DON H. MAJOR, ADMINISTRATOR OF THE ESTATE OF DEBRA LYNN SPRADLIN,
DECEASED, AND CHARLES L. MAUK, PETITIONERS V. UNITED STATES OF AMERICA

   No. 87-1541

   In the Supreme Court of the United States

   October Term, 1987

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

   Memorandum for the United States in Opposition

   Petitioners contend that the courts below misapplied Feres v.
United States, 340 U.S. 135 (1950), in dismissing their damage suits
and that Feres should be overruled.

   1. Private Debra Spradlin was killed and Private Charles Mauk was
severely injured when the motorcycle on which they were seated was
struck by an automobile driven by William Lane, a non-commissioned
Army officer.  Spradlin and Mauk were parked off the road on the Fort
Campbell Military Reservation at the time of the accident;  they were
on active duty status, but off duty.  Lane had been drinking at a
party on the post and was on his way home when his vehicle ran off the
road and hit the motorcycle.  Pet. App. 2a, 11a.

   Petitioners brought suit under the Federal Tort Claims Act (FTCA),
28 U.S.C. 1346(b), 2671 et seq., seeking damages from the United
States.  They alleged that Army officers "negligently and wrongfully
failed to supervise and control subordinate employees who were
responsible for the wrongful conduct involved in the 'party'" (Pet.
App. 18a, 27a).  They added that "those commanders * * * wrongfully
and negligently failed to administer and implement policies, orders,
and regulations of the President of the United States, the Secretary
of Defense, and the Secretary of the Army, relating to the
distribution and consumption of alcoholic intoxicants" (id. at 19a,
27a).

   The district court granted the government's motion to dismiss the
complaints (Pet. App. 10a-13a).  The court noted that "plaintiff's
complaints challenge the conduct of Lane's superiors and fellow
soldiers both in holding the party at which Lane became intoxicated
and in allowing him to leave in that condition" (id. at 12a).  It
concluded, relying on United States v. Shearer, 473 U.S. 52 (1985),
that the suits are barred by Feres because "(a) trial would involve
second-guessing military orders and would very likely require members
of the Armed Services to testify in court as to each other's
decisions" (Pet. App. 12a).

   The court of appeals affirmed (Pet. App. 1a-9a).  It noted that
petitioners "attempt to distinguish Shearer by alleging that the
allegation in their complaint as to negligent supervision is merely
'alternative' and 'collateral';  (petitioners contend that) no
military decisionmaking process is implicated because the relevant
'decision' was made when the regulations allegedly prohibiting on-base
consumption of alcohol were promulgated, and this suit challenges only
the failure to follow those regulations" (id. at 8a (emphasis in
original)).  The court found the "attempted distinctions * * *
unpersuasive" since a trial "would require those superiors either in
attendance at the party at which Lane became intoxicated or with
knowledge of that gathering to testify about military decisions
relating to the provisions and/or consumption of alcohol on base as
well as disciplinary policies for infractions of such rules" (id. at
8a, 9a).

   2. The decision below is correct and further review is not
warranted.  Petitioners acknowledge that their "allegations as to
negligent supervision, standing alone, would be questionable" (Pet. 12
n.14).  Indeed, negligent supervision claims are plainly barred by
Shearer, which held that the plaintiff's "attempt to hale Army
officials into court to account for their supervision and discipline
of (an Army private) must fail" (473 U.S. at 59).  Contrary to
petitioners, it makes no difference that they allege that Army
officers failed to enforce regulations relating to the consumption of
alcohol.  Their claims remain negligent supervision claims even if the
allegedly negligent supervision violated regulations, and requiring
military officers to testify in civilian court as to their compliance
with governing regulations is just as intrusive (if not more so) as
asking them otherwise to account for their supervision of
subordinates.  As the court of appeals concluded, it is likely that a
trial of petitioners' suit would "'call() into question basic choices
about the discipline, supervision, and control of (servicemen).'" Pet.
App. 9a (quoting Shearer, 473 U.S. at 58 (footnote omitted)).  In any
event, suits where the issue is whether military officers complied
with regulations in supervising subordinates 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" (473 U.S. at 59 (emphasis in original)).  Petitioners'
claims are therefore barred.

   Petitioners deny that "the existence of military 'no-fault'
benefits creates yet another reason to deny Petitioners any remedy
under the FTCA" (Pet. 16).  However, this Court held last Term that
"the existence of these generous statutory disability and death
benefits is an independent reason why the Feres doctrine bars suit for
service-related injuries." United States v. Johnson, No. 85-2039 (May
18, 1987), slip op. 8.  Moreover, the provision of veterans' benefits
responds to petitioners' complaint that Lane "could very well have
struck * * * a non-military person" and that Feres would not bar the
action in that event (Pet. 16 (emphasis in original)).  If Lane had
struck a civilian, the injured person, unlike petitioners, would not
have been eligible for no-fault veterans' benefits.  While, unlike
petitioners, a civilian would not be barred by Feres from suing the
government, a civilian would have great difficulty recovering from the
government under the facts of this case since Lane was not on
government business or driving a government car when he ran off the
road.

   Petitioners also suggest that "the time has come to * * * repeal
Feres" (Pet. 10).  However, Feres was reaffirmed last Term in Johnson.
 This Term, the petitioner in Gilardy v. United States suggested
overruling Feres and the Court denied the petition (No. 87-670 (Jan.
25, 1988)).  There is no reason to revisit that question now.  As the
Court stated in Feres, "Congress possesses a ready remedy" (340 U.S.
at 138) if it disagrees with this Court's construction of the FTCA,
but it has not taken action to overrule Feres legislatively in the 38
years since that decision was announced.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JUNE 1988