WILLIAM H. GILARDY, JR., SPECIAL ADMINISTRATOR OF THE ESTATE OF
DAVID LEE THOMPSON, ET AL., PETITIONERS V. UNITED STATES OF AMERICA

   No. 87-670

   In The Supreme Court Of The United States

   October Term, 1987

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Memorandum For The United States In Opposition

   Petitioners, the survivors of a service member who died incident to
military service, contend that the United States is liable in damages
under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et
seq., despite the rule of Feres v. United States, 340 U.S. 135 (1950).

   Petitioners are the widow, parents, and administrator of the estate
of Petty Officer David Lee Thompson.  While on active duty as a crew
member on the same Coast Guard helicopter involved in United States v.
Johnson, No. 85-2039 (May 18, 1987), Thompson, along with Lieutenant
Commander Johnson, was killed when, in the course of the rescue
mission, the helicopter crashed.  Like Johnson's survivors,
petitioner's brought suit under the FTCA seeking damages against the
United States on the ground that the negligence of civilian air
traffic controllers employed by the Federal Aviation Administration
caused the crash.  The district court granted the government's motion
to dismiss the complaint because Thompson's death occurred incident to
military service, so that Feres therefore precluded petitioner's suit
(Pet. App. a1).  The court of appeals summarily affirmed in light of
this Court's decision in Johnson (id. at 6a).

   Petitioners, who urge this Court to grant review to consider
whether Feres should be overruled, in effect seek rehearing of
Johnson.  There is plainly no warrant for further review by this
Court.  This Court reaffirmend Feres just last Term in Johnson, and
petitioners suggest no "special justification" (Arizonia v. Rumsey,
467 U.S. 203, 212 (1984)) demanding a departure from the doctrine of
stare decisis in this case.  Moreover, since "(t)he doctrine of stare
decisis has a more limited application when the precedent rests on
constitutional grounds, because 'correction through legislative action
is practically impossible'" (Thomas v. Washington Gas Light Co., 448
U.S. 261, 272-273 n.18 (1980)(plurality opinion), quoting Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393, 407 (1932) (Brandeis, J.,
dissenting)), it follows that stare decisis demands that there be a
particularly strong basis for departing from a prior interpretation of
a statute.  Here, where the statute at issue was construed by this
Court in Feres a few years after its enactment -- and Congress has not
revised the FTCA to overrule Feres despite the Court's acknowledgement
that "if we misinterpret the Act, at least Congress possesses a ready
remedy" (340 U.S. at 138) -- there is plainly no basis for
reconsideration by this Court.

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

   CHARLES FRIED

      Solicitor General

   DECEMBER 1987