UNITED STATES OF AMERICA, PETITIONER V. FRIEDA JOYCE JOHNSON, INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF HORTON JOHNSON, DECEASED No. 85-2039 In the Supreme Court of the United States October Term, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit. TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 779 F.2d 1492. The opinion of the court of appeals (App., infra, 11a-34a) is reported at 749 F.2d 1530. The district court's order (App., infra, 35a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 33a) was entered on January 13, 1986. On April 3, 1986, Justice Powell extended the time for filing a petition for a writ of certiorari to and including June 12, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 28 U.S.C. 1346(b) provides in part: Subject to the provisions of (28 U.S.C. 2671 et seq.), the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. QUESTION PRESENTED Whether the doctrine of Feres v. United States, 340 U.S. 135 (1950), bars an action under the Federal Tort Claims Act brought on behalf of a serviceman killed during a military mission where the complaint alleges the negligence of civilian employees of the federal government who participated in the military mission. STATEMENT 1. Lieutenant Commander Horton Johnson was a helicopter pilot in the United States Coast Guard. The Coast Guard is "a military service and a branch of the armed forces of the United States" (14 U.S.C. 1) and is responsible for operating "rescue facilities for the promotion of safety on, under, and over the high seas * * * of the United States" (14 U.S.C. 2). In the early morning hours of January 7, 1982, Lieutenant Commander Johnson's Coast Guard station in Hawaii received a distress call from a boat lost in a storm. Lieutenant Commander Johnson and several other members of the Coast Guard responded to the call for assistance; he piloted a helicopter to the area from which the distress call had been received. Visibility during the storm was quite poor, and while searching for the boat Lieutenant Commander Johnson requested radar assistance from Federal Aviation Administration (FAA) air traffic controllers. The FAA air traffic controllers provided air traffic control services to Lieutenant Commander Johnson's helicopter, but it crashed into a mountain and all on board died. App., infra, 12a. Respondent, Lieutenant Commander Johnson's widow and the administratrix of his estate, applied for and received the full range of Veterans' Benefits payable as a result of Lieutenant Commander Johnson's death. /1/ In addition, respondent brought this action in the United States District Court for the Southern District of Florida under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., seeking damages from the United States. Respondent did not allege that Lieutenant Commander Johnson's fellow service members or superior officers acted negligently. Instead, respondent claimed that the FAA Air traffic controllers negligently guided Lieutenant Commander Johnson's helicopter. 2. The district court dismissed the complaint because the injury to Lieutenant Commander Johnson arose out of activity incident to military service and therefore is barred by Feres v. United States, 340 U.S. 135 (1950) (App., infra, 35a). The court of appeals reversed (App., infra, 11a-32a). The court of appeals did not dispute that Lieutenant Commander Johnson's death occurred incident to service. But, based on its review of this Court's Feres doctrine cases, the court concluded that "(t)his much-maligned doctrine" (App., infra, 27a) is based primarily upon "the reluctance to upset, via the civilian forum, the delicate relationships which must exist for the military system to properly function" (id. at 28a). Applying this reasoning the court concluded that the Feres doctrine does not bar respondent's action because the complaint alleged the negligence of civilian FAA air traffic controllers only. In the court's view, putting on trial the actions of civilian employees of the federal government involved in the rescue operation would not require scrutiny of military decisions or involve or compromise the military command structure (App., infra, 28a-29a). The court acknowledged (App., infra, 29a) that its decision squarely conflicted with the Ninth Circuit's decision in Uptegrove v. United States, 600 F.2d 1248 (1979), cert. denied, 444 U.S. 1044 (1980). In Uptegrove a serviceman was killed when the Air Force cargo plane on which he was flying crashed, and the court concluded that the serviceman's survivor was barred by the Feres doctrine from alleging that the negligence of FAA air traffic controllers had caused the crash. The court below stated that "Uptegrove was wrongly decided" (App., infra, 30a). 3. The court of appeals granted the government's suggestion for rehearing en banc, but on rehearing reinstated the panel's opinion (App., infra, 2a). The court found that this Court's decision in United States v. Shearer, No. 84-194 (June 27, 1985), reinforced the panel's analysis. The court noted that the Court in Shearer placed a "(s)pecial emphasis * * * upon military discipline and whether or not the claim being considered would require civilian courts to second-guess military decisions" (App., infra, 2a-4a). Like the panel, the en banc court reasoned that the "claims presented are based solely upon the conduct of civilian employees of the Federal Aviation Administration * * * who were not in any way involved in military activities" (App., infra, 5a) so that, in the court of appeals' view, a trial here would not require civilian courts to second-guess military decisions. Judge Johnson, joined by Judges Tjoflat, Roney, and Hill, dissented. They would have affirmed the dismissal of the complaint on the basis that the injury to Lieutenant Commander Johnson arose out of activity incident to military service and therefore was barred by Feres. The majority's contrary result, Judge Johnson noted, directly conflicted with the decisions of numerous other courts of appeals which have uniformly applied Feres to bar actions by service members based on the alleged negligence of civilian employees of the federal government (App., infra, 7a-8a). Judge Johnson also relied directly on this Court's Feres doctrine cases since the Court had never limited the application of Feres to military tortfeasors. Rather this Court has stated that "'Feres * * * held that an on-duty serviceman who is injured due to the negligence of Government officials may not recover against the United States under the Federal Tort Claims Act'" (App., infra, 10a (emphasis in original) (Johnson, U., dissenting), quoting Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 669 (1977)). Thus, Judge Johnson reasoned, the proper inquiry in this case is "whether or not (the) serviceman's injury was incident to service" (App., infra, 10a), and he concluded that Lientenant Commander Johnson's death necessarily was incident to service since it occurred "in the course of duty on a regular Coast Guard mission" (ibid.). REASONS FOR GRANTING THE PETITION The court of appeals incorrectly decided a question of exceptional importance to all of the armed services and the federal agencies that regularly work with the armed services. The court's holding that a service member injured incident to military service may evade the Feres doctrine by alleging the negligence of civilian employees of the federal government involved in a military mission conflicts with the decisions of all of the other courts of appeals that have considered the issue and is inconsistent with the purposes and policies that underlie the Feres doctrine. The court of appeals' decision will have a substantial effect on the United States because military personnel frequently work jointly with civilian employees of the federal government (see pages 10-11, infra). Until the decision below, it was clear that the Feres doctrine bars an FTCA action by a service member alleging negligence of a civilian government employee if the service member was injured incident to service. Given the pervasive nature of civilian involvement with the armed forces, it is inevitable that service members injured incident to service will now try frequently to circumvent Feres by alleging the negligence of federal civilian employees. Thus, if left to stand, the court of appeals' decision will greatly expand the liability of the United States for the injuries that inevitably occur in military activities. In these circumstances review of this recurring question is plainly warranted. 1. In Feres v. United States, 340 U.S. 135 (1950), the Court held that a service member "may not recover under the Federal Tort Claims Act for injuries which 'arise out of or are in the course of activity incident to service'" (United States v. Shearer, No. 84-194 (June 27, 1985), slip op. 4-5 (quoting Feres, 340 U.S. at 146)). That language clearly suggests that the proper inquiry is simply whether an injury occurred incident to service and that the status of the alleged tortfeasor is irrelevant. The panel below, whose decision was reinstated by the en banc court, expressly acknowledged (App., infra, 29a) that its holding conflicted with the Ninth Circuit's decision in Uptegrove, where the court held that a serviceman was barred from suing the United States on account of the alleged negligence of FAA air traffic controllers because the injury occurred incident to military service. In fact, as the dissenting judges below recognized (App., infra, 7a-8a), the courts of appeals have held without exception that the Feres doctrine bars FTCA actions by service members injured incident to service by the alleged negligence of civilian employees of the federal government. Warner v. United States, 720 F.2d 837 (5th Cir. 1983); Carter v. City of Cheyenne, 649 F.2d 827 (10th Cir. 1981); Uptegrove v. United States, supra; Woodside v. United States, 606 F.2d 134 (6th Cir. 1979), cert. denied, 445 U.S. 904 (1980); Certain Underwriters at Lloyd's v. United States, 511 F.2d 159 (5th Cir. 1975); United States v. Lee, 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053 (1969); United Air Lines v. Wiener, 335 F.2d 379 (9th Cir.), cert. dismissed, 379 U.S. 951 (1964); Layne v. United States, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U.S. 990 (1962); Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979). The court of appeals' ruling cannot be reconciled with these numerous decisions, many of which, like this case, involved claims by service members that FAA air traffic controllers acted negligently. See Carter, 649 F.2d at 828; Uptegrove, 600 F.2d at 1249; Lee, 400 F.2d at 559; United Air Lines, 335 F.2d at 396-397; Layne, 295 F.2d at 433. /2/ Indeed, until the decision of the court of appeals, "no court * * * has allowed recovery against the government in this sort of suit" (App., infra, 7a (Johnson, J., dissenting)). /3/ In uniformly holding such claims to be barred, the courts of appeals other than the court below have correctly applied this Court's Feres doctrine cases. Nothing in this Court's opinions suggests that the Feres doctrine bars only suits alleging negligence on the part of military personnel. To the contrary, although the plaintiffs in Feres were injured by other service members, the Court's opinion contained "no reference, except as a mere statement of fact, to the military status of the primary tort feasors, and certainly no reliance on that fact" (Sheppard, 294 F. Supp. at 8). Indeed, rather than limiting its ruling to the tortious acts of fellow service members, the Court broadly ruled that "(w)e know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving" (Feres, 340 U.S. at 141 (footnote omitted; emphasis added)). Similarly, in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), the Court, in holding that a private contractor who paid damages to a serviceman may not sue the United States for indemnity, reaffirmed that "(i)n Feres * * * the Court held that an on-duty serviceman who is injured due to the negligence of Government officials may not recover against the United States under the Federal Tort Claims Act" (431 U.S. at 669 (emphasis added)); see also id. at 673 ("at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety" (emphasis added)). /4/ 2. To support its departure from the decisions of the other courts of appeals, the court below relied on its analysis of the policies which underlie the Feres doctrine. We submit however, that those policies clearly support the application of Feres to this case. a. This Court recently stated that the Feres doctrine is "'best explained by the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty"'" (Shearer, slip op. 5, quoting United States v. Muniz, 374 U.S. 150, 162 (1963)). The court of appeals concluded that these concerns were inapplicable in this case because respondent had alleged negligence on the part of civilians only. However, the court's belief that a trial here would not disrupt military discipline and effectiveness or call for scrutiny of military decisions is wholly unrealistic. Cases such as this will inevitably "involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness" (Shearer, slip op. 7) and "require members of the Armed Services to testify in court as to each other's decisions and actions" (Stencel, 431 U.S. at 673). Therefore, the court of appeals erred in permitting respondent to go forward with her claim; it should have affirmed the district court's dismissal of the case because Lieutenant Commander Johnson's death occurred incident to service. /5/ Civilians frequently play a critical role in numerous military missions and operations, as this case illustrates. In guiding Lieutenant Commander Johnson's helicopter, FAA air traffic controllers were called upon to assist in what was obviously a dangerous military operation. Indeed, civilian employees of the FAA frequently are called upon to participate in a wide range of important military operations. FAA air traffic controllers participate in war games and exercises and help to assure the defense of the nation by assisting the armed forces in the interception of unknown aircraft entering United States airspace. See FAA, U.S. Dep't of Transp., Order 7610.4F: Special Military Operations 36, 106, 123-124, 134 (Jan. 21, 1981). /6/ FAA air traffic controllers also work closely with the Strategic Air Command; they assist in the guidance of United States' aircraft equipped to fire nuclear weapons and the guidance of those aircraft which direct the firing of our land-based nuclear missiles (id. at 32). FAA controllers frequently are stationed at military bases (id. at 29, 30), and even where military controllers are stationed at military facilities, FAA civilian controllers are responsible for evaluation and review of military control facilities (id. at 28). Thus, the FAA is involved in many of our nation's most important and sensitive military activities. As both the FAA and the armed services have concluded, "(t)he cooperation and active participation of the FAA is essential to the effective accomplishment of (these military) mission(s)" (id. at 40; see also id. at 17, 34, 36). /7/ It follows that allowing suits by service members against FAA air traffic controllers would disrupt a working relationship which is crucial to the general defense and national security and "would be just as disruptive of harmonious relations as would a suit against a fellow serviceman" (Hass, 518 F.2d at 1143). Disruption of this relationship would result from the tension that would inevitably arise when a service member hales into court those civilians who work in military operations. The Court in Chappell v. Wallace, 462 U.S. 296, 300 (1983) cautioned that in military life "the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection." To insure the success of military missions, it is important that civilians participating in the mission "be ready to provide an effective defense on a moment's notice" (Goldman v. Weinberger, No. 84-1097 (Mar. 25, 1986), slip op. 5), and act without hesitation or debate. Permitting service members to challenge the decisions of civilians working with the armed services on military missions might cause some civilians to hesitate before acting and therefore interfere with military effectiveness. /8/ Apart from ignoring the ways in which this litigation would interfere with military effectiveness, the court of appeals erred in its suggestion (App., infra, 29a-29a) that since only the negligence of civilian employees was alleged, there will be no need for military officials to testify or for a court to scrutinize decisions made by military personnel. It would be impossible for a trier of fact to evaluate the conduct of the FAA air traffic controllers in this case without considering the military nature of the mission. At trial, the United States would be required to show that the FAA controllers acted reasonably, which would require testimony describing the hazardous nature of the conditions, the extreme danger involved in any rescue mission, and the pressing need to fly in weather not suited for civilian aircraft -- the peculiar demands of the military "'without counterpart in civilian life'" (Chappell, 462 U.S. at 300, quoting Schlesinger v. Councilman, 420 U.S. 738, 757 (1975)). Such testimony would necessarily come from military personnel. Indeed, because under respondent's theory no liability could arise from the decisions of military personnel, to defend such cases the United States would be forced in some cases to place on trial military decisions -- i.e., to prove that the civilian defendants were not negligent but that the military officials were, since their negligence could not be a basis for liability. That would require superior officers and military personnel to testify regarding their own military decisions and the decisions of others and likewise demand that civilian courts assess the fault of military personnel. This intrusive inquiry obviously would be destructive of military morale and strike at the heart of the "'peculiar and special relationship of the soldier to his superiors'" (Shearer, slip op. 5, (quoting United States v. Muniz, 374 U.S. at 162)). Moreover, it is inevitable that cases involving dangerous military operations will raise questions of contributory negligence, again requiring service members to testify against each other and a judicial assessment of military judgments. In cases arising from military air accidents, pilot error will often be the cause of the accident. Therefore, in order to defend in some cases the United States would be required to argue that the pilot acted negligently, which might require the pilot's fellow service members and superior officers to second-guess the pilot's actions. And to rebut any adverse testimony from his superior officers and fellow soldiers, the service member might have to hale into court other superior officers or fellow soldiers to show that he or she acted properly, or that the other superior officers or fellow service members who testified were biased. It is difficult to conceive of a trial that would be more disruptive of the "established relationship between enlisted military personnel and their superior officers" (Chappell, 462 U.S. at 300). The court of appeals concluded that military discipline and effectiveness would not be impaired because the FAA air traffic controllers "were not in any way involved in military activities" (App., infra, 5a). But that statement is refuted by the undisputed facts of this case. The FAA air traffic controllers were charged with aiding the Coast Guard -- "a military service and a branch of the armed forces of the United States" (14 U.S.C. 1) -- in what was clearly a dangerous military rescue mission. /9/ Obviously, participation by such civilian employees contributes, in the aggregate, to the safety and effectiveness of such military operations -- in comparison with attempting to carry out such operations without any help from civilian personnel (and thus with no possibility of a claim not barred by Feres). The reality is that, in carrying out military operations, the United States government acts as an entity and the armed services often rely upon civilian agencies for assistance. Thus, military activities are not simply the actions of the armed forces, but are interrelated actions taken by and on behalf of the United States through all of its agents. It follows that the rule in Feres cannot reasonably be limited only to claims of tortious conduct by military personnel, but must also include challenges to the conduct of civilians who are necessarily involved in activities "incident to military service." See Carter, 649 F.2d at 830-831; Woodside, 606 F.2d at 141; Uptegrove, 600 F.2d at 1250-1251; Watkins, 462 F. Supp. at 985; Layne, 295 F.2d at 435-436. The Feres doctrine therefore should be applied to bar respondent's action because it is "the type of claim( ) that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness" (Shearer, slip op. 6-7 (emphasis in original)). b. Apart from concerns about adverse effects on military discipline and effectiveness, the Court in Feres noted that service members injured incident to service receive compensation under the Veterans' Benefits Act, which provides "simple, certain, and uniform compensation for injuries or death of those in armed services" (Feres, 340 U.S. at 144 (footnote omitted)). After Lieutenant Commander Johnson's accident, respondent applied for and received the full range of Veterans' Benefits (see note 1, supra; see also 38 U.S.C. (& Supp. II) 301-362, 401-432, 701-788). This Court has stated that where a service member is injured incident to service, Veterans' Benefits are the "exclusive" and "sole remedy" (Hatzlachh Supply Co. v. United States, 444 U.S. 460, 464 (1980)). In Feres the Court reasoned that because Congress, in enacting Veterans' Benefits statutes, has created "a comprehensive system of relief * * * for (service members) and their dependents" (340 U.S. at 140), Congress would not also have intended service members to recover under the FTCA for injuries incident to military service (see id. at 144; cf. Chappell, 462 U.S. at 302-303). /10/ In Stencel the Court stressed that "the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory 'no fault' compensation scheme * * * * * (that) provides an upper limit of liability for the Government as to service-connected injuries" (431 U.S. at 671, 673 (emphasis added)). In disregarding respondent's receipt of Veterans' Benefits, /11/ the court of appeals' decision contravenes the important policies which underlie the comprehensive statutory compensation scheme. Activities that are incident to service are likely to be extremely dangerous, as this case illustrates. Lieutenant Commander Johnson was called upon to participate in a military rescue operation and, unfortunately, injuries inevitably arise out of such risky operations. The court of appeals' opinion, which exposes the United States to damages for injuries incident to such hazardous military missions, removes the "'protective mantle of the Act's limitation-of-liability provisions'" (Stencel, 431 U.S. at 673, quoting Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 115 (1974)), and thereby "frustrat(es) one of the essential features of (that scheme)" (ibid.) in cases where the injury can be traced to the negligence of a civilian working with the military. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General ROBERT S. GREENSPAN NICHOLAS S. ZEPPOS Attorneys JUNE 1986 /1/ The Coast Guard advises us that respondent has received $35,690.66 in life insurance, a $3,000 death gratuity, and presently received approximately $868 per month in dependency and compensatory benefits. /2/ Each of the cases cited as conflicting with the decision below involved a claim of negligence on the part of a civilian who was not employed by the Department of Defense or in the military chain of command. The courts of appeals have uniformly held that the Feres doctrine applies where a service member bases a claim on the actions of civilian employees of the United States who, unlike FAA personnel, are employed by the Department of Defense or are in the military chain of command (see, e.g., Jaffee v. United States, 663 F.2d 1226, 1238 (3d Cir. 1981), cert. denied, 456 U.S. 972 (1982); Hass v. United States, 518 F.2d 1138, 1141 4th Cir. 1975)), but we do not understand the court of appeals to have disagreed with such decisions. Cases alleging negligence on the part of civilians employed by the Department of Defense or in the military chain of command would fall into what the panel described as "the Feres factual paradigm" (App., infra, 25a), and therefore it appears that even the Eleventh Circuit would hold such suits barred by Feres if the injury occurred incident to military service. /3/ The district courts likewise are unanimous in holding that the Feres doctrine bars such a suit. Gilardy v. United States, No. 83-1277 (D. Hawaii June 13, 1984), appeal pending, No. 84-2269; Sigler v. LeVan, 485 F. Supp. 185 (D. Md. 1980); Frazier v. United States, 372 F. Supp. 208 (M.D. Fla. 1973); Sheppard v. United States, 294 F. Supp. 7 (E.D. Pa. 1969). In Gilardy the en banc Ninth Circuit has stayed the appeal pending the disposition of the petition in this case. /4/ This Court's decision in Brooks v. United States, 337 U.S. 49 (1949), further buttresses the conclusion that the Feres doctrine applies to injuries incident to service caused by the alleged negligence of civilian employees of the federal government. In Brooks a serviceman was killed when his car was struck by a truck driven by a civilian employee of the United States (see id. at 50). The Court held that the serviceman could bring an FTCA action. However, the Court did not rely upon the fact that the tortfeasor was a civilian employee of the United States. Instead, the Court ignored the civilian status of the tortfeasor and focused on the fact that the injury occurred off-base while the serviceman was on leave and had no connection to the military -- i.e., that the injury was not "incident to * * * Brooks' service" (id. at 52). In subsequent decisions the Court has reaffirmed that result in Brooks in no way hinged on the fact that the tortfeasor was a civilian employee of the government, by adverting only to the fact that the injury there was not incident to military service. See Shearer, slip op. 6; United States v. Brown, 348 U.S. 110, 113 (1954); see also Hass v. United States, 518 F.2d 1138, 1141-1142 n.4 (4th Cir. 1975). /5/ As we will show (pages 11-14, infra), it is clear that military discipline and effectiveness would be hindered by a trial in this case. However, we do not think that courts should inquire in each case as to whether a trial will involve sensitive military affairs or require members of the armed forces to testify against each other. Rather, because trials arising from injuries occurring incident to military service will often disrupt military discipline and effectiveness, the courts of appeals have properly held (see pages 6-8, supra) that if an injury occurred incident to service then a claim against the government is barred, as the Court stated in Feres. /6/ We have lodged a copy of this FAA Order with the Clerk of the Court and served a copy on opposing counsel. /7/ Numerous other civilian agencies of the federal government work with the armed forces in a variety of military operations and activities, such as the Department of Energy (see 42 U.S.C. 2034-2038 (joint Department of Energy and military efforts to develop, manufacture, and store nuclear weapons)), the National Aeronautics and Space Administration (see 42 U.S.C. 2451(c)(6), 2473(c)(12); 42 U.S.C. (& Supp. II) 2452 (authorizing NASA to make available to the military discoveries having military significance, to undertake research on and construction of aircraft and missiles, and to enter into cooperative agreements with the armed services to permit military personnel to participate in NASA activities)), the Central Intelligence Agency (see 50 U.S.C. 403(d)(3); Exec. Order No. 12,333, Sections 1.11(d), 1.12, 3 C.F.R. 207-209 (1982) (CIA and military joint operations in intelligence activities)), the National Oceanic and Atmospheric Administration (see 10 U.S.C. 4537, 9537 (NOAA assistance to the military in making topographic surveys, making maps for military purposes, and researching and developing aerial photography)), and the Maritime Administration (see 46 U.S.C. 1125; 50 U.S.C. (& Supp. II) App. 1744 (acquisition of vessels for military use by the Maritime Administration with the approval of the Secretary of the Navy)). /8/ Additionally, if civilian negligence may be a basis for an FTCA action by a service member, it would arguably seem to follow that civilian employees may be liable for damages in their individual capacity in suits by service members. See Chappell v. Wallace, 462 U.S. 296, 298 (1983); Uptegrove, 600 F.2d at 1249. Calling civilians into court to account for decisions they made in a military mission and exposing them to damage awards in their individual capacity, while their military counterparts -- who may be more responsible or culpable -- are immune from scrutiny can only breed discord and tension in this important relationship. Certainly "it would be absurd to hold (civilians) responsible for conduct that may have been dictated by a (military) officer who is himself immune from liability" (Hass, 518 F.2d at 1143). /9/ The court of appeals acknowledged that the Feres doctrine would bar an action where the tortfeasor is "a civilian employee engaged in activities usually associated with the armed forces" (App., infra, 25a). Given the facts of this case, as well as the numerous other military operations engaged in by the FAA, there can be no doubt that the court of appeals erred in concluding that the FAA controllers were not performing activities usually associated with the armed forces (ibid.). /10/ In holding that Veterans' Benefits were the exclusive remedy for injuries incident to service, the Court in Feres distinguished its prior decision in Brooks, where a serviceman had been paid Veterans' Benefits for an injury but nonetheless was allowed to maintain an FTCA action. The Court in Feres saw as a "vital distinction" (Feres, 340 U.S. at 146) the fact that "(t)he injury to Brooks did not arise out of or in the course of military duty" (ibid.). /11/ The court of appeals rejected respondent's claim that the receipt of Veterans' Benefits is irrelevant in applying Feres (App., infra, 20a-21a & n.4), but the court nonetheless disregarded the fact that respondent is receiving Veterans' Benefits in reaching its decision. This Court has cautioned that factors other than the concern with military discipline and effectiveness are "no longer controlling" in Feres doctrine cases (Shearer, slip op. 6 n.4). But that hardly indicates that they may be totally disregarded. Indeed, this Court and the courts of appeals have repeatedly relied on the fact that a plaintiff is receiving Veterans' Benefits in applying Feres. See Shearer, slip op. 6 n.4; Stencel, 431 U.S. at 672-673; Carter, 649 F.2d at 830; Jaffee, 663 F.2d at 1228; Uptegrove, 600 F.2d at 1250. APPENDIX