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No. 08-1451

 

In the Supreme Court of the United States

GERARD D. MATTHEW, ET AL., PETITIONERS

v.

DEPARTMENT OF THE ARMY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MARLEIGH DOVER
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTIONS PRESENTED

1. Whether claims under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., for injuries allegedly suf fered as a result of exposure to depleted uranium and medical malpractice during active military service are barred by this Court's decision in Feres v. United States, 340 U.S. 135 (1950).

2. Whether Feres should be overruled.

In the Supreme Court of the United States

No. 08-1451

GERARD D. MATTHEW, ET AL., PETITIONERS

v.

DEPARTMENT OF THE ARMY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

 

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a-9a) is unreported. The opinion of the district court (Pet. App. 10a-36a) is reported at 452 F. Supp. 2d 433.

JURISDICTION

The judgment of the court of appeals was entered on February 20, 2009. The petition for a writ of certiorari was filed on May 20, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioners are former members of the Army Re serves and certain of their family members. Pet. App. 3a. Petitioners sued the Army under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq. The former servicemembers alleged that, while they performed active military duty in Iraq, the Army negligently caused them to be exposed to depleted uranium (DU), a hazard ous substance. C.A. App. 20-23. They also alleged that they were subject to medical malpractice both before and after their discharge from military service. Id. at 23-25. Their family members alleged loss of companion ship as well as injuries resulting from prenatal exposure to DU. Id. at 25-27.

The Army moved to dismiss for lack of subject-mat ter jurisdiction. Pet. App. 12a. It relied on Feres v. United States, 340 U.S. 135 (1950), which held that "the Government is not liable 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." Id. at 146. The Army also argued that the complaint was barred by the FTCA's exceptions for injuries sustained in combat or while engaged in military service in a for eign country. See 28 U.S.C. 2680(j) and (k).

2. The district court granted the motion to dismiss in part and denied it in part. Pet. App. 10a-36a. The court held that Feres barred the servicemembers' claims of negligent exposure to DU in Iraq, their claims of pre- discharge medical malpractice, and their allegations that the Army failed to warn them about the hazards of DU exposure, because those claims all arose out of service- related activity. Id. at 16a-19a. But it held that Feres did not bar claims alleging post-discharge medical mal practice, id. at 23a-24a, and it concluded that those claims were not barred by the FTCA's foreign-country exception or by the exception for claims that arise out of combatant activities, id. at 30a-32a.

The district court allowed the family members to pursue their claims for the loss of consortium to the ex tent those claims were predicated on non-Feres-barred claims. Pet. App. 29a. It held that Feres barred the family members' other claims, however, because those claims were based on service-related activity on the part of the servicemember petitioners. Id. at 24a-29a.

In order to secure a final judgment for purposes of appeal, petitioners agreed to dismiss with prejudice the claims that the court had held were not barred by Feres. Pet. App. 6a n.1. The district court then entered a final judgment, and petitioners appealed.

3. In an unpublished summary order, the court of appeals affirmed. Pet. App. 1a-9a. The court held that claims based on exposure to DU in Iraq were "plainly barred under Feres" because they directly challenged the Army's "decision to deploy plaintiffs to areas alleg edly contaminated by DU, as well as [its] subsidiary de cisions regarding (1) what disclosures to make (or not make) to the soldier-plaintiffs regarding the dangers of DU exposure and (2) what steps to take (or not take) to protect them from such dangers." Id. at 5a. The court also concluded that the pre-discharge medical malprac tice claims were barred by Feres, noting that "Feres itself concerned, in part, medical malpractice claims by active-duty service members regarding care received at military facilities." Id. at 6a. Finally, the court of ap peals agreed with the district court that Feres barred the family members' claims that arose out of service- related injuries to the soldier-plaintiffs. Adjudicating those claims, the court of appeals explained, "would re quire a court to examine the same questions and deci sions implicated by the soldier-plaintiffs' own FTCA claims." Id. at 7a-8a.

ARGUMENT

The court of appeals correctly applied Feres v. United States, 340 U.S. 135 (1950), when it affirmed the district court's dismissal of petitioners' FTCA claims based on injuries allegedly resulting from active military service. The court's unpublished decision does not con flict with any decision of this Court or any other court of appeals, and further review is not warranted.

1. In Feres, this Court held that the FTCA does not authorize suits by service members based on injuries that are "incident to service." 340 U.S. at 146. In subse quent cases, this Court "has never deviated from this characterization of the Feres bar," United States v. Johnson, 481 U.S. 681, 686 (1987) (citations omitted), and it has emphasized that the "incident to service" test requires a case-by-case approach that focuses on the to tality of the circumstances, see United States v. Shearer, 473 U.S. 52, 57 (1985). This Court also has held that Feres bars third-party indemnity claims against the United States based on service-related injuries to sol diers, because "where the case concerns an injury sus tained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party." Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673 (1977) (Stencel Aero). The court of appeals correctly applied those principles in this case when it affirmed the district court's dismissal of petitioners' FTCA claims based on injuries allegedly sustained during military service.

2. Petitioners argue (Pet. 20-22) that Feres does not apply to medical-malpractice claims by active-duty servicemembers. They note that in United States v. Brown, 348 U.S. 110 (1954), this Court held that Feres does not bar former servicemembers from bringing FTCA claims alleging medical malpractice that occurs after their discharge. Id. at 112. Petitioners suggest (Pet. 20) that Brown should be extended to medical mal practice that occurs during service because, they say, "[t]here is no meaningful distinction between petition ers' status before or after discharge: they were medical patients at all relevant times."

As both courts below correctly observed, Feres itself involved medical-malpractice claims by active-duty sol diers. Pet. App. 6a, 19a; Feres, 340 U.S. at 137. Brown was careful to distinguish Feres on the ground that the injury in Brown, unlike the claims in Feres, occurred after the plaintiff's discharge. 348 U.S. at 112. Thus, Feres bars petitioners' active-duty medical-malpractice claims, and nothing in Brown suggests a contrary result.

Petitioners also are wrong to maintain that there is no difference between alleged malpractice that occurs while a servicemember is on active duty and alleged mal practice that occurs after discharge. As this Court ex plained in Johnson, active-duty servicemembers have a "distinctively federal" relationship with the government, making it appropriate to apply a uniform federal remedy that provides "simple, certain, and uniform compensa tion for injuries or death of those in the armed services." 481 U.S. at 689. That rationale is fully applicable to an active-duty servicemember who is injured while receiv ing medical treatment that is furnished because of his military service. Moreover, active-duty servicemembers -unlike former servicemembers-are subject to mili tary discipline and control under the Uniform Code of Military Justice, 10 U.S.C. 801 et seq., while they are receiving medical treatment. Those critical facts all con firm that the rationale underlying Feres applies to active-duty medical-malpractice claims. See Del Rio v. United States, 833 F.2d 282, 286 (11th Cir. 1987).

Contrary to petitioners' suggestion, Feres is not lim ited to situations in which an active-duty service mem ber is involved in military combat or training. In Feres itself, for example, this Court held that the FTCA did not permit the assertion of claims on behalf of a soldier who was killed in a barracks fire while asleep. See 340 U.S. at 137-138. Such an action is barred because it could require courts to become involved in second-guess ing military judgments, such as how to manage military properties consistent with limited resources. To allow medical malpractice actions by active-duty service members could result in the same kind of second-guess ing. See, e.g., Schoemer v. United States, 59 F.3d 26, 29- 30 (5th Cir.), cert. denied, 516 U.S. 989 (1995); Del Rio, 833 F.2d at 286. For those reasons, Congress has con sistently refused to amend the FTCA to allow for such actions.

3. Petitioners also argue (Pet. 23-26) that the dis trict court wrongly dismissed the FTCA claim of peti tioner Victoria Matthew, who allegedly was deprived of proper prenatal care because of the military's alleged concealment of the toxicity of the DU to which her fa ther was exposed during his service. That argument lacks merit. In Stencel Aero, this Court held that "where the case concerns an injury sustained by a sol dier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party." 431 U.S. at 673. Based on that reasoning, the Court held that a third- party indemnity action against the United States arising out of a service-related injury to an active-duty service member is "unavailable for essentially the same reasons that the direct action by [the servicemember] is barred by Feres." Ibid.

Every court of appeals to consider the question has held that Feres bars actions by third parties for injuries that have their genesis in injuries incurred by service members incident to their military service. Those cases include claims of prenatal torts arising out of a service member's active-duty exposure to toxic contaminants. See, e.g., Minns v. United States, 155 F.3d 445 (4th Cir. 1998), cert. denied, 525 U.S. 1106 (1999); In re Agent Orange Prod. Liab. Litig., 818 F.2d 201 (2d Cir. 1987); Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983), cert. denied, 465 U.S. 1023 (1984); Gaspard v. United States, 713 F.2d 1097 (5th Cir. 1983), cert. denied, 466 U.S. 975 (1984); Mondelli v. United States, 711 F.2d 567 (3d Cir. 1983), cert. denied, 465 U.S. 1021 (1984); Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982), cert. de nied, 462 U.S. 1118 (1983); Laswell v. Brown, 683 F.2d 261 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert. denied, 456 U.S. 989 (1982). As those courts have recognized, third-party claims are barred by Feres be cause they "would raise the same issues, and require the same scrutiny of military decisions, as an action by" the servicemember himself or herself. Mondelli, 711 F.2d at 569. Indeed, "[t]o hold otherwise * * * might open the door for governmental liability to countless genera tions of claimants having ever diminishing genetic rela tionship(s) to the person actually injured." Lombard, 690 F.2d at 223 (quotation marks omitted).

As both courts below correctly held, Victoria Mat thew's claim had its genesis in the injuries her father allegedly sustained while on active duty with the Army in Iraq. Pet. App. 7a-8a, 26a-27a. It was then that her father was allegedly exposed to DU, which she contends caused her injuries. C.A. App. 25. She does not allege, nor could she, that the Army concealed the toxicity of DU from her prior to her birth; more generally, she fails to identify any allegation of government misconduct that concerns her-as distinct from her father-while her father was on active duty.

Petitioners rely (Pet. 23) on lower court decisions holding that a servicemember's child may bring an FTCA action for negligent acts that are directed solely toward the child. See Brown v. United States, 462 F.3d 609 (6th Cir. 2006) (child may recover for negligent pre- natal care of servicemember mother where mother suf fered no injury herself and medical care was directed solely toward the child); Romero v. United States, 954 F.2d 223, 225 (4th Cir. 1992) (same). Those cases are inapposite, because the allegedly negligent acts in this case were not directed toward Victoria Matthew. Rather, petitioner's claim that Victoria Matthew was injured because of the Army's alleged failure to warn about the dangers of DU exposure flows inexorably from, and is inextricably tied to, the Army's distinctively federal relationship with her father. See Minns, 155 F.3d at 450 (noting that "[q]uestioning the military's decision not to warn either the soldiers or their families about the possible risks of inoculation or exposure to pesticides would again create the court-intrusion prob lem that the Feres doctrine aims to avoid"); see also Per sons v. United States, 925 F.2d 292, 296-297 (9th Cir. 1991); Heilman v. United States, 731 F.2d 1104, 1107- 1109 (3d Cir. 1984).

4. Finally, petitioners note (Pet. 14-20) that Feres has been criticized by some court of appeals judges and Supreme Court Justices, and they suggest that it should be reconsidered. This Court expressly reaffirmed Feres in Johnson, however, noting that it has never deviated from Feres in the decades since that case was decided and that Congress, which has been on notice of this Court's decisions in the area, has not amended the FTCA to overturn Feres. 481 U.S. at 686. As this Court has recognized, "[c]onsiderations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpreta tion, the legislative power is implicated, and Congress remains free to alter what [this Court] ha[s] done." Patterson v. McLean Credit Union, 491 U.S. 164, 172- 173 (1989). Twenty-one years after Johnson-and with more than 60 years of precedent now supporting Feres-this Court should be even more reluctant to re examine that settled statutory ruling.

Johnson reiterated that the Feres doctrine is sup ported by three important rationales. First, because "the relationship between the Government and members of its armed forces is distinctively federal in character," it "makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the Gov ernment to [the] serviceman." 481 U.S. at 689 (citations and internal quotation marks omitted). Second, "[t]hose injured during the course of activity incident to service not only receive benefits that compare extremely favor ably with those provided by most workmen's compensa tion statutes, but the recovery of benefits is swift and efficient, normally requir[ing] no litigation." Id. at 690 (citations and internal quotation marks omitted). Third, "suits brought by service members against the Govern ment for [service-related] injuries * * * are barred by the Feres doctrine because they are the 'type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.'" Ibid. (citations omitted). Those rationales remain valid today.

In the years since this Court decided Johnson, the Court has repeatedly denied petitions for certiorari urg ing that Feres be reexamined. See, e.g., Costo v. United States, 534 U.S. 1078 (2002); O'Neill v. United States, 525 U.S. 962 (1998); George v. United States, 522 U.S. 1116 (1998); Bisel v. United States, 522 U.S. 1049 (1998); Hayes v. United States, 516 U.S. 814 (1995); Schoemer v. United States, 516 U.S. 989 (1995); Forgette v. United States, 513 U.S. 1113 (1995); Sonnenberg v. United States, 498 U.S. 1067 (1991); see also McConnell v. United States, 128 S. Ct. 649 (2007). Petitioners suggest no reason why the Court should take a different course here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
MARLEIGH DOVER
LOWELL V. STURGILL JR.
Attorneys

AUGUST 2009