Reply Brief — Lovely v. United States (No. 09-370)

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No. 09-370

jn The

Supreme Court of the Gnited States

WAYNE G. LOVELY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

REPLY BRIEF FOR PETITIONER

KEVIN P. PODLASKI

Counsel of Record

J. BLAKE HIKE

DIANA C. BAUER

Attorneys

CARSON BOXBERGER LLP

1400 One Summit Square

Fort Wayne, Indiana 46802

Telephone: (260) 423-9411

Facsimile. (260) 423-4329

Attorneys for Petitioner,

Wayne G. Levely

HOKE LAW BREEF PRINTING CO -sQ0) 225.69"

R CALL COLLECT (402) 342 2551

TABLE OF CONTENTS

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IV.

RESPONDENT’S CHARACTERIZATION

OF LOVELY’S INJURY CANNOT WITH-

FRIAS EF TEA OE © os vice eksnccasesatiieee tates

THE SIXTH CIRCUIT'S ANALYSIS OF

THE MILITARY DISCIPLINE RATIO-

NALE ILLUSTRATES THE SPLIT IN

AUTHORITY BETWEEN SHEARER

PINS? De LIRINEME SE sit einisscersssxomnapaseemsaee

THE SIXTH CIRCUITS DECISION

CANNOT BE RECONCILED WITH DE-

CISIONS FROM OTHER CIRCUITG........

RESPONDENT: MISCHARACTERIZES

OTHER CIRCUITS’ TREATMENT OF

MAJOR AND DOWNPLAYS ITS PRE-

CAEP RaEt e BPRas VIRRI Bee 665s so vinscinivecavencvinedoieos

THE SIXTH CIRCUIT IMPROPERLY

ANALYZES FERES’ SECOND RATIO-

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TABLE OF AUTHORITIES

Page

CASES

Brown v. United States, 151 1.od 800 (8th Cir.

a. ccneeeneuececscencceveseces 6, 7

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

Se Ie) Re 10

Elliot v. United States, 37 F.3d 617 (11th Cir.

Ns ccnvesevceccdvececscccseseesees 7

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

Harrison v. United States, 329 Fed. Appx. 179

De nwneragnncceeseceseseces 6,7

Major v. United States, 835 F.2d 641 (6th Cir.

a cnncebuedeaceseeconenceeccesccs 9,10

McConnell v. United States, 478 F.3d 1092 (Sth

Cir.), cert. denied, 128 S.Ct. 649 (2067)... 10

Miller v. United States, 42 F.3d 297 (6th Cir.

Neen se veencdcescsacaceeseonsnecses 10

Morse v. West, 97-1386, 1999 WL 11287 (10th

Neen nc conbecvrencendasececoncesccescceces 6

Parker v. United States, 611 F.2d 1007 (8th Cir

os canneesseeeeasscccccecececences 7,8

Persons v. United States, 925 F.2d 292 (9th Cir.

I 9

Pierce v. United States, 813 F.2d 349 (11th Cir.

I snecnuccnceedeessecataecctscccosess 8

Pringle v. United States, 208 F.3d 1220 (10th

Ne eco avecsechsencccsccseesenncecncensees 10

ili

TABLE OF AUTHORITIES — Continued

Page

Regan v. Starcraft Marine, 524 F.3d 627 (5th

Rae SI ui cs nis dicccicubasnbouseaan uta cuadeeenaeer ane 4,5,6, 7

Richards v. United States, 176 F.3d 652 (3rd

BS eakvas cenencdessdsann aids cate ee 10

Schnitzer v. Harvey, 389 F.3d 200 (D.C. Cir.

BG vss scnsncatccvavoadaliodiecciacccndutastcisen doen cae ae 10

Shaw v. United States, 854 F.2d 360 (10th Cir.

| ACE arm mA UPR Dey aH it Fe NUN ay 9

Stevenson v. Stone, 21 F.3d 159 (7th Cir. 1994)......... 10

Stewart v. United States, 90 F.3d 102 (6th Cir.

BU sachs dccun sc ccucteeeseade ences Is ANSE 9,10

United States v. Johnson, 481 U.S. 681 (1987) .....4, 11

United States v. Shearer, 473 U.S. 52 (1985)........... 3,4

United States v. Stanley, 483 U.S. 669 (1987).....1, 3, 4

Wake v. United States, 89 E.3d 53 (2nd Cir.

BPE) i is.bvkue vadaveavansutnuseseauannsseeis rece eee eee 5. 4

Whitley v. United States, 170 F.3d 1061 (11th

CSI Rss cucu c cen iecacancieneees ceca eee 10

REPLY BRIEF OF PETITIONER

Contrary to Respondent’s contentions, the issues

here are whether the Sixth Circuit’s blanket denial of

a Federal Tort Claims Act (“FTCA”) claim under Feres

v. United States, 340 U.S. 135 (1950) — based solely

upon a claimant’s remote affiliation with the military

- is consistent with this Court’s intention in Feres,

and whether the Sixth Circuit’s analysis on the

impact such a claim would have on military discipline

is appropriate after United States v. Stanley, 483 U.S.

669 (1987). Respondent’s contentions distort the

issues, mischaracterize the Petitioner’s injuries, and

“spin” the Petitioner into a bad actor — all attempts to

distract the Court's focus from the meaningful

questions presented by the Petitioner. Respondent’s

efforts fail and reveal the weakness of its argument.

Respondent’s arguments minimize into insignifi-

cance the salient questions Petitioner raises about

the analysis employed by the Sixth Circuit when

examining FTCA claims under Feres. If Respondent's

contentions are correct, then anyone affiliated with

the military, however remote, is engaged in an

activity incident to service and therefore, their claim

should be barred by the Feres doctrine. Respondent

like the court below — mischaracterizes the nature of

Petitioner, Wayne G. Lovely’s (“Lovely”), injuries and

engages in an improper and unnecessary analysis of

the military discipline rationale of the Feres doctrine

in an attempt to justify the Sixth Circuit’s overly-

broad application of the Feres doctrine.

I RESPONDENT’S CHARACTERIZATION OF

LOVELY’S INJURY CANNOT WITHSTAND

SCRUTINY.

Respondent’s argument that Lovely’s asserted

injury is the “intentional infliction of emotional

distress by a commanding officer in the course of

disciplinary proceedings involving a fellow cadet,

directly impacting compliance with an ROTC scholar-

ship contract, and calling into question Petitioner’s

ability to receive a military commission” (Resp. 15), is

simply incorrect. Lovely’s injury did not occur during

the course of a military disciplinary proceeding, nor

was Lovely otherwise engaged in an activity incident

to his purported service when he was injured.

Instead, Lovely’s injury arises out of the

intentional infliction of emotional distress caused by

LTC Versalle Washington (“Washington”) when he: (1)

released a protected record to a co-ed student; (2)

falsely told other students that Lovely had admitted

that he had sexually assaulted the co-ed; (3) told

other students that they should support the co-ed and

not Lovely; and (4) intimidated one or more of those

students who were Lovely’s prospective witnesses for

the University’s administrative proceeding, causing

them not to testify on Lovely’s behalf at the pro-

ceeding. (Resp. 4-5). Lovely’s injury is the emotional

distress caused by Washington’s actions which is

unrelated to the outcome of the University Disci-

plinary Board’s hearing, or its after-effects.

Respondent attempts to flip the criteria of Feres

and its progeny from an examination of the activity of

the victim at the time of the injury to the activity of

the tortfeasor. Respondent argues that Washington’s

actions are somehow incident to Lovely’s service, and

that challenging Washington’s actions would involve

the sort of prying into military affairs, at the expense

of military discipline and effectiveness, that the Court

cautioned against in its third rationale of Feres.

However, no inquiry into the military discipline

rationale is necessary in the case at bar because this

case does not involve a matter of military discipline.

Washington did not sit on the University’s panel at

Lovely’s disciplinary hearing, he did not report

Lovely’s alleged academic or non-academic miscon-

duct to the University, nor was he a witness at the

University’s hearing. In addition, Washington's in-

fliction of emotional distress on Lovely occurred prior

to the University’s non-academic disciplinary hearing.

Simply put, the injury was caused in a way that was

completely unrelated to Lovely’s connection with the

military.

Because Lovely’s injury was unrelated to any

aspect of military discipline, analysis of the third

policy rationale of the Feres doctrine is wholly

inappropriate and, contrary to Respondent’s asser-

tions, the Sixth Circuit's analysis of the military

discipline rationale was unnecessary — especially in

light of the conflicting opinions in U/nited States v.

Shearer, 473 U.S. 52 (1985) and Stanley.

Il. THE SIXTH CIRCUIT'S ANALYSIS OF THE

MILITARY DISCIPLINE RATIONALE IL-

LUSTRATES THE SPLIT IN AUTHORITY

BETWEEN SHEARER AND STANLEY.

Respondent acknowledges in its Brief that, in

Stanley, this Court cautioned against analyzing Feres’

military judgment rationale in lieu of applying the

“incident to service” test and that this Court, in

Johnson, reaffirmed the “incident to service” test as

the proper analysis in all Feres cases. (Resp. 14);

Stanley, 483 U.S. at 681-83; United States v. Johnson,

481 U.S. 681, 684-87 (1987). Although Respondent

argues that nothing in Stanley suggested that the

Court viewed its opinion as being in conflict with its

decision in Shearer, which was issued two years prior,

the conflicting approaches highlighted in those

decisions have led to uncertainty at the circuit court

level. (Resp. 14). Rather than attempting to reconcile

the disparity between the two cases over the military

discipline rationale, Respondent attempts to sidestep

the conflict and states that lower courts have simply

continued to examine the applicability of the ration-

ales in addition to — not in place of — the incident

to service inquiry. (Resp. 14-15); see also Regan v.

Starcraft Marine, 524 F.3d 627, 636 (Sth Cir. 2008).

The Respondent’s argument illustrates the patch-

work legal fiction in which the courts currently

engage, which at times, such as in the case at bar,

leads to inconsistent results. Had the Sixth Circuit

followed this Court’s most recent decision in Stanley,

it would not have barred Lovely’s claim under the

military discipline rationale of Feres. Lovely’s claimed

injury is simply unrelated to military discipline but,

because the Sixth Circuit embarked on a review of

the military discipline rationale, it errantly consid-

ered the University hearing as an exercise of

Washington’s purported disciplinary authority over

Lovely.

Il. THE SIXTH CIRCUIT’S DECISION CAN-

NOT BE RECONCILED WITH DECISIONS

FROM OTHER CIRCUITS.

As Petitioner showed in his Writ of Certiorari,

under the majority approach analysis, a University

ROTC student is not a service member within the

meaning and intent of Feres, absent some qualifying

activity or additional authorization. See, e.g., Regan,

524 F.3d at 636-38. This is true because ROTC

students have a conditions precedent contract and do

not have the proper duty status for the Feres bar to

apply. In Regan, the Court recognized the necessity of

analyzing both the status of an active duty service

member on the continuum between performing tasks

of an assigned mission to being on extended leave

from duty and the activity in which the claimant was

involved when injured, as essential to a proper

analysis under Feres. Id. (Emphasis added).

Respondent argues to the contrary by pointing

the Court to cases from other circuits which have

concluded that the Feres doctrine is applicable to

ROTC students. (Resp. 16). However, in each of these

cases, the claimant was involved in military training

or a military activity, and the Court looked beyond

the claimant’s mere affiliation with ROTC and

analyzed the activity in which the claimant was

involved when injured. Here, the Sixth Circuit looked

only at Lovely’s affiliation with ROTC and failed to

properly analyze the activity in which Lovely was

involved in at the time of his injury.

In Harrison v. United States, 329 Fed. Appx. 179

(10th Cir. 2009), the claimant’s claimed injury was his

disenrollment from ROTC. In Brown. v. United States,

151 F.3d 800 (8th Cir. 1998), the claimant was injured

during a military-related training exercise, and his

injury aggravated by the negligent treatment of an

Army surgeon. In Wake v. United States, 89 F.3d 53

(2nd Cir. 1996), the claimant was injured when

returning from a military-related activity — a pre-

commissioning physical. In Morse v. West, 97-1386,

1999 WL 11287 at *1 (10th Cir. Jan. 13, 1999), the

claimant was injured while completing educational

requirements specifically related to the ROTC

program.

In each of the cases, a claimant was involved in a

military-related activity when injured. In the case at

bar, none of Lovely’s injuries occurred while he was

involved in any military or military-related activity.

Analyzing both the status and activity of the claimant

at the time of the injury is essential to a proper

analysis under Feres. Regan, 524 F.3d at 636-38. In

its holding, the Sixth Circuit noted that Lovely was

“engaged in the activity of serving as an ROTC cadet

land

and an ROTC scholarship student.” (Resp. 7). Thus,

the Court held that Lovely was “engaged in activity

incident to service”, and therefore, his claim was

“*harred’ by the Feres doctrine” simply by virtue of

being a student in ROTC. (Resp. 7). (Emphasis

added). Accordingly, under the analysis set forth by

the Sixth Circuit and urged by Respondent, Lovely’s

FTCA claim is barred simply because of his affiliation

with ROTC. Such a conclusion cannot withstand

scrutiny.

In every case cited by Respondent, Harrison,

Brown, Wake, etc., the courts examined both the

status of the claimant at the time of the injury, that

is, his or her relationship to the military — on orders,

on duty, or on leave, and the activity of the claimant

at the time of the injury. (Resp. 7). A myriad of cases

allowing reservists and other claimants to pursue

claims under the FTCA deny the Respondent’s

argument and logic. See, e.g., Elliot v. United States,

37 F.3d 617 (11th Cir. 1994) (holding that Feres did

not bar an FTCA action by an injured serviceman and

his wife for debilitating injuries they sustained from

carbon monoxide poisoning while at their home on

hase at Fort Benning, Georgia); Regan, 524 F.3d at

627 ‘holding that a claimant injured in a boating

accident at a military recreational facility that owned

the boat was not barred by Feres from bringing an

FTCA claim), Parker uv. United States, 611 F.2d 1007

(5th Cir. 1980) (holding that an off-duty claimant on a

four-day furlough driving a civilian vehicle towards

his home off the military reservation was not acting

“incident to service” when he was involved in a col-

lision with a vehicle operated by another serviceman);

and Pierce v. United States, 813 F.2d 349 (11th Cir.

1987) (holding that claimant’s injuries suffered in a

motor vehicle collision between him and another

serviceman were not incurred incident to service).

As these cases illustrate, courts must analyze the

totality of the circumstances in determining whether

a case is Feres barred, This involves an assessment of

the claimant’s involvement with the military and the

activity of the claimant when injured. It is not enough

that Lovely was simply enrolled in the University

ROTC program. In order for his claim to be Feres

barred, he must have been participating in a military

or military-related activity at the time of his injury.

Even in Parker and Pierce, where the claimants were

injured by other servicemembers, the claimants’

claims were not barred solely because they were

serving in the military at the time of injury. Instead,

the Court considered the totality of the circumstances

and determined that the suffered injury was not

incident to service.

Had Lovely’s claim been given the same

treatment by the Sixth Circuit, it would not have

been barred under Feres. These cases illustrate that

other circuits have allowed FTCA claims by claimants

with more intricate ties to the military including

claims brought by active duty members and reserv-

ists. If a claimant can be on active duty or a reservist

and still bring a successful FTCA action, the Sixth

Circuit cannot properly deny a FTCA claim brought

by an ROTC student solely because of that student's

status in ROTC.

[V. RESPONDENT MISCHARACTERIZES OTH-

ER CIRCUITS’ TREATMENT OF MAJOR

AND DOWNPLAYS ITS PRECEDENTIAL

VALUE.

Out of one side of its mouth, Respondent com-

plains that Lovely quotes a test first established by

the Sixth Circuit over two decades ago in Major v.

United States, 835 F.2d 641 (1987). (Resp. 13). In so

doing, Respondent implies that the test in Major is

old, outdated, and no longer good law in the Sixth

Circuit. (Resp. 13). However, even a cursory review of

the Sixth Circuit’s decision here, shows that the Sixth

Circuit relies heavily on Major in formulating its

opinion in this case.

Out of the other side of its mouth, Respondent

argues that Major has been favorably cited by other

circuit courts. (Resp. 13-14); see, e.g., Stewart |

United States, 90 F.3d 102 (6th Cir. 1996): Persons v.

United States, 925 F.2d 292, 296 n.7 (9th Cir. 1991):

Shaw v. United States, 854 F.2d 360, 364 (10th Cir

1988). Respondent's assertion is misleading. In

Stewart, Persons, and Shaw, instead of embracing

Major as written, these courts performed an exami

nation of the totality of the circumstances sur-

rounding the claimants’ injuries, including an analy

sis of the nexus between the claimant’s affiliation

with the military and the activity in which he was

involved when injured, and ignored the language in

Major holding that a claim should be barred “without

regard to [the]... location... status... or nexus...

from. which it arose.” Major, 835 F.2d at 644-45.

While Respondent concedes that the other Courts of

Appeal apply a totality of the circumstances ap-

proach, Respondent curiously persists in its conten-

tion that the Sixth Circuit’s approach dismissing

these factors is consistent with the approach taken by

other circuits. (Resp. 12); see, e.g., McConnell v.

United States, 478 F.3d 1092, 1095 (9th Cir.), cert.

denied, 128 8.Ct. 649 (2007); Schnitzer v. Harvey, 389

F.3d 200, 2038 (D.C. Cir. 2004); Pringle v. United

States, 208 F.3d 1220, 1224 (10th Cir. 2007); Richards

v. United States, 176 F.3d 652, 655 (3rd Cir. 1999);

Whitley v. United States, 170 F.3d 1061, 1070 (11th

Cir. 1999); Day v. Massachusetts Air Nat'l Guard, 167

F.3d 678, 682 (1st Cir. 1999); Stewart, 90 F.3d at 104-

5; Miller v. United States, 42 F.3d 297, 301 (6th Cir.

1995); Stevenson v. Stone, 21 F.3d 159, 162 (7th Cir.

1994).

These other circuit courts recognize that a proper

analysis of a FTCA claim under the Feres doctrine

requires the circuit courts examine the status,

location, and activity in which a claimant is involved

when injured. However, the Sixth Circuit looked only

to Lovely’s remote affiliation with the military. Here.

such an analysis was lethal to Lovely’s claim because

according to the Sixth Circuit Court, by simply being

an ROTC cadet, Lovely was engaged in an activity

incident to service and. therefore. his claim was

automatically barred. Under this logic, a claim

brought by any member of the armed forces would be

barred simply because the service member is serving

in a branch of the United States military. Such an

approach is contrary to every other circuit and is

contrary to the incident to service and totality of

circumstances test.

V. THE SIXTH CIRCUIT IMPROPERLY ANA-

LYZES FERES’ SECOND RATIONALE.

Finally, as this Court knows, “the existence of. . .

generous statutory disability and death benefits is an

independent reason why the Feres doctrine bars suit

for service-related injuries, [and} ... the primary

purpose of the FTCA ‘was to extend a remedy to those

who had been without; if [the FTCA} incidentally

(benefitted) those already well provided for, it

appears to have been unintentional.’” Johnson, 481

U.S. at 689-90. The Sixth Circuit and Respondent's

analysis confuses Lovely’s affiliation with ROTC with

this Court’s recognition of Congress’s_ statutory

disability and death benefits. In addition, the Respon-

dent’s argument further amplifies that error because

it mistakenly contends that Lovely’s enrollment and

scholarship in ROTC is tantamount to engaging in

military activity.

Lovely simply was not entitled to any statutory

disability or death benefits as part of his enrollment

in ROTC. Accordingly, absent his claim under the

FTCA, Lovely has no remedy for his injury. The

primary purpose of the FTCA —- to extend a remedy

to those without one — is frustrated by the Sixth

Circuit’s blanket application of the Feres doctrine and

misapplication of the doctrine’s second rationale. This

result cannot be what the Court intended when it

created the Feres bar.

CONCLUSION

For all of the foregoing reasons herein, the Court

should grant Lovely’s Petition for Writ of Certiorari

and reverse the decision of the Sixth Circuit Court of

Appeals.

Respectfully submitted,