Category Archives: military

FLRA v. Aberdeen Proving Ground, Dept. of Army

485 U. S. 409

April 4, 1988

Federal employers do not need to negotiate with unions over any matter where the employer is just following regulations – unless the Federal Labor Relations Authority (FLRA) determines that there is no “compelling need” for the regulation. There was a dispute at an army base about Black Friday being a day off. The army stood behind a regulation, but the union began an unfair labor practice proceeding anyway. The FLRA backed the union, without first determining that there was no “compelling need” for the regulation.

In an unanimous per curiam, the Supreme Court stopped these FLRA shenanigans. The statutory text, legislative history, and purposes of the law were all in agreement. The FLRA simply could not rule for a union in an unfair labor practice proceeding without first deciding that there wasn’t a compelling need for the regulation. Open and shut plain language case. There’s been quite a few of those lately. It’s really a shame that courts have to waste so much time with litigation involving blatant failures to abide by simple statutory text.


Westfall v. Erwin

484 U. S. 292

January 13, 1988

William Erwin was working at an Army Depot when he he came into contact with some improperly stored soda ash, and suffered horrific injuries. When Erwin attempted to sue the Depot supervisors, they claimed tort immunity as government officials. Erwin argued that such low level government officials only had immunity when they exercised discretionary functions.

Unanimously, the Supreme Court agreed. Marshall reiterated the importance of government officials being shielded from vexatious litigation, but acknowledged the sad tradeoff that meritorious claims were also barred. He held that only discretionary actions should be shielded, because they offered the most potential for frivolous suits. Marshall also rejected the claim that all actions not specifically mandated by statute were discretionary, and said that the term ‘discretionary’ should be interpreted in a more narrow fashion.

As I said in my year-end review of the previous term, it’s extremely hard to get me to root for expanding tort liability. But if this expansion comes at the expense of government immunity, I am 100% for it. As Marshall succinctly put it: “absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct.” Those simple words of truth cannot be repeated often enough. I expect this case to be a strong contender for this year’s Deuteronomy 16:20 Prize.

United States v. Stanley

483 U. S. 669

June 25, 1987

While in the Army, James Stanley was involuntarily given large quantities of LSD to study the drug’s effect on humans. It had an effect all right: his life was destroyed. He attempted to sue the army officials who had done this, under both the Federal Tort Claims Act (FTCA), and under the Bivens doctrine, which allowed for redress against government agents in some circumstances. The government argued that the need for military discipline was an interest important enough to foreclose any Bivens claim for military-related matters.

The Court unanimously rejected Stanley’s FTCA claim on some ticky-tacky procedural grounds. Then, with Scalia writing, it rejected his Bivens claim 5-4. There were indeed ‘special factors’ in military life that counseled against allowing Bivens suits. The Constitution gave Congress extensive power to control the military, and military discipline would fall apart if everything could be second guessed in court. For these reasons, Scalia said that the FTCA ‘incident to service’ test established in Johnson should be adopted in the Bivens realm as well.

Brennan, joined by Marshall, began his dissent by pointing out that no less an authority than the Nuremberg Tribunal had condemned involuntary scientific testing in the strongest terms. He then observed that Bivens liability judgments were almost analytically identical to immunity judgments. Brennan argued that the military had never been granted absolute immunity in other legal contexts, and thus total shielding from Bivens was inappropriate. He also showed that the Court’s new rule was ahistorical. In a section joined by Stevens, Brennan found the worries about military discipline overblown, and criticized the majority for blindly adopted the FTCA standard. In a brief dissent of her own, O’Connor expressed agreement with the majority’s interpretative framework, but claimed that LSD experimentation could not legitimately be considered ‘incident to service.’

I seem to have hit a long string of cases where either Brennan or Stevens hits it out of the park in dissent. Hope it doesn’t last much longer! Favorite quote: “I cannot comprehend a policy judgment that frees all federal officials from any doubt that they may intentionally, and in bad faith, violate the constitutional rights of those serving in the Armed Forces.” As I said in the last case, I really hate governmental immunity, especially when people like Stanley have had their lives ruined.

As a side note, this is one of the many reasons why I have no desire to ever be a part of the military. When you join the military, you place yourself under the authority of superiors who have as great a capacity for evil as for good. And quite often, as Stanley’s case and countless other incidents show, the capacity for evil gets exercised.

Solorio v. United States

483 U. S. 435

June 25, 1987

Richard Solorio was a member of the Coast Guard. He was also a pedophile who sexually abused little girls, first off-base in Alaska, and later on-base in New York. The Coast Guard sought to try Solorio in military court for all the offenses, but this ran into a snag, because under the 1969 O’Callahan Supreme Court ruling, only “service connected” crimes could be subject to court-martial. The Alaska incidents, taking place off-base, arguably were not.

The Court ruled 6-3 that Solorio could be tried in military court for all offenses. Rehnquist, writing for the majority, overruled O’Callahan, finding it contrary to what had previously been long settled historical understanding. Rehnquist showed that under Article I of the Constitution, the military had full power to try all offenses committed by members of the armed forces. While the ‘military connected’ standard had some precedent in 17th and 18th century English law, the Founders had not incorporated it into the American law tradition. Furthermore, determining what crimes were really military connected had proven especially troublesome.

Stevens concurred in judgment – the lower court had found the Alaska crimes to be ‘military connected,’ so he saw no need to reconsider O’Callahan. Marshall’s dissent, joined by Brennan and Blackmun, heavily disputed Rehnquist’s history, finding strong evidence of a ‘military connected’ standard well into the 19th century. What’s more, court-martial lacked Fifth and Sixth Amendment protections, and due to the importance of those safeguards, he thought court-martial should only be resorted to in the most highly limited of circumstances. Off-base, off-duty sexual assault did not qualify, especially since there was no evidence that it disrupted military life in the ranks.

Given the present climate of extreme sensitivity about rape culture, I have to wonder how some of Brennan and Marshall’s dissents would go over today. In a whole slew of cases, they’re obstinately and obsessively protective of some pretty vile rapists. I will admit that their historical arguments in this decision do have some weight, but the majority’s position is just much better public policy. When you join the military, you place yourself under their authority completely. The notion that soldiers ought to be free to rape on their own time without military disciple is utterly contemptible.

United States v. Johnson

481 U. S. 681

May 18, 1987

During a rescue mission in a helicopter, a member of the Coast Guard named Horton Winfield Johnson died due to negligence of FAA air traffic controllers. Although the Federal Tort Claims Act (FTCA) ostensibly gave Johnson’s family the right to sue the FAA for negligence, a Supreme Court case from 1950 called Feres disallowed claims on behalf of members of the military who were acting within the scope of their service. The question in this case was whether the Feres rule applied when the guilty government party was not another member in the military, but a civilian such as an air traffic controller.

The Court ruled 5-4 that the identity of the negligent actor did not matter, and that recovery was always barred when the injured party was a member of the military on duty. Writing for the majority, Powell looked at the rationales for the Feres decision. First, the federal nature of the military meant that tort remedies, which were based on state law, ought to be inappropriate. Second, federal law provided lots of other benefits and compensation to the families of military members who die on duty. Third, allowing military members to bring tort claims would undermine the effectiveness and functionality of the military. Because all of these rationales applied regardless of the negligent actor’s identity, the Court held that Feres barred an FTCA remedy for Johnson’s family.

Scalia, joined by Brennan, Marshall, and Stevens, dissented. He said that Feres was wrongly decided. The plain text of the FTCA unarguably allowed those in the military to bring tort claims while on duty. Not content to rest there, Scalia went through all the rationales offered in the Feres decision for its rule, and made a devastating case that every single one of them was weak, and not good public policy. He showed that the Feres rule was a horrible one, led to all sorts of inconsistencies in tort law, and fundamentally ignored the will of Congress. Scalia was dead on, and it’s shameful that five members of the Court chose to defer to precedent.

As a general rule, I dislike tort actions. They absolutely pulsate with greed and vindictiveness. Nonetheless, I am shocked and appalled by this decision. Nothing at all gives the Supreme Court the right to ignore the choices of Congress, precedent or no precedent. I’m reminded of the time in Matthew 15 when Jesus rebukes the Pharisees for nullifying the commandments of God in favor of their own traditions. Blind adherence to precedent is exactly like that. While this is not the worst decision of the 1986-1987 term morally, there’s a good case to be made that it’s the most lawless.