UNITED STATES OF AMERICA, PETITIONER V. FREIDA JOYCE JOHNSON,
INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF HORTON JOHNSON,
DECEASED

   No. 85-2039

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Eleventh Circuit

   Reply Brief for the United States

   1. a. Respondent posits a great fork in the road of judicial
application of the Feres doctrine, and argues that the better and more
recent authority demands a determination in every case whether
"pursuit of the litigation would involve the judiciary in sensitive
military affairs at the expense of military discipline" (Br. 14).  In
so asserting, respondent misconstrues nearly all of the authority on
which she relies.  In fact, it continues to be quite clear that the
Feres doctrine bars liability "under the Federal Tort Claims Act for
injuries to servicemen where the injuries arise out of or are in the
course of activity incident to service" (Feres v. United States, 340
U.S. 135, 146 (1950)), and that no probing factual analysis is
required where, as here, that test is plainly met.

   Determination of the availability of FTCA relief based on whether
an injury occurred incident to service was recognized in Brooks v.
United States, 337 U.S. 49 (1949), even before Feres was decided, /1/
and has been the governing rule since.  There is no substantial body
of authority suggesting that this approach has outlived its
usefulness.  /2/ Even in most of the appellate court decisions cited
by respondent (Br. 17-18) as exemplars of a supposed case-by-case
approach to Feres, the court framed the issue as whether the injury
occured incident to service.  /3/ So, too, in United States v.
Shearer, 473 U.S. 52, 57 (1985), the Court reiterated with apparent
approval Feres' enunciation of the incident to service test.

   Of course, at the margin -- where it is not obvious that a given
event occurred incident to service -- courts have indeed resorted to a
complex analysis of a number of factors, including the way in which
military discipline and decisionmaking are likely to be affected if
litigation is allowed.  Thus, in Shearer, the Court gave great
attention to the effects on military "management" of a lawsuit
alleging Army negligence in connection with off-duty, off-base murder
of one soldier by another (473 U.S. at 57-59).  And in many of the
cases cited by respondent from the courts of appeals -- typically
involving conduct occurring off-duty and sometime off-base --
similarly complex analyses have been determinative.  See cases cited
note 3, supra.

   However, such an approach to activities tied less explicitly to the
injured party's military service has no implications for cases, like
the present one, of injuries plainly suffered in the course of a
military mission.  /4/ Such cases should be governed, without further
analysis, by this Court's unexceptioned incident to service rule.
That categorical rule is proper, because it pertains to the "type of
claims that, if generally permitted, would involve the judiciary in
sensitive military affairs at the expense of military discipline and
effectiveness" (Shearer, 473 U.S. at 59).  /5/

   b. This is so, moreover, as we showed in our opening brief, whether
or not the plaintiff has sued the United States alleging negligence on
the part of civilian employees only.  Such cases will often involve
possible negligence by civilian or military employees of the United
States in the formulation and implementation of a particular military
exercise or action.  As the role that the FAA performs in assisting
the military illustrates (see our opening brief at 14-17), the conduct
of a military mission may sometimes be questioned just as effectively
by challenging civilian actions as by challenging the actions of
service members.  /6/ In addition, even where the alleged civilian
tortfeasor does not regularly work with the military, defense of the
case may not be possible without focusing on questions of military
fault in formulation or execution of a military action.  Since it may
be that military personnel rather than civilians were primarily
responsible for the harm, the United States might need to prove
unactionable military negligence in order to defend the case.  So too,
it might be necessary to prove contributory negligence on the part of
the injured service member.

   Respondent nevertheless contends (Br. 26) that cases such as this
one should go forward subject to dismissal at some undisclosed time if
military decisions are in fact called into issue.  Much of the harm to
military discipline and effectiveness, however, is likely to be
sustained as a result of the inquiry into the facts of the case, so
that much of the harm the Feres doctrine aims to prevent would occur
as a result of the case-by-case inquiry itself.  For example, it is
common in cases such as this that there will be a real question
whether pilot error or errors on the part of other Coast Guard members
were the cause of the crash.  The process of attacking the deceased
pilot's actions or the actions of other Coast Guard members in court
would have a deleterious effect on military discipline and
effectiveness.  /7/

   More broadly, the allowance of suit for actions occurring incident
to duty would be at odds with the special type of service rendered by
the nation's military -- marked by emphasis on duty to country,
obedience to superior authority, and acceptance of injury or even
death.  This special type of service is a badge of honor and
distinction for which our military personnel are rightly celebrated in
life and death, and recognized with special kinds of benefits.  It
requires a commitment to perform the appointed mission notwithstanding
risks far beyond those typical of everyday life -- risks that in some
circumstances may be overwhelming.  See McKay v. Rockwell
International Corp., 704 F.2d 444, 453 (9th Cir. 1983), cert. denied,
464 U.S. 1043 (1984).  Such traits of character and mind as the
military demands do not cohabit easily with a tort system that dwells
on a service member's rights against those who cause him harm.  A set
of rules which starts with the premise that the availability of
judicial relief is the rule rather than the exception tends iteslf to
undercut military discipline and effectiveness by deemphasizing and
minimizing the extraordinary commitment that is required.  Thus, the
Feres bar to suit for injuries incurred incident to military service
is a recognition not only of the possible harmful effects of specific
litigation, but also that the military mission in general demands a
unique form of dedication and selflessness from those who carry it
out.

   2. We also contended in our opening brief (at 22-27) that veterans'
benefits are the exclusive remedy for service members injured incident
to military service, as this Court has repeatedly stated.  Hatzlatchh
Supply Co. v. United States, 444 U.S. 460, 464 (1980);  Stencel Aero
Engineering Corp. v. United States, 431 U.S. 666, 673 (1977).
Respondent contends (Br. 27-30) that we have failed to recognize that
this Court authorized receipt of both veterans' benefits and tort
recoveries in Brooks v. United States, 337 U.S. 49 (1949), and United
States v. Brown, 348 U.S. 110 (1954).  In fact, we explicitly
recognized (Br. 23 n.11) that the receipt of veterans' benefits does
not itself bar a tort action against the government.  However, since
Feres, it is clear that veterans' benefits are the exclusive remedy
for injuries incurred incident to military service.  /8/

   Respondent also notes (Br. 10), as we did (Br. 8 & n.2), that
Congress has considered amending the Federal Tort Claims Act (FTCA) on
a number of occasions to authorize service members to pursue FTCA
claims in some cases where injuries were incurred incident to military
service.  It has been clear since this Court's decisions in Brooks and
Feres, which were issued shortly after the enactment of the FTCA, that
veterans' benefits are the exclusive remedy for injuries incurred
incident to service, and Congress is clearly aware of that rule.  The
Court noted in Feres that if it had misunderstood Congress's
intention, "Congress possesses a ready remedy" (340 U.S. at 138).  If
subsequent congressional intention is ever to be relevant to the
ascertainment of the meaning of a previously enacted statute, the
extended period of congressional inaction here /9/ suggests that any
departure from the settled rule that veterans' benefits are the
exclusive remedy for injuries incurred incident to service ought to
come from Congress.  See Flood v. Kuhn, 407 U.S. 258, 283-284 (1972).

   For the foregoing reasons and those stated in our opening brief,
the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1987

   /1/ The question in Brooks, as the Court stated it at the outset,
was "whether members of the United States armed forces can recover
under (the Federal Tort Claims Act) for injuries not incident to their
service" (337 U.S. at 50).

   /2/ In finding Feres inapplicable to a lawsuit for injuries
resulting from negligent medical care of a military veterans, the
Court in United States v. Brown, 348 U.S. 110, 113 (1954), reaffirmed
"the line drawn in the Feres case between injuries that did and
injuries that did not arise out of or in the course of military duty,"
and concluded that "(s)ince the negligent act giving rise to the
injury in the present case was not incident to the military service,
the Brooks case governs * * *."

   In the United States v. Muniz, 374 U.S. 150, 159 (1963), while
declining to extend Feres to bar an action by a federal prisoner for
injuries resulting from the negligence of a government employee, the
Court reiterated its holding that "a soldier could not sue under the
Federal Tort Claims Act for injuries which 'arise out of or are in the
course of activity incident to service.'" The Court there found "no
occasion to question Feres, so far as military claims are concerned"
(ibid.).

   /3/ See Cole v. United States, 755 F.2d 873, 875, 877 (11th Cir.
1985);  Roush v. United States, 752 F.2d 1460, 1463 (9th Cir. 1985);
Brown v. United States, 739 F.2d 362, 363 (8th Cir. 1984), cert.
denied, 473 U.S. 904 (1985);  Johnson v. United States, 704 F.2d 1431,
1436 (9th Cir. 1983);  Parker v. United States, 611 F.2d 1007, 1010,
1011, 1015 (5th Cir. 1980);  Cooper v. Perkiomen Airways, Ltd., 609
F.Supp. 969, 971 (E.D. Pa. 1985).

   A number of appellate courts have addressed the applicability of
Feres to actions concerning injuries to servicemen brought pursuant to
the Swine Flu Act, 42 U.S.C. (1976 ed.) 247b(j)(1), which substituted
liability of the United States under the FTCA for the otherwise
applicable liability of private concerns involved in the swine flu
inoculation program.  Brown v. United States, 715 F.2d 463 (9th Cir.
1983);  Hunt v. United States, 636 F.2d 580 (D.C. Cir. 1980).  These
cases have found Feres inapplicable based on the unique nature of the
Swine Flu Act and the fact that private rather than government action
was being called into question.

   We are aware of only three cases, including the present one, where
courts have suggested that Feres may be inapplicable to actions
alleging government wrongdoing, even where an injury occurs incident
to service.  In Stanley v. United States, 786 F.2d 1490, 1498 (11th
Cir. 1986), the court required a second level of inquiry into the
effects on military discipline as a prerequisite to application of
Feres, even where the injury occurs incident to service.  This Court
has granted certiorari (No. 86-393 (Dec. 8, 1986)).  In Atkinson v.
United States, 804 F.2d 561, 563 (9th Cir. 1986), the court found
Feres inapplicable to a medical malpractice claim by a servicewoman,
reasoning that the doctrine applies only where litigation would
require a court to second-guess military decisions or where
plaintiff's admitted activities directly implicate the need to
safeguard military discipline.  The United States presently has
pending a petition for rehearing en banc in the court of appeals.

   /4/ Amicus Gilardy states (Br. 8, 22) that the military rescue
mission had been terminated at the time Lieutenant Commander Johnson's
helicopter crashed, so that "the FAA air traffic controllers were not
called upon to assist in a dangerous military operation" (Br. 10).
That is absurd.  It is undisputed that Lieutenant Commander Johnson
and his crew responded to a distress call from a boat lost in a storm
and that, during the rescue mission, because of deteriorating weather
conditions, they requested assistance from Federal Aviation
Administration (FAA) air traffic controllers (see Resp. Br. 3).

   Amicus Gilardy argues that the accident did not occur as part of a
military operation, because at the time of the accident Lieutenant
Commander Johnson planned to land, refuel, and wait for daybreak (Br.
8).  Whether Lieutenant Commander Johnson was planning to refuel or
whether he was planning to search for the boat without refueling, the
accident occurred during the course of the rescue operation.

   /5/ Respondent and amicus Gilardy contend that because this case
was dismissed by the district court (Pet. App. 35a) on a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(1) the allegations in the
complaint are taken to be true.  This is of course correct.  It does
not follow, however, that the application of Feres depends on a
probing evaluation of the facts as alleged by the plaintiff.

   /6/ Newell v. Maritime Administration, petition for cert. pending,
No. 86-1002, underscores this point.  In Newell, a service member ws
injured while participating in a Navy reserve training exercise.  The
ship on which the training exercise was conducted is part of the
Nation's Ready Reserve Force, a fleet of ships acquired and maintained
through the joint efforts of the Navy and the Maritime Administration,
a civilian agency of the federal government.  The service member sued
for damages, carefully avoiding any direct claim of Navy negligence,
but instead alleging that the Maritime Administration was negligent in
maintaining the ship.  The district court dismissed on the basis of
Feres and the Third Circuit affirmed, holding that "the rule in Feres
cannot be artificially limited to cover only military personnel, but *
* * must also include those civilians who are necessarily involved in
activities incident to military service." 86-1002 Pet. App. 20a-21a.
But if respondent's views were accepted, it is clear that a multitude
of military decisions -- like those made daily to FAA controllers or
personnel in the Maritime Administration -- would be subject to
judicial scrutiny.

   /7/ Respondent states that whether or not suits based on injuries
incurred incident to service will generally call military decisions
into question, a Coast Guard report that is not part of the record
shows that there is no doubt that air traffic controller negligence,
rather than Coast Guard errors, caused the crash at issue (Br. 26-27 &
n.9).  We submit that such an assertion is completely irrelevant, both
because it rests on facts outside the record, and because the specific
facts of an injury clearly incurred incident to service do not affect
the applicability of Feres.

   Lest the Court misunderstand our silence, however, we must also
take issue with respondent's characterization of the report.  Far from
placing the blame for the accident squarely on the air traffic
controller, the report suggested that a number of factors led to the
crash, including the crew's inattention and its failure to obtain a
weather report before taking off.  It stated that the fatigue of the
crew members (who had been on duty for 22 hours, during which they had
slept for about 2-1/2 hours) was probably a factor causing them not to
keep properly alert and questioned whether, in light of the hazardous
weather conditions and the fatigue of the crew, a different crew
should have been sent on the mission.  It also stated that fatigue on
the part of the air traffic controller could have been a factor in
causing the crash.

   The report also suggested that the Coast Guard equip helicopters
like the one used in the mission with radar, since that would have
prevented the crash at issue, and concluded that the radar used by the
air traffic controller did not permit the controller to determine
accurately how far the helicopter was from the island where it
crashed.  In short, contrary to respondent's statements, the report
suggested a number of ways in which Coast Guard personnel, including
the crew, may have been responsible for the crash.

   /8/ We also noted in our opening brief that, as the Court stated in
Feres (340 U.S. at 143), it "would hardly be a rational plan" to have
a service member's right to pursue a tort action depend on the laws of
the fifty states.  Respondent focuses on the air traffic controller
whose negligence allegedly caused the crash, and contends (Br. 31)
that it is not anomalous to have his actions governed by the laws of
Hawaii.  However, this Court in Feres focused on the injured service
member, not on the alleged tortfeasor, in concluding that Congress did
not intend to permit service members injured incident to military
service to pursue tort actions against the United States in which
their rights would vary depending on the state in which the injury
occurred.

   /9/ The recent proposed amendments to the FTCA that were not
enacted involved proposed waivers of sovereign immunity so that
service members could bring medical malpractice suits.  See H.R. 1161,
99th Cong., 1st Sess. (1985);  H.R. 1942, 98th Cong., 1st Sess.
(1983).