Department of the Army Historical Summary: FY 1977
Many Army functions affect the American public, since they involve the Army as a part of the nation rather than purely as a military organization. From the construction and administration of civil works to the conservation of energy, and from environmental protection to the sponsorship of rifle matches, the Army maintains close ties with civilian society. Even disputes that have to be settled by litigation emphasize that the Army is a member of the larger society, subject to the same laws and regulations.
Civil works have been administered by the Corps of Engineers since the early nineteenth century and today encompass the full range of water resources development and maintenance. The scope includes investigations and surveys, planning, construction, flood control, beach erosion control, hydroelectric power generation, water storage, wetlands acquisition and preservation, and recreational development. The corps also has a congressional mandate to assist local agencies in flood plain management studies connected with the development of urban master plans. Environmental considerations have become an integral part of corps plans and ecological impact a crucial factor in decision making.
Civil works appropriations for fiscal year 1977, including supplemental allocations and transfers, totaled over $2.4 billion. The following chart shows the breakdown by type of category
Civil Works Appropriations For Fiscal Year 1977
(in thousands of dollars)
|Operation and maintenance, general||667,600|
|Flood control, Mississippi River and tributaries||231,497|
|Flood control and coastal emergencies||22,140|
|Special recreation use fees||2,000|
The predominant category, general construction, included funds for planning and construction projects as follows:
General Construction Project Breakout
|Preconstruction planning projects||138|
Of nineteen new planning projects started during fiscal year 1977, the largest in federal investment was Cottonwood Creek, California, with an estimated cost of $262 million. That project will provide flood protection along the Sacramento River and add to the municipal and industrial water supply for, northern California. The next largest appropriation of $114.1 million was for improvements to the harbor and channels of Baltimore, Maryland. The improvements will enable Baltimore harbor, one of five major seaports on the East Coast, to accommodate larger vessels and thus reduce transportation costs for cargo shipped through the port.
Of twenty-five new construction starts during the year, one of the most unusual was the Charles River Natural Valley Storage Area, Massachusetts, with an estimated cost of $11.1 million. That project provides for federal acquisition and perpetual protection of 8,422 acres of upstream wetlands as natural reservoirs to serve as buffers in periods of high flow and mitigate the consequences of low flows and extended droughts. The largest investment in new construction was the Libby Additional Units and Reregulating Dam in Montana at $193 million. The project provides for installation of four additional hydroelectric generating units and a reregulating dam downstream to control power plant releases and help meet Pacific Northwest electric power needs by the winter of 1983-84.
The Corps of Engineers currently operates sixty-six hydroelectric projects with 301 generating units and an aggregate capacity of 16.4 million kilowatts, about eleven percent of the Federal Power Commission's estimate of the total conventional hydroelectric potential of the forty-eight contiguous states and about three percent of all U.S. generating capacity. Corps hydroelectric plants generate over four percent of the electric utility energy produced in the United States. During 1977, the Corps placed into service 6 new units with a total capacity of '489,000 kilowatts. Seven new projects with 22 units were under construction.
The significant event in the regulatory permit program in 1977 was the move into Phase III of the implementation of Section 404 of the Federal Water Pollution Act. Under the act the Corps of Engineers regulates the discharge of dredged and fill material into "waters of the United States," broadly defined to include navigable waters and their tributaries, interstate streams and lakes, and other waters that could be used for interstate commerce. By the close of the year, 123 general permits were in effect around the country.
The Corps of Engineers is responsible for developing and maintaining the navigation system of the United States, about 25,000 miles of inland and intracoastal waterways, 219 lock and dam complexes, and over 500 commercial and recreational harbors. Commercial vessels using the system include ocean and Great Lakes ships, and towboats and barges on other waterways. In 1976 waterborne commerce reached an estimated 1.8 billion tons. About one-fourth of the nation's ton-miles of intercity
cargo is transported by water. Some sixty percent of U.S. domestic waterborne traffic and forty-five percent of the waterway traffic is petroleum and coal. Under the Water Resources Development Act of 1976 the Corps of Engineers received substantial authorizations for navigation planning, including $5 million for a three-year comprehensive survey of the nation's entire waterway navigation system.
The corps continued its traditional activities in flood control and flood plain management in 1977, responding to over 30,000 requests for flood information and its interpretation. Surveys continued in various parts of the country, some of which would lead to federal participation in flood-plain management plans. Previous corps studies led to modifications in flood behavior estimated to have prevented losses of approximately $1 billion in 1977.
Recreation continued to receive attention as the Corps of Engineers managed over eleven million acres of land and water at various water resource projects. Visitor-day attendance reached an all-time high of 391 million at 436 corps projects operated in cooperation with other federal agencies, state and local governments, and private enterprises; 3,048 developed recreation areas provided nearly 60,000 picnic sites, about 64,000 campsites; over 600 group-use areas, more than 2,800 boat-launching facilities, and over 1,000 miles of hiking trails. The special needs of the young, the aged, and the handicapped were taken into account in the design and rehabilitation of recreation facilities.
The Corps of Engineers continued to develop and conduct training programs in water and related resources development for engineers and researchers from foreign nations. Twenty-seven trainees from Brazil, Egypt, India, Iran, the Philippines, Taiwan, and Yugoslavia participated in corps studies of coastal geography, river regulation for flood control, river canalization, hydraulic problems and hydrological data telemetering systems, and harbor engineering and construction.
Every year the Army provides assistance in connection with storms and floods, and 1977 produced its share of problems. Hurricane Kathleen struck Riverside and Imperial counties in California September 1977, causing extensive damage, and flooding. The Salton Sea rose ten inches above normal, and the corps constructed temporary levees near Bombay Beach, California, and prepared damage survey reports.
In early December 1976 the area around Hardwicke, Vermont, experienced unusually cold weather and ice was three to twelve feet thick on the Lamoille River and its tributaries. To prevent flooding the Corps of Engineers removed ice and took other measures to maintain a normal flow of water.
From December 1976 through March 1977, a severe winter caused snow and ice emergencies in New York, Pennsylvania, Ohio, Indiana, and Michigan. Buffalo, New York, was particularly hard hit. The Presi-
dent on 5 February 1977 declared it a major disaster area, and the corps assisted state authorities, using six Engineer Districts to award 800 contracts for removal of ice and snow at a cost of $13.5 million. The 20th Engineer Brigade from Fort Bragg, North Carolina, moved into the stricken area with 320 troops and forty pieces of equipment, and by mid February the emergency work had been completed.
Severe storms throughout Appalachia in early April 1977 brought extensive flooding; this major disaster area included thirty-eight counties in Kentucky, Virginia, and West Virginia. The corps cleared debris and designed and developed 2,500 mobile home sites in the affected region at a cost of $17 million.
Again in July 19'77; heavy rains in western Pennsylvania brought serious flooding, centered upon Johnstown, that caused $400 million in damages. Even further damage was prevented by existing corps reservoirs and channel improvements. The corps removed debris, demolished unsafe structures, and developed sites for mobile homes under the Federal Disaster Assistance Act, at an estimated cost of $10 million.
Environmental Protection and Preservation
The Army spent $142.4 million for its environmental programs during the fiscal year and received congressional approval of a substantial boost, from $6 million to $11 million, in the proposed 1978 operations and maintenance program. But the sums set aside for that purpose were not adequate to cover all the expected requirements of the major commands.
At the functional level, the Army comptroller recognized the Army Environmental Office as the manager for environmental program development. And to foster closer coordination between staff environmentalists and to clarify overall policies, the Environmental Office sponsored a second worldwide conference of program managers at Williamsburg, Virginia, in February 1977. A third meeting was scheduled to convene at Colorado Springs, Colorado, in late February 1978.
One of the more promising programs was the Environmental Quality Technology Program, aimed at avoiding adverse environmental activities and meeting the standards of the National Environmental Protection Act (NEPA). With a budget of $12 million, the program paid for studies on the toxic effects of munitions waste; methods and instruments for measuring, monitoring, and assessing the impact of waste generated by military activities; and systems for controlling or treating pollutants. Pollution control of munitions wastes continued to receive high priority. Of 115 waste compounds, 44 were eliminated as not requiring standards or guidelines. Temporary guidelines were established for 7, and studies on the toxic effects of the remaining 64 continued. Moreover, the Army completed mammalian and aquatic studies on several munitions priming
compounds, evaluated a new method of purifying TNT that would produce fewer pollutants and yield more explosive, and evaluated a foaming agent to remove TNT from wastewaters at Army ammunition plants. It also made progress in developing a cost-effective computer method that would assist in assessing environmental impacts in nine functional Army activities by defining abatement and mitigation procedures. Eventually manuals would be issued to put that method into operation.
Under the provisions of the NEPA, all agencies proposing any major action with a significant effect upon the environment must file a draft environmental impact statement with the Council on Environmental Quality. After public review of the draft statement, submission of a final statement, and a thirty-day wait, the agency could then act. The Army followed this procedure in expanding ammunition and explosive facilities, transporting chemical materiel, changing the missions of installations, and attempting to control ground squirrels at Fort Ord, California.
The ground squirrel population in that area has increased to a point where the rodents pose threats on several counts. They are potential carriers of bubonic plague, cause damage to buildings and facilities, reduce crop production, and compete with other wild life for available food. Since 1971 the Army has not applied effective pest control measures at Fort Ord. Resumption of these measures has been precluded since 1975 by Executive Order 11870, which forbade the use on federal lands of "secondary poisons" which make the tissue poisonous to other creatures. In the meantime, most private landowners adjacent to Fort Ord continued to use pesticide 1080, a secondary poison. Although the Army submitted its environmental impact statements in the winter and spring of 1977, it selected zinc phosphide, a less controversial rodenticide, as the prime agent to fight the squirrel menace in the spring of 1978 when the rodents would be most active and susceptible to control measures.
Since passage of the Clean Air Act in 1970, some progress has been made in reducing air pollution. In accordance with the Environmental Protection Agency's (EPA) guidance in 1975, the Army submitted an inventory of its fixed air pollutant sources in 1976, and 1,058 major (over 100 tons a year of a single pollutant) and 119,094 minor sources were identified. Compliance schedules were worked out between the Army, EPA officials, and state representatives covering eleven installations, and consent agreements were negotiated. Forty-two installations have not yet complied with the regulations, and twenty-nine of these have listed major emission sources as the reason for their failure to comply.
Although the Army has many mobile air pollutant sources, ranging from chain saws to generators, the majority were vehicles of all types. Commercially purchased vehicles presented little problem, since those entering the Army inventory were certified by the manufacturers to be in compliance with EPA vehicle emission standards; some combat vehi-
cles were exempted from those requirements. Some difficulties arose, however, from a multiyear purchase of 37,800 jeeps, and the Army received an exemption through the end of 1978 to accept these trucks built to 1974 standards. The Army was studying various alternatives, such as diesel and stratified charge engines, for future quarter-ton trucks and also planned to secure from commercial sources medium- and heavy-duty engines and trucks that would satisfy EPA emission standards for their year of manufacture.
In the field of water pollution, the National Pollutant Discharge Elimination System was the primary vehicle for controlling point discharges. Under the laws and the permit program governing discharges into the "waters of the United States," by 1 July 1977 all domestic waste water had to have the equivalent of secondary treatment and all industrial waste water had to be treated using the most practicable control technology available. As of that date, the Army required 351 permits and had received 252 final and 14 draft permits, 83 permits had been applied for but not yet issued, and in 2 cases the permit status was unknown. Some 335 Army installations required corrective action, with 199 still in violation of water pollution abatement standards. Of the 199, 49 major installations and 25 reserve centers and recreation areas have no funded corrective actions under way.
The problem of disposing of domestic sewage effluents after treatment has plagued both military and civilian agencies for some years. The rising volume and costs of treatment led the Army to move ahead with studies and projects designed to use and improve land disposal methods. During fiscal year 1977 the Army evaluated the feasibility of land treatment at Fort Hood, Texas; Fort Meade, Maryland; Fort Ord, California; and Fort Polk, Louisiana. Four land treatment systems have been in use for a number of years, using spray irrigation as a means either to dispose of the waste or to conserve water. Those at Fitzsimons Army Hospital in Denver; Fort Huachuca, Arizona; and Fort Hunter Liggett, California, were in use, while the fourth at Fort Carson, Colorado, was not in operation because of the low flow of effluents. A rapid infiltration system of disposal had been used at Fort Devens, Massachusetts, since 1940. All of the treatment systems in operation were monitored for health hazards by the Army Environmental Hygiene Agency.
Insofar as testing treatment of sewage waste waters was concerned, the Army also prepared to test a technique that would allow existing small trickling-filter facilities to reduce nitrogen and phosphorus in the effluent.
The Army worked closely with other federal and state agencies to protect the environment of coastal areas. Although government-owned lands are excluded from state control, the Army must follow state policies to the greatest extent possible. During the fiscal year staff officers visited coastal installations to study existing practices and their relation-
ship with state programs. At the same time, they participated in discussions with federal, state, and local officials on such mutual concerns as shore erosion, dredging and filling, and public access to recreational areas.
Much of the difficulty in securing the whole-hearted cooperation of Army personnel in supporting environmental programs stemmed from lack of education and training. Although environmental education courses had been offered at the Army Logistics Management Center at Fort Lee, Virginia, attendance during the previous fiscal year had been sparse and some scheduled courses were canceled. With greater emphasis from the Secretary of the Army and the Chief of Staff, the record improved in fiscal year 1977. The one-week executive course was revised to cover the total environmental concept, from ecology to the responsibilities of commanders and civilian managers. The course was given ten times, and 360 students graduated. Significantly, three of the sessions were offered on site at different installations.
The two-week environmental management course, dealing with the requirements of the National Environmental Policy Act of 1969, also covered ecology, pollution, recycling of resources, and the preparation of environmental impact documents. The course was designed to give managers a broader vision in managing resources and improving the environment. Ten classes were held and 212 students graduated.
For the first time, a separate course on recovery and recycling was offered for all Defense agencies. Ninety-two military and civilian members of the services graduated.
The Secretary of the Army's Environmental Quality Award is given each year to, the post or facility that makes the greatest contribution toward protecting and preserving its environment. Fort Sill, Oklahoma, won the award for calendar year 1976 for recycling solid waste, completing environmental impact statements, pursuing air and water pollution abatement programs, and managing conservation, land management, and natural resources. In addition, Fort Sill became the Army's nominee for the Secretary of Defense's Environmental Quality Award.
The prospects for overall improvement in the Army's environmental activities increased as the report year ended. Citing the importance that the President, the Secretary of the Army, and the Chief of Staff attached to environmental affairs, the Vice Chief of Staff called for greater compliance with existing laws and requirements and adherence to published standards on air and water quality improvements and solid waste management.
The Army Energy Program
The Army's energy conservation goal for fiscal year 1977 was identical with that of the previous year-to use no more energy than was used in fiscal year 1975. The accounting yardstick, however, changed
this year. When the federal government revised its fiscal year, so that it now starts on 1 October rather than 1 July, the Federal Energy Administration had to adjust the standard. As a result, the base against which the Army's conservation efforts are measured increased from 270.9 trillion British thermal units (BTU's) to 273 trillion.
The Army's record compared favorably even with the old standard. In a year that included one of the worst winters on record in the United States, the Army consumed only 258.5 trillion BTU's, achieving savings in all energy sources except purchased electricity and steam. Installations used eighty-four percent of the energy the Army consumed, and the remainder was used by vehicles. Savings are shown in the following table:
Army Energy Consumption
(in trillion BTU's)
|Installation Operations||FY 75 (Rev)||FY 77|| Percent
|Liquefied petroleum gas||2.3||1.9||17.4|
|Petroleum heating fuels||62.0||61.0||1.6|
A study undertaken during the year disclosed that the role of the Army Energy Office should be strengthened and more personnel assigned to that agency, that some regulations need revising, and that the Army Advisory Group on Energy should be composed of general officers. Efforts to act on these findings were under way at the end of the fiscal year. In particular, the advisory group now consists of general officers and the original group will serve as a working subgroup.
In June the Army Energy Office began work on a comprehensive plan to define Army energy goals and objectives to the year 2000. Scheduled for completion in February 1978, the plan is being developed with the help of a private contractor. When it is completed, it should have a major impact on programming, budgeting, operations, and research and development within the Army.
Also in June, the Army completed a two-year analysis of bulk petroleum fuel distribution. The Army staff is presently examining the conclusions reached in that investigation, and if the recommendations are approved they will be phased into Army operations over the next three to five years.
In energy research and development, Army efforts concentrated on conservation, management and control systems, and exploitation of alternate sources of energy. As a first step the Army explored the measurement of energy consumption in buildings. Instrumentation installed at Fort Belvoir, Virginia; Fort Carson, Colorado; and Fort Hood, Texas,
will help generate an energy consumption data base. Additionally, a guidance document was published that will help facility engineers understand various methods of evaluating both automated energy control systems and heat storage systems. New equipment that can use solid waste as fuel and modification of existing boilers and incinerators allows use of alternate energy sources. For motor fuel, the program to replace the transmission of the M113A1 series of vehicles should provide a thirty-eight percent improvement in operations while saving, twenty to thirty percent in fuel.
The Army has been actively involved in demonstrating the use of solar energy to heat and cool buildings, generate electrical power, and produce hot water. Some projects have been undertaken unilaterally, while others were funded by the Department of Energy as part of the National Solar Energy Program. Solar demonstration projects that will produce hot water for domestic needs are under way at Fort Bragg, North Carolina; Fort Hood, Texas; Fort Polk, Louisiana; Fort Riley, Kansas; and Fort Stewart, Georgia. Systems that will heat and cool buildings have been designed or are under construction for Army reserve centers in Mississippi, New Mexico, and Texas; a battalion headquarters and a classroom building at Fort Hood; a classroom and a dental clinic at Fort Huachuca, Arizona; a range operation building at Yuma, Arizona; Army-Air Force exchanges in Colorado and New Mexico; and a laboratory at Picatinny Arsenal in New Jersey. The Army will also help the Department of Energy design, build, operate, and evaluate a solar total energy system at Fort Hood. The plant will provide electrical power, space heating and cooling, and hot water for a complex of buildings that includes barracks, mess halls, and headquarters buildings.
Legal repercussion from the allegations of cheating at the U.S. Military Academy continued to be felt during the last year. Several cases where administrative remedies had been exhausted were heard on the merits in various federal courts. In Williamson v. U.S., the U.S. District Court for the District of Rhode Island granted summary judgment for the government, upholding the use of internal review panels to investigate charges of honor violations. In D'Arcangelo v. Berry, the U.S. District Court for the Southern District of New York held that cadets had no standing to challenge the authority of the Secretary of the Army to promulgate a Military Academy regulation providing for the readmission of separated cadets and waiver of service commitments. In April 1977, the U.S. Court of Appeals for the Second Circuit affirmed the decision in Ringgold v. U.S., holding that separation of cadets for violation of the honor code was within the statutory authority of the Secretary of the Army. In Hall v. U.S., the U.S. Court of Military Appeals denied
plaintiffs' applications for extraordinary relief on the grounds that their resignations from the Military Academy made their claims moot.
Another continuing source of controversy was the Army of the United States promotion boards for the ranks of CW-3, CW-4, major, and lieutenant colonel. The Army convened new boards with reserve officer members to reconsider the records of reserve officers. After a final decision on all applicants was made, several officers brought suit. In Dilley v. Alexander, the U.S. District Court for the District of Columbia held that the Army had demonstrated that the defect in the original selection boards was harmless and granted summary judgment for the government. The U.S. District Court for the Middle District of Georgia followed the Dilley case and upheld the Army's position in Gober v. Alexander. Both cases are presently on appeal. Meanwhile, twenty-six cases brought by officers not selected in 1974 and 1975 and ten cases brought by officers not selected prior to 1974 have been filed in the U.S. Court of Claims. Those cases will probably be heard during the fall and winter of 1977-78.
The case of Urban Law Institute of Antioch College et al. v. Secretary of Defense et al. was settled in January 1877. The parties agreed that after 1 April 1977 boards convened to correct records and review discharges will publish final decisions, give reasons for the decisions, and enumerate the facts on which the decisions were based. Minority or dissenting opinions will also be announced, and the Army will maintain current indexes of decisions and provide a public reading room where the decisions can be read. The related case of Heiler v. Williams was also settled. In return for a dismissal of the plaintiffs' challenge to the procedure of allowing staff personnel of the Army Board for the Correction of Military Records to rule on applications for reconsideration without referring the applications to the board, the Army revised its procedure. In the future, there will be a first screening by staff personnel, and the application for reconsideration will be forwarded to the board if evidence or other matter is presented which was not in the record at the time of the previous board consideration. The Army will also review all applications for reconsideration of discharge categories since July 1971.
In February 1977, the widow and daughter of CWO Ralph J. Sigler sued a number of Army, FBI, and CIA officials in their individual and official capacities (Sigler v. LeVan, U.S. District Court, Western District, Texas). After failing a polygraph examination, CWO Sigler was invited to Fort Meade, Maryland, for further questioning. During the questioning, CWO Sigler allowed Army personnel to pick up certain papers and effects which he had secreted in his home. Shortly thereafter he committed suicide. Plaintiffs allege that CWO Sigler was acting as a "double agent" for the U.S. Army, that the defendant obtained the papers and effects through duress, and that defendants either murdered CWO Sigler or
drove him to suicide. They demanded $22 million in damages. The Department of justice retained private counsel at government expense to present the various named defendants. Dispositive motions were pending before the court.
An issue related to the unionization of military personnel arose in Doran v. Alexander; filed in the U.S. District Court for the Eastern District of North Carolina in March 1977. The plaintiff alleged that the cause of his discharge from the Army was his military union activities at Fort Bragg, North Carolina. The Army, however, claimed that the discharge was a response to an erroneous reenlistment of the plaintiff at a time when he was not eligible to reenlist. The court granted a government motion to dismiss because plaintiff had failed to exhaust his administrative remedies. Subsequently, two other enlisted men stationed at Fort Bragg and associated with the same organization as Doran, brought suit against the post commander and their battalion commander. The basis of their complaint was an allegation that the defendants infringed on their right to petition Congress by prohibiting the solicitation of signatures on post. The petition was addressed to the House Armed Services Committee, urging the committee to oppose antiunion legislation. The case, Olson v. Warner, was filed in the U.S. District Court for the Eastern District of North Carolina in September 1977. Government attorneys are presently preparing a response.
The most important development in civilian personnel law has been the steadily increasing number of equal employment opportunity class actions. The class action has been used as a basis for massive discovery actions that sometimes involve hundreds of interrogations as well as requests for the production of documents. In many cases attorneys have filed imprecise allegations .of discrimination, pleaded a lack of further specific knowledge, and then used the process of discovery as a means of proving the validity of the class action complaint. An enormous number of problems, both legal and administrative, can flow from this process. In one case, which has not yet been certified as a class action, responses and supporting documents answering only a small fraction of the plaintiffs' questions totaled fifteen cubic feet and weighed 250 pounds. In one certified class action, the Army expended 15,000 man-hours responding to two sets of questions and requests for documents.
In recent years Army civilian employees have used the provisions of the National Environmental Policy Act to resist base closings and realignments. No new actions, however, were filed in fiscal year 1977. In Nage v. Schlesinger, a suit attacking the realignment at Pueblo Army Depot, Colorado, the Court of Appeals for the District of Columbia denied the plaintiffs' appeal. The plaintiffs in Fuller v. Rumsfeld, involving realignment of Sharpe and Sacramento Depots in California, will withdraw their action voluntarily.
In Local 2855 v. Rumsfeld, the plaintiffs challenged the government's decision: to contract out various stevedoring functions at Bayonne, New Jersey, which had been performed by federal employees. The plaintiffs contended that the contract between the Army and the private contractor was an illegal personal services contract. The government has prepared a motion for summary judgment and will file it after the plaintiffs' process of discovery has been completed.
Foreign litigation arose principally in Italy. Most of the claims were by employees for additional severance pay and other damages because of fictitious separation-rehire actions. In another series of suits, Italian employees claimed contingenza (cost of living allowance) for periods of employment prior to 1 June 1962. The U.S. acknowledged liability in the severance pay cases, settled about 150 such claims made administratively, and was attempting to settle twelve other lawsuits. The United States did not acknowledge liability in the contingenza cases. The first suit was filed in 1969 by Fillipo Cali, who received a favorable judgment in the lower court. The Court of Appeals of Florence reversed, and in August 1974 Cali appealed to the Supreme Court of Cassation, which set 17 October 1977 as the hearing date. Three similar suits in Pisa involving sixty-five plaintiffs were pending. A decision favorable to the plaintiffs in the latter suits has been rendered by the lower court, but the United States will appeal.
Medical malpractice litigation continued to increase. Seventy-five such lawsuits were pending at the close of fiscal year 1977, an increase of twenty-five over the number pending at the beginning of the year. The dollar amount of the cases has also been rising steadily. In Penetrante v. United States, for example, the plaintiffs sought more than $4 million and were ultimately awarded more than $3.2 million, a record judgment against the United States in a medical malpractice case.
These cases continue to be a matter of some concern, for the question of official immunity for Army physicians for acts of malpractice has only been partly resolved. The Supreme Court declined review of Martinez v. Schrock, in which the U.S. Court of Appeals for the Third Circuit had ruled that Army physicians sued in their individual capacities were entitled to official immunity. The holding conflicts with the decision of the Court of Appeals for the District of Columbia Circuit in Henderson v. Bluemink, where the court held that military physicians are not entitled to official immunity. The Court of Appeals for the Tenth Circuit followed Henderson when the same issue arose in Jackson v. Kelly. The impact of Henderson and Jackson was greatly reduced when Congress enacted Public Law 94-464 (10 United States Code 1089 ), which provides an exclusive remedy against the United States in suits based upon malpractice by armed forces medical personnel. The law became effective immediately and affords such personnel full immunity from personal liability. However, since the act has prospective effect only, the case
decisions are significant where malpractice is alleged to have occurred prior to enactment of the law.
The Army increased its efforts to recover the cost of medical care provided in some personal injury cases, basing its claim on such factors as third party beneficiary clauses in insurance policies owned by the injured party. As a result of a joint recovery effort by the armed forces in Hawaii, the Department of justice filed suit against three insurance companies for medical care claims totaling $160,000. The case, United States v. State Farm Mutual Insurance Company et al., will determine whether the government is entitled to recover medical care costs under Hawaii's no-fault insurance law. The question has also been raised in several cases involving New Jersey's no-fault insurance law, and courts in that state have rendered conflicting decisions. The New Jersey Supreme Court has agreed to consider the question in Sanner v. GEICO.
Industrial accidents in government-owned, contractor-operated (GOCO) and privately owned, privately operated (POPO) plants working on government contracts were also a source of litigation. In Alexander v. United States, involving a LOCO ammunition plant explosion, a federal district court ruled that the government was liable for the conduct of an independent government contractor. The Department of justice filed an appeal. In Massey et al. v. United States, a district court held that the government was liable for an explosion that killed twenty-nine and injured fifty persons. The disaster occurred at a POPO plant which had a government contract to produce explosives. This is the first POPO plant case decided against the government.
The Supreme Court decision in Stencel Aero Engineering Corp. v. United States will reduce the number of Army aviation cases. The Court reaffirmed the Feres doctrine barring suits against the government by soldiers injured as a result of their military service. Further, the decision extended that doctrine to permit the government to avoid liability in cases where soldiers are suing private individuals and corporations for such injuries, and the defendants seek indemnification from the United States by naming it in a third party complaint. In Stencel a National Guard officer injured in a helicopter crash brought a products liability suit and did not attempt to sue the United States. Stencel then named the United States as a defendant in a third party complaint. The Court ruled that the Feres bar precluded such a suit against the United States.
Renegotiation cases continued to be of interest, in part because they commonly involve large amounts of money. Cooper-MacDonald, Inc. v. United States was fairly typical. The Renegotiation Board found excess profits for the years 1969, 1970, and 1971 to total more than $2.5 million, less applicable tax credits. Tax credits are important because normally the federal government has already taxed nearly fifty percent of the excess corporate profits, and state income taxes have also taken a portion.
Equipment, Inc. v. United States demonstrated that renegotiation cases can be a gamble for a plaintiff who encounters an aggressive attorney in the Department of justice. The plaintiff had disputed the Renegotiation Board's finding that it made excess profits of $6 million during the period from 1966 to 1968. Now that the case is being litigated in the Court of Claims, however, the government will try to prove that the company made even more excess profits than the board found. A ruling for the government could cause some potential plaintiffs to reconsider contesting renegotiation debt claims.
As in renegotiation cases, large amounts of money are often at stake in bankruptcy proceedings. In Electrospace Corporation, the Army filed a claim for over $3 million, and in Florida Communications & Electronics, Inc., the Army's claim is nearly $4 million. Generally, the Army's bankruptcy claims are entitled to fifth priority, behind the Internal Revenue Service but ahead of unsecured creditors.
Cases under the Freedom of Information Act and the Privacy Act slowly increased. Compared to the large number of requests made under those acts, however, litigation was still frequent.
Promotion of Rifle Practice
The National Board for the Promotion of Rifle Practice (NBPRP) was established by Congress in 1903. Marksmanship training programs, as well as certain competitive marksmanship programs, are carried out for the board by the Office of the Director of Civilian Marksmanship. Appropriated funds for NBPRP programs amounted to $300,000 in fiscal year 1977.
With equipment and materials provided by the Secretary of the Army, the Director of Civilian Marksmanship furnished caliber .22 ammunition and targets and lent caliber .22 rifles to 2,068 civilian rifle clubs and their 12$,752 members, of whom about 55,722 were twelve to nineteen years of age. Over 22,000 medals were awarded to junior members firing qualifying scores over approved courses of fire. Additionally, some 5,972 undergraduate members of ninety college clubs took part in rifle marksmanship training during fiscal year 1977.
The NBPRP again authorized the National Rifle Association to include five National Trophy Matches in its National Rifle and Pistol Championship Matches fired at Camp Perry, Ohio, during August 1977. A total of eighty-five teams, including thirty-nine civilian teams and 1,891 individuals participated in the National Trophy Service Rifle and Service Pistol events. The President's Match, with 825 competitors, was fired in 1977 for the first time as a National Board sponsored match. In addition, the Small Arms Firing School for Service Rifles was conducted for two days with 938 individuals, the majority of whom were civilians, attending.
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Last updated 27 August 2004