UNITED STATES ARMY, ET AL., PETITIONERS V. SERGEANT PERRY J.
   WATKINS

   No. 89-1806

   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 Ninth Circuit

   Reply Memorandum For The Petitioners

   The government's petition for a writ of certiorari presents three
questions:  (1) whether the federal government may ever be estopped
from applying one of its valid regulations;  (2) whether the United
States Army may be estopped from applying a valid regulation regarding
the minimum qualifications of service members;  and (3) whether the
Army in this case was guilty of the type of affirmative misconduct
that may give rise to estoppel.  The government suggested that the
petition should be held and disposed of in light of this Court's
resolution of OPM v. Richmond, No. 88-1943, which also presented the
first question posed here.  The Court has now decided Richmond, 110 S.
Ct. 2465 (1990), and the government consequently suggests that the
Court grant this petition, vacate the court of appeals' judgment, and
remand for further consideration in light of the Court's decision in
that case.

   In Richmond, this Court rejected the notion that "erroneous oral
and written advice given by a Government employee to a benefit
claimant may give rise to estoppel against the Government, and so
entitle the claimant to a monetary payment not otherwise permitted by
law." 110 S. Ct. at 2467.  The Court "le(ft) for another day whether
an estoppel claim could ever succeed against the Government" (id. at
2471), but nonetheless broadly held that "judicial use of the
equitable doctrine of estoppel cannot grant respondent a monetary
remedy that Congress has not authorized" (Id. at 2472).

   This Court's Richmond decision does not definitively resolve the
questions presented by this case.  Nevertheless, the Court's opinion
plainly rejects the court of appeals' analysis here.  The en banc
court held that the United States Army was equitably estopped from
applying its reenlistment regulations to respondent, relying on Ninth
Circuit precedent holding that "estoppel will be applied against the
government" where "justice and fair play require it." Pet. App.
13a-14a (citations and quotation marks omitted).  This Court's
decision categorically rejects the notion that the government's
amenability to equitable estoppel turns simply on the courts'
willingness to exercise their equitable powers.  The threshold issue,
instead, is whether courts "have authority" to estop the government
(110 S. Ct. at 2467).  Plainly, "courts cannot estop the Constitution"
(id. at 2476), nor can they "require the Executive Branch to violate a
congressional statute" (id. at 2477 (White, J., concurring)).

   This Court's reasoning in Richmond carries even greater force in
cases involving military readiness and discipline.  The Court has
repeatedly recognized that the judiciary has limited competence and
sharply circumscribed authority in military matters.  See, e.g.,
Chappell v. Wallace, 462 U.S. 296, 300-304 (1983).  As we explain in
our petition (at 14), Chappell denies service members a
judicially-created Bivens remedy against their superior officers on
the ground that the Constitution explicitly gives the Executive and
Legislative Branches -- and not the Judiciary -- "plenary control over
rights, duties, and responsibilities in the framework of the Military
Establishment, including regulations, procedures, and remedies related
to military discipline." 462 U.S. at 301.  Just as courts have no
authority to invoke equitable notions of "justice and fair play" to
override congressional spending decisions, they have no authority to
override executive and legislative judgments concerning the
qualifications of military service members.

   Thus, this Court's decision in Richmond sheds light on the proper
disposition of this case.  Although this case, like Richmond, presents
the question whether a court may ever employ equitable estoppel
against the government, here, as in Richmond, a "narrower ground of
decision is sufficient to address the type of suit presented here"
(110 S. Ct. at 2471).  We therefore suggest that the court of appeals
be given an opportunity to reconsider whether the United States Army
may be estopped from applying a valid regulation concerning the
qualifications of service members.  If the court of appeals adheres to
its previous decision, notwithstanding this Court's guidance in
Richmond, then the issues presented in this petition will be ripe for
review by this Court.

   For the foregoing reasons and those stated in our petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted, the judgment of the court of appeals should be
vacated, and the case should be remanded for further consideration.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   AUGUST 1990