Opposition Brief — Poly v. Cargill

Supreme Court, U.S.

(2) erie D

JAN 9 1997

No. 96-940 i

In the

Supreme Court of the United States

OcTosBeErR TERM, 1996

GEORGE P. POLY anp MAUREEN S. POLY,

PETITIONERS,

D.

THOMAS E. CARGILL, JR. p/B/a

CARGILL ASSOCIATES anp MICHAEL T. MOYLAN,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

RESPONDENTS’ BRIEF IN OPPOSITION

OO

ALLEN N. Davip

Counsel of Record for

Respondent Michael Moylan

Peasopy & ARNOLD

50 Rowes Wharf

Boston, MA 02110

(617) 951-2003

LAURENCE FIELD

Counsel of Record for

Respondent Thomas E. Cargill, Jr.

Susan S. RIEDEL

POSTERNAK, BLANKSTEIN

& Lunp, L.L.P.

100 Charles River Plaza

Boston, MA 02114

(617) 973-6144

Blanchard Press, Inc., Boston, Mass — Law Printers (617) 426-6690

TABLE OF CONTENTS

Page

SR SN a ae kya & GkR hin 0 04 ae oe ii

SR oe rie Maes a 6 eka kk Kai by ek bean eben ii

Statutes and Other Authorities.................... ii

NE OE NE ea cn cuwn y Suk algo umn es ]

SE OE nr il sas kb rt vne has bbe eas 2

A. The Question As Presented To The Mas-

i NN oo ec ceo belisaeens 2

B. The Trial Evidence As To The Discretionary

PUMMNEGNE BRCOMIOR ow ec cee c eevee 4

C. The State-Law Grounds For The Judgment. 7

Reasons for Denying the Writ ...................... 9

I. Tis Cast Does Not Present A SUBSTANTIAL

Peper per re cr rrr rrr 9

._ A. This Case Raises A Hypothetical Federal

Re SSG ered elacenta yaia ea et 9

B. To The Extent This Case Raises Any Fed-

eral Question, The Petitioners’ Claims Do

WOE TEMRUMEE SUUNEOUE a pk wec nus cn eta ss 11

Il. THe SJC Correctty Apptiep THE GAUBERT

a bikes aaa ie cde re ee ke eee 13

a en a aa ie ae ie reson Ola oe 15

TABLE OF AUTHORITIES

Cases Page

Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227 (1937) 10

Beck v. Washington, 369 U.S. 541 (1962)........... 9

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 386 (1971) ......... 3

Burns v. United States, 618 F.Supp. 882 (D.Mass.

ROOD 6s v kkd cdot adden eee ll

Dare v. Secretary of the Air Force, 608 F.Supp. 1077

(D. Del 1985), aff'd., 787 F.2d 581 (3d Cir.), cert.

denied, 470 VU.5. 846 (1066) ...........,2c00ee 1]

Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377

Lo Pe er rey he yee a ce 9

Goldman v. Weinberger, 475 U.S. 503 (1985) ....... 12

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949). 13

Herb v. Piteaien, 324 U.S. 117 (1954) ... 0... 65 eee: 10

Orloff v. Willoughby, 345 U.S. 83 (1953) ........... 12

Parker v. Levy, 417 U.S. 733 (1074) .........-.000: 12

United States v. Gaubert, 499 U.S. 315 (i991)... 11, 13

United States v. Johnson, 268 U.S. 220 (1925) ....... 12

Yee v. City of Escondido, 503 U.S. 519 (1992) ...... 9

Statutes

MP Sis UE vis vk cee nsdsshann eee ee 6

DS UAC. Se Os ons hice ieee 7

Be WG eS Kav kno oa ee ee l

Se Ba See Oh snes dees ks een ee 2

We SA g Gir 6 esos bcs bce ee eee eee ll

Be Ai as SEE 0 6 055409 ed bce ee ee 7

Be UA Se oo oe oes sae eee l

Defense Authorization Act of 1988 (P.L. 100-456, 102

BR; TOG. 6 nfs cd cacleeeks Cee eee 12

DE Ad.ka. So GRR s 6 05455 vie Pa hs kee ee 8, 10

iii

Other Authorities Page

TE soy ky gd bonds tarenvesien 11, 12

ee 6

— ek AO ere TrereT <)> an

we SD eee 12

R. Mallen & J. Smith, 4 Legal Malpractice, §32.1

NS a ae dk wide an 04 Ke pa wn-9,e 9

In the

Supreme Court of the United States

Ocroser Term, 1996

No. 96-940

GEORGE P. POLY anp MAUREEN S. POLY,

PETITIONERS,

v.

THOMAS E. CARGILL, JR. v/B/a

CARGILL ASSOCIATES anp MICHAEL T. MOYLAN,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents request that the Court deny the petition for writ

of certiorari seeking review of an opinion of the Supreme Judicial

Court of the Commonwealth of Massachusetts. The Supreme

Judicial Court opinion is reported at 423 Mass. 141, 667 N.E.2d

250 (1996). (For the convenience of the Court, all citations to

the opinion will be to the opinion attached as Appendix C to

the Petition.)

STATEMENT OF JURISDICTION

This Court cannot properly exercise jurisdiction over this case

pursuant to 28 U.S.C. §1257 (a). The constitutional question

presented for review in the petition was never presented to the

Massachusetts courts. The sole Federal question, under the

Federal Tort Claims Act, 28 U.S.C. §2671 et seq., was pre-

2

sented only in a hypothetical way below. See pp. 9-10 infra.

STATEMENT OF THE CASE

The Petitioners’ Statement of the Case is replete with fac-

tual misstatements. The most significant are those relating to

the central defects of the Petition: (1) the failure of Petitioners

to have presented the purported “constitutional question” to

the Massachusetts courts at any stage of this proceeding, (2)

the Petitioners’ failure to note any of the evidence supporting

application of the “discretionary function” exception of the

Federal Tort Claims Act, and (3) The Petitioners’ failure to

note that most of the judgment rests solely on state law

grounds.

A. The Question As Presented to the Massachusetts

Courts.

In this action, Petitioners were required to prove, inter alia,

that “but for” negligence on the part of Michael Moylan, they

would have prevailed in their underlying claim against the

Air Force. This element of proof required both the Mas-

sachusetts Superior Court and the Supreme Judicial Court

(“SJC”) to rule hypothetically on Petitioners’ theory of lia-

bility against the Air Force in the underlying law suit, which

was, at all times, one of tort, for aiding and abetting inten-

tional interference with custodial rights. The question framed

by Petitioners for the purposes of their petition in this Court

— that of direct governmental liability for Fifth Amendment

due process violations — was simply never presented to, or

passed on by, the Massachusetts Courts.!

' In representing to this Court how the federal question was presented,

Petitioners assert that “government officials’ actions wrongfully interfered

with Poly’s constitutionally protected right to a parent-child relationship”

(Petition at 6). Throughout the petition, the Petitioners treat this case as

if it presented a claim that the government violated their constitutional

rights.

3

Specifically, the underlying suit against the Air Force was

brought under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §1346 (b) (“for . . . personal injury caused by the negli-

gent or wrongful act or omission of any employee of the

Government’), based on a state law claim of interference with

custodial rights. In the legal malpractice complaint, Peti-

tioners alleged only that Poly had retained Moylan in the

underlying action “to recover damages suffered as a result of

the removal of the children from Massachusetts in violation

of court orders which had prohibited his former wife from

doing so and had awarded custody of the children to plain-

tiff’, and further alleged that the underlying suit was brought

under the FTCA for “negligence” on the part of the Air Force.

(Pl. I at 23, et seq.*). There was never an allegation of any

Bivens-type damage action for constitutional deprivation by

governmental officials. See Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 386 (1971).

At trial, the dispute on causation centered on whether the

Air Force would have been held liable for the state law tort

of custodial interference — or whether the FTCA’s “discre-

tionary function exception” would have precluded Air Force

liability.* Although the jury found that Poly “probably”

would have been successful in his claim against the Air Force

(Pl. II at 564), on Moylan’s JNOV motion the court ruled that

the Air Force was exempt from liability under the discre-

tionary function exception, as a matter of law (Appendix D).

The court made no ruling on the issue of governmental lia-

? The joint appendix below consists of two volumes of pleadings, consecu-

tively numbered, which will be referenced as “Pl. I or II at ___”, four

volumes of transcript, also consecutively numbered, which will be refer-

enced as “Tr. ___”, and trial exhibits, contained in one volume, which

will be referenced as “Ex. __”.

* In various papers filed with the Superior Court, Petitioners alluded to

the fact that the parent-child relationship was “constitutionally-

recognized”, and certain of their requests for jury instructions touched

generally upon that principle. These citations, however, were presented as

a foundation for the state law tort claim and were, in any event, never

discussed as a basis for governmental liability for Fifth Amendment viola-

tions, as Petitioners imply here. Nor were they ever presented to the jury.

4

bility for deprivation of constitutional rights, as that issue was

never raised.

Similarly, on appeal, Petitioners had no choice but to frame

the relevant issue as whether the discretionary function excep-

tion barred a state law tort claim.‘ Thus, the SJC never

decided the question of Air Force liability for Fifth Amend-

ment violations, and properly so. On the issue of underlying

liability, the court decided the case on the narrow grounds

presented, holding only that the trial court acted properly in

allowing Respondent’s JNOV motion, as the tort claim was

barred by the discretionary function exception.® Significantly,

in their petition for rehearing in the SJC, Petitioners made

no argument based on the court’s “failure” to reach the con-

stitutional claim which they now assert (Appendix B).

B. The Trial Evidence As To The Discretionary Func-

tion Exception.

In this case, the allegedly tortious acts committed by the

Air Force in aiding and abetting the Gillis’ interference with

custody were the command sponsorship of Janet Gillis and the

two children, the extension of Sgt. Gillis’ tour of duty in Ger-

many, and failure to return Sgt. Gillis to the U.S. Petitioners

fail to inform the court of critical evidence bearing on these

Air Force decisions, which required the conclusion that they

were discretionary.

At trial, the dates that the Air Force decided to transfer

Sgt. Gillis to Germany and to approve command sponsorship

were not established, although the evidence indicated that

* Again, any cases cited on the concept of “intentional interference with

a constitutionally protected right” were in support of plaintiffs’ FTCA claim

for aiding and abetting the Gillises, not a direct claim for deprivation of

those rights. It is noteworthy that Petitioners never argued below that the

discretionary function exception cannot apply where constitutional viola-

tions are alleged to exist, an argument which they make in this Court.

5 The SJC decision discussed what it termed “[t]he underlying tort claims”

(App. C at 27A) (emphasis added); the terms “constitutional” or “due

process” are nowhere mentioned in the court’s opinion.

5

they occurred prior to April, 1979, when the court awarded

custody of the children to Poly (Tr. 1304-1305, 1731-32).* The

SJC merely noted that the reassignment and relocation of the

family took place in 1979. In any event, the precise sequence

of events was not material in the view of both Massachusetts

courts, given the undisputed evidence as to the discretionary

nature of the initial transfer decision — as well as the subse-

quent tour-of-duty extensions — under Air Force policy.

Petitioners ignore the fact that their own military expert,

retired Air Force Lt. Gen. Stansberry, testified that decisions

regarding command sponsorship and tour extensions are dis-

cretionary under overriding Air Force policy to act in the best

interests of the country and the Air Force (Tr. 1195, 1199,

1202, 1265-67, 1284, 1363). Respondents’ expert, former

Assistant Secretary of the Air Force, Karen Keesling, con-

firmed the discretionary nature of such functions and opined

that the Air Force decisions in this case complied with

applicable Air Force policy, regulation and practice (Tr.

1723, 1737-40, 1746). Accordingly, both the Superior Court

judge and the SJC found no conflicting evidence as to whether

the decisions were discretionary in character. (App. D at 41A,

App. C at 31A and n.6).’

* As Respondents argued to the SJC, there was also sufficient evidence

to demonstrate that the Air Force did not gain actual notice of the custody

order until the Gillises had left for Germany. (Tr. 437, 542, 959-60,

1707-1709; Exs. 22, 168-169). However, even accepting Poly’s testimony on

that fact, the evidence was insufficient to prove the unlawful intent on the

part of the Air Force required to sustain a cause of action for aiding and

abetting custodial interference. The SJC did not reach this issue.

’ There was also substantial evidence offered by the Respondents that the

Air Force had a clear policy of neutrality with regard to child custody dis-

putes (Tr. 1722, 1752, 1721) and that the Air Force had articulated its policy

to Poly in this case (Ex. 16, 20 and 28). Numerous trial exhibits evidenced

the policy of neutrality recognized by the Office of the Secretary of the Air

Force, the Headquarters of the United States Air Force, and the Judge Advo-

cate General Corps., which governed the conduct of the Air Force during

the relevant time period (Ex. 16, 20, 24, 28, 271). In carrying out official

policy, the Air Force is exempt from FTCA liability. The SJC acknowledged

the evidence as to this neutrality policy, but limited its holding to the related

policy that discretionary decisions were to be made in the best interests of

6

Moreover, the evidence overwhelmingly supported the con-

clusion that the personnel decisions involved here were discre-

tionary and grounded in policy, namely that they were based

on the best interests of the country and the Air Force. By sta-

tute, the Air Force was not obligated to return enlisted per-

sonnel (and certainly not their dependents) from overseas

because of court orders, or even criminal warrants. 10 U.S.C.

§814 (the military may or may not deliver members for trial).

The governing regulations from 1979 through 1987 allowed

the Air Force to refuse to deliver a member of the Air Force

for trial of even an aggravated felony offense, if he was sta-

tioned overseas. 32 C.F.R. §884.4(d)(1980). Operating

Instructions dated May 16, 1983 from the Office of the Judge

Advocate General stated that requests for the return of an

overseas airman would be reviewed by HW USA/JAJ to deter-

mine the best interests of the Air Force (Exs. 71, 334). Similar

instructions provided that the Air Force was not required to

assist in the service or enforcement of a state court order and

even prohibited such assistance in certain circumstances. Civil

Law Opinion, Judge Advocate General, July 15, 1986 (Ex.

68).

Air Force Regulations regarding command sponsorship did

not require, or even authorize, the official to consider custody

disputes in approving the sponsorship (AFR 39-11, §4(d)(3))

(Ex. 213), authorizing payment for dependent travel overseas

(AFR 75-8, §1-3) (Ex. 346), or withdrawing the sponsorship

(AFR 39-11, §4-14) (Ex. 271). Even if command sponsorship

and government paid travel was not authorized, the Air Force

could not prevent dependents from moving with enlisted per-

sonnel (AFR 75-8, §1-7(a)(2) (Ex. 347). Further, in making

tour extensions, Air Force regulations did not require the offi-

cials to consider custody disputes or even outstanding criminal

charges; recommendation for approval or disapproval was to

be based on the judgment of the immediate commander as

the United States and the Air Force, in order to find an undisputed basis

for its conclusion. (Appendix C at 31A, n.6). Petitioners misrepresent the

SJC’s statement with regard to the neutrality policy, in footnote 9 of their

petition.

— 2

7

to whether it was in the best interests of the Air Force to retain

or return the member. AFR 39-11, §4-15 (Ex. 293). Curtail-

ment of tours for cause was limited to serious incidents

overseas affecting the mission in the host country rather than

legal obligations in the United States. AFR 39-11, §4-17 (Ex.

295).°

Given these facts, Petitioners’ assertion that no evidence

was ever introduced by defendants to show that Air Force offi-

cials had discretion to “ignore” the probate court orders is a

bletant misrepresentation®.

C. The State-Law Grounds For The Judgment.

While one aspect of the judgment below turned on the

FTCA, most of the judgment is based entirely on state law

grounds. Petitioners leave the erroneous impression that this

Court is being asked to review the entire judgment below. The

jury verdict for the Petitioners and against Moylan for

$132,000 (Tr. 1965) — set aside by the trial judge and the

* Even as of this date, the relevant regulations do not require military

personnel to cooperate with civil authorities or to withdraw command spon-

sorship in cases involving violation of custody orders, although consideration

of such actions is encouraged. 32 C.F.R. §884.5 (1995). This fact was noted

by the SJC. (Appendix C at 31A, n.7.).

® Moreover, the Respondents raised two other defenses to the underlying

claim — in addition to lack of intent by the Air Force — which the Superior

Court judge ruled would have prevented Poly from prevailing against the

Air Force (PI. II at 756-758). First, the claim was barred under the “foreign

country exception” to the FTCA, 28 U.S.C. §268(k), due to actions of the

Air Force in Germany upon which Poly’s claim was premised. This was

the basis on which the Federal District Court dismissed Poly’s claim in 1985.

Second, the FTCA’s statute of limitations, 28 U.S.C. §2401(b), barred the

claim as a matter of law. That statute requires that a claim be presented

to the appropriate agency within two years after accrual. Since it was

undisputed that Poly knew the whereabouts of his children no later than

September, 1979 (Ex. 44, 199), and by May, 1981 had come to the conclu-

sion that he had a claim against the Air Force and the Gillises (Ex. 46,

201), the presentment period clearly expired in 1983, before Poly even

retained Moylan. The SJC expressly declined to reach these valid defenses,

given its holding.

'

;

,

8

reason for the SJC’s venture into FTCA law — is the only

aspect of this case which even arguably raises a question for

this Court.

Poly’s legal malpractice claim against Moylan arose not

only from his underlying FTCA claim against the Air Force, |

but also from his tort claims against the Gillises. The Superior

Court judge entered JNOV in Moylan’s favor with regard to

the claim against the Cillises, as the Petitioners failed to

submit any evidence of the collectability of any judgment they

would have obtained against the Gillises in the underlying

case, as required in a legal malpractice action under Mas-

sachusetts law. Moreover, Moylan could not be held liable to

Poly for the loss of the claim against the Gillises, since the

evidence demonstrated that he withdrew with court approval

from representing Poly on that claim, with notice to Poly at

a time when this legal malpractice case was already pending

and while there was still a viable case to pursue. (App. C.

at 32A-33A).

In addition, the SJC ruled on Poly’s claim against Moylan

for misrepresentation and deceit, vacating the lower court’s

award of damages based on lack of proof that those damages

flowed from the alleged deceitful acts, as required by Mas-

sachusetts law. (Id. at 33A-34A). The SJC also affirmed the

trial judge’s ruling with respect to the loss of consortium claim

by Maureen Poly. (Id. at 34A-35A). With respect to Poly’s

elaim against Cargill, the SJC held that there was more than

adequate evidence to support the jury finding that Cargill did

not have the right to exercise control over Moylan’s handling

of Poly’s case, and that Cargill therefore could not be vicari-

ously liable for any negligence on Moylan’s part (an issue only

relevant if the verdict against Moylan had not been over-

turned). (Id. at 35A-36A). Finally, the SJC found no abuse

of discretion in the lower court’s conclusion that the Peti-

tioners were not entitled to a new trial under Massachusetts

General Laws, Chapter 93A, as the Respondents’ actions or

omissions failed to constitute unfair or deceptive acts or prac-

tices under that statute (Id. at 36A).

9

REASONS FOR DENYING THE WRIT

I. Tuts Case Does Not Present A SUBSTANTIAL FEDERAL

QUESTION.

A. This Case Raises A Hypothetical Federal Question.

This case was pleaded, tried, and appealed as a state law

legal malpractice case. The precise issue presented to the SJC

was whether Moylan could have obtained a better result had

he exercised reasonable skill and care. This, of course, is the

crux of any common law legal malpractice claim. See

Fishman v. Brooks, 396 Mass. 643, 647, 487 N.E.2d 1377,

1380 (1986). The Petitioners have manufactured a constitu-

tional question, never presented below, to interest this Court

in reviewing the case. This Court wisely declines to address

federal questions never raised or decided below. See, e.g., Yee

v. City of Escondido, 503 U.S. 519, 523-33 (1992); Beck v.

Washington, 369 U.S. 541, 549-53 (1962). Thus, the only con-

ceivable federal question here is application of the FTCA to

the particular facts in this case.

While ordinarily this would present a federal question —

albeit, not a substantial and important one — the question

was raised below in an unusual way. The FTCA claim here

is essentially a “fictional” one, a device employed by the Mas-

sachusetts court to determine the causation and damages in

a legal malpractice case. See Fishman v. Brooks, 396 Mass.

at 647, 487 N.E.2d at 1380 (“The original or underlying

action is presented to the trier of fact as a trial within a

trial.”). The goal of this procedural device is “to determine

what the result of the underlying proceeding or matter should

have been” had the alleged negligence not occurred. R.

Mallen & J. Smith, 4 Legal Malpractice, §32.1 (4th Ed.

1996).'° Thus, the SJC was presented with a hypothetical

'© An alternative device, not accepted in Massachusetts, is to have an

expert testify about the settlement value of the underlying case.

10

FTCA case against the Air Force. “The litigation of a legal

malpractice action often thrusts the parties, the judge and the

jury into a virtual fantasy world of hypothetical questions of

fact and law with assumed plaintiffs and defendants, facing

theoretical claims and using evidence that is not quite what

it seems.” Id. Although this is not at all unusual in legal mal-

practice cases, it demonstrates that the “federal” issue

presented in this case is akin to a hypothetical, or advisory

opinion, neither of which presents a federal question for

review by this Court. See e.g., Aetna Life Ins. Co. v. Hay-

worth, 300 U.S. 227, 241 (1937) (“[The controversy] must be

a real and substantial controversy ... as distinguished from

an opinion advising what the law would be upon a hypothet-

ical state of facts.”) Furthermore, it is significant that the Peti-

tioner seeks to have the Court determine whether particular

government conduct is within the discretionary function

exception to the FTCA in a case in which the government is

not a party.

With respect to all of the other issues in this case — the

other malpractice claim as well as the fraud, loss of consor-

tium and M.G.L. Chapter 93A claims — there are indepen-

dent and adequate state grounds to support the SJC’s decision.

See supra at pp. 7-8. At most, this Court can review the SJC’s

treatment of the $132,000 jury verdict against Moylan and,

if it reverses, require the SJC to consider the alternative

grounds which it did not reach, including whether there was

sufficient evidence to support a state law tort claim against

the Air Force for interference with custodial rights. It is well-

established that the Supreme Court has no jurisdiction to

review where, as here, the non-federal grounds are adequate

to support the judgment. See Herb v. Pitcairn, 324 U.S. 117

(1954).

a asienenty Saiestewe mewn aciaine

anne eee emer ae

1]

B. To The Extent This Case Raises Any Federal Ques-

tion, The Petitioners’ Claims Do Not Warrant

Review.

For at least four reasons, the Petitioners’ claims are not

sufficiently compelling to warrant review. First, Poly argues

little more than that the SJC misapplied 2 properly stated rule

of law. The only federal question Poly raises, and this only

hypothetically, is whether the discretionary function excep-

tion to the FTCA applies to the facts of this case. It is

undisputed that the SJC correctly stated the rule of law as

articulated in United States v. Gaubert, 499 U.S. 315, 323

(1991). The only claim of error is the SJC’s application of the

Gaubert criteria to the facts of this case. The Respondents

submit that the SJC correctly applied the rule, but whether

the SJC was correct in its application of Gaubert is not suffi-

cient to warrant the granting of the petition given that the

asserted error consists only of “the misapplication of a

properly stated rule of law.” Sup. Ct. Rule 10(c). Along with

the usual rationale for not spending this Court’s time on cases

allegedly “misapplying” well-settled legal principles, it is

doubtful that federal courts will accord much precedential

value to a state supreme court ruling which, because of a

procedural quirk, hypothetically applies the FTCA to partic-

ular decisions by the U.S. military.

Second, there is no conflict between this and other cases.

The only case dealing directly with this issue is consistent with

the SJC’s decision. In Burns v. United States, 618 F.Supp. 882,

884 (D. Mass. 1985), the court held that claims against the

military under the FTCA arising out of the transfer of military

personnel and their dependents were barred by the discre-

tionary function exception. Burns is consistent with other cases

dealing with the military’s liability arising out of personnel

issues. See, e.g., Dare v. Secretary of the Air Force, 608

F.Supp. 1077 (D. Del 1985), affd., 787 F.2d 581 (3d Cir.),

cert. denied, 479 U.S. 846 (1986) (Air Force is not subject to

the Parental Kidnapping Prevention Act, 28 U.S.C. §1738A).

12

It is also consistent with the principle, which this Court has

repeatedly recognized, that judges are not given the task of |

running the military. See e.g., Orloff v. Willoughby, 345 U.S. )

83, 93 (1953); Parker v. Levy, 417 U.S. 733, 743-44 (1974);

- Goldman v. Weinberger, 475 U.S. 503, 506-508 (1985). |

Significantly, the Petitioners do not cite the Burns case in ,

their Petition. Instead, they manufacture an illusory conflict

by mixing cases dealing with qualified immunity under the

civil rights acts and cases dealing with the constitutional

ramifications of government conduct that has the effect of

permanently terminating a parent-child relationship. The

result is the proposition that the government cannot perma-

nently terminate a parent-child relationship without due

process. This case, however, does not involve a claim under

the civil rights acts or the Fifth Amendment, nor does it

involve a claim of a permanent termination of a parent’s

rights.

Third, the law has changed, making a recurrence of the

questions in this case highly unlikely. The Defense Authoriza-

tion Act of 1988 (P.L. 100-456, 102 Stat. 1918) required the

military to issue regulations dealing with custody and parental

kidnapping. In 1991, the Air Force issued regulations dealing

explicitly with these matters. 32 C.F.R. §884.16 (1992). The

regulations still give the Air Force discretion over the transfer

of military dependents, but it is now encouraged to consider

withdrawing command sponsorship if military members or

their dependents fail to comply with state custody orders. See

also 32 C.F.R. § 884.5 (1995). This possibly reduces the likeli-

ne ee

hood of a recurrence of the events here — and certainly

resolves any question as to whether such military decisions are

discretionary.

Finally, Poly argues that the SJC failed to consider critical

facts and did not accord proper weight to the evidence. (Peti-

tion at 16-19). Regardless of the merit of this argument, fact-

finding is not the role of this Court. United States v. Johnson,

268 U.S. 220, 227 (1925); Sup. Ct. Rule 10(c). The facts of

this case have been reviewed by the SJC. It is not the function

ee Ea em

13

of this Court to review the facts again. See Graver Mfg. Co.

v. Linde Co., 336 U.S. 271, 275 (1949) (Court will not review

findings of fact “in the absence of a very obvious and excep-

tional showing of error.”).

II. THe SJC Correctty AppLiep THE GAUBERT STANDARD

The Petition claims (at 16-20) that the SJC misapplied the

standard in United States v. Gaubert, 499 U.S. at 324-325,

to the facts in this case. Even if this were a “substantial and

important” question requiring the Supreme Court's attention,

the SJC correctly decided the discretionary function issue

here. The Petitioners equate a difference in analysis — and

result — with wrongful conduct by the SJC."

The SJC, to avoid any suggestion that it was deciding the

discretionary function issue on disputed facts, very carefully

reasoned to its conclusion. The SJC began its analysis by

focusing on the Air Force’s obligations, if any, to return Sgt.

Gillis to the United States because of “court orders or even

criminal warrants.” (App. C, at 31A). The SJC recited the

applicable federal statute, regulations, and case law, which

provide that such return is discretionary. The SJC concen-

trated on the failure to return Sgt. Gillis because, without dis-

pute, applicable law allows the Air Force to “ignore” court

orders and even criminal warrants. The SJC implicitly rea-

soned that if the Air Force were permitted to use its discretion

in this circumstance, then the Air Force certainly had discre-

tion to grant command sponsorship or extend tours.

The Petitioners misinterpret the SJC’s emphasis on this one

aspect of their theory of Air Force wrongdoing. Contrary to

the Petitioners’ claim that the SJC “misapprehended the

offending conduct” (Petition at 17), the SJC was aware that

the Petitioners claimed wrongdoing in the initial command

sponsorship and referred to this aspect of the claim twice

'! Petitioners accuse the SJC of “purposeful” misquotation of the Gaubert

standard (at 19), and of omitting or distorting facts to “camouflage” the

Air Force’s actions (at 18).

14

(App. C, n.7 at 31A and at 32A). The SJC could have (as it

did with the Air Force’s discretion to return Sgt. Gillis) recited

the applicable law making discretionary the decision to grant

command sponsorship or extend tours in the text of its ruling.

For example, the SJC noted in a footnote that even current

law does not require the Air Force to encourage its members 5

to cooperate with civil authorities or to withdraw command

sponsorship in a custody case. (App. C, n.7, at 31A). There

is additional support in the record, see supra at 5-7, that Air

Force regulations leave all these personnel decisions to the dis-

cretion of the commanding officer. That the SJC chose not

to cite all of these undisputed facts is more a matter of judicial

craft than judicial misconduct. |

Having established that the decisions at issue were discre-

tionary, the SJC then turned to the “more difficult” issue of

whether the discretionary conduct involved policy making or

planning. Here, the SJC relied on the undisputed policy that

all discretionary decisions involved in this case were to be

made “in the best interest of the U.S. and the U.S. Air Force”

(App. C, n.6 at 32A). As noted supra, even the Petitioners’

military expert agreed with this proposition; he testified that

this discretionary standard applied with respect to command

sponsorship, tour extensions, and return of personnel. From

this undisputed basis, the SJC concluded that the Air Force

decisions were “grounded in policy.” (App. C, at 31A).

Contrary to the Petitioners’ claim, the “policy” at issue is

not to “ignore court orders .. . facilitate parental kidnapping

... [or to] aid and abet in the intentional interference with”

protected rights. (Petition at 19). Rather, the policy, as laid

out in the statutes, regulations, cases and internal Air Force

guidelines, is to allow the Air Force to accomplish its military

mission. The Air Force, in exercising its discretion to do what

is in the best interests of the Air Force and the United States,

may place a higher priority on its military mission than it does

on facilitating the enforcement of custody orders.

vicaeiiiciiliaslliaiaiies

15

CONCLUSION

The writ of certiorari should be denied.

Respectfully submitted,

ALLEN N. Davip

Counsel of Record for

Respondent Michael Moylan

Peaspopy & ARNOLD

50 Rowes Wharf

Boston, MA 02110

(617) 951-2003

LAURENCE FIELD

Counsel of Record for

Respondent Thomas E. Cargill, Jr.

SusaN S. RIEDEL

POSTERNAK, BLANKSTEIN

& Lunp, L.L.P.

100 Charles River Plaza

Boston, MA 02114

(617) 973-6144