Smith v. Morton Thiokol, Inc., 712 F. Supp. 893 (M.D. Fla. 1988)

US District Court for the Middle District of Florida - 712 F. Supp. 893 (M.D. Fla. 1988)
February 22, 1988

712 F. Supp. 893 (1988)

Jane J. SMITH, Executrix of the Estate of Michael J. Smith, Plaintiff,
v.
MORTON THIOKOL, INC., et al. Defendants.

No. 87-398-CIV-ORL-19.

United States District Court, M.D. Florida, Orlando Division.

February 22, 1988.

*894 G. Gray Wilson, W.F. Maready, Petree, Stockton & Robinson, Winston-Salem, N.C. Trial Counsel and Leon H. Handley, Gurney & Handley, Orlando, Fla., for plaintiff.

Gary W. Allen, Larry L. Gregg, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Kendell W. Wherry, Asst. U.S. Atty., Orlando, Fla., Thomas M. Burke, Rumberger, Kirk Caldwell, Cabaniss, Burke & Wechsler, Orlando, Fla., and John W. Adler, Adler, Kaplan & Begy, Chicago, Ill., for defendants.

 

ORDER

FAWSETT, District Judge.

This case comes before the Court upon the Motion to Dismiss of Defendant United States of America, and Memorandum in support thereof, filed June 19, 1987 (Doc. No. 17), and Memorandum in Opposition to Defendant United States of America's Motion to Dismiss, filed July 2, 1987 (Doc. No. 32); Federal Defendants' Motion to File Supplemental Memorandum in Support of Motions to Dismiss, and Memorandum in support thereof, filed July 15, 1987 (Doc. No. 36); and Memorandum in Response to Supplemental Memorandum of Defendants United States of America and Lawrence B. Mulloy, filed July 23, 1987 (Doc. No. 40).

Federal Defendants' Motion to File Supplemental Memorandum in Support of Motions to Dismiss (Doc. No. 36) is hereby GRANTED. Accordingly, the Supplemental Memorandum in Support of the Federal Defendants' Motions to Dismiss and Plaintiff's Memorandum in response thereto have been considered by the Court in reaching its determination on the Defendant United States of America's Motion to Dismiss.

Plaintiff's late husband, Commander Michael J. Smith, was killed aboard the space shuttle Challenger when it exploded during flight on January 28, 1986. Plaintiff, Jane J. Smith, is the executrix of her late husband's estate. On May 6, 1986, Plaintiff filed a six-count Complaint in this Court *895 seeking damages from Defendants, Morton Thiokol, Inc., the United States of America, and Lawrence B. Mulloy. Plaintiff's Complaint also seeks injunctive relief against Defendants Thiokol and United States.

In the Motion presently before this Court, Defendant United States seeks dismissal of Plaintiff's Complaint insofar as it asserts claims against the United States pursuant to the Federal Tort Claims Act [FTCA] on the ground that these claims are barred by the doctrine established in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). In Feres, the United States Supreme Court held that "... the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to the service."[1]Id. at 146, 71 S. Ct. at 159. Although the vitality of the Feres doctrine has been questioned in the past, its holding was reaffirmed last year by the Supreme Court in United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 2069, 95 L. Ed. 2d 648 (1987), wherein the doctrine was applied to bar claims filed on behalf of a deceased serviceman who was killed during activity incident to service.[2]

Three rationales underlie the Feres doctrine. First, the distinctively federal character of the relationship between the Government and Armed Forces personnel necessitates a federal remedy that provides simple, certain, and uniform compensation, unaffected by the fortuity of the situs of the alleged negligence. Second, because those injured during the course of activity incident to service receive generous statutory veterans' disability and death benefits, it is unlikely that Congress intended to include them within the scope of FTCA coverage. Third, a suit based upon service-related activity involves the courts "in sensitive military affairs at the expense of military discipline and effectiveness." Johnson, 107 S. Ct. at 2063 (quoting United States v. Shearer, 473 U.S. 52, 59, 105 S. Ct. 3039, 3044, 87 L. Ed. 2d 38 (1985)). To determine whether a claim is barred by Feres, this Court must consider all three rationales and apply each of them to the facts of this case. Del Rio v. United States, 833 F.2d 282, 286 (11th Cir. 1987). When a case falls within the bounds of Feres, the Court has no jurisdiction to hear the case. Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1157 (5th Cir.1981); see Atkinson v. United States, 825 F.2d 202, 204 n. 2 (9th Cir.1987).

The critical issue with respect to the Government's Motion to Dismiss involves what Plaintiff refers to as the "touchstone" of the Feres doctrine: whether Commander Smith was, at the time of his death, "performing activities incident to his federal service." Johnson, 107 S. Ct. at 2068. Plaintiff contends that Commander Smith was killed during an activity that was not incident to his service, and, therefore, Plaintiff's claims are not barred by the Feres doctrine.

In Parker v. United States, 611 F.2d 1007 (5th Cir.1980), the Fifth Circuit Court of Appeals set forth a three-part test for determining whether the activity of a serviceman was "incident to service" for purposes *896 of the Feres doctrine.[3] The factors to be considered include (1) the duty status of the service member; (2) the place where the injury occurred; and (3) the activity in which the serviceman was engaged at the time of the injury. The Eleventh Circuit Court of Appeals recently stated that the trial court must first evaluate the relative weight of these factors and then, based on the totality of the circumstances, determine whether the activity was incident to service. See Pierce v. United States, 813 F.2d 349 (11th Cir.1987). This Court must bear in mind the Supreme Court's warning that "[t]he Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases." United States v. Shearer, 473 U.S. 52, 57, 105 S. Ct. 3039, 3043, 87 L. Ed. 2d 38 (1985).

The following facts are not in dispute. On April 13, 1959, President Eisenhower approved an agreement among the Departments of Defense, the Army, the Navy, the Air Force and the National Aeronautics and Space Administration [NASA] concerning the detailing of military personnel to NASA.[4]See App. I. This agreement has remained essentially unchanged since its approval. In 1976, the Department of Defense and NASA executed a Memorandum of Understanding [MOU] among the Department of Defense, the Army, the Navy, the Air Force and NASA, which updated the 1959 agreement and provided for the detail of military personnel to NASA as space shuttle astronauts. See App. II. By its terms, the MOU is designed, in part, to "[p]rovide effective support for the national program of developing the Space Transportation System, using specific skills and knowledge possessed by military members of the Army, Navy, AF and Marine Corps." Id. at § I(a).

Commander Smith, a commissioned officer of the United States Navy, was one of nineteen persons whose selection as Astronaut Candidates was announced on May 29, 1980. Thirteen of these Astronaut Candidates, including Commander Smith, were military personnel detailed to NASA by the armed services. In October of 1981, Commander Smith was certified as a member of the United States Astronaut Corps. He was subsequently designated to serve as the pilot of the Challenger on its ill-fated flight.

At the time the accident giving rise to this action occurred, Commander Smith was on active military duty. His detail to NASA did not affect his military status, rank and privileges. See App. I and II at § IV(a). He remained subject to the Uniform Code of Military Justice and to the policies and directives of the United States Navy with regard to discipline, leave, flying requirements, and other policies and directives which did not affect his NASA responsibilities. See App. I at § IV(a) and App. II at § IV(e). The promotion policies of the United States Navy also continued to apply to Commander Smith. See App. I at § IV(a) and App. II at § IV(g). As a result of his death, his dependents are receiving death benefits under the Veterans' Benefits Act.

Plaintiff asserts that the "incident to military service" test is not met in this case because, at the time of his death, Commander Smith was subject to the orders and direction of NASA, a civilian agency, and was not subject to military control; his activities had nothing to do with the military and he had no military duties; and his death did not occur on a military reservation.

The Court will consider each of the three Parker factors seriatim.

 

Duty Status

Plaintiff maintains that the "duty status" factor is not met in this case because Commander Smith was "not on regular military *897 assignment and in fact had no military duties whatever at the time of his death." Plaintiff's Memorandum in Opposition to Defendant United States of America's Motion to Dismiss, Doc. No. 32 at 5. This Court disagrees.

In Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir.1981), the plaintiff serviceman contended that his participation in a chemical warfare testing program should not be considered "activity incident to service" because he had been given a release from his regular duties in order to participate in the program. The Fifth Circuit Court of Appeals found the plaintiff's argument to be without merit, citing with approval several cases wherein the courts had found that a plaintiff had suffered injury while performing an activity incident to service even though the plaintiff had been released from his routine service duties or was off-duty. The Stanley Court concluded:

 
In contrast [to the plaintiff in Parker v. United States], Stanley was not on a pass and was not tending to purely personal business at the time this alleged injury arose. At the time Stanley was given LSD, he was a Master Sergeant in the Army who had volunteered to participate in an experimental program in lieu of his regular duties. The experiment was conducted on an Army base by and for the benefit of the Army. Thus, the relationship between Stanley and the allegedly negligent individuals stemmed from their official military relationship. Stanley had been informed that he was free to leave the testing program at any time; however, this freedom appears to have been restricted to his returning to his original post at Fort Knox. He did return to his original duties there after he was released from Edgewood and remained in the service for eleven years. At least, therefore, he was subject to ultimate military control throughout the duration of his participation in the program. Stanley was receiving military pay and was promised a letter of commendation for his participation in the program. Clearly his participation in the program was activity incident to his military service despite the fact that he had been given a release from his regular duties.

639 F.2d at 1152 (citations omitted).[5]

As noted above, Commander Smith was a career officer on active duty with the United States Navy at the time of the Challenger disaster. He had volunteered to participate in the NASA space shuttle program and competed against others for a position as an astronaut. While detailed to NASA, Commander Smith was not subject to direct military orders and was not required to perform his regular Navy duties; his NASA participation was in lieu of his regular duties. He was, however, subject to military policies and directives to the extent that they did not affect NASA responsibilities, and he retained his military rank and *898 privileges. The Court finds that Commander Smith remained "subject to ultimate military control throughout the duration of the [space shuttle] program."

 

Place of Death or Injury

Neither the alleged negligence giving rise to the shuttle disaster nor Commander Smith's death occurred on a military reservation. The fact that a death or an injury, or the allegedly negligent act which resulted in the death or injury,[6] occurred on a military base is strong evidence that a plaintiff was engaged in activity incident to service. Stanley, 639 F.2d at 1151. The fact that a death or injury occurred while the service person was off the military base, however, does not preclude application of the Feres doctrine to bar recovery under the FTCA. See, e.g., United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985); Satterfield v. United States, 788 F.2d 395 (6th Cir.1986); Stansberry v. Middendorf, 567 F.2d 617 (4th Cir.1978).

 

Activity at the Time of Death or Injury

The last prong of this Circuit's three-part test for determining whether an activity was incident to service requires the Court to consider the activity in which the serviceman was engaged at the time of the occurrence giving rise to the action. As noted above, Plaintiff contends that her husband's position as pilot aboard the space shuttle Challenger was not an activity incident to his military service because Commander Smith was not performing a military mission and was not under the compulsion of military orders. This Court rejects the argument that no proximate relationship existed between Plaintiff's employment as the Challenger pilot and his status as a serviceman and finds instead that the activity in which Plaintiff was engaged at the time of his deathpiloting the space shuttle Challengerarose by virtue of his status as a member of the armed services.

It is true that civilians are eligible to become space shuttle crew members[7] and that civilians were, in fact, among the crew members killed aboard the Challenger. For purposes of this inquiry, however, the salient fact is that Commander Smith was aboard the space shuttle as a result of his participation in a program whereby military personnel are detailed to NASA to perform appropriate services.

 

Application of the Feres Doctrine Rationales

The Court finds from the totality of the circumstances that Commander Smith's death occurred during activity incident to his military service. Accordingly, the Court must now consider whether the rationales underlying the Feres doctrine preclude Plaintiff's suit against the United States of America.

Because Commander Smith was killed while performing activities incident to his military service, the Court finds that the first rationalethe federal relationshipis implicated here. See Johnson, 107 S. Ct. at 2068 (this rationale "is implicated to the greatest degree when a service member is performing activities incident to his service"). The second rationale underlying the Feres doctrine is also implicated in this case because, as a result of his death, Commander Smith's dependents are receiving and will continue to receive Veterans' benefits.

Whether the third, and possibly most *899 compelling rationale,[8] is implicated in this case is a harder question. This rationale involves

 
[t]he 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....

Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S. Ct. 2054, 2058, 52 L. Ed. 2d 665 (1977) (quoting United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954)). The Supreme Court recently elaborated:

 
Even if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission. Moreover, military discipline involves not only obedience to orders, but more generally duty and loyalty to one's service and to one's country. Suits brought by service members against the Government for service-related injuries could undermine the commitment essential to effective service and thus have the potential to disrupt military discipline in the broadest sense of the word.

Johnson, 107 S. Ct. at 2069.[9]

Despite Johnson's teaching that the third Feres rationale encompasses "military discipline in the broadest sense of the word," this Court is not convinced that military discipline concerns are implicated under the peculiar facts of this case. The serviceman in Johnson was killed while "acting pursuant to standard operating procedures of the Coast Guard" during a Coast Guard mission. Id. Thus, "the potential that [the] suit could implicate military discipline [was] substantial." Id. Commander Smith, on the other hand, was killed while on a mission for NASA, a civilian agency, during which time he was under the direct supervision of NASA, not military, personnel.

Defendant United States asserts that the "maintenance of this suit could lead directly into questions concerning the military's monitoring, participation and management or lack thereofof a civilian program from which the military derives direct benefits." The Court finds that no real likelihood of such inquiry exists. It does not appear from this record that the alleged acts of negligence in this case would raise "the prospect of compelled depositions and trial testimony by military officers concerning the details of their military commands," Stanley, 107 S. Ct. at 3063; that it would require military officers to testify as to each other's decisions and actions, see Shearer, 473 U.S. at 58, 105 S. Ct. at 3043; that Plaintiff's claims would involve "second-guessing" military decisions, id. at 57, 105 S. Ct. at 3043; that the claims would implicate the "management" of the military, Shearer, 473 U.S. at 58, 105 S. Ct. at 3043; or that the claims would call into question "basic choices about the discipline, supervision, and control of a serviceman." Id.

This Court has found, however, that the first two rationales underlying the doctrine militate in favor of the conclusion that Plaintiff's claims against Defendant United States of America are barred. In view of these circumstances, and in light of the United States Supreme Court's recent endorsement of the first two Feres rationales in United States v. Johnson, see note 8, supra, this Court is compelled to find that *900 it lacks subject matter jurisdiction over the Plaintiff's FTCA claims against Defendant United States of America.

In the remaining Count, Plaintiff seeks equitable relief permanently enjoining Defendants United States of America and Morton Thiokol, Inc., from further performance under the existing contract for supply of solid rocket boosters to NASA and debarment of Morton Thiokol from further work in the shuttle program. The Court finds that Plaintiff has failed to allege a sufficient basis for her standing to bring this action for injunctive relief. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). Accordingly, this claim must be dismissed.

For the reasons expressed, the Plaintiff's claims brought pursuant to the Federal Tort Claims Act (Counts One, Two, Three, Four and Five) are hereby DISMISSED as to Defendant United States of America pursuant to Rule 12(b) (1), Federal Rules of Civil Procedure, for lack of subject matter jurisdiction. Count Six is hereby DISMISSED as to Defendants United States of America and Morton Thiokol.

DONE AND ORDERED.

 

COURT'S APPENDIX I

 
                                  Agreement Between
                the Departments of Defense, Army, Navy and Air Force
                                          and
                   The National Aeronautics and Space Administration
                     Concerning the Detailing of Military Personnel
                                for Service with NASA
  This agreement shall govern the detailing of members of the Army, the Navy, the Air Force
and the Marine Corps for service with the National Aeronautics and Space Administration (NASA)
as provided for in Section 203(b) (12) of the National Aeronautics and Space Act of 1958 (P.L. 85-568).
I.   General
     NASA, the Department of Defense, and the Military Departments, through their respective
     Members on the Civilian-Military Liaison Committee (CMLC)[1] will arrange by mutual
     agreement for the detailing of military personnel to perform appropriate services for NASA
     in furtherance of the functions assigned to NASA by the National Aeronautics and Space
     Act of 1958. As requirements arise within NASA for services of military personnel, NASA
     and the Department of Defense through such CMLC Members will agree on the nature of
     duties to be performed by such personnel, the organizational positions in NASA to which
     each of the military personnel will be assigned, and the names of military personnel to be
     detailed to perform such duties. Such agreements will in each case be confirmed by letter.
II.  Requests and Designations
     (a) NASA will advise the CMLC Member concerned as soon as it foresees a requirement
         for the services of a member of the military services. Such request will be confirmed
         in writing, with copies to all CMLC Members, describing the qualifications and the
         duties to be performed by each person to be detailed to NASA and the date when
         NASA would like to have the person available for duty.
ATTACHMENT A TO NMI 1052.11A
     (b) The CMLC Member concerned will furnish to NASA as promptly as possible, recommendations
         of individuals to be detailed, including names, ranks, and summaries of the
         qualifications of persons recommended.
III. Acceptance and Detail[*]
     (a) NASA will advise the CMLC Member concerned as promptly as possible when a
         person recommended for detailing has been accepted. Personnel accepted by NASA
 
*901
         will be detailed to duty with NASA by the Military Department concerned as closely
         as possible to the date agreed upon between NASA and the CMLC Member involved.
     (b) The Military Departments will assign members detailed to NASA to appropriate
         military units for the purposes of providing rations, quarters, medical treatment, and
         other administrative services and will inform NASA of such assignment. Those
         military units will provide NASA with appropriate information required for personnel
         administration, including the security clearances of the personnel detailed.
     (c) (1) The normal tour of duty with NASA for military personnel on active duty will be
             three years. In the case of ROTC graduates the tour may be shorter. NASA
             will send a timely request to the Military Department concerned, through the
             Department's Member on the CMLC, for any desired extension. Each request for
             extension of a tour of duty with the NASA will be for no more than one year.
         (2) Military personnel detailed to the Agency may be recalled prior to the end of the
             normal tour of duty upon the request of the Administrator, NASA.
         (3) The Military Department concerned may recall any person detailed to NASA if
             the Secretary of the Department concerned determines that recall of the individual
             concerned is required, or if the active duty status of that person is to be
             terminated. The Military Department concerned will give NASA reasonable
             advance notice of plans to recall a detailed person.
IV.  Status, Direction and Control
     (a) Service in NASA under this Agreement will in no way adversely affect the status,
         rank, office, or grade which commissioned officers or enlisted men may occupy or hold
         or any emolument, perquisite, right, privilege or benefit (including promotion in
         military rank) incident to, or arising out of any such status, rank, office, or grade.
         Personnel detailed to NASA will remain subject to the Uniform Code of Military
         Justice and to policies and directives of the Military Department concerned with
         regard to military discipline, leave, and flying requirements.
     (b) Except as noted in (a) above, persons detailed or appointed to NASA will not be
         subject to direction or control by the Department from which detailed with respect to
         their duties and responsibilities with NASA. Personnel detailed to NASA will be
         governed by all appropriate regulations and directives of NASA.
     (c) The Military Departments will not assign duties to the personnel detailed to NASA in
         addition to their duties with NASA. However, it is agreed that detailed officer
         personnel may provide liaison between NASA and their respective Military Departments
         in technical areas of mutual interest. Also, under extraordinary circumstances
         a Military Department, through its CMLC Member, may request NASA to assign
         military personnel on detail to some special duty.
     (d) Effectiveness reports for military personnel detailed to NASA will be prepared in
         accordance with the regulations of the officer's service by NASA personnel responsible
         for supervision of the officer involved, in consultation with an officer designated
         for this task by the Military Department involved.
     (e) NASA will advise the CMLC Member of the Military Department concerned when
         significant changes are made in the position or duties of a person detailed to NASA.
         Changes will be made in duty stations only with concurrence of the Military Department
         concerned.
V.   Pay and Reimbursement
     (a) The Military Departments will pay to personnel whom they detail to NASA all pay and
         allowances as provided by the Career Compensation Act of 1949, as amended, except
         as may be otherwise provided in (c), (d), and (e) below.
     (b) NASA will reimburse the Military Departments for all payments made in accordance
         with the preceding paragraph. This obligation of NASA will begin and terminate on
         the dates of detachment for Navy personnel and on the effective dates of change of
         station for Army and Air Force personnel. The Military Departments will send
         requests for reimbursement to the Agency on a quarterly basis.
     (c) The Military Departments will bear costs incident to the initial detail of their
         personnel to NASA. NASA will bear the costs incident to the termination of details.
 
*902
     (d) NASA will pay all travel costs incident to the performance of duties for NASA by
         personnel detailed to NASA, including costs associated with changes in duty stations.
     (e) Reimbursement of travel costs to detailed personnel will be in accordance with Joint
         Travel Regulations.
VI.  Special Agreements
  Matters that are of peculiar concern to one of the Military Departments of detailing of
personnel for projects of a special nature may require special agreements between the Military
Department concerned and NASA. Any such special agreements shall be put in the form of
Annexes to this Agreement signed by appropriate representatives of NASA and the Military
Department concerned. If any special agreement is proposed under this provision, the Military
Department concerned will keep the other Military Departments and the Secretary of Defense
fully informed of the development of the proposed special agreement.
VII. Previous Agreements
  This agreement supersedes all agreements regarding the detail of personnel between the
Military Departments and the NACA. Personnel detailed to NASA under those agreements shall
continue to serve under the terms of this agreement, as though initially detailed hereunder.
For the National Aeronautics and Space              For the Department of Defense:
  Administration:
Signed T. Keith Glennan                             Signed Donald A. Quarles
  date:   24 February 1959                            date:   3 Apr '59                      
                                                    For the Department of the Army:
                                                    Signed Wilber M. Brucker
                                                      date:   12 March 1959                  
                                                    For the Department of the Navy:
                                                    Signed Thomas S. Gates
                                                      date:   March 12, 1959                 
APPROVED: (S) Dwight Eisenhower                     For the Department of the Air Force:
  April 13, 1959                                    Signed James H. Douglas
  The President
                                                      date:   March 24                       
                                                    ATTACHMENT B TO NMI 1052.11A
                                Amendment No. 1 to Agreement
                Between the Departments of Defense, Army, Navy and Air Force
                                            and
                     The National Aeronautics and Space Administration
                       Concerning the Detailing of Military Personnel
                                   for Service with NASA
                              Acceptance and Detail
Section III of the Agreement shall be amended by adding the following subparagraphs:
(d) At intervals of approximately one year following detailing to NASA, each military
    assignee of the rank of Major/Lieutenant Commander or above fulfilling a technical
    assignment will be ordered by the Military Department concerned to one week of
    temporary duty with that Department, preferably at his Service Headquarters but
    alternatively at an appropriate field command or establishment designated by the parent
    Service, in order that he may become up-dated in the latest military requirements and
    weapon system developments within his Service, and may convey to his Service the
    latest technical information available within NASA and related to such requirements
    and developments.
(e) The agreed arrangements concerning pay and allowances will not be affected by this
    temporary duty. Basic travel costs incident to these periods of temporary duty will be
 
*903
    borne by NASA. The costs of any additional travel ordered by the Service concerned
    during the period of temporary duty will be borne by that Service.
  
 

COURT'S APPENDIX II

 
                             MEMORANDUM OF UNDERSTANDING (MOU)
                                          BETWEEN
                       THE DEPARTMENT OF DEFENSE, THE ARMY, THE NAVY
                                     AND THE AIR FORCE
                                            AND
                     THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
                       CONCERNING THE DETAILING OF MILITARY PERSONNEL
                            FOR SERVICE AS SHUTTLE CREW MEMBERS
This agreement shall govern participation by military personnel of the Army, Navy, Air Force and
Marine Corps in carrying out the functions of the National Aeronautics and Space Administration
(NASA) as shuttle crew members, as provided by Section 203(c) (12) of the National Aeronautics
and Space Act of 1958. To the extent that the Agreement Between the Departments of Defense,
Army, Navy, and Air Force and The National Aeronautics and Space Administration concerning
the Detailing of Military Personnel for Service with NASA, effective 13 April 1959[*], pertains to
the tour of duty of military personnel detailed to NASA as astronauts, that agreement is modified
by this agreement.
I.   GENERAL
     This MOU is designed to:
     (a) Provide effective support for the national program of developing the Space Transportation
         System, using specific skills and knowledge possessed by military members of the
         Army, Navy, AF and Marine Corps.
     (b) Insure that NASA and the DOD, through their designated representatives, will agree
         on the duty stations and the nature of duty to be performed by each individual.
II.  REQUESTS AND DESIGNATIONS
     (a) NASA will sent requests to the DOD at least twelve months in advance to fill positions
         agreed upon under paragraph I above which are or will become vacant. Each Service
         will be notified of said request by DOD, and each Service will prepare a list of
         candidates to fill said positions on a "best qualified" basis, and submit the list to NASA
         JSC, Houston, Texas. NASA will select potential shuttle crew members from these
         lists. Each Service will be particularly aware of NASA's desire to encourage participation
         by women and minority groups as crew members and will ensure that procedures
         are designed to maximize the opportunities for them to apply.
     (b) It is understood that NASA is now desirous of initiating the process by selecting
         approximately 30 shuttle crew members, a substantial number of whom might be
         selected from the DOD. As outlined in (a) above, each Service will provide to NASA a
         list of qualified candidates no later than 1 July 1977, meeting criteria to be provided
         between the parties. Each candidate's name should be accompanied by an appropriate
         personnel folder, containing such information as required by NASA. For this selection
         cycle, both shuttle pilots and shuttle mission specialists are required.
III. ACCEPTANCE AND DETAIL
     (a) NASA will advise the Services concerned as soon as possible, listing those candidates
         selected.
 
*904
     (b) It is understood that the candidates selected in the cycle beginning 1 July 1977 are
         accepted by NASA only as potential shuttle crew members, subject to the successful
         completion of a training and indoctrination period lasting approximately two years.
         NASA will promptly inform the appropriate Service of any candidates who are not
         selected as shuttle crew members. Upon said notification, these individuals will be
         reassigned to their respective Services.
     (c) Those potential crew members who successfully complete their training and indoctrination
         period will be certified by NASA as shuttle crew members, and their respective
         Services will be so informed. Upon such notification, a five-year tour of duty will
         commerce. Upon completion of said tour, reassignment of these personnel will be
         made by their respective Service. A one-year tour extension is possible if both NASA
         and the respective Services agree. The five-year tour can also be shortened if both
         NASA and the respective Service desire.
IV.  STATUS, DIRECTION AND CONTROL
     (a) The detail of military members to NASA shall in no way affect the status, office, rank
         or grade which they may occupy or hold or any emolument, perquisite, right, privilege,
         or benefit incident to or arising out of any such status, office, rank, or grade.
     (b) NASA allocations of manpower spaces will be made by individual Service addenda to
         this MOU and are subject to annual validation by the Department of Defense.
     (c) A military member detailed to NASA shall not be subject to direction by or control by
         his Service or any officer thereof directly or indirectly, with respect to NASA
         responsibilities exercised in the position to which detailed.
     (d) Military personnel detailed in accordance with this agreement will be subject to all
         appropriate regulations and directives of NASA. While detailed to NASA pursuant to
         this MOU, military members will be subject to NASA regulations, concerning standards
         of conduct of NASA employees as well as those of the Department of Defense.
     (e) Military personnel detailed to NASA will remain subject to the Uniform Code of
         Military Justice and to the policies and directives of the Military Department concerned
         with regard to military discipline, leave, flying requirements, and other policies and
         directives which do not affect responsibilities exercised in NASA. Personnel will be
         granted sufficient time to satisfy military requirements, including, but not restricted
         to, annual physicals, accomplishment of practical factors for advancement, annual
         verification of service records, and certain pay record verifications.
     (f) NASA will prepare each military member's fitness, efficiency or effectiveness report in
         accordance with the regulations of the member's service.
     (g) Promotion policies of the individual Services will continue to apply to shuttle crew
         members.
     (h) The position, duties, or duty station of a person detailed to NASA may be changed only
         upon mutual agreement of the Service concerned and NASA.
     (i) If need arises during the detail for access to a higher level of classified information,
         the Military Department concerned shall process the necessary clearance. NASA shall
         process any required special security clearance or authorization which becomes necessary
         during the detail, and shall conduct related security debriefings as required.
V.   PAY AND REIMBURSEMENT
     (a) The Services will pay personnel whom they detail to NASA all normal active duty pay,
         including hazardous duty pay where applicable, and allowances.
     (b) NASA will reimburse the Services for all payments made in accordance with the
         preceding paragraph and Sections 23003.F.2 and 252, DOD Accounting Guidance
         Handbook. In addition, interim rates are now in effect governing reimbursement
         procedures for PCS travel costs. Pending inclusion of these rates in Section 252 of the
         Handbook, NASA will reimburse the Services based on the interim rates now in effect.
     (c) NASA will pay all travel costs incident to the performance of duties for NASA by
         personnel detailed to NASA, including costs associated with changes in duty stations.
     (d) Reimbursement of travel costs of personnel on detail will be in accordance with Joint
         Travel Regulations in effect at that time.
 
*905
     (e) The Services will send requests for reimbursement on a quarterly basis to the
         administration element within NASA.
  

NOTES

[1] The Feres doctrine is a judicially created exception to the waiver of sovereign immunity contained in the FTCA, 28 U.S.C. § 2674 (the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances").

[2] In Johnson, the widow of a Coast Guard helicopter pilot brought a wrongful death action against the United States pursuant to the FTCA, alleging that the negligence of an air traffic controller of the Federal Aviation Authority, a civilian agency of the federal government, had caused the crash in which her husband died. Relying on Feres, the district court dismissed the suit. The Eleventh Circuit Court of Appeals reversed, distinguishing Feres from cases in which negligence is alleged on the part of a government employee who is not a member of the military. Finding the effect of a suit on military discipline to be the Feres doctrine's primary justification, the Court ruled that the doctrine did not bar the suit because there was no indication that the conduct or decisions of military personnel would be subjected to scrutiny if the case proceeded to trial. The United States Supreme Court reversed, holding that the Feres doctrine bars an FTCA suit on behalf of a service person killed incident to service even if the alleged negligence was by civilian employees of the federal government.

[3] The same three-part test has also been adopted by other Circuit Courts of Appeal. See, e.g., Brown v. United States, 739 F.2d 362 (8th Cir. 1984), cert. denied, 473 U.S. 904, 105 S. Ct. 3524, 87 L. Ed. 2d 650 (1985).

[4] The participation of military personnel in NASA space flight programs had its genesis in the National Aeronautics and Space Act of 1958, 42 U.S.C. § 2451, et seq.

[5] Although the Court of Appeals found that the trial court correctly applied Feres and held the United States immune to all of Stanley's claims under the FTCA, the Court reversed the trial court's granting of summary judgment and remanded, finding that the trial court should have dismissed the case for lack of subject matter jurisdiction. 639 F.2d at 1148. Stanley filed an amended complaint. The district court dismissed Stanley's FTCA action, 549 F. Supp. 327 (D.C.Fla.1982), and also dismissed Stanley's Bivens action, 552 F. Supp. 619 (D.C.Fla.1982). Stanley then filed a second amended complaint. The district court denied Stanley's motion to amend his Bivens complaint and certified its order for interlocutory appeal. The Eleventh Circuit Court of Appeals affirmed and, in addition, ordered reinstatement of Stanley's FTCA action on the ground that controlling precedent interpreting the Feres doctrine did not automatically bar Stanley's FTCA claims. 786 F.2d 1490 (11th Cir.1986). On appeal, the United States Supreme Court held, in pertinent part, that the issue of whether Stanley's participation in drug testing was incident to his service had been decided adversely to Stanley and there was "no warrant for reexamining that ruling...." United States v. Stanley, 483 U.S. 669, 107 S. Ct. 3054, 3061, 97 L. Ed. 2d 550 (1987). On remand, the Court of Appeals acknowledged the Supreme Court's holding that it did not have jurisdiction of Stanley's FTCA claims when it entered its decision reinstating the FTCA claims, and, therefore, stated that the "order has no effect on the district court's dismissal of Stanley's FTCA claims." 828 F.2d 1498, 1499 (11th Cir.1987). In any event, recent United States Supreme Court precedent calls into doubt the reasoning expressed by the Court of Appeals in its second decision in Stanley. See note 8, infra.

[6] This Court questions the relevance of the "military base" test to the situs of the death or injury in cases where the death or injury occurs in flight, especially when the allegedly negligent act which gave rise to the death or injury occurred elsewhere. See Bozeman v. United States, 780 F.2d 198 (2d Cir.1985) (holding that, in applying the Feres doctrine, the district court properly looked to the location of the alleged conduct giving rise to the tort liability).

[7] See, e.g., App. II at § II(b) ("It is understood that NASA is now desirous of initiating the process by selecting approximately 30 shuttle crew members, a substantial number of whom might be selected from the [military]") (emphasis added).

[8] In United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985), the United States Supreme Court indicated that the military discipline rationale was determinative and that the other rationales underlying Feres were "no longer controlling," id. at 58 n. 4, 105 S. Ct. at 3043 n. 4. In United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 95 L. Ed. 2d 648 (1987), however, the Court cited with approval all three of the Feres rationales, thus "breath[ing] new life into the first two Feres rationales." Atkinson v. United States, 825 F.2d 202, 205-06 (9th Cir. 1987). Whether the military discipline rationale should be afforded any greater weight than the other rationales is presently unclear.

[9] See note 2, supra.

[1] As used in this Agreement, the term "Members of the Civilian-Military Liaison Committee" means "offices designated by a Military Department for this purpose" or "a Military Department" itself. (This clarification is effective February 13, 1962.)

[*] Amended, effective September 14, 1963, see Attachment B.

[*] See NMI 1052.11A