ANNE M. HART, ET AL., PETITIONERS V. UNITED STATES OF AMERICA

   No. 90-309

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

           TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-18a) is reported
at 894 F.2d 1539.  The opinion of the district court granting summary
judgment in favor of petitioner Anne Hart (Pet. App. 19a-27a) is
reported at 681 F. Supp. 1518.  The opinion of the district court
granting judgment in favor of petitioners Vera and Gillian Hart and
awarding damages to petitioners (Pet. App. 28a-38a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 1, 1990.
A petition for rehearing was denied on April 27, 1990.  Pet. App. 39a.
 The petition for a writ of certiorari was filed on July 25, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the selection and use of forensic anthropological
identification procedures in order to identify whether remains are
those of deceased servicemen is within the "discretionary function"
exception to the Federal Tort Claims Act, 28 U.S.C. 2680(a).

   2. Whether the actions taken by the government regarding the
attempted identification of a servicemember amounted to the
intentional infliction of emotional distress under Florida state tort
law.

                               STATEMENT

   1. Petitioners are the wife, mother, and daughter of United States
Air Force Lieutenant Colonel Thomas Hart, III.  On December 21, 1972,
during the Vietnam War, Colonel Hart was one of 16 crewmen aboard a
USAF aircraft that was conducting an armed reconnaissance mission over
Laos.  The plane was hit by anti-aircraft fire and crashed in the area
of Pakse, Laos.  Two crewmen escaped by parachute and were rescued
immediately by American search and rescue forces.  Pet. App. 2a.

   On the day after the crash, Royal Laotian troops friendly to the
United States visited the crash site and found part of a human arm,
including the hand.  American officials using fingerprinting
identified the hand as belonging to crewman Captain Joel Birch.
Captain Birch was declared killed in action (KIA), and the 13
unaccounted-for members of the crew, including Colonel Hart, were
listed as missing in action (MIA).  Pet. App. 2a.

   In 1978, the Air Force convened a status review board to review the
status of Colonel Hart.  Hart's wife, petitioner Anne Hart (Mrs.
Hart), participated in the proceeding.  After conducting a hearing and
considering the evidence of the circumstances in which Colonel Hart's
aircraft was shot down, /1/ the status review board found that Colonel
Hart was killed in action on December 21, 1972.  Mrs. Hart concurred
in the finding;  her representative at the proceedings stated that, in
Mrs. Hart's view, her husband could not have survived the shooting
down of his airplane.  /2/ Pursuant to the status review board's
findings, the Air Force on October 5, 1978, formally changed Colonel
Hart's status from MIA to KIA.  In separate proceedings, the same
status change was effected with respect to each of the other 12
unaccounted-for crewmen involved in the Pakse crash.  Pet. App. 3a.

   In February 1985, U.S. Army personnel, acting with the permission
of and in conjunction with Laotian authorities, conducted an
excavation of the Pakse crash site.  The Army team found approximately
50,000 bone fragments, along with various ID tags and other personal
effects belonging to the Pakse crew.  The remains and personal items
were transported to the Army's Central Identification Laboratory in
Hawaii (CILHI), which is responsible for identifying the recovered
remains of U.S. servicemen listed as killed or missing in action in
Southeast Asia.  After studying the remains for several months, CILHI
determined that pieces of bone had been found corresponding to each of
the 13 unaccounted-for Pakse crewmen.  On July 1, 1985, the Armed
Services Graves Registration Office (ASGRO), formally approved the
identification of certain remains as belonging to Colonel Hart.
(Seven pieces of bone were identified as Colonel Hart's).  Mrs. Hart
was immediately notified of the identification.  Pet. App. 3a.

   On July 5, 1985, Mrs. Hart filed suit in the United States District
Court for the Northern District of California, seeking an injunction
prohibiting the government from forwarding the identified Pakse
remains to the various next of kin before Dr. Michael Charney, a
private forensic anthropologist retained by her, was allowed to
conduct his own examination of the remains.  The government agreed to
allow Dr. Charney to examine the seven pieces of bone that had been
identified as those of Colonel Hart, but no others.  /3/ After
conducting his examination, Dr. Charney stated in a declaration that
"(i)t is impossible to determine whether these (bone) fragments are
from LTC HART or any other individual, whether they are from one
individual or several, or whether they are even from any of the crew
members of the AC-130A aircraft in question." Decl. of Michael Charney
5;  Pet. App. 4a.

   Since Dr. Charney had been allowed to examine some of the remains,
as Mrs. Hart had requested in her complaint, the United States
District Court for the Northern District of California, on July 18,
1985, dismissed Mrs. Hart's action with prejudice.  Based on Dr.
Charney's conclusion, however, Mrs. Hart expressed disagreement with
the government's identification of her husband's remains, and her
disagreement was brought to the attention of Verne Orr, Secretary of
the Air Force.  After personally examining the entire case file,
including Dr. Charney's declaration, Secretary Orr directed that a
letter be sent to Mrs. Hart informing her that if she did not wish to
accept her husband's remains, they would be buried, with full military
honors, at Arlington National Cemetery.  Pet. App. 4a.

   At about the same time that Secretary Orr approved the
identification of Colonel Hart's remains, the Army commissioned an
independent, civilian inquiry into the operation of CILHI.  When Mrs.
Hart learned that an inspection of CILHI was to take place, she
contacted the office of the Secretary of the Air Force, and requested
that the burial of the remains identified as her husband's be delayed.
 The Secretary promptly granted her request, and the interment of
Colonel Hart's remains was postponed indefinitely.  Pet. App. 5a.

   The civilian panel commissioned to look into CILHI's operations
filed its report in December 1985.  The panel found that the
administration of CILHI was excellent, and that CILHI's personnel were
well-trained, experienced, and technically competent.  The panel
concluded, however, that only two of the 13 Pakse identifications
could be confirmed with confidence.  According to the panel, some of
the Pakse identifications did not appear to be justified according to
standard forensic methods and therefore could not withstand scientific
scrutiny.  Pet. App. 5a.

   After the panel issued its report, the Air Force notified the
families of the 13 still unaccounted-for Pakse crewmen that, if they
wished, the identifications of their loved ones would be reconsidered.
 Mrs. Hart requested reconsideration of her husband's identification.
On June 10, 1986, ASGRO formally rescinded its identification of
Colonel Hart.  ASGRO also rescinded the identification of one other
Pakse crewman, Captain George McDonald.  Pet. App. 5a.

   2. In 1986, petitioners filed their complaint in this action in the
United States District Court for the Northern District of Florida.
Petitioners alleged that the United States was liable for damages
under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b),
2671-2680, for the intentional infliction of emotional distress, as
that tort is defined under Florida state law.  Referring to Dr.
Charney's examination and the civilian panel's report, the complaint
alleged that the actions of the Army and the Air Force surrounding the
identification of Colonel Hart's remains, and the rescission of that
identification, constituted outrageous and extreme behavior designed
to inflict severe mental suffering.  Petitioners also suggested that
Colonel Hart might still be alive.  See Pet. App. 5a-6a.

   The government filed a motion to dismiss, contending among other
things that petitioners' action for damages was barred by the FTCA's
discretionary function exception, 28 U.S.C. 2680(a).  On March 17,
1987, the district court denied the motion without opinion.  Pet. App.
6a.

   On cross-motions for summary judgment, the district court held that
the government was liable to Mrs. Hart under Florida law for
committing the tort of intentional infliction of emotional distress.
Pet. App. 19a-27a.  After a trial, the court held that the government
was liable to petitioners Vera and Gillian Hart as well.  Id. at
28a-38a.  The district court awarded petitioners a total of
$632,814.62 in damages.  Id. at 33a, 38a.

   The court observed that, under applicable tort principles,
liability could attach for the government's conduct "only (if) the
conduct is so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community." Pet.
App. 25a.  The court found that, as a matter of law, that standard was
satisfied in this case.  The court relied on three aspects of the
government's conduct:  First, the court stated that the government's
initial identification of certain of the Pakse remains as belonging to
Colonel Hart was "outrageous." Id. at 26a.  Second, the court pointed
to Secretary Orr's letter of October 1985 informing Mrs. Hart that, if
she did not wish to inter her husband's remains, the government would
proceed to inter them with full military honors at Arlington National
Cemetery.  Ibid.  The court characterized the letter as an improper
"ultimatum." Ibid.  Third, the court faulted the government's
assessment that Colonel Hart is "accounted for" for purposes of the
Executive Branch's ongoing accounting of our nation's servicemen
killed or missing in Southeast Asia.  Id. at 27a.  Focusing on
petitioners' assertion that Colonel Hart might still be alive, the
court criticized the Defense Intelligence Agency's (DIA's)
intelligence assessment of the Pakse incident.  Ibid.  The court
suggested that it did not agree with the DIA's determination that
there were no survivors of the crash other than the two crewmen who
parachuted out and were immediately rescued.  Ibid.  /4/

   3. The court of appeals reversed, and ordered judgment entered in
favor of the United States.  Pet. App. 1a-18a.  The court held, first,
that petitioners' action was barred by the FTCA's discretionary
function exception.  Id. at 7a-15a.  The court separately discussed
each of the three governmental decisions that the district court had
criticized, and concluded that all three were protected "discretionary
functions" under the FTCA.  Ibid.  In the alternative, the court of
appeals held that, as a matter of law, the United States was entitled
to judgment on the merits of petitioners' claim of intentional
infliction of emotional distress.  Id. at 15a-18a.  The court
explained that the record did not support petitioners' assertion that
the government had intentionally inflicted emotional distress upon
them.  Ibid.  The court stated that the district court's conclusion to
the contrary was "difficult to understand." Id. at 17a.

                               ARGUMENT

   1. Petitioners contend that the decision below is inconsistent with
Berkovitz v. United States, 486 U.S. 531 (1988), United States v. S.A.
Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797
(1984), and Dalehite v. United States, 346 U.S. 15 (1953).  Pet. 9.
/5/ There is no merit to that claim.  Those decisions make clear that
Congress enacted the discretionary function exception in order to
ensure that the FTCA is not used as a vehicle for second-guessing
governmental policy judgments.  See, e.g., Varig Airlines, 467 U.S. at
814, 820.  The court of appeals expressly acknowledged that
congressional purpose, Pet. App. 8a, and correctly held that the
decisions petitioners criticize embody precisely the kind of
discretionary policy judgments that Congress sought to insulate from
judicial review under the FTCA.  /6/

   a. Petitioners' primary assertion throughout this litigation has
been that CILHI, in its efforts to identify the Pakse remains, did not
limit itself to the standard methodologies routinely used in the field
of forensic anthropology.  See Pet. App. 10a.  That assertion, which
the government has never disputed as a factual matter, /7/ cannot
serve as a basis for holding the discretionary function exception
inapplicable.  It overlooks the obvious fact that CILHI is a unique
institution charged with a unique mission:  the identification of
military combat remains.  As the court of appeals correctly observed,
Pet. App. 10a, the processes employed in the government's
identification of military combat remains necessarily differ in some
respects from the conventional scientific practices recognized in the
ordinary civilian context of forensic anthropology.  Military combat
remains, especially those found in aircraft crashes, are often (as in
this case) commingled and severely burned and shattered.  Ibid.
Common sense suggests, and the record shows, that such remains are not
routinely encountered in the nonmilitary context.  For that reason,
conventional scientific methodology is simply not geared to the
identification of such remains.  See ibid.

   The government, however, seeks to achieve identifications if
possible.  Pet. App. 9a.  The record in this case shows that the
government has made the judgment that identification of the remains of
our troops who have fallen in combat is a desirable objective.  Ibid.
This policy dates from the Civil War era, and has recently assumed
heightened relevance in the aftermath of the Vietnam conflict.  See
ibid.

   The methods employed in the identification process are inextricably
intertwined with the policy that identifications should be made if
possible.  If CILHI were constrained by the dictates of forensic
anthropology currently prevailing in the civilian scientific
community, CILHI's ongoing identification project would be severely
hampered.  Recognized techniques of forensic anthropology, developed
for use by local coroners' offices and the like in the ordinary
civilian sphere, suffer from inherent limitations that would unduly
inhibit the military's ability to fulfill its identification mission.

   The special nature of the military's identification effort is
underscored by the contrast between CILHI's approach to the Pakse
identifications and the approach taken by Dr. Charney, the civilian
expert retained by Mrs. Hart.  The salient feature of Dr. Charney's
approach was his unwillingness to make even the most basic assumption
that the bones found at the Pakse crash site were the bones of the
Pakse crewmen.  In contrast, this threshold assumption was a key
premise underlying the government's entire identification effort.  As
the court of appeals correctly explained, Pet. App. 10a-11a, CILHI's
identification of the Pakse remains relied in part on a process of
elimination;  CILHI personnel associated certain remains with Colonel
Hart on the basis that they could not be correlated with the known
physiological characteristics of any of the other crew members.
Specifically, certain of the remains were identified as Colonel Hart's
because, based on a set of inferred physical characteristics derived
from the remains by using anthropological approximation methods, it
was determined that the remains matched Colonel Hart's anatomical
features and did not match those of anyone else in the aircraft.  Id.
at 11a.  /8/

   The steps taken by CILHI to make identifications reflect the
government's policy that, to the extent possible, remains of American
servicemen killed in action should be identified and afforded proper
burials.  This policy embodies political, moral, and military
judgments -- judgments that are not constrained by law and are within
the discretion of the Executive Branch.  It is precisely such policy
judgments that, in the context of damages actions under the FTCA, are
insulated from judicial second-guessing by virtue of the statute's
discretionary function exception.  See Pet. App. 12a.  Accordingly,
the court of appeals was correct in concluding that the government's
choice of the appropriate methodology to use in the identification
effort falls within the coverage of Section 2680(a).  That conclusion
does not conflict with the decision of any other court.  /9/

   b. Petitioners and the district court also point to the decision by
the Secretary of the Air Force in October 1985 to send a letter to
Mrs. Hart informing her that if she did not wish to accept her
husband's remains, they would be buried, with full military honors, at
Arlington National Cemetery.  The court of appeals was correct in
holding that Secretary Orr's decision to send the letter is a "prime
example" of the exercise of a discretionary function.  Pet. App. 15a.
As the court noted, the record in this case shows that Secretary Orr
made a judgment based on his own assessment of the reliability of the
Army's identification processes and the importance to the military of
proper interment of the remains of servicemen killed in action.  Ibid.
 The record shows that Secretary Orr was aware of and considered Mrs.
Hart's concerns and Dr. Charney's conclusions, but determined on
balance that proper interment of the remains that he reasonably and in
good faith believed to be those of Colonel Hart was the appropriate
course of action.  It may be that Secretary Orr could reasonably have
made a different decision, but no statute or regulation dictated a
particular result.  Ibid.  As Secretary of the Air Force, Secretary
Orr was charged with both the responsibility and the authority for
making that decision, and his exercise of discretion and judgment
based on his own weighing of the competing interests at stake is a
quintessentially discretionary function within the meaning of the
FTCA.  /10/

   c. The third aspect of the government's conduct that petitioners
have challenged in this litigation is the government's determination
that Colonel Hart is "accounted for" for purposes of the ongoing
effort to achieve the fullest possible accounting of American
servicemen listed as killed or missing in action in Southeast Asia.
The term "accounted for" is not a creature of statute;  the term
exists pursuant to Executive Branch policy and is defined in a
Department of Defense "Policy Position" memorandum that is in the
record in this case.  See Pet. App. 13a.  Where, as here, multiple
deaths occur in a single aircraft crash and remains are recovered from
the crash site, all of the previously unaccounted for individuals
involved in the crash are to be listed as "accounted for" if the
recovery of remains was thorough and the evidence indicates that the
individuals died in the crash.  Pursuant to that policy, Colonel Hart
is listed as "accounted for" because (i) the government has determined
that the Pakse recovery operation was thorough and (ii) the evidence
indicates that all but two of the Pakse crewmen were killed in the
crash.

   The court of appeals was correct in holding that the determination
that Colonel Hart is "accounted for" falls within the discretionary
function exception since it is rooted in policy judgments with respect
to which judicial scrutiny would be inappropriate.  There are no
suitable standards, and neither petitioners nor the district court
provided any, that would enable a court meaningfully to evaluate
whether a recovery operation like this one was "thorough." Pet. App.
14a n.10.  Rather, the government's assessment that the recovery
effort was thorough reflects the government's judgment that, as a
practical matter, the United States has done everything it can do to
recover remains from the Pakse crash site.  See id. at 14a.
Similarly, the record shows that the Defense Intelligence Agency was
ultimately responsible for the assessment that Colonel Hart did not
survive the downing of his aircraft, and the DIA's analysis of the
government's accumulated intelligence information is a subject that is
peculiarly ill-suited for judicial oversight.  The district court
committed an error of law to the extent that it purported to pass upon
the merits of the Executive Branch's intelligence analysis, see id. at
13a-14a n.9, and the court of appeals was correct in ruling that by
virtue of the discretionary function exception the governmental
judgments underlying the determination that Colonel Hart is "accounted
for" are not subject to judicial review in an FTCA action.  Id. at 14a
nn.9-10.

   d. There is no need to hold this case pending this Court's decision
in United States v. Gaubert, cert. granted, 110 S. Ct. 3211 (1990)
(No. 89-1793).  The question presented in Gaubert is whether
supervisory actions taken by federal regulators of financial
institutions may fall within the "discretionary function" exception,
regardless of whether those actions may be categorized as
"operational" in nature.  In Gaubert the Fifth Circuit adopted a
"policy"/"operational" distinction in applying the discretionary
function exception, and then held that the actions complained of did
not fall within the exception.  As the Eleventh Circuit recognized in
its opinion here, Pet. App. 9a, and as we pointed out in our
certiorari petition in Gaubert (at 18-19), the Eleventh Circuit (like
the Fifth Circuit) has adopted the so-called "planning"/"operational"
distinction.  But even accepting that distinction, the Eleventh
Circuit concluded that the actions challenged here fit within the
discretionary function exception.  Pet. App. 9a-15a.  Accordingly, the
Court's decision in Gaubert will not affect the proper disposition of
this case.

   2. In any event, the holding that this action is barred by the
discretionary function exception was not the sole basis for the
Eleventh Circuit's decision.  The court of appeals held in the
alternative that the United States was entitled to judgment on the
merits of petitioners' claim of intentional infliction of emotional
distress.  Pet. App. 15a-18a.  That fact-bound, state law ruling is
correct, and does not warrant review by this Court.

   As the court of appeals observed, the district court's conclusion
that the United States committed the tort of intentional infliction of
emotional distress "is difficult to understand." Pet. App. 17a.  In
the district court petitioners did not point to any evidence that
government employees sought intentionally or recklessly to inflict
emotional distress upon them, and as the court of appeals noted, id.
at 16a & n.12, the district court did not refer to any such evidence.
Petitioners have maintained throughout this litigation that CILHI's
identification of certain remains as belonging to Colonel Hart was
based on intentionally falsified anthropological records, but as the
court of appeals correctly found, id. at 11a n.7, petitioners offered
no evidence in support of this claim.

   The court of appeals correctly held that as a matter of law the
government's conduct was not improper, much less "outrageous." Pet.
App. 17a-18a.  Petitioners contend that Secretary Orr acted improperly
when he informed Mrs. Hart in October 1985 that if she did not wish to
accept her husband's remains, they would be buried with full military
honors at Arlington National Cemetery.  But the record shows that the
Secretary promptly assented when Mrs. Hart requested that the
interment be postponed.  Id. at 17a.  Petitioners also assert that the
government improperly "persisted" in its identification of Colonel
Hart.  But the record shows that the government rescinded the
identification upon Mrs. Hart's request.  Ibid.  The court of appeals
correctly concluded that the government's actions to accommodate Mrs.
Hart's wishes are sufficient in themselves to dispel any suggestion of
improper conduct designed to inflict emotional distress.  /11/ See id.
at 18a;  see also id. at 17a (noting Mrs. Hart's own testimony that
throughout the proceedings the government treated her in a very
pleasant manner).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   ROBERT S. GREENSPAN

   THOMAS M. BONDY

      Attorneys

   OCTOBER 1990

   /1/ The evidence before the status review board showed that the
aircraft exploded in mid-air and plummeted to the ground engulfed in a
fireball.  Search and rescue forces received only two emergency beeper
signals, and the two crewmen who bailed out and sent those signals
stated in their debriefing interviews that no one else exited the
aircraft.  See Pet. App. 13a.

   /2/ Mrs. Hart had previously testified before Congress that "I have
little doubt that my husband is dead.  * * * It is a reasonable
presumption (that) my husband is dead." Americans Missing in Southeast
Asia:  Hearings Before the House Select Comm. on Missing Persons in
Southeast Asia, 94th Cong., 2d Sess. Pt. 4, at 147 (1976).

   /3/ Several Pakse families had filed declarations with the court
stating that it would be inappropriate for a private individual acting
on behalf of Mrs. Hart to disturb the remains that had been identified
as belonging to their loved ones.

   /4/ The district court also disagreed with the government's
assessment that the excavation of the Pakse crash site was thorough.
Pet. App. 24a n.10.

   /5/ Petitioners also point to this Court's decision in Indian
Towing Co. v. United States, 350 U.S. 61 (1955).  That decision,
however, did not involve the discretionary function exception.  See
id. at 64;  Varig Airlines, 467 U.S. at 812.

   /6/ Petitioners also assert that the court of appeals erred because
it disregarded its own precedents stating that a governmental act
falls within the coverage of the discretionary function exception if
it is performed at a planning rather than an operational level.  Pet.
9-10, 12.  In reality, however, the court of appeals cited its own
precedent for that very proposition.  Pet. App. 9a.  In any event, an
alleged intracircuit conflict is a matter for the court of appeals,
not this Court, to resolve.

   /7/ Petitioners also assert that "(t)he government admitted that
science played no part in the identification." Pet. 14.  That
assertion is plainly mistaken.  Rather, the government admitted that
the bone fragments originally attributed to Colonel Hart cannot be
identified as the remains of Colonel Hart by any method presently
generally accepted in the scientific community.  As the court of
appeals correctly noted, Pet. App. 6a-7a n.4, that admission in no way
detracts from the government's position, since the government's
position is that, as a matter of policy, its identification processes
are not constrained by the prevailing dictates of forensic
anthropology.

   /8/ As the court of appeals correctly noted, Pet. App. 3a-4a, when
government officials notified Mrs. Hart on July 1, 1985, that the
CILHI had identified certain of the Pakse remains as her husband's,
they told her that the identification had been based in part on a
process of elimination.  Thus, to the extent that petitioners assert
that they were misled as to the nature of the identification, that
assertion is plainly mistaken.

   /9/ Petitioners erroneously assert that on this point the decision
below conflicts with the decision of the Second Circuit in Hendry v.
United States, 418 F.2d 774 (1969), and the district court in Kohn v.
United States, 591 F. Supp. 568 (E.D.N.Y. 1984), aff'd without
published opinion, 760 F.2d 253 (2d Cir. 1985) (Table).  Pet. 12-13.
Neither case involved the identification of remains, and the court of
appeals properly concluded that both cases are inapposite.  Pet. App.
10a & n.6.

   /10/ Petitioners assert that the disposition of remains was
contrary to regulation and that the court of appeals "offhandedly
dismissed petitioners' contention that violation of relevant military
regulations brings this case squarely out of the protection afforded
under the discretionary function exception." Pet. 11.  There is no
merit to this assertion.  The court of appeals recognized that, in
light of this Court's decision in Berkovitz, "the discretionary
function exception does not apply if a government policy or regulation
specifically prescribes a course of action." Pet. App. 11a n.8.  The
court noted, however, that petitioners had not argued in the district
court that any regulations were violated, and the court correctly
concluded that none of the regulatory provisions cited by petitioners
on appeal "provides specific guidelines for what actions should be
taken and how." Id. at 12a n.8.

   /11/ Moreover, the court of appeals correctly observed that the
government's assessment -- that Colonel Hart was killed when his
aircraft was shot down in combat -- was quite reasonable under the
circumstances.  Pet. App. 13a;  see id. at 13a-14a n.9 (noting
congressional committee's conclusion that the evidence is overwhelming
that all of the Pakse crewmen other than the two who parachuted out
and were immediately rescued died in the crash);  see also pp. 2-3
note 1, supra.