UNITED STATES OF AMERICA, ET AL., PETITIONERS V. JAMES B. STANELY
   No. 86-393
   In The Supreme Court Of The United States
   October Term, 1986
   Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
   The Solicitor General, on behalf of the United States (Question 1),
and on behalf of Richard Helms, Joseph R. Bertino, M.D., Sidney
Gottlieb, M.D., Bernard G. Elfert, Van Sim, M.D., H. D. Collier, and
Albert Dreisbach (Question 2), petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
Eleventh Circuit in this case.
                       PARTIES TO THE PROCEEDING
   In addition to the United States, the petitioners are Richard
Helms, Joseph R. Bertino, M.D., Sidney Gottlieb, M.D., Bernard G.
Elfert, Van Sim, M.D., H. D. Collier, and Albert Dreisbach.  In
addition, the state defendants in the proceedings below are the Board
of Regents of the University of Maryland, Gerald Klee, M.D., and
Walter Weintraub, M.D.  The respondent is James B. Stanley.
            TABLE OF CONTENTS
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Statutory provision involved
   Question presented
   Statement
   Reasons for granting the writ
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G
                            OPINIONS BELOW
   The opinion of the court of appeals (App., infra, 1a-20a) is
reported at 786 F.2d 1490.  The district court's orders granting the
motion to dismiss the United States and denying the motion to dismiss
the individual federal defendants (App., infra, 54a-66a) are reported
at 549 F. Supp. 327 and 552 F. Supp. 619.  The district court's orders
reconsidering its denial of the motion to dismiss the individual
federal defendants (App., infra, 21a-53a) are reported at 574 F. Supp.
474 and 587 F. Supp. 1071.  The court of appeals' prior opinion
vacating an earlier district court order of summary judgment in favor
of the United States (App., infra, 67a-95a) is reported at 639 F.2d
1146.
                             JURISDICTION
   The judgment of the court of appeals was entered on April 21, 1986.
 A petition for rehearing was denied on June 17, 1986 (App., infra,
96a-97a).  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
                     STATUTORY PROVISION INVOLVED
   28 U.S.C. 1346(b) provides in part:
         Subject to the provisions of (28 U.S.C. 2671 et seq.), the
      district courts * * * shall have exclusive jurisdiction of civil
      actions on claims against the United States, for money damages *
      * * for injury or loss of property, or personal injury or death
      caused by the negligent or wrongful act or omission of any
      employee of the Government while acting within the scope of his
      office or employment, under circumstances where the United
      States, if a private person, would be liable to the claimant in
      accordance with the law of the place where the act or omission
      occurred.
                          QUESTIONS PRESENTED
   1. Whether the court of appeals erred in reviving a Federal Tort
Claims Act suit for injuries allegedly received by a serviceman during
active duty participation in an official Army drug experimentation
program, where the district court had entered an order under Fed. R.
Civ. P. 54(b) dismissing the action pursuant to Feres v. United
States, 340 U.S. 135 (1950), and no appeal was filed challenging that
dismissal.
   2. Whether a serviceman may pursue an action against his superior
officers for alleged constitutional violations arising from his
participation in an official Army drug experimentation program.
                               STATEMENT
   1. Stanley was an enlisted man who participated in secret chemical
warfare tests conducted by the United States Army at the Army's
Chemical Warfare Laboratories on the Aberdeen Proving Grounds in
Maryland in 1958.  He volunteered to participate in the program while
on active duty and was administered, without his knowledge, lysergic
acid diethylamide (LSD) as part of that testing.  In 1975, six years
after his discharge, Stanley brought suit under the Federal Torts
Claims Act (FTCA) alleging that the government had been negligent in
administering the LSD and negligent in failing to monitor his
condition after discharge.
   These FTCA claims were dismissed by the district court, which held
that the FTCA claims were barred by the doctrine of Feres v. United
States, 340 U.S. 135 (1950).  The Fifth Circuit affirmed in 1981
(App., infra, 67a-95a).  Finding that "the relationship between
Stanley and the allegedly negligent individuals stemmed from their
official military relationship," the court of appeals stated that "we
are compelled to conclude that the trial court correctly applied Feres
and held the United States immune to Stanley's suit under the Federal
Tort Claims Act" (id. at 76a, 79a).  The court of appeals, however,
remanded the case to the district court for further proceedings,
finding, wihtout expressing any opinion on the merits, that plaintiff
"has at least a colorable constitutional claim based on Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 * *
* (1971)" (id. at 94a).  /1/
   2. On remand, plaintiff amended his complaint to allege new FTCA
claims against the United States and to add Bivens claims against his
superior officers and the civilians who had participated in the
program.  In 1982, the district court dismissed the amended FTCA
claims on the basis of the Fifth Circuit's opinion.  However, relying
on the Ninth Circuit's decision in Wallace v. Chappell, 661 F.2d 729
(1981) (App., infra, 62a), the court declined to dismiss the Bivens
claims against the individual defendants.  Shortly thereafter, on
November 9, 1982, the district court entered, at the request of the
United States, a partial final judgment dismissing all the FTCA claims
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure (App.,
infra, 54a-55a).  /2/ In the same order, the district court ordered
plaintiff to identify and serve at least one individual defendant, and
plaintiff filed a second amended complaint naming the individual
petitioners.  /3/ Plaintiff did not appeal from the entry of the final
judgment dismissing the FTCA claims.
   Subsequently, this Court reversed the Ninth Circuit's decision in
Chappell, holding that "enlisted military personnel may not maintain a
suit to recover damages from a superior officer for alleged
constitutional violations" (Chappell v. Wallace, 462 U.S. 296, 305
(1983)).  /4/ The district court, acting sua sponte, reconsidered its
prior refusal to dismiss plaintiff's Bivens claims in light of this
Court's decision in Chappell (App., infra, 21a-53a).  The district
court concluded that Chappell was not controlling because "plaintiff
in the instant case did not participate in the Army's testing program
because a superior officer ordered him to do so;  instead * * * he
volunteered" (id. at 33a-34a).  The district court then certified this
order for interlocutory appeal under 28 U.S.C. 1292(b) (App., infra,
6a).
   3. The court of appeals affirmed the district court's refusal to
dismiss the Bivens claims.  The court held that a case-by-case
analysis is required under Chappell to determine whether a particular
Bivens suit would undermine military discipline.  Noting that
plaintiff had been a volunteer and had not been told that he was
ingesting LSD, the court reasoned that he "could not possibly have
challenged his 'orders' to drink the clear substance" (App., infra,
12a).  Therefore, the court concluded, "'(t)he inescapable demands of
military discipline and obedience to orders' are not implicated by the
facts of this case" (ibid. (quoting Chappell, 462 U.S. at 300)).
   The court of appeals also found absent the other special factor of
"Congress's plenary authority over the military and its extensive
activity in the field" (App., infra, 12a).  That factor was absent,
the court ruled, because the "intramilitary administrative procedures
which the Court found adequate to redress the servicemen's racial
discrimination complaints in Chappell are clearly inadequate to
compensate Stanley for the violations complained of here" because he
did not have available to him "the remedies provided under article 138
of the Uniform Code of Military Justice" (id. at 12a-13a).
   Having found that the "special factors" mentioned by this Court in
Chappell were absent, the court also ruled that plaintiff's suit was
not precluded by the remedial scheme afforded by the Veterans Benefits
Act, 38 U.S.C. 301 et seq., under the "adequate alternative remedy"
analysis of Carlson v. Green, 446 U.S. 14, 18-19 (1980).  Reasoning
that the Act would not adequately compensate plaintiff, the court of
appeals concluded that the Act was not the exclusive remedy for
servicemen "injured while acting incident to military service" (App.,
infra, 15a).  The court did not address petitioners' principal
argument that the Veterans' Benefits Act was evidence of Congress's
activity in the field and was thus relevant under Chappell.
   The court of appeals went on to reverse the district court's 1982
Rule 54(b) final judgment dismissing plaintiff's FTCA claims against
the United States.  Ignoring the absence of any appeal from that final
judgment, as well as the absence of the United States as a party on
the appeal and the absence of briefing on the issue, the court
reinstated plaintiff's FTCA claims against the United States.  In thus
overruling the Fifth Circuit's 1981 decision, the court acknowledged
that that decision was the "'law of the case,'" but reasoned that it
need not be followed because "controlling authority has since made a
contrary decision of the law applicable to the issue" (App., infra,
17a).
   The court of appeals held that this "controlling authority" was
provided by Johnson v. United States, 779 F.2d 1492 (11th Cir. 1986)
(en banc), petition for cert. pending, No. 85-2039, and Cole v. United
States, 755 F.2d 873 (11th Cir. 1985).  Relying also on United States
v. Shearer, No. 84-194 (June 27, 1985), the court held that "under
Johnson, Cole, and Shearer, this case requires the case-by-case
analysis to determine whether the purpose of the Feres doctrine would
be served by precluding Stanley's FTCA claim against the government"
(App., infra, 19a).  Concluding that no such purpose would be served,
the court remanded the case with instructions to allow plaintiff to
amend his complaint "to plead consistent with recent precedent" (id.
at 20a).
                     REASONS FOR GRANTING THE WRIT
   The court of appeals' decision in this case is rife with error with
respect to the Feres doctrine, both as applied to the FTCA claims and
as applied to the Bivens claims.  Both of these issues are of great
practical importance to the armed services, so review by this Court is
warranted.
   The court of appeals' assertion of jurisdiction for the purpose of
resurrecting plaintiff's FTCA claims, despite the fact that their
dismissal pursuant to Rule 54(b) was not appealed, has so far departed
from the accepted and usual course of judicial proceedings as to call
for an exercise of this Court's power of supervision.  In addition,
plaintiff's FTCA claims are clearly barred by the Feres doctrine,
since his alleged injuries were incurred "incident to service" (340
U.S. at 146).  The court of appeals' contrary holding conflicts with
numerous decisions of other circuits, as we have explained more fully
in our petition (at 6-7) in United States v. Johnson, No. 85-2039.
   Issuance of a writ of certiorari is independently appropriate to
review the court of appeals' decision that plaintiff may pursue his
Bivens claims.  This holding, if allowed to stand, will reopen an area
previously thought to have been settled by this Court's ruling in
Chappell v. Wallace, 462 U.S. 296 (1983), and, contrary to this
Court's decision in that case, will expose military personnel to
personal liability for their actions.  Furthermore, the court of
appeals' decision directly conflicts with decisions of three other
circuits.  Mollnow v. Carlton, 716 F.2d 627 (9th Cir. 1983), cert.
denied, 465 U.S. 1100 (1984);  Gaspard v. United States, 713 F.2d 1097
(5th Cir. 1983), cert. denied, 466 U.S. 975 (1984);  and Jaffe v.
United States, 663 F.2d 1226 (3d Cir. 1981) (en banc), cert. denied,
456 U.S. 972 (1982).
   1. a. The court of appeals' sua sponte assertion of jurisdiction to
reverse the final judgment dismissing the FTCA claims against the
United States that plaintiff never appealed is clearly wrong.  As this
Court has noted, "(i)f no notice of appeal is filed at all, the Court
of Appeals lacks jurisdiction to act.  It is well settled that the
requirement of a timely notice of appeal is '"mandatory and
jurisdictional."'" Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 61 (1982) (quoting Browder v. Director, Illinois Dep't of
Corrections, 434 U.S. 257, 264 (1978)).  /5/
   The rule that a court of appeals lacks jurisdiction in the absence
of the filing of a timely notice of appeal is fully applicable to a
failure to appeal from a Rule 54(b) final judgment.  A central purpose
of Rule 54(b) certification is to establish a definite starting point
for appellate proceedings.  See Sears, Roebuck & Co. v. Mackey, 351
U.S. 427, 435-436 (1956);  Curtiss-Wright Corp. v. General Electric
Co., 446 U.S. 1, 8 (1980).  The repose and definiteness afforded by
this rule are defeated if the absence of an appeal from a Rule 54(b)
judgment may be disregarded.  See Dickinson v. Petroleum Conversion
Corp., 338 U.S. 507 (1950) (holding, in a case arising before the
effective date of Rule 54(b), that the failure to appeal from an
interlocutory final decree forfeited any right to appellate review).
The decisions of the lower courts uniformly hold that a judgment
entered under Rule 54(b) must be appealed within the time permitted by
Rule 4 of the Federal Rules of Appellate Procedure.  Cox v. American
Cast Iron Pipe Co., 784 F.2d 1546, 1549 (11th Cir. 1986);  Smith v.
Mine Safety Appliances Co., 691 F.2d 724, 725 (5th Cir. 1982);  see
generally, Exchange National Bank v. Daniels, 763 F.2d 286, 291-292
(7th Cir. 1985);  1B J. Moore, Moore's Federal Practice Paragraph
0.404(1), at 118 n.4 (2d ed. 1984).
   The facts of this case illustrate the mischief flowing from a
refusal to respect the finality afforded by Rule 54(b).  The court of
appeals' jurisdiction in this case was predicated on Section 1292(b)
to review the separate Bivens issue certified by the district court,
and it was on that basis that the parties briefed and argued the case.
 The United States did not appear on appeal before the Eleventh
Circuit because it had been dismissed as a party.  Yet, without any
warning, the court resurrected the FTCA claims against the United
States, thus depriving the United States of its basic right to be
heard.
   b. Apart from the court of appeals' lack of jurisdiction, its
decision that plaintiff's FTCA claims are not barred by the Feres
doctrine is incorrect on the merits.  As explained more fully in our
petition in Johnson, /6/ under the Feres doctrine a service member
"may not recover under the Federal Torts Claims Act for injuries which
'arise out of or are in the course of activity incident to service.'"
United States v. Shearer, No. 84-194 (June 27, 1985), slip op. 4-5
(quoting Feres, 340 U.S. at 146).  In this case, there is no dispute
that plaintiff's alleged injuries were incurred incident to military
service.  /7/ Nevertheless, relying on its decision in Johnson v.
United States, 749 F.2d 1530 (1985), reinstated, 779 F.2d 1492 (1986)
(en banc), the Eleventh Circuit faulted the Fifth Circuit for failing
in 1981 to "proceed to the next level of inquiry to determine whether
the considerations underlying the Feres doctrine militated against
permitting Stanley to bring the FTCA claim" (App., infra, 17a).
According to the court of appeals, the law in the Eleventh Circuit is
now that each case must be examined to determine whether the
considerations underlying the Feres doctrine require preclusion of the
particular suit at bar.  As we have explained in our petition in
Johnson (at 9-16), that conclusion, which conflicts with numerous
decisions of other courts of appeals (id. at 6-7), is contrary to the
rule that if an injury is incurred incident to military service, then
the injured service member cannot bring an FTCA suit, as the Court
held in Feres.  /8/
   In United States v. Shearer, No. 84-194 (June 27, 1985), this Court
recently reiterated the rule that service members may not recover for
injuries which arise incident to service.  The Court there rejected
the plaintiff's argument that the Army had been negligent in failing
to exercise better control over the activities of the service member
who murdered the plaintiff's decedent, reasoning that such a suit
"goes directly to the 'management' of the military;  it calls into
question basic choices about the discipline, supervision, and control
of a serviceman" (slip op. 6 (footnote omitted)).  As the Court
explained, such a suit would necessarily "mean that commanding
officers would have to stand prepared to convince a civilian court of
the wisdom of a wide range of military and disciplinary decisions"
(ibid.).  Such decisions, the Court reasoned, are "decision(s) of
command," and suits attacking such decisions are "the type of claims,
that if generally permitted, would involve the judiciary in sensitive
military affairs at the expense of military discipline and
effectiveness" (id. at 6-7) (emphasis in original)).
   Here, as in Shearer, the plaintiff is challenging "decision(s) of
command," i.e., decisions concerning whether and how to use Army
volunteers in conducting chemical warfare experiments in the late
1950s.  The acts in issue unquestionably were committed pursuant to
military orders in carrying out this official Army program.  Plainly,
plaintiff's suit will necessarily involve second-guessing of the
military decisions concerning the manner and use of Army personnel.
Plaintiff's status as a volunteer is therefore irrelevant, as the
Fifth Circuit held in 1981 (App., infra, 73a-74a).  Since the
decisions plaintiff questions are no different in principle than the
military personnel decisions at issue in Shearer, there can be no
question that plaintiff's suit is precisely the "type" of suit
(Shearer, slip op. 6) which, if allowed generally, would embroil
civilian courts in managing military personnel decisions.  /9/
   2. The Eleventh Circuit compounded its erroneous application of the
Feres doctrine in holding that plaintiff may pursue his Bivens claims.
 /10/ This ruling flies in the face of this Court's unequivocal
holding in Chappell:  "We hold that enlisted military personnel may
not maintain a suit to recover damages from a superior officer for
alleged constitutional violations" (462 U.S. at 305).  This statement
of the Court's holding makes plain that a case-by-case analysis as to
whether military discipline would be undermined by a particular suit
is not permitted.  Rather, the holding in Chappell is based on the
principle that any suit for damages by an enlisted man against his
superior officers necessarily undermines military discipline.
   The Eleventh Circuit's reading of Chappell is in conflict with the
specific holdings of three other circuits.  Gaspard v. United States,
713 F.2d 1097 (5th Cir. 1983), cert. denied, 466 U.S. 975 (1984);
Mollnow v. Carlton, 716 F.2d 627 (9th Cir. 1983), cert. denied, 465
U.S. 1100 (1984);  and Jaffee v. United States, 663 F.2d 1226 (3d Cir.
1981) (en banc), cert. denied, 456 U.S. 972 (1982).  In Gaspard, the
Fifth Circuit reasoned that "(t)he need for plenary discretion in
military affairs and the existence of an adequate,
congressionally-imposed compensation scheme instruct us to avoid
either imposing or inquiring into monetary damages when a service
person is injured" (713 F.2d at 1103 (emphasis in original)) .
Similarly, in Mollnow, the Ninth Circuit ruled that "(b)y rejecting
this court's consideration of such reviewability factors as the
adequacy of the intraservice remedy, we believe the Court (in
Chappell) necessarily imposed a per se prohibition on the filing of
Bivens-type actions by servicemen against their superiors" (716 F.2d
at 630).
   Rather than relying on the Court's statement of its holding in
Chappell, the court of appeals instead focused on the Court's
observation that "(t)his Court has never held, nor do we now hold,
that military personnel are barred from all redress in civilian courts
for constitutional wrongs suffered in the course of military service"
(462 U.S. at 304).  Viewing this statement as a rejection of a per se
rule disallowing Bivens suits, the court of appeals reasoned that the
decision in Chappell permits case-by-case determinations as to whether
the "'special factors'" that the Court in Chappell concluded militated
against permitting service members to pursue Bivens suits against
their superior officers were in fact present (App., infra, 11a).  In
reaching this conclusion, the court below failed to note that no case
involving money damages was cited in Chappell for the proposition that
service members are not barred entirely from obtaining relief in
civilian courts.  In contrast, both the Fifth Circuit and the Ninth
Circuit properly read this observation as applying to suits for a writ
of habeas corpus or injunctive relief, and not to damage actions
against superior officers.  Gaspard, 713 F.2d at 1103 n.12;  Mollnow,
716 F.2d at 629 n.4.  Similarly, while decided before Chappell, the
Third Circuit in Jaffee anticipated the reasoning of this Court in
Chappell, holding that the principles underlying the Feres doctrine
precluded Bivens actions by service members against their superior
officers (663 F.2d at 1236-1237).  /11/
   Even if the permissibility of a Bivens action somehow turns on a
case-by-case analysis of special factors, the analysis offered by the
court below plainly gave inadequate consideration to the need for
military command and discipline.  The "unique structure" of the
military is present in this case regardless of whether plaintiff
volunteered to participate in the program pursuant to which he was
administered LSD.  The defendants, plaintiff's superior officers, were
acting within the military command structure and were obeying their
orders in carrying out the chemical warfare experiments attacked by
plaintiff's suit.  This suit therefore will necessarily require
judicial second-guessing of those military orders.  Whatever the
wisdom of the decision to conduct such experiments in 1958, the Feres
doctrine as applied by this Court in Chappell makes clear that it is
not the task of the judiciary to second-guess that decision through
damage suits by enlisted men against their superior officers.
   In addition, the court of appeals misconstrued this Court's
observation in Chappell that Congress had enacted the Code of Military
Justice under which the claims of discrimination involved in that case
could have been addressed.  "Congress' activity in the field," this
Court reasoned, constituted a second special factor precluding a
Bivens remedy, even though the Code of Military Justice did not permit
any recovery of damages (462 U.S. at 304).  The court of appeals here
concluded that "(t)hose intramilitary administrative procedures which
the Court found adequate to redress the servicemen's racial
discrimination complaints in Chappell are clearly inadequate to
compensate Stanley for the violations complained of here" because
"Article 138 (of the Code of Military Justice) is not available to
veterans" (App., infra, 12a-13a).  This reasoning misses the point
made in Chappell that "Congress' activity in the field" -- not the
adequacy of the remedy and certainly not whether the specific statute
at issue there provided a remedy here -- itself argues against a
Bivens remedy.  In this case, Congress's activity in the field is its
enactment of the Veterans Benefits Act, and the independent
significance of that activity was not considered by the court of
appeals.  /12/ Indeed, by holding that this special factor is absent
because the Code of Military Justice is unavailable to veterans, the
Eleventh Circuit has limited Chappell to cases involving only that
statute.  Such a holding is impossible to defend -- the Veterans
Benefits Act was the congressional activity in the field that the
Court found precluded the FTCA claim in Feres.  See Gaspard, 713 F.2d
at 1103-1104.
                              CONCLUSION
   The petition for a writ of certiorari should be granted.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   RICHARD K. WILLARD
      Assistant Attorney General
   DONALD B. AYER
      Deputy Solicitor General
   CHRISTOPHER J. WRIGHT
      Assistant to the Solicitor General
   BARBARA L. HERWIG
   MARK W. PENNAK
      Attorneys
   SEPTEMBER 1986
   /1/ In so holding, the Fifth Circuit relied (App., infra, 94a) on
an opinion which was subsequently overturned by the en banc Third
Circuit in Jaffee v. United States, 663 F.2d 1226 (1981), cert.
denied, 456 U.S. 972 (1982).
   /2/ Rule 54(b) of the Federal Rules of Civil Procedure provides in
pertinent part:
         When more than one claim for relief is presented in an
      action, whether as a claim, counterclaim, cross-claim, or
      third-party claim, or when multiple parties are involved, the
      court may direct the entry of a final judgment as to one or more
      but fewer than all of the claims or parties only upon an express
      determination that there is no just reason for delay and upon an
      express direction for the entry of judgment.
   /3/ In his amended complaint, plaintiff alleged that "(t)he
wrongful act of the Defendants consists of an intentional act (while)
Plaintiff was on active duty and subsequent negligent failure to
protect Plaintiff, after becoming a civilian, from the dire
consequences flowing from the original wrong" (Second Amended
Complaint Paragraph 11).  Plaintiff further alleged that the
defendants were "federal executive department officials and agents,
who were acting under color of a covert federal Army problem" (sic)
(id. at Paragraph 14).  The complaint asserted that the alleged
conduct of the defendants violated his "constitutional right to
privacy * * * implicit in the First, Third, Fourth and Ninth
Amendments * * * (and) * * * implicit in the concept of liberty within
the Fifth Amendment Due Process Clause, and generally within the
'penumbras' of the Bills (sic) of Rights" (id. Paragraph 17).
Plaintiff also named as defendants the Board of Regents of the
University of Maryland and several physicians who were employees of
the University of Maryland, alleging that these state defendants
participated in the testing program pursuant to "an agreement or
contract" (id. Paragraph 20).  Plaintiff asserted claims under 42
U.S.C. 1983 (Count II) and 42 U.S.C. 1985 (Count III) against these
defendants.  The lower courts have not addressed the counts relating
to the state defendants (App., infra, 20a), which are not involved in
this petition.
   /4/ The Court so held because of "'special factors counselling
hesitation'" to authorize a Bivens remedy (42 U.S. at 298, quoting
Bivens, 403 U.S. at 396).  The Court concluded that the "unique * * *
structure of the Military Establishment and Congress' activity in the
field constitute 'special factors' which dictate that it would be
inappropriate to provide enlisted military personnel a Bivens-type
remedy against their superior officers" (462 U.S. at 304).
   /5/ The court of appeals' exercise of jurisdiction over the FTCA
claims cannot be viewed as a mere oversight.  In its recitation of the
facts, the court acknowledged that final judgment had been entered on
the FTCA claims in 1982 (App., infra, 5a).  In addition, we pointed
out that the court lacked jurisdiction over the FTCA claims in our
petition for rehearing and suggestion of rehearing en banc, which was
denied without opinion.
   /6/ A copy of our petition for a writ of certiorari in Johnson has
been furnished to counsel for respondent.
   /7/ The Fifth Circuit so held in 1981, ruling that "the
relationship between (plaintiff) and the allegedly negligent
individuals stemmed from their official military relationship" (App.,
infra, 76a).  The conclusion that plaintiff was injured incident to
service is plainly correct.  This suit is by an enlisted man against
his superior officers and others acting under the control of the Army
for their alleged negligence in carrying out their duties pursuant to
an official Army program, and plaintiff was on active duty at the
Army's Chemical Warfare Laboratories on the Aberdeen Proving Grounds
in Maryland when the alleged injuries took place.
   /8/ Moreover, in this case the Eleventh Circuit far extended its
decision in Johnson.  In Johnson, the allegedly negligent government
employees were civilian air traffic controllers employed by the
Federal Aviation Administration and not in the military chain of
command.  On those facts the court held that a case-by-case inquiry
was required in cases falling outside of "the typical Feres factual
paradigm -- an FTCA suit for injuries or death allegedly caused by the
negligence of a serviceman or an employee of the armed services" (749
F.2d at 1537).  Thus, even if the Court should decide that there is
merit to the Eleventh Circuit's holding in Johnson that the Feres
doctrine bars recovery by service members only when they are injured
by others in the military chain of command, such a decision would not
mean that plaintiff's FTCA claims, which clearly fall in the "Feres
factual paradigm," are not barred.
   If our petition in Johnson is granted and the Court rules in our
favor in that case, then it will be clear that the court of appeals
erred in its analysis of the FTCA claims in this case.  Accordingly,
the Court may want to hold Question 1 for disposition in light of
Johnson.  We do not think that it would be sensible to grant Question
1 here and hold our petition in Johnson, however, because the court of
appeals here clearly erred in concluding that it had jurisdiction over
plaintiff's FTCA claims, making it unlikely that the Court would reach
the merits on the FTCA issue here.  In addition, we think that plenary
review of Question 2 is warranted, even if this Court grants our
petition in Johnson, because Johnson does not involve Bivens actions
(see note 10, infra).
   /9/ Contrary to the court of appeals (App., infra 19a), the
Eleventh Circuit's Feres analysis finds no support in this Court's
statement in Shearer that "'(t)he Feres doctrine cannot be reduced to
a few bright-line rules;  each case must be examined in light of the
statute as it has been construed in Feres and subsequent cases,'"
(Shearer, slip op. 5).  That remark was made in the context of
rejecting the "bright-line" rule adopted by the Third Circuit that the
Feres doctrine did not bar a FTCA suit where the plaintiff's decedent
was off-duty and off-base when killed by a fellow service member.
   /10/ In our view, similar misunderstanding of the Feres doctrine
led the court of appeals to err in its analysis of the Bivens claims
here and to err in its analysis of the FTCA claims here and in
Johnson.  As this Court's decision in Chappell makes clear, the
concerns underlying the Feres doctrine lead to the conclusion that
service members injured incident to military service may pursue
neither FTCA claims nor Bivens claims.  Nevertheless, since FTCA
actions and Bivens suits differ in some respects, and since there are
factual differences between this case and Johnson, we think that
plenary review of Question 2 is warranted, perhaps in tandem with
Johnson, even if this Court grants our petition in Johnson and holds
Question 1 for disposition in light of Johnson (see note 8, supra).
   /11/ With the exception of the decision in this case, the district
courts have been unanimous in reading the Court's decision in Chappell
as absolutely barring Bivens claims by enlisted personnel against
their superior officers.  Alvarez v. Wilson, 600 F. Supp. 706 (N.D.
Ill. 1985);  Benvenuti v. Department of Defense, 587 F. Supp. 348
(D.D.C. 1984);  Hampton v. United States, 575 F. Supp. 1180 (W.D. Ark.
1983);  Bishop v. United States, 574 F. Supp. 66 (D.D.C. 1983).
   /12/ The court of appeals addressed the Veterans Benefits Act in
the context of rejecting it as an alternative adequate remedy under
the analysis of Carlson v. Green, 446 U.S. 14, 18-19 (1980) (App.,
infra, 13a-14a, & n.4).  Contrary to the court of appeals' statement
(id. at 13a), defendants had never argued that the Act was a fully
adequate alternative remedy, but had argued instead that the Act
constituted "Congress' activity in the field" under the analysis of
Chappell.  The court of appeals simply ignored this argument.
   APPENDIX