the need for the application of a

uniform federal rule, again could not be reconciled with the

statute, the decision in Brooks or the fact that other areas of

peculiarly governmental functions were going to be treated

under state laws.

Further, no uniform federal tort law was being

developed. Rather, some servicemen received both state law

determined and military determined benefits while others

received no tort benefits at all. Brooks v United States, supra;

United States v Brown, 340 U.S. 110 (1954).

In light of the above difficulties with the doctrine’s

factors, a post hoc justification for Feres was created by

saying that noninterference with military discipline was one

of the real concerns for the doctrine that Congress had

forgotten to enact. While perhaps a laudable goal, the fact

that the courts would have to consider and inquire into the

same type of decisions made by the military with regard to

injuries caused to civilians made this basis, like the others, a

rather illogical and inconsistent underpinning for the

doctrine. Taber v Maine, 67 F.3d 1029 (2d Cir. 1995).

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

(1987), the Court came back to the original Feres factors

with the exception that it left out the discredited argument on

individual liability, the only factor which was even arguably

based on the text of the statute. Therefore, the doctrine was

now supported by nothing that was based on the statute other

than the Court’s determination that the FTCA did not mean

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what it said. Obviously the same problems, as discussed

above, exist with the present Court-legislated determinations.

This is precisely why the doctrine having come full

circle with some slight modification has still left the circuit

courts with the unworkable and unsupportable task of

applying the Feres doctrine, a task which has caused them to

repeatedly suggest that the Court review and perhaps abolish

the doctrine. Taber v Maine, supra; Day v Massachusetts Air

Nat’l Guard, 167 F.3d 678 (ist Cir. 1999); Monaco v United

States, 661 F.2d 129, 131-132, 134, n.4 (9th Cir. 1981).

Amici would suggest that at the foundation of the

doctrine’s problem is the fact that the Court was attempting

to legislate exceptions to a statute which simply had not been

enacted. It very well may be and is perhaps more likely that

Congress was not as ignorant and oblivious as suggested by

the Court. Rather, in light of the wording of the statute and ~~

the exceptions enacted by Congress, Congress considered

many of the problems that have arisen with the Feres

doctrine and determined that the type of exceptions enacted

by the Court would cause such inconsistency, illogic and

unfairness to servicemen and women that they should not be

enacted.

Of course, this we will never know. However, what

we do know is that Congress did consider application of the

FTCA to the military and did not make any exceptions for

coverage as enacted by the Court. We know that Congress

did not even enact a simple exclusivity provision as could

easily have been done if it believed the Court’s enactments

were necessary or desirable Finally, we know that the Act

addressed exclusivity but did not include that enacted by the

Court.

As repeatedly suggested by a multitude of federal

courts, commentators and members of this court, this

legislating by the Court which flew in the face of the

statutory language was improper. For this reason, as well as

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the unjust and inconsistent treatment the doctrine has visited

upon the service members and their families, amici would

respectfully request the Court to grant the petition for

certiorari to reconsider and hopefully abolish this doctrine.

CONCLUSION

For the reasons stated above, Amici, The

Association of Trial Lawyers of America and The

Pennsylvania Trial Lawyers Association, respectfully urge

the Court to grant the Petition for a Writ of Certiorari.

Respectfully submitted,

CLIFFORD A. RIEDERS*

ROBERT H. VESELY

161 W. Third St.

Williamsport, PA 17701

(570) 323-8711

Attorneys for Amici Curiae

December 29, 1999