UNITED STATES OF AMERICA, ET AL., PETITIONERS V. JAMES B. STANLEY

   No. 86-393

   In the Supreme Court of the United States

   October Term, 1986

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

   Reply Memorandum for the United States

   1. a. Respondent argues (Br. in Opp. 10-11), contrary to our claim
that the time to appeal from the dismissal of his FTCA claims has long
passed (Pet. 9-10), that no final judgment of dismissal was entered
properly.  Petitioner contends that the district court's dismissal of
his FTCA claims in 1982 was ineffective because no separate judgment
in favor of the United States was entered pursuant to Fed. R. Civ. P.
58 and 79(a).

   There is no merit to respondent's claim that the district court
failed to enter a proper final judgment.  The district court wrote a
lengthy memorandum (Pet. App. 56a-66a) on October 15, 1982, that
concluded that respondent's FTCA claims should be dismissed.  On
November 9, 1982, the court entered a final judgment order (id. at
54a-55a) granting the United States' motion for partial final judgment
pursuant to Fed. R. Civ. P. 54(b).  That separate order fully complied
with the requirements of Rule 58.  See Beaudry Motor Co. v. Abko
Properties, Inc., 780 F.2d 751, 753-755 (9th Cir. 1986).  /1/

   Respondent contends (Br. in Opp. 10) that the order of November 9,
1982, is deficient because it provides that "the clerk shall enter
final judgment in favor of the United States";  respondent apparently
contends that the order should have read "final judgment is entered in
favor of the United States." There is no substance to this
hyper-technical argument.  The entry in the docket provided that
partial final judgment had been entered in favor of the United States
(Br. in Opp. App. A4).  Moreover, respondent understood that the court
had dismissed the United States.  In a letter to the district court on
June 21, 1983, respondent's counsel stated that "(l)ast October you
wrote a detailed order * * * wherein you dismissed the Plaintiff's
FTCA claim against the U.S. Government due to the Feres doctrine"
(App., infra, 2a).  The court of appeals also understood that the FTCA
claims had been dismissed.  It noted that "(u)pon motion by the
government, on November 9, 1982, the district court entered final
judgment in favor of the government" (Pet. App. 5a).

   The clerk entered the final judgment on the civil docket, as
required by Rule 79(a), on November 10, 1982.  The entry states:
"Motion for Partial Final Judgment by Deft., USA is Granted" (Br. in
Opp. App. A4).  That entry fully complied with the requirements of
Rule 79(a).  See Beaudry, 780 F.2d at 755.  Accordingly, under Fed. R.
App. P. 4(a)(1) the time to appeal expired in January 1983.  /2/

   In any event, respondent has not responded to our argument (Pet.
10) that the court of appeals lacked jurisdiction over the FTCA claims
because this case was before the court on an interlocutory appeal
pursuant to 28 U.S.C. 1292(b) to consider the district court's refusal
to dismiss respondent's Bivens claims.  As the court of appeals noted
(Pet. App. 6a), the basis of its jurisdiction was its grant of the
individual defendants' motion for interlocutory appeal to review the
district court's order of October 28, 1983, where the court refused to
dismiss the Bivens claims.  On an interlocutory appeal, "the scope of
the issues open to the court of appeals is closely limited to the
order appealed from" and does not extend to "matters ruled upon in
other orders" (16 C. Wright, A. Miller, E. Cooper & E. Gressman,
Federal Practice and Procedure 143 (1977));  Pritchard-Keang Nam Corp.
v. Jaworski, 751 F.2d 277, 280-281 n.3 (8th Cir. 1984), cert.
dismissed, 472 U.S. 1022 (1985);  United States v. Bear Marine
Services, 696 F.2d 1117, 1118-1119 n.1 (5th Cir. 1983).

   Accordingly, it was clear error to review the November 9, 1982,
dismissal of the FTCA claims on an interlocutory appeal from the
October 28, 1983, order refusing to dismiss the Bivens claims.  This
error is egregious since the United States was not even a party to the
interlocutory appeal and the FTCA issue was not briefed.  Thus, even
if respondent's time to appeal the November 9, 1982, order dismissing
the United States had not run, the court of appeals lacked
jurisdiction over his FTCA claims.  The court of appeals' sua sponte
assertion of jurisdiction over the FTCA claims on an interlocutory
appeal challenging the district court's refusal to dismiss the Bivens
claims has so far departed from the accepted course of judicial
proceedings to warrant an exercise of this Court's supervisory
jurisdiction.  /3/

   b. We also showed in our petition (at 10-13) that the court of
appeals erred in holding that controlling precedent does not "preclude
Stanley's lawsuit under the FTCA * * * upon a finding that he suffered
the complained of injury while performing duties incident to military
activities" (Pet. App. 19a).  Respondent asserts (Br. in Opp. 12-13)
that his injuries were not incurred incident to military service
because, at the time he was given LSD, he had been released from his
regular duty status and "had complete control over his movements" (id.
at 13).  The Fifth Circuit rejected that argument when it considered
this case in 1981 (Pet. App. 72a-74a), and the court of appeals did
not dispute that holding in concluding that respondent's FTCA claims
are not necessarily barred (see id. at 16a).  There is simply no merit
to petitioner's assertion that he was not injured incident to service
because he was, by his own agreement, in a unique duty status.  /4/

   Since we filed our petition, this Court granted certiorari in
United States v. Johnson, No. 85-2039, to decide whether a service
member injured incident to service may pursue FTCA claims alleging
negligence on the part of civilian federal employees.  As we argued in
our brief in Johnson, /5/ this Court has consistently held that a
service member's claims under the FTCA are barred if they were
incurred incident to military service.  Indeed, the court in Johnson
acknowledged that claims based on injuries incurred incident to
military service are barred where the alleged tortfeasor, like those
here, was a "member of the armed forces or a civilian employee engaged
in activities usually associated with the armed forces" (85-2039 Pet.
App. 25a).  The court of appeals' contrary holding in this case
warrants reversal.  /6/

   2. As we also showed in our petition (at 14-18), the court of
appeals clearly erred in permitting respondent to go forward with his
Bivens claims since this Court held in Chappell v. Wallace, 462 U.S.
296, 305 (1983), that "enlisted military personnel may not maintain a
suit to recover damages from a superior officer for alleged
constitutional violations." Respondent erroneously asserts (Br. in
Opp. 15) that this case is distinguishable from Chappell because he is
not suing "superior officers." The basis for the decision in Chappell
was that "'(o)rderly government requires that the judiciary be as
scrupulous not to interfere with legitimate Army matters as the Army
must be scrupulous not to intervene in judicial matters'" (462 U.S. at
301, quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953)).
Respondent's amended complaint alleges that the individual federal
defendants "were acting under color of a covert army program * * *
which was implemented by the United States Government, the Central
Intelligence Agency, the United States Department of Defense and the
U.S. Army" (Paragraph 20).  Clearly, as respondent alleges in his
complaint, he was administered LSD as part of an official Army drug
experimentation program.  That program was developed and administered
by respondent's superiors, and it is their decisions that he
challenges.  This Court barred the plaintiffs in Chappell from going
forward with Bivens claims to prevent civilian courts from reviewing
just the sort of challenges to military decisions that respondent
seeks to raise here.  /7/

   There is no merit to respondent's assertion (Br. in Opp. 16-17)
that the decision below does not conflict with decisions of other
circuits.  The court in Mollnow v. Carlton, 716 F.2d 627, 630 (9th
Cir. 1983), cert. denied, 465 U.S. 1100 (1984), held that "the Court
(in Chappell) necessarily imposed a per se prohibition on the filing
of Bivens-type actions by servicemen against their superiors."
Respondent states (Br. in Opp. 16) that the district court
distinguished Mollnow at Pet. App. 32a-33a;  however, the district
court did not cite the Mollnow decision.  Respondent also suggests
that the Ninth Circuit "seemed to take a different view of Chappell"
(Br. in Opp. 16) in Gonzalez v. Department of the Army, 718 F.2d 926,
929 (1983).  That assertion is also wrong;  indeed, Gonzales did not
involve a Bivens claim.  /8/ The decision here clearly conflicts with
the decision in Mollnow.

   The decision here also conflicts with the decisions in Gaspard v.
United States, 713 F.2d 1097 (5th Cir. 1983), cert. denied, 466 U.S.
975 (1984), and Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981),
cert. denied, 456 U.S. 972 (1982).  Contrary to respondent's claim
(Br. in Opp. 17), Gaspard and Jaffee are not distinguishable because
they involved a direct order while this case did not.  Nothing in this
Court's decision in Chappell supports the conclusion that, in order to
determine whether a service member may go forward with a Bivens
action, a court should determine whether the claim revolves around
some identifiable order that had been issued to the service member.
Rather, the Court's decision was based on its conclusion that civilian
courts are ill-equipped to review military orders of any type (see 462
U.S. at 301-302).  As the Fifth Circuit stated in Gaspard, under
Chappell a court is barred "from inquiring into monetary damages when
a service person is injured" incident to service (713 F.2d at 1103).

   The Third Circuit recently made its conflict with the decision here
even more clear.  That court stated, in concluding that the plaintiff
there could not bring a claim against Pennsylvania National Guard
officers under 42 U.S.C. 1983, that "the Stanley court misread
Chappell." Jorden v. National Guard Bureau, 799 F.2d 99, 107 (1986).
Contrary to the approach followed by the courts below, the Third
Circuit stated that this Court's decision in Chappell "la(id) down a
general rule barring damages actions by military personnel against
superior officers for constitutional violations, rather than
authorizing a fact-specific inquiry." Id. at 108.  Accordingly, there
is a clear conflict between the decision here and the decisions of
other courts of appeals.  Indeed, the courts below are the only courts
that have not read Chappell to bar Bivens actions by service members.
/9/ Unless this case is dealt with summarily (see pages 9-10, infra),
the Bivens question (Question 2) warrants plenary review to resolve
the conflict in the circuits.  /10/

   3. Respondent concludes (Br. in Opp. 23) that "further briefing
would be repetitive" so that summary disposition of this case is
appropriate under Rule 23.1 of the Rules of this Court.  Since this
Court will hear argument in Johnson on the question whether the Feres
doctrine is applicable in an FTCA action alleging negligence on the
part of civilian federal employees, in most circumstances the FTCA
question (Question 1) would, at a minimum, be held for Johnson.
However, because the court of appeals so clearly erred in reviving the
FTCA issue which was not before it and which had been dismissed
without appeal in 1982, we agree that summary action may be warranted
on this issue.

   We believe that the Bivens question (Question 2) is also
sufficiently clear that the Court may wish to consider summary
reversal.  This Court clearly stated in Chappell that claims such as
respondent's are barred:  "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.  As we have
shown, all of the courts other than the courts below have understood
Chappell to bar claims such as respondent's.  /11/

   For the foregoing reasons and the additional reasons stated in the
petition for a writ of certiorari, it is respectfully submitted that
the petition for a writ of certiorari should be granted.  The Court
should either order briefing on the merits or vacate the court of
appeals' decision and remand with instructions to dismiss respondent's
complaint.

   CHARLES FRIED

      Solicitor General

   NOVEMBER 1986

   /1/ This case is therefore different than cases where a memorandum
and order are entered as a single document.  Cf. Amoco Oil Co. v. Jim
Heiling Oil & Gas, Inc., No. 85-2107 (Nov. 17, 1986) (Blackmun &
O'Connor, JJ., dissenting from denial of certiorari).  As the advisory
committee notes state, one purpose of Rule 58 was to clarify that, in
addition to a memorandum opinion containing "some apparently directive
or dispositive words," a separate order must be entered (28 U.S.C.
App. at 627-628).  Here, in addition to the opinion issued on October
15, 1982 (Pet. App. 56a-66a), the court entered a separate order on
November 9, 1982 (id. at 54a-55a).

   Furthermore, the requirements of Rule 58 are expressly "(s)ubject
to the provisions of Rule 54(b)." All that should be required to start
the time for filing a notice of appeal in a case involving a partial
final judgment is compliance with Rule 54(b).  A central purpose of
Rule 54(b) certification is to provide a certain starting point for
conducting an appeal from an otherwise interlocutory order.
Certification itself thus serves the function served by the "separate
document" requirement of Rule 58.

   /2/ Respondent states (Br. in Opp. 9-10) that no notice of entry of
judgment was mailed by the clerk to the parties as required by Fed. R.
Civ. P. 77(d).  Even if this assertion is correct, such a failure
would be irrelevant since Rule 77(d) expressly provides that "(l)ack
of notice of the entry by the clerk does not affect the time to appeal
or relieve or authorize the court to relieve a party for failure to
appeal within the time allowed."

   /3/ Respondent asserts (Br. in Opp. 11) that he would be able to
obtain relief under Fed. R. Civ. P. 60(b).  However, we know of no
authority -- and respondent cites none -- authorizing a court of
appeals to reopen a final judgment more than three years after it was
entered because (as the court of appeals incorrectly concluded (Pet.
App. 17a)) controlling authority had changed in the interim.
Moreover, such a rule would obviously prevent parties from ever
knowing with any certainty that a case had been resolved.  Such a
holding would also completely bypass the district court and its role
in adjudicating Rule 60(b) motions.

   /4/ While arguing that his duty status at the time involved
substantial freedom of action on his part, so that a trial in this
case would not impact adversely on military discipline (Br. in Opp.
12-13), respondent emphasizes that he was not a true volunteer because
his consent was obtained by fraud (id. at 2, 12).  In arguing that a
trial in this case would not "require a civilian court to second-guess
the wisdom of military decisions" (id. at 13), respondent is obviously
incorrect.  The central issue in a trial in this case would be whether
the military erred in deciding to use Army volunteers in conducting
chemical warfare tests in the late 1950s.

   /5/ We have furnished a copy of our brief in Johnson to counsel for
respondent.

   /6/ If this case is not disposed of summarily (see pages 9-10,
infra), the Court should either review the FTCA question (Question 1)
or hold it for disposition in light of Johnson.

   /7/ The Court also based its holding in Chappell on the fact that
Congress had provided alternative avenues by which service members
could obtain relief.  We noted in our petition (at 17-18) that
Congress had provided that persons such as respondent could obtain
veterans' benefits if they suffered injury incident to service.
Respondent complains (Br. in Opp. 21) that he has not obtained
disability benefits under the Veterans' Benefits Act, and suggests
(id. at 19 n.9) that we concede that the Act does not provide him with
a remedy.  These statements demonstrate misunderstanding of the Act
and our position.  Respondent does not allege that he applied for
veterans' disability benefits, and we are informed that he has not
applied;  of course, a person must apply in order to obtain benefits.
38 U.S.C. 3001(a).  If respondent demonstrates that he suffers from a
disability as a result of his ingestion of LSD in 1958, then he is
entitled to compensation.  38 U.S.C. 331.  Furthermore, as Chappell
makes clear, it is not the adequacy of the remedy, but rather
Congress's "activity in the field" (462 U.S. at 304), that constitutes
the "special factor" which led this Court to conclude that a Bivens
remedy is not available to military personnel for torts allegedly
committed by their superior officers.

   /8/ The court held in Gonzalez that a service member should not
bring a claim that he had been denied a promotion because of race
discrimination against the Army and the Secretary of the Army under 42
U.S.C. 1981.  The court explained that "the court would be required to
scrutinize numerous personnel decisions by many individuals as they
relate to appellant's claim that he was improperly denied promotion.
This inquiry would involve the court in a very sensitive area of
military expertise and discretion.  While we would not shrink from
such an assessment in a civilian setting, the same hesitation that
precludes a Bivens-type claim in the military setting, see Chappell *
* * , compels restraint here." 718 F.2d at 930.

   /9/ Respondent states that the Eighth Circuit recently held in
Brown v. United States, 739 F.2d 362 (1984), cert. denied, No. 84-636
(July 1, 1985), that a plaintiff could "bring a Bivens action even
though an FTCA claim could not be prosecuted under the Feres doctrine"
(Br. in Opp. 17-18).  As an initial matter, Brown did not involve a
Bivens claim;  rather, the plaintiff sought to bring suit against his
superior officers and fellow service members under 42 U.S.C. 1981 and
1983.  Moreover, the analysis in that case supports our position
rather than respondent's.  The plaintiff's claim in Brown was that his
fellow national guardsmen led him to believe "that he was being taken
by a lynch mob" (739 F.2d at 364).  The court held that the plaintiff
could not pursue claims against superior officers alleging that they
failed to prevent the incident and investigate it properly because
those claims would involve second-guessing of military decisions (id.
at 369).  The court permitted the plaintiff to bring suit against the
plaintiff's fellow guardsmen, however, concluding that "a racially
tinged mock hanging of a fellow soldier * * * served no conceivable or
remotely military purpose" (id. at 368).  An analogous claim would be
presented here if respondent claimed that fellow service members gave
him LSD as a misguided prank rather than as part of an official Army
program.

   /10/ Contrary to respondent's claim (Br. in Opp. 7-8), the
interlocutory posture of this case provides no reason to forego
review.  A primary purpose underlying the Feres doctrine and the
Court's refusal to permit Bivens suits is to avoid having civilian
courts second-guess military decisions.  United States v. Shearer, No.
84-194 (June 27, 1985), slip op. 6.  Permitting a trial to go forward
in this case would require just such second-guessing.

   /11/ Even counsel for respondent believed at one point in this
litigation that Chappell barred respondent's Bivens claims.  He
stated, in a letter to the district court shortly after the decision
in Chappell, that "we are ethically compelled to cite to the court a
recent Supreme Court decision which, we regret to say, is apparently
dispositive of this case" (App., infra, 1a).  Counsel went on to say
that the Court in Chappell "held that the same principles which
underly (sic) the Feres doctrine and which require absolute immunity
from an FTCA action also require immunity from a Bivens constitutional
action against federal officers" (id. at 2a).

   APPENDIX