NOTES
UNITED STATES v. JOHNSON: FERES
DOCTRINE GETS NEW LIFE AND
CONTINUES TO GROW
JOHN ASTLEY
INTRODUCTION
"We are forced once again to decide a case where 'we sense the
injustice... of [the] result,' but where nevertheless we have no legal
authority, as an intermediate appellate court to decide the case differently."' Federal courts have frequently repeated this sentiment
when adjudicating military personnel tort claims against the government. 2 The source of the injustice is the Feres doctrine,3 the only
judicially-created exception to the Federal Tort Claims Act
(FTCA) .4
1. Hinkie v. United States, 715 F.2d 96,97 (3d Cir.) (quoting Mondelli v. United States,
711 F.2d 567, 569 (3d Cir. 1983)), cert. denied, 465 U.S. 1023 (1983).
2. See Scales v. United States, 685 F.2d 970, 974 (5th Cir.), cert. denied, 460 U.S. 1082
(1982).
[W]e are compelled, however reluctantly to reverse the judgment of the district court
and dismiss the claim as barred by Feres. We are not blind to the tragedy of Charles'
condition, and we regret the effects of our conclusion. Nevertheless, we are not writing on a clean slate. Though the rationale underlying Feres has been criticized by
courts (citation omitted) and commentators (citation omitted), it remains the law to
which we must adhere.
1d; see also Peluso v. United States, 474 F.2d 605, 606 (3d Cir.), cert. denied, 414 U.S. 879
(1973):
But [Feres] is controlling. Only the Supreme Court can reverse it. While we would
welcome that result we are not hopeful in view of the number of recent instances in
which, having been afforded the opportunity, it declined to grant certiorari. Possibly
the only route to relief is by an application to Congress. Certainly the facts pleaded
here, if true, cry out for a remedy.
Id.
3. Feres v. United States, 340 U.S. 135 (1950) (finding government not liable under
Federal Tort Claims Act to military personnel for injuries incurred incident to service).
4. Federal Tort Claims Act, Pub. L. No. 79-601, §§ 401-22, 60 Stat. 842 (1946) (codified at 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-80 (1982)).
The FTCA delineates thirteen exceptions to its general waiver of sovereign immunity, but
185
186
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 38:185
Under the doctrine of sovereign immunity, an individual may not
sue the government unless the government consents. 5 The FTCA is
a broad waiver of the federal government's sovereign immunity, as
it allows recovery when a government employee's tortious conduct
causes injury. 6 The Feres doctrine, however, provides that the FTCA
does not waive the government's sovereign immunity for servicemember suits when the injuries are incurred incident to military
7
service.
For approximately thirty-eight years, this doctrine has served as a
jurisdictional bar in a majority of the military personnel claims
brought under the FTCA.8 During the past couple of years, hownone explicitly exclude suits by military members for injuries incurred incident to service. See
28 U.S.C. § 2680 (1982 & Supp. III).
5. See infra notes 16-18, 26 and accompanying text (discussing doctrine of sovereign
immunity). See generally I JAYSON,
HANDLING FEDERAL TORT CLAIMS: ADMINISTRATIVE AND JU-
REMEDIES, § 51 (1987) (providing general discussion of sovereign immunity doctrine
and its supporting rationales).
6. See infra notes 54-76 and accompanying text (analyzing development of FTCA). The
FTCA represents a departure from the unjust medieval concept of sovereign immunity that
has no place in our system of government. See Pound, The Federal Tort Claims Act: Reason or
History?, 30 NACCA LJ. 404, 406 (1963) (noting FTCA is representative of modern concept
that sovereign is just and responsible) [hereinafter Pound].
7. Feres v. United States, 340 U.S. 135, 146 (1950); see also infra note 106 and accompanying text (discussing problems with incident to service test).
8. See, e.g., Stubbs v. United States, 744 F.2d 58, 61 (8th Cir.) (finding Feres barred servicewoman's claim alleging superior sexually assaulted her), cert. denied, 471 U.S. 1052 (1984);
Jaffee v. United States, 663 F.2d 1226, 1240 (3d Cir. 1981) (barring claim of serviceman injured while participating in government ordered atomic radiation experiments), cert. denied,
457 U.S. 1133 (1982); Sigler v. LeVan, 485 F. Supp. 185, 200 (D. Md. 1980) (dismissing suit
where Army and CIA agents killed army intelligence officer who intended to write his
memoirs).
The FTCA grants federal courts jurisdiction to resolve negligence suits against the United
States. See 28 U.S.C. § 1346(b) (1982):
[The] district courts ... shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages ....
for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act or omission occurred.
Id.
Because the Feres doctrine is an exception to the broad waiver of sovereign immunity expressed in the FTCA, the government typically defends against servicemember suits by filing
a motion to dismiss for lack of subject matter jurisdiction under rule 12(b)(1) of the Federal
Rules of Civil Procedure. See, e.g., Lombard v. United States, 690 F.2d 215, 227 (D.C. Cir.)
(finding no jurisdiction to hear suit alleging government negligently exposed father to radiation which proximately caused child's mutagenic defects), cert. denied, 462 U.S. 1118 (1982);
Laswell v. Brown, 683 F.2d 261 (8th Cir.) (barring ex-serviceman's wife's and children's claim
that government negligently exposed deceased husband to nuclear weapons testing in 1946
causing his death and proximately causing dependents' injuries), cert. denied, 459 U.S. 1230
(1982); Monaco v. United States, 661 F.2d 129, 134 (9th Cir. 1981) (dismissing suit asserting
government's negligence caused radiation-related vascular disorder in serviceman's daughter), cert. denied, 456 U.S. 989 (1982). However, even if the government does not raise the
defense, the federal courts must raise the issue sua sponte because the hearing of a case without
jurisdiction is unconstitutional. See Fed. R. Civ. P. 12(h)(3) (stipulating that court shall disDICIAL
1988]
UNITED STATES V. JOHNSON
ever, several courts have allowed FTCA claims by military personnel
when the suit would not affect military discipline or require civilian
courts to second-guess military decisions. 9
In United States v. Johnson,l0 the Supreme Court reversed an Eleventh Circuit decision that found that the Feres doctrine did not bar
an action brought under the FTCA on behalf of a military pilot
killed during an activity incident to service." In Johnson, the complaint alleged that a civilian federal government agency employee
negligently caused the death of a serviceman. 12 The Supreme Court
held that Feres barred any FTCA action by military personnel injured
incident to service even if a civilian government employee was the
alleged tortfeasor.13 The Court also revitalized rationales for the
4
doctrine which had long been discredited and abandoned.'
This Note focuses on the Court's decision in Johnson and its importance to future military personnel suits brought under the
FTCA. Part I provides a historical backdrop for Johnson by examining the concept of intramilitary immunity, the Federal Tort Claims
Act, the Feres doctrine and its underlying rationales. Part II reviews
the Supreme Court's decision in Johnson. Part III offers a critical
analysis of the decision and notes its significance for future servicemember tort claims.
miss case whenever it appears by parties' suggestion or otherwise that court lacks subject
matter jurisdiction).
9. See, e.g., Sanchez v. United States, 813 F.2d 593, 596 (2d Cir. 1987) (allowing serviceman's claim for injury in auto accident resulting from federal employee's negligence in repairing brakes of fellow serviceman's car); Pierce v. United States, 813 F.2d 349, 354 (11 th Cir.)
(finding FTCA jurisdiction in serviceman's negligence suit for compensation of injuries received in auto accident with another serviceman driving government vehicle), cert. denied, 108
S. Ct. 160 (1987); Atkinson v. United States, 804 F.2d 561, 564 (9th Cir. 1986) (allowing
servicewoman's medical malpractice suit alleging military doctors improperly treated her during pregnancy because claim would not affect military discipline), modified, 813 F.2d 1006 (9th
Cir.) (adding sentence to opinion but still allowing negligence suit), withdrawn, 825 F.2d 202,
206 (9th Cir. 1987) (withdrawn in light of United States v. Johnson, 107 S. Ct. 2063 (1987)).
These courts relied on recent Supreme Court decisions that emphasized that the potentially
adverse effect on military discipline was the paramount rationale for the Feres doctrine. See
infra notes 158-60 and accompanying text.
10. 107 S. Ct. 2063 (1987).
11. United States v. Johnson, 107 S. Ct. 2063 (1987); see also Johnson v. United States,
749 F.2d 1530, 1531 (11th Cir.), vacatedforreh'g en banc, 760 F.2d 244 (11th Cir. 1985), reinstated, 779 F.2d 1492 (11th Cir. 1986), rev'd, 107 S. Ct. 2063 (1987).
12. Johnson v. United States, 749 F.2d 1530 (11th Cir.), vacatedforreh'gen banc, 760 F.2d
244 (11th Cir. 1985), reinstated, 779 F.2d 1492 (11th Cir. 1986), rev'd, 107 S. Ct. 2063 (1987).
13. United States v.Johnson, 107 S. Ct. 2063, 2066-67 (1987).
14. Id. at 2068-69 (emphasizing validity of rationales enunciated in Stencel Aero Eng'g
Corp. v. United States, 431 U.S. 666 (1977)); id. at 2071-72 (Scalia, J., dissenting).
THE AMERICAN UNIVERSITY LAW REVIEW
I.
A.
1.
[Vol. 38:185
HISTORICAL BACKGROUND
Development of Intramilitary Immunity15
English common law
English common law provided the basis for the United States' ju-
risprudence on sovereign immunity and intramilitary suits. 16 Under
English common law, the sovereign maintained absolute immunity
because it was thought the King could do no wrong.1 7 Sovereign
immunity shielded the government from liability and thus prohibited the public from recovering from the government for injuries
caused by a government employee's tortious conduct.' 8 Although
sovereign immunity was absolute, it did not protect individual
tortfeasors. 19 To circumvent sovereign immunity, therefore, injured military personnel brought suit against the military
tortfeasor.2 0 These suits, however, typically failed because the
courts granted superior officers qualified immunity. 2 ' Whenever a
court found that a superior officer had probable cause for his action
that caused the injury, he was exonerated.2 2 By granting qualified
immunity, the courts eased concerns regarding judicial secondguessing of military decisions and the deleterious effects such suits
could have on military discipline. 23 Nevertheless, while English
15. See Zillman, IntramilitaryTort Law: Incidenceto Service Meets ConstitutionalTort, 60 N.C.L.
REV. 489, 492-502 (1982) (providing excellent discussion of development of intramilitary tort
law) [hereinafter Zillman].
16. See Davis, Sovereign Immunity Must Go, 22 ADMIN. L. REv. 383, 393 (1970) (noting that
American courts developed sovereign immunity doctrine without ever explaining why).
There is no sound justification for a doctrine based on medievalisms concerning kings. Id.
17. See W. PROSSER & W. KEETON, PROSSER AND KEETON ON THE LAW OF TORTS § 131, at
970-71 (5th ed. 1984).
18. See Pound, supra note 6, at 406-09 (discussing concept of sovereign immunity).
19. See Zillman, supra note 15, at 492 (noting that in early cases subordinates brought
intentional tort claims against their superiors to avoid harsh consequences of sovereign immunity doctrine).
20. See Sutton v.Johnstone, 99 Eng. Rep. 1215 (1786) (bringing civil suit against superior naval officer for unlawful arrest, damage to reputation and malicious prosecution, where
subordinate relieved of command, arrested, and court-martialed for refusing to pursue fleeing
enemy in his damaged vessel but later acquitted of all charges); Dawkins v. Lord Rokeby, 176
Eng. Rep. 800 (1866) (suing superior who imprisoned subordinate for eleven days for refusing to shake hands).
21. See Dawkins, 176 Eng. Rep. at 815 (granting immunity to all matters properly military); Sutton, 99,Eng. Rep. at 1246 (noting pressures of battle on commanders are best recognized by military courts). The courts, in dictum, supported absolute immunity for the
individual tortfeasor when the suit arose from the performance of military duties. See Zillman,
supra note 15, at 497-98 (noting that while English courts appeared to support absolute immunity they never adopted principle).
22. See Sutton, 99 Eng. Rep. at 1243 (dismissing suit after finding that superior had.probable cause to initiate action against subordinate who refused to obey orders, even though
subordinate acquitted of charges in military proceeding).
23. See Dawkins, 176 Eng. Rep. at 815 (noting fatal effect to military if actions allowed
outside military courts); Sutton, 99 Eng. Rep. at 1246 (noting that only military courts properly understand need for discipline).
1988]
UNITED STATES V. JOHNSON
courts expressed concern over the potential negative impact these
suits could have on military decision making and discipline, they
continued to hear the cases and regularly examined the military de24
cisions in detail.
2.
United States case law
Early American case law followed English common law precedents: a military tortfeasor was granted qualified immunity for intramilitary torts 25 while the doctrine of sovereign immunity
provided the United States Government absolute immunity from
suit.2 6 Like their English counterparts, American courts were concerned about the effects intramilitary tort claims could have on military discipline.2 7 At the same time, the courts reasoned that the
potential harm that could result from granting oppressive officers
absolute immunity outweighed any deleterious effect intramilitary
28
r.
suits could have on military discipline.
The early American cases primarily involved intentional tort
claims against superior officers. 29 It was not until the late nine24. See Zillman, supra note 15, at 497 (citing English cases involving detailed analysis of
military decisions). Even though these suits posed direct threats to military authority, there is
no evidence that allowing the servicemembers to bring the suits adversely affected discipline.
Id. at 498-99.
25. See Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 403-05 (1851) (granting qualified
immunity where officer acted in good faith and not vindictively in punishing disobedient
crewmember); Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 129 (1848) (finding that officer who
whipped and imprisoned crewmember was acting within his authority and without malice and
was not answerable for ensuing injury).
26. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12 (1821) (stating that United
States immune from suit unless it consented to be sued). Unlike English law where the king
could do no wrong, the United States' policy of sovereign immunity was premised on the
logical and practical belief that the lawmaking authority that established rights and remedies
and legislated how they were obtained and enforced could not be sued unless the government
gave its citizens that right; otherwise, the state was subservient to the masses. See
Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (explaining why doctrine of sovereign
immunity precluded defendant from joining Territory of Hawaii as party in mortgage foreclosure when Territory part owner of land). Traditionally, the doctrine was employed to ensure
the efficient operation of the government and to protect the national treasury. See Note, The
Supreme Court and the Tort Claims Act: End of An EnlightenedEra?, 27 CLEV. ST. L. REv. 267, 269-
71 (1978) (suggesting justifications for doctrine of sovereign immunity). Considering the
state of affairs since the enactment of the FTCA, these are very worthy justifications. At any
given time in recent years, there are typically more than 3,000 FTCA lawsuits involving claims
of approximately $5 billion pending in federal courts. See I JAYSON, HANDLING FEDERAL TORT
CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES § 1, at 1-8.1 (1987) [hereinafterJAsoN].
27. See Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 403 (1851) (expressing concern that
allowing subordinates to sue superiors could threaten military system that relied on discipline). But see Wilson v. MacKenzie, 7 Hill 95 (N.Y. Sup. Ct. 1844) (noting that English courts
allowed intramilitary torts even though military discipline potentially affected).
28. See Dinsman, 53 U.S. (12 How.) at 403-05 (holding that qualified immunity protected
officer and promoted military discipline while ensuring that malicious, oppressive use of
power did not go unchecked); Wilson, 7 Hill at 95 (refusing to grant absolute immunity to
naval officer who beat and imprisoned enlisted man).
29. See Zillman, supra note 15, at 499 (discussing significant cases involving intentional
190
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 38:185
teenth century, when Congress enacted legislation limiting the sovereign immunity of the government, that negligence suits became
common. 30 These legislative Acts slowly stripped away the government's absolute sovereign immunity and provided the foundation
for the FTCA.31
B.
1.
Federal Tort Claims Act
Pre-FTCA legislation and case law
The numerous statutes enacted prior to the FTCA created a
patchwork system of recovery for torts committed by government
employees. 32 The statutes provided remedies for torts only in isolated circumstances, 33 and there was no uniformity because the statutes were mutually exclusive.3 4 Nevertheless, these statutes opened
the door for servicemembers to sue the government for negligent
acts or omissions of ot4er military personnel.
One of the first negligence tort cases brought by a military memtort claims). Ziliman alludes to three reasons why negligence suits were not commonplace.
Id. First, the biggest sources of tort litigation today, auto accidents and medical malpractice,
were not fully developed as tort actions until the twentieth century. Id. Second, many of the
potential tortfeasors were enlisted personnel or low ranking officers who were judgment
proof. Id. Finally, soldiers injured while on active duty were entitled to medical care and
disability benefits that were comparable to any other compensation system. Id.
30. See Dalehite v. United States, 346 U.S. 15, 25 n.10 (1953) (noting legislative acts
eroded sovereign immunity and opened door for negligence suits against government).
31. See, e.g., Suits in Admiralty Act, Pub. L. No. 66-156, 41 Stat. 525 (1920) (codified at
46 U.S.C. §§ 741-752 (1982)) (permitting in personam suit against United States in admiralty
cases when government's merchant vessels negligently caused injury); Public Vessels Act,
Pub. L. No. 68-546, 43 Stat. 1112 (1925) (codified at 46 U.S.C. §§ 781-790 (1982)) (granting
authority to sue United States in admiralty when public vessels caused damages and allowing
recovery for towage and salvage services rendered to public vessels; Military Claims Act, 57
Stat. 372 (1943) (codified at 10 U.S.C. §§ 2731-2735 (1982)) (authorizing designated officers
to administratively settle small claims for damage or loss of property or for personal injury or
death caused by military or civilian personnel); Federal Employee Compensation Act, Pub. L.
No. 64-267, 39 Stat. 742 (1916) (codified at 5 U.S.C. §§ 8101-8150 (1982)) (providing compensation for federal civilian employees injured while performing their duties).
For an exhaustive presentation of the numerous statutes permitting limited tort recoveries
prior to the FTCA see JAYsON, supra note 26, § 55, at 2-18 to -45. Prior to the FTCA, the
government also waived its sovereign immunity for suits involving contracts or patent infringement. See Tucker Act, 24 Stat. 505 (1887) (codified at 28 U.S.C. § 1346(a)(2) (1982))
(permitting suit in Court of Claims for causes of action founded on Constitution, congressional law, executive regulation, or contract); Act ofJune 25, 1910, Pub. L. No. 61-305, 36
Stat. 851 (1910) (codified at 28 U.S.C. § 1498 (1982)) (allowing suits for patent
infringements).
32. See JAYSON, supra note 26, § 57; Comment, The Federal Tort Claims Act, 56 YALE LJ.
534, 535 (1947) (noting piecemeal response by Congress to Supreme Court's denial of tort
claim jurisdiction).
33. See Note, Military Rights Under the FTCA, 43 ST. JOHN'S L. REV. 455, 456 (1969) (noting permission to sue granted only for contract, patent infringement, admiralty and marine
torts, and torts caused by vessels) [hereinafter Note, Military Rights].
34. SeeJAYSON, supra note 26, § 55.01, at 2-18 to -19 (stating that statutes varied in scope
and consistency; some authorized suit against United States, while others created administrative remedies).
1988]
UNITED STATES V. JOHNSON
ber against the United States was Dobson v. United States.35 Dobson's
widow brought suit under the Public Vessels Act on behalf of her
husband, a submarine officer killed in a collision at sea.36 Mrs. Dobson alleged that the submarine was unseaworthy because it did not
display its navigational lights as required by law.3 7 This failure, she
argued, led to the collision that caused her husband's death.3 8
Although the Public Vessels Act did not expressly preclude military
personnel tort claims, the court concluded that the Act did not
waive the government's sovereign immunity for military personnel
suits.3 9 The court noted that alternative compensation schemes
provided redress to injured servicemembers and that to allow the
suit would constitute a gross departure from the longstanding policy
against allowing intramilitary tort claims. 40 Other federal courts
hearing intramilitary negligence cases adopted the Dobson rationale41 and consistently denied recovery until the enactment of the
42
FTCA.
2. Private bills
Prior to the enactment of the FTCA, there was one other avenue
available to servicemembers injured by negligent federal government employees. An injured servicemember, like any other United
States citizen, could petition Congress for a private bill to provide
compensatory relief for the claimant. 43 Few military personnel,
35. 27 F.2d 807 (2d Cir. 1928) (alleging that inadequate external lighting of submarine
resulted in collision and caused serviceman's death).
36. Dobson v. United States, 27 F.2d 807, 807 (2d Cir. 1928). The Public Vessels Act
-waived the government's immunity for damages caused by public vessels of the United States.
See 46 U.S.C. § 781 (1982) (permitting claim against United States for damages caused by
government vessels).
37. Dobson, 27 F.2d at 807.
38.
Id.
39. Id. at 808.
40. Id. at 808-09 (noting that plaintiff had strong case but absent express language authorizing servicemen suits court could not believe Congress would depart from traditional
policy and allow servicemen to recover under statute). The court found that Title 38 of the
United States Code provided a pension system for military personnel, and although the system was an inadequate substitute for full recovery of damages under the Public Vessels Act,
military personnel were aware of the longstanding policy. Id. at 809.
41. See Bradey v. United States, 151 F.2d 742, 743 (2d Cir. 1945) (finding that nothing in
Public Vessels Act expressly bars servicemen suits but, based on Dobson holding, servicemen
suits are deemed excluded from protection under Act), cert. denied, 326 U.S. 795 (1946);
O'Neal v. United States, I I F.2d 869, 871 (E.D.N.Y. 1925) (denying injured Coast Guardsman
access to Public Vessels Act because statute not intended to waive immunity for government
employees).
42. See Zillman, supra note 15, at 502 (noting that courts hearing negligence cases dismissed them without analyzing whether suits truly affected military discipline).
43.
See Gellhorn and Lauer, CongressionalSettlement of Tort Claims Against the United States,
55 COLUM. L. REV. 1, 1-4 (1955) (discussing how Congress passed private legislation to settle
tort claims for individuals).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 38:185
however, availed themselves of this potential remedy. 4 4
While military personnel did not frequently seek legislative compensation, many injured civilians petitioned Congress each year. 45
As the government grew, however, the congressional system of providing relief through private bills became cumbersome and unworkable. 4 6 By 1946, the numerous statutes waiving bits and pieces of
immunity had established inconsistent criteria for remedies. 4 7 In
addition, Congress could no longer keep up with the growing
number of private bills. 48 The time was ripe to provide a broad
waiver of sovereign immunity and a uniform, comprehensive com44. See Feres v. United States, 340 U.S. 135, 140 (1950) (noting that military members
did not bombard Congress with requests for private bills).
45. See Note, Military Rights, supra note 33, at 456-57 (noting civilian attempts to petition
Congress).
46. See Wright, The Growth of the Federal Tort ClaimsAct, 24JAG.J. 151, 151 (1970) (noting
that large number of bills prevented expeditious resolution). During the period from 1941 to
1946 (World War II), the government experienced tremendous growth and started providing
new services to the public. Id. This increased the government's exposure to potential tort
actions and led to a corresponding growth in private bills. Id. Congress was not equipped to
examine and expeditiously act on these bills while simultaneously performing its regular duties. See Note, Military Rights, supra note 33, at 457.
47. See Borchard, Government Liability in Tort, 34 YALE LJ. 1, 129, 229 (1924) (denouncing
private bill remedy for taking Congress away from its important duty of addressing national
problems).
48. SeeJAYSON, supra note 26, § 57-59.01, at 2-50 to -57 (providing detailed discussion of
situation and government's efforts to alleviate problem). Congress noted the need for general tort claims legislation but could not agree on the exact provisions. See Comment, Tort
Claims Against the United States, 30 GEO. LJ. 462, 464 (1942) (discussing congressional dissatisfaction with tort remedy procedure and Congress' attempts to reform); Note, Rights of Servicemen Under Federal Tort ClaimsAct, 1 SYRACUSE L. REV. 87, 90-91 (1949) (discussing various bills
introduced to waive government immunity from general tort liability).
During the period from 1923 to 1946, approximately 30 separate bills were introduced in
Congress designed to remedy the problem. See, e.g., S. 2177, 79th Cong., 2d Sess. (1945);
H.R. 181, 79th Cong., Ist Sess. (1945); S. 1114, 78th Cong., 1st Sess. (1943); H.R. 1356, 78th
Cong., Ist Sess. (1943); H.R. 817, 78th Cong., 1st Sess. (1943); S. 2221, 77th Cong., 2d Sess.
(1942); S. 2207, 77th Cong., 2d Sess. (1942); H.R. 6463, 77th Cong., 2d Sess. (1942); H.R.
5373, 77th Cong., Ist Sess. (1941); H.R. 5299, 77th Cong., 1st Sess., (1941); H.R. 5185, 77th
Cong., Ist Sess. (1941); S. 2690, 76th Cong., 1st Sess. (1939); H.R. 7236, 76th Cong., Ist
Sess. (1939); S. 1043, 74th Cong., 1st Sess. (1935); H.R. 2028, 74th Cong., Ist Sess. (1935);
H.R. 8561, 73d Cong., 2d Sess. (1934); H.R. 5065, 72d Cong., 3d Sess. (1933); S. 1833, 73d
Cong., 1st Sess. (1933); H.R. 129, 73d Cong., 1st Sess. (1933); S. 4567, 72d Cong., 1st Sess.
(1931); H.R. 15428, 71st Cong., 3d Sess. (1930); H.R. 17168, 71st Cong., 3d Sess. (1930); S.
4377, 71st Cong., 2d Sess. (1929); H.R. 9285, 70th Cong., 1st Sess. (1927); S. 1912, 69th
Cong., 1st Sess. (1925); H.R. 8914, 69th Cong., 1st Sess. (1925); H.R. 6716, 69th Cong., 1st
Sess. (1925); H.R. 12178, 68th Cong., Ist Sess. (1923).
Meanwhile, the number of private bills was increasing at an alarming rate. S. REP. No.
1400, 79th Cong., 2d Sess. 7 (1946); accord H.R. REP. No. 1287, 79th Cong., 1st Sess. 2
(1946); S. REP. No. 1196, 77th Cong., 2d Sess. 5 (1942); H.R. REP. No. 2245, 77th Cong., 2d
Sess. 5-7 (1942).
By 1946, more than 2300 private claims were before Congress involving over $106 million.
H.R. REP. No. 1287, 79th Cong., 1st Sess. 2-5 (1946). Of the 2300 bills, only 336 were
enacted. Id. at 5. Congress became frustrated with this tremendous workload, its inability to
provide expeditious relief, and the inequities wrought in such a system. See S. REP. No. 1400,
79th Cong., 2d Sess. 30 (1946); H.R. Doc. No. 562, 77th Cong., 2d Sess. 2 (1942) (noting
President Roosevelt's endorsement for modification of tort recovery procedures which were
slow, expensive, and unfair to Congress and injured parties).
1988]
UNITED STATES V. JOHNSON
pensation scheme to redress government employees' torts. 4 9
3.
Federal Tort Claims Act
In 1946, Congress passed the FTCA, 50 which authorized individuals to sue the United States for damage caused by the negligence of
any government employee acting within the scope of his employment.5 1 The Act virtually abolished the government's sovereign immunity from negligence torts, 5 2 and it delineated, for the first time,
precise guidelines for the efficient and expeditious adjudication of
53
tort claims.
The purpose of the FTCA was to provide a fair and accessible
forum for injured persons and to relieve Congress' burden of considering thousands of private bills each year. 54 The plain language
49. Another problem plaguing Congress was the general disregard it had for the concept
of sovereign immunity. See Employees v. Missouri Health Dept., 411 U.S. 279, 322-23 (1973)
(Brennan, J., dissenting) (observing that Americans' dislike for doctrine of sovereign immunity is understandable particularly because doctrine is derived from divine right of kings concept). It should be noted that some congressmen were not entirely convinced that a broad
waiver of sovereign immunity was wise. They feared that the government would become the
victim of fraudulent or exaggerated claims. See, e.g., 69 CONG. REc. 2184 (1928) (statement of
Rep. Madden); 69 CONG. REC. 2189-91 (1928) (statement of Rep. McDuffie); 69 CONG. REc.
2202 (1928) (statement of Rep. Blawton). Congress was also concerned about the potential
financial burden the Act could impose on the country. See 69 CONG. REc. 2191 (1928) (statement of Rep. Ramseyer) (expressing concern that waiving sovereign immunity could subject
federal government to liability for billions of dollars which would threaten country's very
existence).
50. Federal Tort Claims Act, Pub. L. No. 79-601, §§ 401-422, 60 Stat. 842 (1946) (codified at 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401-02, 2411-12, 2671-80 (1982)).
51. See 28 U.S.C. § 1346(b) (1982) (granting district courts jurisdiction over civil actions
against United States).
52. See United States v. Yellow Cab Co., 340 U.S. 543, 547 (1951) (finding FTCA waives
government's sovereign immunity in sweeping language); see also 28 U.S.C. § 1346(b) (1982)
(waiving immunity for any claim except those expressly excluded).
53. See 28 U.S.C. §§ 1346(b), 2671-80 (1982) (explaining procedural requirements for
handling claim). In general, the head of each agency may compromise and settle claims for
money damages without requiring ajudicial determination. Id. § 2672. If the amount sought
is greater than $25,000, written approval must be obtained from the Attorney General. Id.
Once the claimant accepts a settlement, it is final and represents a complete release against
the government and its employee(s) whose negligence gave rise to the claim. Id. An individual may not bring suit until exhausting all administrative remedies and either the agency has
denied the claim in writing or failed to respond within six months of filing. Id. § 2675. If a
settlement cannot be reached, then United States district courts may exercise exclusive jurisdiction. See id. § 1346(b). Under the Act, an injured party may sue only the United States, not
the tortfeasor. See United States v. S.A. Empressa de Viacao Aerea Rio Grandense, 467 U.S.
797, 804, 807-08 (1984) (distinguishing between Federal Aviation Administration liability
under FTCA and separate liability of plane's manufacturers). Once- a judgment against the
government is issued, it constitutes a complete bar to action against the employee. 28 U.S.C.
§ 2676 (1982). Additionally, the Act does not authorize punitive damages or interest prior to
judgment. Id. § 2674. Finally, jury trials are not authorized. Id. § 2402.
54. See H.R. REP. No. 1287, 79th Cong., 1st Sess. 2 (1946); accord S. REP. No. 1400, 79th
Cong., 2d Sess. 7 (1946); S. REP. No. 1196, 77th Cong., 2d Sess. 5 (1942); H.R. REP. No.
2245, 77th Cong., 2d Sess. 5-7 (1942). Congress also believed that it would be fairer to shift
the burden of loss from the private individual to each taxpayer, where the relative burden
would be far less. See Rayonier, Inc. v. United States, 352 U.S. 315, 320 (1957) (noting equity
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of the legislation does not differentiate between suits brought by
military personnel and those brought by injured civilians. 55
The FTCA explicitly allows recovery for any claim except those
expressly excluded by Title 28, section 2680, of the United States
Code. 56 There are no specific provisions in the Act that exclude servicemembers from its benefits. 57 Of the thirteen enumerated exceptions contained in section 2680, only two appear to directly affect
the rights of military personnel 58 Claims are not allowed for injuries arising out of combat activities 59 or injuries arising in foreign
countries.60 These exclusions, however, do not bar all claims by
military personnel, just those falling within a particular category.
Thus, on its face, the Act appears to permit suits on behalf of ser61
vicemembers as well as the general public.
in arrangement when all parties who benefit from government services share equally when
government employee causes injury); see also supra notes 46-49 and accompanying text (discussing reasons for enacting FTCA). The Supreme Court on numerous occasions enunciated
the Act's justifications. See, e.g., United States v. Muniz, 374 U.S. 150, 154 (1963) (stating that
Congress wanted to assist those with meritorious claims); Rayonier, Inc. v. United States, 352
U.S. 315, 319-20 (1957) (noting Congress intended to waive broad immunity and establish
government liability); Dalehite v. United States, 346 U.S. 15, 24 (1953) (finding congressional
purpose to compensate those injured by government employees' negligence); United States v.
Yellow Cab Co., 340 U.S. 543, 550 (1951) (freeing Congress from resolving negligence claims
through private bills); Feres v. United States, 340 U.S. 135, 139 (1950) (mitigating unjust
consequences of sovereign immunity); United States v. Aetna Surety Co., 338 U.S. 366, 383
(1949) (holding that courts should not narrowly construe FTCA because government has
clearly waived its immunity from tort claims absent express exceptions in Act).
55. See 28 U.S.C. § 1346(b) (1982) (allowing any claim, not just civilian personnel
claims).
56. See id. § 1346(b), 2680 (delineating what types of claims are authorized under
FTCA). Section 2680 excludes certain types of claims; it does not bar types of claimants. id.
§ 2680.
57. See id. §§ 1291, 1346, 1402, 2401-02, 2411-12, 2671-80 (delineating basic factors in
claims against United States). The English counterpart to the FTCA expressly addresses intramilitary torts. See English Crown Proceeding Act, 10 & 11 Geo. 6, ch. 44, § 10 (1947)
(barring suits by military personnel injured by another serviceman while both are on duty or
when tortfeasor is serviceman and injury occurs on military premises and injured party is
entitled to military pension).
58. See 28 U.S.C. §§ 2680(j), (k) (1982) (describing exceptions for injuries in combat or
in foreign country). The relevant sections of the Act expressly exclude claims arising from the
following activities:
(j) Any claim arising out of the combatant activities of the military or naval
forces, or the Coast Guard, during time of war.
(k) Any claim arising in a foreign country.
Id.
59. Id. § 2680(j).
60. Id. § 2680(k).
61. See Brooks v. United States, 337 U.S. 49, 51 (1949) (finding that FTCA's waiver of
immunity is unqualified, referring to any claim; not any claim but a serviceman's); see also
Hitch, The Federal Tort Claims Act and Military Personnel,8 RuTrGERS L. REV. 316 (1954) (analyzing Act and finding language clear, unambiguous, and not precluding serviceman's tort
claims) [hereinafter Hitch]; Comment, Federal Tort Claims Act as Applied to Military Personnel, 40
Ky. LJ. 438, 444 (1952) (finding language supports recovery by military personnel).
The language of the FTCA is clear and unambiguous. See Brooks v. United States, 169 F.2d
840, 850 (4th Cir. 1948) (Parker, C.J., dissenting) (noting that Act drafted with skill, much
1988]
UNITED STATES V. JOHNSON
An analysis of the FTCA legislative history does not clearly indicate whether Congress intended to exclude military personnel from
FTCA protection. 62 From the Act's history, however, it is reasonable to conclude that Congress intended servicemembers to be covered.6 3 Of the eighteen tort claims bills introduced in Congress
between 1925 and 1935, 64 sixteen expressly precluded suits by military personnel. 6 5 The final version-the FTCA-however, does not
preclude such suits. 66 Because the Act does not contain an exception excluding military suits, the expressio unius est exclusio alterius prindeliberation, and clearly articulating Congress' intentions); Niagara Fire Ins. Co. v. United
States, 76 F. Supp. 850, 854 (S.D.N.Y. 1948) (same); Gottlieb, The FTCA-A Statutory Interpretation, 35 GEo. LJ. 1, 2-4 (1946) [hereinafter Statutory Interpretation]. The cardinal rule of statutory construction is that a statute, clear and unambiguous on its face, is not subject to
construction; it should be held to mean what it plainly expresses. See 2AJ. SUTHERLAND, STATtnzs AND STATUTORY CONSTRUCrION § 47.02 (C. Sands, 4th ed. 1973) (discussing authority of
plain wording) [hereinafter SUTHERLAND]. See also Browder v. United States, 312 U.S. 335,
341-42 (1941) (stating there is no need to interpret a clear statute); Osaka Shosen Kaisha Line
v. United States, 300 U.S. 98, 101 (1937) (stating that clear statutory language is conclusive);
Caminitti v. United States, 242 U.S. 470, 485 (1917) (giving language used primary authority
to enforce statute); MacKenzie v. Hare, 239 U.S. 299, 308 (1915) (stating that extrinsic
sources of legislative intent must give way to clear meaning).
Additionally, the Act contains several provisions which indicate Congress' concern with
possible tort claims by military personnel. The Act excludes from its broad waiver of immunity claims based on acts arising out of discretionary functions, combatant activities, and those
arising in a foreign country. 28 U.S.C. § 2680 (a), (j), (k). See supra notes 59-60 and accompanying text (discussing these exceptions). Congress contemplated the government being sued
for the negligent conduct of military personnel because the term "scope of employment" is
defined for military personnel as acting in the line of duty. See id. (defining "scope of employment" generally).
62. See Hearings Before the Joint Committee on the Organization of Congress Pursuant to H. Con.
Res. 18, 79th Cong., Ist Sess., Parts 1-4, 67-69, 95, 218-19, 241, 341, 369-70, 598, 696-97,
907 (1945) (making references to private claims against government but not specifying parties) [hereinafter Report ofJoint Committee on Organizationof Congress]; see also Hitch, supra note
61, at 318-19 (analyzing legislative history); Note, MilitaryRights Under the FTCA, 43 ST.JOHN'S
L. REV. 455, 456-58 (1969) (discussing how FTCA fits into historical context).
63. See infra notes 65-75 and accompanying text (discussing legislative history of FTCA).
64. See Brooks v. United States, 337 U.S. 49, 51 n.2 (1949) (listing bills introduced).
65. See Feres v. United States, 340 U.S. 135, 139 (1950); Brooks, 337 U.S. at 51 (discussing legislation leading to enactment of FTCA).
66. See Feres, 340 U.S. at 139 (noting that unlike earlier version, enacted bill did not
contain exception for military tort claims). Even the final version of S. 2177, when originally
introduced, contained an exception for military suits. See Note, 11 IL. L. REV. 125, 129
(1950). However, the exclusion was deleted before final passage of S. 2177. Id. Prints of S.
2177, the committee reports, and hearings fail to explain the deletion of this exclusion. Statutoy Interpretation, supra note 61, at 51. The typical exception against military personnel claims
reads as follows: "Any claim for which compensation is provided by the Federal Employees
Compensation Act, as amended, or by the World War Veterans' Act of 1924, as amended."
See H.R, 181, 79th Cong., 1st Sess. (1945). The World War Veterans' Act provided disability
and death benefits to active duty military personnel disabled or killed in the line of duty. See
World War Veterans' Act of 1924, 43 Stat. 607 (1924) (codified at 38 U.S.C. §§ 421-701
(1982)). Congress may have eliminated this exclusion because of adverse criticism expressed
in an earlier hearing on earlier bills. See Hearing Before Senate Committee on the Judiciary on S.
2690, 76th Cong., 3d Sess. 49 (1940) (criticizing exceptions because it unfairly discriminated
against injured federal employees).
THE AMERICAN UNIVERSITY LAW REVIEW
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ciple of statutory construction 6 7 implies that Congress did not
intend to create such an exception. 68 The floor debate of an earlier
69
version of the FTCA supports this conclusion.
Another indication that Congress intended the FTCA to cover
military personnel was the last minute clarification of the combat
activities exception. 70 Originally, the Act excluded claims arising
out of military activities. During debate on the bill, the House
adopted an amendment adding the word "combatant" to the exception.7 1 By emphasizing that only claims arising out of combat activities were excluded from FTCA coverage, Congress presumably
intended military personnel claims arising from non-combat activi72
ties to be protected.
Finally, Congress emphasized that the express exceptions limiting
the government's broad waiver of sovereign immunity were incorporated for two reasons. 73 First, Congress wanted to insulate from
suit certain governmental activities it believed must not be hampered but would be if subject to suit. 74 Second, Congress believed
that the government already provided adequate remedies for certain
types of tort claims. 75 In considering these objectives, Congress apparently found it unnecessary to include military personnel tort
claims in the list of exceptions.
67. See SUTHERLAND, supra note 61, § 47.23, at 123 (explaining that under statutory construction doctrine, express exceptions preclude implication of other exceptions).
68. See Brooks v. United States, 337 U.S. 49, 51 (1949) (concluding that because Congress expressly excluded certain types of claims, it did not intend to exclude military personnel claims). See also Hitch, supra note 61, at 319 (inferring that Congress considered
excluding military personnel tort claims but rejected idea).
69. See 86 CONG. REC. 12,019 (1940) (statement of Rep. Celler) (stating during House
debate of H.R. 7236 that other than exceptions to coverage specifically set out in bill, immunity was waived).
70. See Statutory Interpretation, supra note 61, at 50 & n.180 (finding that no other bills
contained word "combatant" and amendment intended as clarification of Congress' intent to
just exclude tort claims arising from combat activities rather than all military operations).
71. See 92 CONG. REC. 10,143 (1946) (showing Congress adopted, without debate, recommendation to add word "combatant" to 28 U.S.C. § 26800) exception).
72. See supra note 67 and accompanying text (discussing statutory construction principle
that express exceptions negate existence of any implied exceptions).
73. See, e.g., S. REP. No. 1400, 79th Cong., 2d Sess. 33 (1946) (enumerating exceptions)
[hereinafter S. REP. No. 1400]; Report ofJoint Committee on Organizationof Congress, supra note 62,
at 38 (referencing private claims against government); H.R. REP. No. 1287, 79th Cong., 1st
Sess. 6 (1945) (discussing nature of exceptions) [hereinafter H.R. REP. No. 1287].
74. See S. REP. No. 1400, supra note 73, at 33 (discussing governmental functions); Hearings Before House Committee on theJudiciaiy on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 4445 (1942) (finding that certain government activities such as postal service, combatant activities of military, and treasury endeavors, needed to be free from threat or burden of lawsuit)
[hereinafter Hearings Before House Committee on the Judiciary].
75. See, e.g., S. REP. No. 1400, supra note 73, at 33 (discussing other remedies); H.R. REP.
No. 1287, supra note 73, at 5-6 (evaluating remedies through other laws); HearingsBefore House
Committee on the Judiciary, supra note 74, at 44 (denying recovery under FTCA for activities
when adequate remedies already provided, such as customs and tax collection activities and
suits covered by Suits in Admiralty Act and Public Vessels Act).
1988]
UNITED STATES V. JOHNSON
Although neither the terms of the FTCA nor its legislative history
expressly or implicitly bar servicemembers from bringing suit, military personnel have had little success in bringing tort claims against
the government. 76 Initially, some courts, relying on rationales espoused in pre-FTCA litigation, construed the Act as implicitly barring military tort suits, while others, adopting a literal
interpretation, allowed such claims. 7 7 These inconsistent decisions
prompted the Supreme Court to reiew its first FTCA case involving
78
an intramilitary cause of action in Brooks v. United States.
4.
Initial Supreme Court interpretationof FTCA
In Brooks, one soldier was killed and another seriously injured
when a civilian employee negligently drove an Army truck and
79
struck the soldier's privately-owned vehicle on a public highway.
At the time of the accident, both soldiers were on leave.8 0 The
Fourth Circuit Court of Appeals rejected the argument that soldiers
could recover under the FTCA for injuries which are non-incident
to service. 8 ' The circuit court held that the special relationship between soldiers and the government, together with the fact that the
servicemen received alternative compensation for service-related in82
juries, created an implied exception to the FTCA.
The Supreme Court emphatically rejected the Fourth Circuit's
analysis.8 3 The Court, after examining both the purpose and language of the FTCA, held that military status alone did not bar recovery.8 4 The Court concluded that the plain language of the FTCA
76. See supra notes 50-75 and accompanying text (discussing language, purpose, and legislative history of FTCA).
7.7. Compare Burkhardt v. United States, 165 F.2d 869 (4th Cir. 1947) and Perucki v.
United States, 80 F. Supp. 959 (M.D. Pa. 1948) (interpreting FTCA "combatant" exception
broadly, so as to deny claim by injured serviceman) with Alansky v. Northwest Airlines, 77 F.
Supp. 556 (D. Mont. 1948) (allowing suit on behalf of army officer killed in crash of government plane and Samson v. United States, 79 F. Supp. 406 (S.D.N.Y. 1947) (granting claim on
behalf of soldier killed while riding Army bus because injury was not incurred incident to
service).
78. 337 U.S. 49 (1949).
79. Brooks v. United States, 337 U.S. 49, 50 (1949).
80. Id. at 52.
81. Brooks v. United States, 169 F.2d 840, 845 (4th Cir. 1948) (finding that Congress
could not have intended recovery for non-service-connected injuries while excluding servicecaused injuries), rev'd, 337 U.S. 49 (1949). The court made no mention of the off-base, on
leave status of the soldiers. Id. The Fourth Circuit based its conclusion on the reasoning
advanced injefferson v. United States, 77 F. Supp. 706 (D. Md. 1948), aft'd, 178 F.2d 518 (4th
Cir. 1949), af'd sub nom. Feres v. United States, 340 U.S. 135 (1950). Brooks, 169 F.2d at 845.
In Jefferson, the court held that the FTCA did not allow recovery for incident-to-service injuries. Jefferson, 77 F. Supp. at 711.
82. Brooks, 169 F.2d at 846 (citing Jefferson for special nature of government-soldier
relationship).
83. Brooks v. United States, 337 U.S. 49, 54 (1949).
84.
Id.
198
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could not be read to exclude all military personnel tort claims.8 5
The Court concluded, therefore, that military personnel suits for all
non-incident to service injuries, even those in which the ser86
vicemember received alternative compensation, were authorized.
The Court, however, failed to define "incident to service," 8 7 and left
another major issue unresolved: what to do in the "wholly different
case" when military personnel were injured incident to service?8 8
That question did not remain unanswered for long because one year
later the Supreme Court decided Feres v. United States.8 9
C.
Feres and Its Rationales
In Feres, the Court granted certiorari to review three conflicting
cases in which military personnel allegedly injured other active duty
servicemen who were not on leave.90 The primary issue was
whether the FTCA authorized military personnel suits for injuries
arising out of activities incident to service. 9 1
In Feres, a widow sued for the wrongful death of her husband, who
died in a barracks fire.9 2 She alleged that the government negligently quartered her spouse in a barracks with a defective heating
85. Id. at 51 (believing Congress had carefully considered serviceman claims when it enacted FTCA). The Court felt this fact was borne out by the overseas and combatant exceptions in 28 U.S.C. § 2680. Id.
86. Id. at 52-53 (holding that claims for non-incident to service injuries authorized unless
they fell within one of express exceptions in 28 U.S.C. § 2680) In finding for Brooks, the
Court emphasized that FTCA recovery was authorized even when a serviceman received alternative compensation. Id. Additionally, Congress, in enacting the FTCA, neither provided an
exclusive remedy nor required an election of remedies between FTCA recovery and Title 38
benefits. Id. In dicta, however, the Court indicated that servicemen were not entitled to
double recovery, and any court award should be offset by statutory compensation received
under Title 38. Id. at 52-54.
87. Id. (failing to define "incident to seryice"); see infra note 106 and accompanying text
(discussing problems created by Court's failure to define incident to service).
88. Id. at 52 (stating that Court has no opinion on issue). A major factor in Brooks was
that the injuries were not related to the Brooks' army careers "except in the sense that all
human events depend upon what has already transpired." Id. In deciding for Brooks, the
Court distinguished the Government's argument that an FTCA claim would disrupt military
operations if allowed in circumstances such as when a battle commander made a faulty decision, an army doctor slipped in surgery, or the government employed a defective jeep by
finding that the injury was unrelated to military service. Id. The Supreme Court found that
Brooks' suit did not implicate the soldiers' army careers. Id. In dictum, the Court noted that
an injury incident to service might compel a different result. Id. (giving some relevance to
other similar cases).
89. 340 U.S. 135 (1950).
90. Feres v. United States, 177 F.2d 535 (2d Cir. 1949), aff'd, 340 U.S. 135 (1950);
Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), rev'd sub nom. Feres v. United States, 340
U.S. 135 (1950);Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949), af'd sub nom, Feres
v. United States, 340 U.S. 135 (1950).
91. Feres v. United States, 340 U.S. 135, 138-39. The Court refused to rely on Congress, the "author of the confusion," to take appropriate action if the statute did not mean
what it clearly stated. Id. at 139.
92. Id. at 136-37.
1988]
UNITED STATES V. JOHNSON
system, which was known to be unsafe.9 3 The Second Circuit held
that the FTCA did not waive immunity for military personnel claims
based on injuries incurred incident to service. 94 The court concluded that historically soldiers were precluded from suing the government and that absent express congressional authorization, the
court would not apply the plain meaning of the statute and allow
95
servicemember suits.
In Griggs, the second case of the Feres triad, the Tenth Circuit allowed a wrongfil death claim based on medical malpractice by
Army physicians. 96 The circuit court exercised judicial restraint and
relied on the plain meaning of the- FTCA to allow it to hear the
suit. 97 The court reasoned that if the legislature did not want courts
to apply the plain meaning of the Act then Congress should modify
98
the statute.
In the final case of the Feres triad, Jefferson v. United States,99 an
Army soldier had an operation while on active duty. Eighteen
months after he was discharged from the service, the soldier had a
second operation. 0 0 During the second operation, the surgeon
found a thirty-inch-long by eighteen-inch-wide Army medical towel
inside the soldier's stomach. 10 ' The Fourth Circuit expressly
adopted the Second Circuit's position enunciated in Feres, while rejecting the Tenth Circuit's plain language approach. 102 Additionally, the court emphasized that Congress did not intend for the
courts to hear civil suits involving conduct causing injuries to military personnel "in the execution of military orders."' 0 3
The Supreme Court, applying a restrictive interpretation of the
FTCA, 10 4 barred all three claims.' 0 5 The Court noted that each in93. Id. at 137.
94. Feres, 177 F.2d at 536-37 (distinguishing Brooks v. United States, 337 U.S. 49
(1949)).
95. Id. (mentioning that even though FTCA is broad waiver of sovereign immunity, Congress did not explicitly authorize suits by military personnel).
96. Griggs v. United States, 178 F.2d 1, 3 (10th Cir. 1949), rev'd sub nom. Feres v. United
States, 340 U.S. 135 (1950).
97. Id. (rejecting approach taken by Second and Fourth Circuits).
98. Id. (discussing legislature's responsibility in limiting application of statute).
99. 178 F.2d 518 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135
(1950).
100. Jefferson v. United States, 178 F.2d 518, 518-19 (4th Cir. 1949), aff'd sub nom. Feres
v. United States, 340 U.S. 135 (1950).
101. Id.
102. Id. at 519-20.
103. Id. at 520.
104. In the past, the Court refused to restrict the broad waiver of immunity beyond the
express exceptions in 28 U.S.C. § 2680 and applied a liberal approach in interpreting the
FTCA. See, e.g., Rayonier, Inc. v. United States, 352 U.S. 315, 320 n.3 (1957) (finding purpose
of FTCA was to waive government's broad immunity and provide redress for injured citizens);
United States v. Yellow Cab Co., 340 U.S. 543, 548-50, 554-55 (1951) (favoring construing
200
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jury resulted from activities "incident to service" 106 and, thus repreFTCA liberally); United States v. Aetna Surety Co., 338 U.S. 366, 383 (1949) (stating that
courts should not narrowly construe FTCA when government has clearly consented to be
sued); Brooks v. United States, 337 U.S. 49, 51 (1949) (giving plain meaning to FTCA).
The Feres Court's approach to interpreting the FTCA represents strict construction. See
JAYSON, supra note 26, § 80, at 3-41 (finding Feres decision represents radical departure from
Court's normally liberal interpretation of FTCA). Compare Feres v. United States, 340 U.S.
135 (1950) (creating implied exception to FTCA for servicemember injuries incurred incident
to service) with Brooks v. United States, 337 U.S. 49 (1949) (applying plain meaning of FTCA
to serviceman's suits for non-incident to service injuries). This approach is particularly curious because less than three months after Feres, the Court expounded the virtues of liberally
contruing the FTCA. See Yellow Cab Co., 340 U.S. at 548-50.
105. Feres, 340 U.S. at 146.
106. Id. (distinguishing Brooks). The term "incident to service" was never defined in Feres
and it does not appear in the FTCA. See Hunt v. United States, 636 F.2d 580, 587 (D.C. Cir.
1980) (remarking that term never defined by Supreme Court and that lower courts must figure out phrase by distinquishing Feres from Brooks and United States v. Brown, 348 U.S. 110
(1954)). It is an amorphous phrase that leads to very inconsistent results. See Note, From Feres
to Stence
Should Military PersonnelHave Access to FTCA Recoveiy?, 77 MIcH. L. REv. 1099, 1099
n.6 (1977) (noting conflicting court interpretations). Compare Parker v. United States, 611
F.2d 1007 (5th Cir. 1980), and Hand v. United States, 260 F. Supp. 38 (M.D. Ga. 1966) and
Downes v. United States, 249 F. Supp. 626 (E.D.N.C. 1965) (allowing suit by servicemen tending to personal affairs at time of injury) with Mason v. United States, 568 F.2d 1135 (5th Cir.
1978) and Zoula v. United States, 217 F.2d 81 (5th Cir. 1954) (denying claims under FTCA
because soldiers were on military base). The courts repeatedly have noted the difficulty in
drawing a dividing line between Feres and Brooks. See In re Agent Orange Product Liab. Litig.,
506 F. Supp. 762, 775-76 (E.D.N.Y. 1980) (noting extreme difficulty in making injury determination even though Brooks and Feres provide significant factual guideposts for determining
whether injury occurred incident to service); Coffey v. United States, 324 F. Supp. 1087, 1088
(S.D. Cal. 1971) (finding that line between Brooks and Feres is difficult to draw and subsequent
Supreme Court decisions compound task).
In Feres, the Court distinguished Brooks, stating that Brooks' injury did not arise either out of
or in the course of military duty. Feres, 340 U.S. at 138. Brooks was on furlough, off the base,
not under compulsion of any orders, and not on a military mission. Id. at 146. These factors
became the significant factual guideposts noted by the district court in Agent Orange. See In re
Agent Orange, 506 F. Supp. at 775-76. While the factors defining "incident to service" are
known through Brooks, courts differ on how to apply them. Compare In re Agent Orange Prod-
uct Liab. Litig., 506 F. Supp. 762, 776 (E.D.N.Y. 1980) (finding that if any one factor is present, Feres bars suit and Troglia v. United States, 602 F.2d 1334, 1338 (9th Cir. 1979)
(explaining that status of plaintiff controls application of Feres) with Adams v. United States,
728 F.2d 736, 738-39 (5th Cir. 1984) (stating that court must look at totality of circumstances
and that no single factor is dispositive, but noting that duty status of injured party is most
important factor) and Parker, 611 F.2d at 1013 (stating that not all activities occurring on a
military base implicate a soldier's military service).
Courts recognize the importance of the term incident to service to servicemen's claims
brought under the FTCA, and they have gone to great lengths to find a definition. They have
had little success. See Preferred Ins. Co. v. United States, 222 F.2d 942 (9th Cir.) (looking to
cases decided under Military Personnel Claims Act, which provides compensation for property damage incurred incident to service, but not finding answer), cert. denied, 350 U.S. 837
(1955); see also LaBash v. United States Dept. of Army, 668 F.2d 1153, 1157 (10th Cir.) (stating that definition for term "incident to service" is identical under Military Personnel Claims
Act and FTCA), cert. denied, 456 U.S. 1007 (1982).
While courts continue to grapple with this undefined term, it remains the key determination
in ascertaining whether an injured servicemember can bring suit under the FTCA. See Johnson v. United States, 107 S.Ct. 2063, 2067-69 (1987) (analyzing Feres and progeny). Compare
Feres v. United States, 340 U.S. 135 (1950) (barring suit because injury incurred incident to
service) with Brooks v. United States, 337 U.S. 49 (1949) (allowing FTCA claim for serviceman's injury not incurred incident to service). For an excellent presentation of the incident to
service problem see JAYsoN, supra note 26, § 155.02, at 5-67 to 5-86.
1988]
UNITED STATES V. JOHNSON
sented the "wholly different case" reserved from the Brooks
decision.1 0 7 The Court's holding, known as the Feres doctrine, bars
all military personnel claims arising out of injuries incurred incident
to service and represents the only judicially-created exception to the
08
FTCA.
The Feres Court listed four reasons why the plaintiff servicemembers failed to state a cognizable cause of action under the
FTCA. 10 9 First, the Court looked to the language of the Act and
determined that it reflected a congressional intent to waive immunity only in situations when an analogous private liability existed. 10
The Court could not find a situation in the private sector that would
impose analogous liability."' Furthermore, the Court noted that
the FTCA was designed to waive immunity from recognized causes
of action and not to impose novel and unprecedented liability on
the government.112
Second, because the FTCA applies state law, the Court considered it irrational to subject military personnel to a tort recovery system based on geographic considerations over which the soldiers
have no control." 3 Since servicemembers are subject to relocation
at the government's order and have no choice about the location of
their service, the Court reasoned that Congress did not intend to
107. Feres, 340 U.S. at 138. Unlike Brooks where the claimant was injured off the base and
while on furlough, the three claimants in Feres sustained injuries while on military property
and were not on furlough. Compare Brooks v. United States, 337 U.S. 49 (1949) with Feres v.
United States, 340 U.S. 135 (1950). See alsosupra note 106 and accompanying text (discussing
"incident to service").
108. Feres, 340 U.S. at 139.
109. Id. at 141-45 (explaining why serviceman's claims for injuries incurred incident to
service are barred). See infra notes 110-29 and accompanying text (examining rationale for
Feres decision).
110. Feres, 340 U.S. at 141 (requiring plaintiff to demonstrate that government activity has
counterpart in private sector). The Court based this decision on 28 U.S.C. § 2674 (1982)
which states that "It]he United States shall be liable .... in the same manner and to the same
extent as a private person under like circumstances ....
Id.
11. Feres, 340 U.S. at 141. The Court did not find parallel private liability for two reasons. First, it found no common law precedent authorizing a soldier to sue his superiors or
the Government for negligence. Id. (stating that relationship between states and their militia
closely analagous to Feres situation and no state allowed its servicemen to maintain tort
claims). The Court did find, however, some authority for allowing recovery for a superior's
intentional torts. Id. at 141 n.10; see supra notes 25, 27-28 and accompanying text (discussing
Dinsman which was cited in Feres). Second, the Court noted that no private individual had the
power to conscript or manage an army. Feres, 340 U.S. at 141. The Court refused to acknowledge any analogous situations that did not take into account the status of both parties involved. Id. at 142 (rejecting plaintiffs' comparisons of landlord/tenant relationship and
civilian doctor/patient relationship to situations involved in Feres).
112. Feres, 340 U.S. at 142 (refusing to believe Congress created new cause of action
based on state law for service-connected injuries).
113. Id. at 143 (noting that FTCA based recovery on law of place where act or omission
occurred).
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[Vol. 38:185
subject military suits to the conflicts in state laws." 14 In addition, the
Court believed that service personnel suing under the FTCA would
encounter unique time, expense, and procurement of witnesses
problems in pursuing litigation." 5 The Court concluded that the
FTCA provision requiring the application of state law consequently
6
would work a peculiar hardship on military claimants.'
The Court's third rationale was closely related to the second. The
Feres Court found the "distinctively federal" relationship between
the government and its military members barred recovery by servicemembers for injuries incurred in service." 7 The Court noted
that this relationship, derived from federal sources, was traditionally
governed exclusively by federal authority." 8 The FTCA, on the
other hand, applied state law to tort claims against the government." 19 The Court concluded that because Congress had never
subjected this distinctively federal relationship between the government and its servicemembers to state law, Congress did not intend
the FTCA to apply to military personnel injuries incurred incident
to service.1 20 The Court, therefore, tried but failed to find a federal
law that recognized the type of recovery the plaintiffs sought. 12 1
Finally, the Court construed the Act in light of other federal laws
that provided remedies to injured parties.' 2 2 The Court reasoned
that Congress endeavored to create a comprehensive and equitable
compensation system for those injured by government employee
114. Id. at 142 (noting that state tort laws fluctuate in doctrines of recovery, defenses, and
limitations of liability). The Court reasoned that such a system would be unfair to military
personnel. Id. at 142-43.
115. Id, at 145 (finding that serviceman who transferred out ofjurisdiction where injury
occurred would face problems trying to conduct long distance litigation).
116. Id. at 142-45.
117. Id. at 143 (quoting United States v. Standard Oil Co., 332 U.S. 301, 305 (1947)). In
StandardOil, an oil company's negligence caused a soldier's injury. United States v. Standard
Oil Co., 332 U.S. 301, 302 (1947). The soldier received free medical treatment from the
government as authorized by federal law. Id. The government wanted subrogation from the
oil company for treatment provided to the soldier, but the Court denied the government's
request. Id. at 305 (finding that care given to soldier because of special federal relationship
between soldier and government and federal law did not authorize subrogation).
118. United States v. Feres, 340 U.S. 135, 143-44 (1950) (quoting StandardOil, 332 U.S. at
305-06 (explaining that federal authority originates in Constitution and federal statutes and is
not dependent upon state laws)).
119. See supra note 113 and accompanying text (noting that FTCA applies state law to tort
suits).
120. Feres, 340 U.S. at 143 (noting that varying state tort law would leave servicemen at
mercy of geography).
121. Id. at 144. The Court noted that the Military Personnel Claims Act, a federal law,
allowed servicemen to recover for injuries incurred not incident to service; however, the
FTCA repealed this law. Id.; see also 28 U.S.C. § 2672 (1982) (repealing Military Personnel
Claims Act). The Court apparently failed to consider the FTCA, the federal law under which
the claimants sought redress. See supra notes 50-75 and accompanying text (finding that language, purpose, and history of Act support allowing servicemember suits).
122. United States v. Feres, 340 U.S. 135, 139-40 (1950).
1988]
UNITED STATES V. JOHNSON
negligence and that the FTCA represented a part of that system.1 23
The Court noted the existence of an alternative compensation
scheme under the Veterans' Benefits Act124 that automatically provided compensation for injuries or death. 12 5 Because Congress had
already provided servicemembers with a statutory compensation
system and did not provide for the offsetting of these benefits under
the FTCA, the Court concluded that Congress did not intend mili26
tary personnel to be covered by the Act.'
Based on these rationales, the Court concluded that Congress did
not intend to depart from the government's longstanding policy of
denying servicemember tort claims for service-related injuries or
death, particularly when recovery was based on state law.' 2 7 The
Court reasoned that Congress would have expressly stated in the
Act that servicemember claims for service-related injuries were authorized if Congress had intended such a radical departure from established law. 128 The Court acknowledged, however, that its
interpretation could be incorrect and, if it was, Congress could
amend the statute to expressly include servicemember suits and
29
thus remedy the Court's misinterpretation.'
123. Id. (noting that impetus for legislation was postwar federal expansion and "remediless wrongs" perpetuated by federal agents indicated by relief increasingly sought through
private bills in Congress).
124. See Veterans' Benefits Act, Pub. L. No. 85-857, § 1, 72 Stat. 1105 (codified as
amended at 38 U.S.C. §§ 101-5228 (1982 & Supp. III 1985). The Veterans' Benefits Act
provides various types of compensation to military personnel injured or killed in the line of
duty. See, e.g., Veteran's Benefits Act, 38 U.S.C. 99 310-314 (providing disability benefits in
wartime); §§ 331-335 (establishing disability benefits in peacetime); §§ 410-411 (giving dependents compensation when servicemember killed); § 610 (providing hospitalization and
nursing home care); §§ 765-767 (establishing Servicemen's Group Life Insurance program).
125. Feres v. United States, 340 U.S. 135, 144 (1950) (emphasizing that servicemembers
received compensation without having to undergo burdens of litigation). The Court favorably compared the military compensation system to workmen's compensation statutes. Id. at
145. Unlike recovery under worker compensation statutes, recovery under the Veterans' Benefits Act is not automatic. See, e.g., 38 U.S.C. § 505(a) (1982) (denying compensation during
period when individual is imprisoned); 38 C.F.R. § 3.12(c) (1987) (denying benefits to servicemember discharged for failing to wear uniform or comply with lawful order); § 3.12(d)
(refusing compensation to servicemember discharged for mutiny, spying, committing offense
involving moral turpitude, or committing homosexual acts affecting performance of duty); see
also Note, From Feres to Stence" Should MilitaryPersonnelHave Access to FTCA Recovery?, 77 MicH.
L. REv. 1099, 1106-07 (1979) (comparing workers' compensation to veterans' compensation)
[hereinafter Note, From Feres to Stencel]. Unlike workers' compensation, veterans' compensation is not certain enough to justify depriving military personnel the option of a tort claim. See
Note, From Feres to Stencel, supra, at 1106-07.
126. Feres, 340 U.S. at 144. The Court's conclusion conflicts with Brooks. There, the
Court found that the Act did not preclude servicemen suits simply because they received compensation under.the Veterans' Benefits Act. See supra note 86 and accompanying text (discussing Brooks Court's rejection of government's argument that servicemembers should be denied
FTCA protection because they received alternative compensation from government).
127. Feres, 340 U.S. at 146.
128. Id.
129. Id. at 138. During the past thirty-seven years, while Congress has introduced many
bills affecting the Feres doctrine, not one has been enacted. See, e.g., H.R. 1341, 100th Cong.,
204
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[Vol. 38:185
D. Post-FeresRationales
1.
New rationale developed
Four years after Feres, the Supreme Court in Brown v. United
States13 0 decided another military-related FTCA case. In Brown,
doctors at a Veterans Administration hospital performed an operation on the knee of an honorably discharged soldier. ' 3 ' The soldier
had originally injured his knee while on active duty. The operation,
however, occurred seven years after his discharge.' 32 During the
operation, a doctor negligently used a defective tourniquet and
caused additional injuries: permanent nerve damage to the ex-ser33
viceman's leg.1
The Brown decision presented another example of what constituted an incident-to-service injury, but most importantly, it also provided a new rationale for the Feres doctrine.1 4 In allowing recovery
under the FTCA, the Court held that because Brown was no longer
on active duty nor subject to military discipline, maintenance of the
suit would not wreak havoc on military authority and discipline. 3 5
2d Sess. (1987) (proposing to allow suits for radiation exposure injuries); H.R. 1054, 100th
Cong., 1st Sess. (1987) (allowing negligence suits for noncombat injuries); H.R. 1161, 99th
Cong., 1st Sess. (1985) (authorizing medical malpractice suits); H.R. 1942, 98th Cong., 1st
Sess. (1983) (allowing medical malpractice claims). In light of this extensive period of congressional inactivity, it is unlikely that Congress will ever enact legislation eliminating the
Supreme Court-made exception to the FTCA. See Rhodes, The Feres DoctrineAfter Twenty-Five
Years, 18 A.F.L. REv. 24, 40 (1976) (noting that congressional inactivity weakens argument
that Feres is improper interpretation of FTCA). Many courts have interpreted Congress' silence as an affirmation of Feres. See, e.g., Lewis v. United States, 663 F.2d 889, 891 (9th Cir.
1981) (finding that Congress' failure to amend FTCA to clarify whether military personnel
can sue for service-connected injuries is affirmation of Feres Court's interpretation); Calhoun
v. United States, 475 F. Supp. 1, 3 n.2 (S.D. Cal. 1977) (finding congressional inaction evidence of Congress' approval of Supreme Court's interpretation, particularly in light of
Court's invitation to amend Act if interpretation was improper), aft'd, 604 F.2d 647 (9th Cir.
1979), cert. denied, 444 U.S. 1978 (1980); Glorioso v. United States, 331 F. Supp. 1, 3-4 (N.D.
Miss. 1971) (finding significant Congress' failure to reverse Feres). This is a faulty conclusion,
however, because there are a number of reasons to explain why Congress acts (or does not
act) on a particular matter. See Girouard v. United States, 328 U.S. 61, 69 (1946) (stating that
it is treacherous to find in congressional silence alone a controlling rule of law); Helvering v.
Haddock, 309 U.S. 106, 119-22 (1939) (stating that interpreting legislative inactivity as implicit approval of status quo is faulty assumption).
130. 348 U.S. 110 (1954).
131. Brown v. United States, 348 U.S. 110, 111 (1954).
132. Id.
133. Id.
134. See infra notes 148-61 and accompanying text (discussing significance of new rationale developed in Brown).
135. Brown, 348 U.S. at 112. In distinguishing Brooks and Feres, the Court stated that:
[Tihe peculiar and special relationship of the soldier to his superiors, the effect 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, led the Court to read the Act
as excluding claims of that character.
Id. (quoted in Feres, 340 U.S. at 141-43) (holding that in Brooks, suit did not affect military
1988]
UNITED STATES V. JOHNSON
205
The Court also emphasized that Feres did not overrule Brooks. l3 6
The difference between the two suits was the potentially deleterious
impact a suit like Feres could have on military discipline and decision
making. 13 7 Additionally, the Court refused to hold that receipt of
disability payments under the Veterans' Benefits Act provided an
13 8
exclusive remedy that precluded suit under the FTCA.
discipline while in Feres military decisions were directly implicated). The Court indicated that
the Brown facts more closely resembled the facts of Brooks than Feres, thereby giving a second
example of what did not constitute an incident-to-service injury. Id.
The Court was concerned that by allowing servicemember suits military discipline would be
adversely affected. The Court, however, did not fully explain what constituted "military discipline." Generally courts place three types of activities under the umbrella of military discipline: unique, sensitive military matters dealing with the innerworking of the military, see
United States v. Shearer, 473 U.S. 52, 59 (1985); situations when soldiers would question the
decisions of their superiors thereby affecting their willingness to follow orders, see, e.g., Chappell v. Wallace, 462 U.S. 296, 299-300 (1983);Johnson v. United States, 704 F.2d 1431, 1439
(9th Cir. 1983); Jaffee v. United States, 663 F.2d 1226, 1232 (3d Cir. 1981), cert. denied, 456
U.S. 972 (1982); Hunt v. United States, 636 F.2d 580, 599 (D.C. Cir. 1980); critical military
operations, such as battlefield situations in which decision makers might not be willing to act
with the requisite speed and force because they will be second guessed, see Stencel Aero Eng'g
Corp. v. United States, 431 U.S. 666, 673 (1977);Jaffee, 663 F.2d at 1232.
Unfortunately, the term is so vague that almost any activity involving a military member can
fit within the term. SeeJohnson v. United States, 107 S.Ct. 2063, 2069 (1987). Additionally,
the United States does not expect its servicemembers to blindly follow orders from their
superiors. See United States v. Calley, 22 C.M.A. 534, 541-44, 48 C.M.R. 19, 26-29 (1973)
(expressing dissatisfaction with argument that Vietnam atrocities excusable because servicemen following orders). Moreover, servicemembers frequently question in court the actions of
their superiors in nontort contexts. See, e.g., Brown v. Glines, 444 U.S. 348 (1980) (involving
first amendment challenge); Parker v. Levy, 417 U.S. 733 (1974) (questioning court-martial
for failing to obey order); Relford v. Commandant, 401 U.S. 355 (1971) (attacking extent of
court-martial jurisdiction); Dronenberg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984) (challenging
military regulation proscribing homosexual activity); Goldman v. Secretary of Defense, 734
F.2d 1531 (D.C. Cir. 1984) (involving first amendment challenge to military regulation
prohibiting wearing of yarmulke); Carlson v. Schlesinger, 511 F.2d 1327 (D.C. Cir. 1975).
The .only type of suits that could truly affect military discipline and decision making are those
involving combat decisions, and Congress has already addressed this problem area. See 28
U.S.C. § 26800) (1982) (excluding from FTCA coverage suits arising out of combatant
activities).
136. Id. at 112.
137. Id.
138. Id. at 113 (supporting Court's earlier decision in Brooks that VA benefits were not
exclusive remedy for non-incident to service injuries).
The Brown decision is the model for veteran claims alleging post-discharge negligence. See,
e.g., Molsberger v. United States, 757 F.2d 1016, 1019-20 (9th Cir. 1985) (noting that government liable for failure to warn of radiation exposure after discharge, though not liable if failure occurred prior to discharge); Broudy v. United States, 722 F.2d 566, 569-70 (9th Cir.
1983) (stating Feres not bar to service-related injury suffered by serviceman as result of independent post-service negligence); Seveney v. United States, 550 F. Supp. 653, 660-61
(D.R.I. 1982) (permitting servicemen survivors to amend complaint to allege an actionable
claim for post-discharge failure to warn); Thornwell v. United States, 471 F. Supp. 344, 34753 (D.D.C. 1979) (finding government liable for not treating serviceman after discharge when
government knew ex-soldier received experimental LSD, but government not liable for injecting soldier with drugs because tort injury occurred incident to service). This line of cases
represents a method many servicemembers have attempted in trying to avoid the Feres doctrine. By claiming that the injury arose after discharge from the service, these claimants argue
that their suits more closely fit within the framework of Brooks than Feres. However, they are
not always successful, particularly when it is not clear when the tortious act occurred. See, e.g.,
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 38:185
206
2.
Original Feres rationales lose significance while new military discipline
rationalefound controlling
After Brown, the Supreme Court did not hear another military service-related FTCA claim for twenty-three years. The Court did rule,
however, on other FTCA claims and commented in dicta on the
Feres doctrine. 139 These cases seemed to indicate that the parallel
private liability rationale relied on in Feres was no longer persuasive
and perhaps was a misrepresentation of the FTCA. 140 The Court
reasoned that the government performed many services that private
persons did not or could not engage in, and denying liability defeated the purpose of the FTCA. 14 1 The Court held that aggrieved
parties need not demonstrate that private parallel liability existed to
bring an FTCA suit. 14 2 The Court, in fact, clearly explained that the
FTCA exposed the government to novel and unprecedented forms
43
of liability.1
Lombard v. United States, 690 F.2d 215, 220-23 (D.C. Cir.) (barring post-discharge failure to
warn case considering it continuous tort because government aware of duty to warn while
member on active duty), cert. denied, 462 U.S. 1118 (1982); Kelly v. United States, 512 F. Supp.
356 (E.D. Pa. 1981) (stating that duty to warn arose at time of radiation exposure and not
after discharge from service); Schnurman v. United States, 490 F. Supp. 429, 436-38 (E.D. Va.
1980) (denying recovery because claim for failure to treat injuries based on incident to service
injury).
139. During this period, the Court decided six cases that, in dicta, addressed the Feres
doctrine. See, e.g., Martinez v. Shrook, 430 U.S. 920, 921-22 (1977) (White, J., dissenting)
(stating that petitioner's inactive status distinguished this case from Feres); United States v.
Demko, 385 U.S. 149, 152-53 (1966) (holding that federal prisoners who receive compensation under 18 U.S.C. § 4126 are barred from bringing FTCA suit); United States v. Muniz,
374 U.S. 150, 159-63 (1963) (refusing to apply to federal prisoners rationales enunciated in
Feres and noting that military discipline rationale best explains court-created exclusion of military claims); Richards v. United States, 369 U.S. 1, 6-10 (1962) (adopting plain meaning of 28
U.S.C. § 1346(b) in determining what state law applies to FTCA claim); Rayonier, Inc. v.
United States, 352 U.S. 315, 319-20 (1957) (rejecting Feres rationale that FTCA not intended
to subject United States to novel and unprecedented liability and holding that there is no
justification for reading exception into the Act); Indian Towing Co. v. United States, 350 U.S.
61, 69 (1955) (rejecting Feres analogous private liability rationale and finding government
liable for negligently maintaining lighthouse, a unique governmental activity).
140. See Rayonier, Inc. v. United States, 352 U.S. 315, 319-20 (1957) (stating that government misinterpreted Act in arguing that suit should be dismissed because there was no parallel private liability). In Rayonier, the plaintiffs alleged that government firefighters negligently
allowed a forest fire to burn down their building. Id. at 315-16. The Rayonier Court noted
that there was no need to read exceptions into the FTCA and limit broad waiver of sovereign
immunity. Id. at 319; see also Indian Towing Co. v. United States, 350 U.S. 61, 64-65 (1955)
(urging liberal construction of Act and concluding that claimant need not demonstrate parallel private liability to bring FTCA claim). In Indian Towing Co., the Court held the government
liable to private parties who were injured when their tugboat ran aground because the Coast
Guard negligendy maintained a lighthouse. Id. at 62. The plaintiffs received compensation
for their loss even though no private individuals provided similar services. Id. at 64-65 (noting that only Coast Guard provided maritime navigational services to public).
141. See Rayonier, 352 U.S. at 319-20 (finding that FTCA purpose was to waive all-encompassing sovereign immunity).
142.
Indian Towing Co., 350 U.S. at 64-65.
143. United States v. Muniz, 374 U.S. 150, 159-60 (1963) (citing Indian Towing Co. and
Rayonier); see supra note 140 and accompanying text (examining Court's decisions in Indian
19881
UNITED STATES V. JOHNSON
The second Feres rationale regarding the unfairness of subjecting
servicemembers to non-uniform state laws was also refuted in a subsequent decision. 14 4 In United States v. Muniz,' 4 5 the Court pointed
out that the outright denial of tort recovery was far more prejudicial
than the application of diverse state laws. 14 6 Additionally, the Court
emphasized the importance of the post-Feres rationale regarding the
potential disruption suits could have on military discipline and decision making. 14 7 The Muniz Court, in distinguishing Feres, explained
that the unique relationship between a soldier and the government
and the military discipline rationales best explained why Feres pre1 48
cluded servicemembers from bringing FTCA actions.
These later decisions prompted lower courts to conclude that the
Feres doctrine was eroding.' 4 9 In 1977, however, the Supreme
Court in Stencel Aero EngineeringCorp. v. United States 150 strongly reaffirmed the holding and rationale of Feres. The Stencel Court held that
Feres barred an indemnity action against the United States when a
servicemember was injured incident to service. 15 ' The Court held
that the same issues were raised whether a servicemember or a third
party brought the suit.' 5
2
The Court based its holding on a mod-
Towing Co. and Rayonier). Since Rayonier, the courts have imposed liability on the government
for a variety of uniquely governmental activities. See, e.g., Downs v. United States, 522 F.2d
990, 1008 (6th Cir. 1975) (finding FBI agent negligent in attempting to capture hijacker);
Ingham v. Eastern Airlines, 373 F.2d 227, 233-36 (2d Cir. 1967) (imposing liability for negligent operation of munidpal airport control towers); United States v. Sandra & Dennis Fishing
Corp., 372 F.2d 189, 198-99 (1st Cir.) (holding Coast Guard liable for negligently rescuing a
fishing vessel), cert. denied, 389 U.S. 836 (1967).
144. Muniz, 374 U.S. at 162 (rejecting government's Feres-based argument that FTCA did
not apply to federal prisoners).
145. 374 U.S. 150 (1963).
146. Muniz, 374 U.S. at 162 (noting that federal prisoner, who has no choice in where he
is imprisoned, prefers application of non-uniform state laws to denial of claim).
147. Id. at 162-63.
148. Id.
149. See, e.g., Hale v. United States, 416 F.2d 355, 358 (6th Cir. 1969) (finding that Feres
rationales eroded and sole remaining rationale was concern for military discipline); United
States v. Lee, 400 F.2d 558, 564-65 (9th Cir. 1968) (reversing lower court's award for servicemember's compensation under FTCA, but conceding that subsequent Supreme Court
holdings had eroded Feres), cert. denied, 393 U.S. 1053 (1969); Schwager v. United States, 279
F. Supp. 262, 263 (E.D. Pa. 1968) (refusing to blindly apply Feres because it is frequently
questioned and its rationales eroded); see also Jacoby, The Feres Doctrine, 24 HAsT. LJ. 1281,
1286-87 (1973) (discussing erosion of Feres rationales).
150. 431 U.S. 666 (1977). Stencel involved a third party claim for indemnity from the
United States. Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 667-68 (1977). Originally, a National Guard officer, who was permanently injured when the ejection system on his
fighter plane malfunctioned during an emergency, filed negligence suits against the United
States and the system manufacturer. Id. at 668. The manufacturer cross-claimed against the
government, alleging the system was built to government specifications and with government
parts. The lower court, relying on Feres, granted the government's motion for summary judgment against the National Guardsman and dismissed the manufacturer's cross-claim. Id. The
manufacturer appealed. Id. at 669.
151. Id. at 674.
152. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 38:185
ernized version of the Feres doctrine,1 53 noting the distinctively federal relationship between the government and its soldiers, 5 4 the
existence of an alternative compensation scheme for servicemembers, 15 5 and the potentially deleterious effect such suits
could have on military discipline. 156 After Stencel, it seemed clear
that the Court had not abandoned its Feres doctrine rationales, with
1 57
the exception of the parallel private liability requirement.
In 1983 and 1985, the Supreme Court once again confused the
lower courts and many plaintiffs when it rendered its decisions in
Chappell v. Wallace 158 and United States v. Shearer. 159 Both cases em153. In relying on only two of the original rationales enunciated in Feres and the military
discipline rationale of Brown, the Court created a new justification for the Feres doctrine. Id. at
671-73 (basing decision on distinctively federal relationship between soldier and government,
availability of alternative compensation, and need to not disrupt military discipline). The
Court glossed over the parallel private liability rationale, referring to it as a "surface anomaly." Id. at 670-71. Additionally, the Court combined the lack of uniformity in state law rationale with the distinctively federal relationship rationale. Id. at 672. The Stencel Court
provided the Feres rationales with another twist when it changed its explanation for the lack of
uniformity rationale. In Feres, the Court reasoned that the lack of uniform state laws unfairly
burdened the injured servicemember, but in Stencel, the Court stated that the lack of uniformity unfairly burdened the government. Compare Feres v. United States, 340 U.S. 135, 143
(1950) with Stencel, 431 U.S. at 672.
154. Stencel, 431 U.S. at 672 (noting special relationship between government and its ordinance suppliers and unfairness of subjecting government to diverse state laws). Justice Marshall,joined by Justice Brennan dissenting, pointed out that other federal agencies such as the
Bureau of Census and the Immigration and Naturalization Service perform "unique, nationwide functions"just like the military, yet these agencies are subject to diverse state laws. Id. at
675 (Marshall, J., dissenting) (noting that it is illogical to immunize only military from diverse
local law).
155. Id. at 673 (finding that Veterans' Benefits Act provides adequate remedy for servicemembers and limits government's liability for service-connected injuries). Justice Marshall noted that the majority's rationale that veterans' benefits provided an upper limit on
government liability is substantiated in neither the FTCA nor the Veterans' Benefits Act. Id.
at 675-76.
156. Id. at 673 (finding discipline adversely affected when courts second-guess military
decisions and military members testify against one another). In dissent, Justice Marshall emphasized that while Feres was clearly based on this rationale, he did not believe it was applicable in a third-party claim. Id. at 676 (Marshall, J., dissenting). He further questioned, by way
of a hypothetical, whether a potential threat to military discipline warranted barring an FTCA
claim. Id. at 676-77.
Had the same malfunction.., here also caused that system to plunge into a civilian's
house, the injured civilian would unquestionably have a cause of action under the
Tort Claims Act against the Government. He might also sue petitioner, which might,
as it has done here, cross-claim against the Government. In that hypothetical case, as
well as in the case before us, there would be the same chance that the trial would
involve second-guessing military orders, and would . . . require members of the
Armed Services to testify in court as to each other's decisions and actions (citation
omitted). Yet there would be no basis, in Feres or in the Tort Claims Act, for concluding that the suit is barred ....
Id.
157. See generally Seidelson, The Feres Exception to the Federal Tort Claims Act: New Insight Into
an Old Problem, 11 HOFSTRA L. REV. 629, 639 (1983); Comment, Expansion of the Feres Doctrine,
32 EMORY LJ. 237, 248 (1983).
158. 462 U.S. 296 (1983). In Chappell, Navy enlisted personnel brought a Bivens action for
constitutional violations. Chappell v. Wallace, 462 U.S. 296, 297-98 (1983) (alleging racial
1988]
UNITED STATES
V. JOHNSON
209
phasized that the post-Feres military discipline rationale constituted
the sole basis for the Feres doctrine. 160 In fact, the Court stated in
Shearer that the alternative compensation and need for uniformity
rationales of Feres were no longer controlling. 161 Additionally, the
Shearer Court held that the location of the tortious conduct was not
nearly as important an issue as whether courts would have to meddle in military affairs' 62 and whether the suit could negatively affect
military discipline.' 63 The Court noted that the Feres doctrine could
not be "reduced to a few bright-line rules," but rather each case
must be evaluated "in light of the statute as it has been construed in
Feres and subsequent cases."' 64
These decisions led some lower courts to infer that the military
discipline rationale was the only important factor in analyzing the
applicability of the Feres doctrine.
65
In Johnson v. United States,166 the
discrimination). Bivens claims are brought against federal officials who violate an individual's
constitutional rights. Id. at 298 (noting that Bivens remedies are judicially created). In defining the Bivens doctrine, the Court explained that a remedy was not available when "special
factors counselling hesitation" existed, but the Court failed to delineate the special factors.
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396 (1971). In Chappell, the
Court pointed out that the "special factors" referred to in Bivens were the same as the Feres
rationales that bar servicemen's tort suits. Chappell, 462 U.S. at 298-99. The Court, therefore,
denied the claim because it implicated the special relationship between soldiers and their
superiors and affected military discipline. Id. at 299-300 (emphasizing that military discipline
rationale best explained Feres doctrine); see also United States v. Muniz, 374 U.S. 150, 162
(1963); United States v. Brown, 348 U.S. 110, 112 (1954).
159. 473 U.S. 52 (1985). In Shearer, a serviceman kidnapped and murdered an off-duty
soldier off the military base. The decedent's mother alleged that the government knew the
murderer was dangerous, failed to control him, and failed to wara the victim of the dangers.
United States v. Shearer, 473 U.S. 52, 54 (1985). The Third Circuit held for the plaintiff,
finding that the victim was off duty and not engaged in military activities at the time of the
murder; therefore, Feres was not applicable. Shearer v. United States, 723 F.2d 1102, 1106
(3d Cir. 1983). The Supreme Court reversed, holding that the claim questioned military decisions and potentially could have a disasterous effect on discipline. Shearer, 473 U.S. at 58.
The Court distinguished the case from Brooks where the alleged negligence did not require
military officials to question military decisions and actions. Id. (quoting Stencel Aero Eng'g
Corp. v.United States, 431 U.S. 666, 673 (1977)). Like the claims in Feres and Stencel, the
plaintiff in Shearer was barred from bringing suit under the FTCA because, if permitted, the
judiciary would be involved in sensitive military affairs at the expense of military discipline
and effectiveness. Id. at 59.
160. Shearer, 473 U.S. at 57-58; Chappell v. Wallace, 462 U.S. 296, 299-301 (1983).
161. Shearer, 473 U.S. at 58 n.4 (holding that other factors mentioned in Feres; problem of
applying state law to a uniquely federal relationship and adequacy of veterans' benefits in lieu
of tort claims, were present but not controlling).
162. Id. at 57 (citing Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673
(1977)).
163. Id. (citing Chappell, 462 U.S. at 300, 304).
164. Id.
165. See, e.g., Pierce v. United States, 813 F.2d 349, 352, 354 (1lth Cir.) (finding serviceman's FTCA claim did not threaten military discipline when collision occurred on public highway during soldier's lunch break), cert. denied, 108 S.Ct. 160 (1987); Atkinson v. United States,
804 F.2d 561, 564-65 (9th Cir. 1986) (suing Army physician for improper prenatal medical
treatment did not require judiciary to second-guess military decisions), cert. denied, 108 S.Ct.
1288 (1988); Brown v. United States, 739 F.2d 362, 368-69 (8th Cir. 1984) (denying suit
alleging superior officers failed to prevent mock lynching of black serviceman because claim
210
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Eleventh Circuit conducted such an analysis and concluded that
Feres did not bar a widow's FTCA negligence suit, even though her
husband's death occurred incident to service. 167 The court of appeals, relying on Shearer, held that because the tortfeasor was a civilian employee of a civilian agency of the federal government, the suit
did not affect military discipline or call into question military decisions.1 68 This holding conflicted with other circuit court decisions,1 69 and the Supreme Court granted certiorari to resolve the
dispute and clarify the Feres doctrine.170
II.
A.
United States v. Johnson
Facts and Lower Court Decision
Lieutenant Commander Horton Winfield Johnson, a Coast Guard
helicopter pilot, died when his helicopter crashed into the side of a
mountain on the Hawaiian island of Molokai.171 Prior to the accident, Johnson and his military crew were on a search and rescue
mission looking for a reported lost vessel.172 Due to decreased visibility, Johnson, while over open ocean requested radar assistance
from the Federal Aviation Administration (FAA), a civilian agency of
implicated military decisions), cert. denied, 473 U.S. 904 (1985);Johnson v. United States, 704
F.2d 1431, 1439-41 (9th Cir. 1983) (holding that military interests not jeopardized when
quadraplegic soldier alleged that Air Force's failure to close its club as per state and military
regulations proximately caused his injury); Scales v. United States, 685 F.2d 970, 973 (5th Cir.
1982) (barring infant's suit alleging that government negligently injected his mother with rubella vaccination while she was pregnant thus causing his congenital injuries), cert. denied, 460
U.S. 1082 (1983); Hunt v. United States, 636 F.2d 580, 599 (D.C. Cir. 1980) (finding that
military discipline not affected when active duty servicemen seek recovery for improper swine
flu innoculations).
166. 749 F.2d 1530 (11th Cir.), vacatedfor reh'g en banc, 760 F.2d 244 (11th Cir. 1985),
reinstated, 779 F.2d 1492 (11th Cir. 1986), rev'd, 107 S.Ct. 2063 (1987).
167. Johnson v. United States, 749 F.2d 1530, 1539 (11th Cir.) (finding case dissimilar to
Feres because civilian air traffic controller, an employee of civilian federal agency, caused injury), vacatedforreh'genbanc, 760 F.2d 244 (11th Cir. 1985), reinstated, 779 F.2d 1492 (1Ith Cir.
1986), rev'd, 107 S.Ct. 2063 (1987).
168. Johnson v. United States, 779 F.2d 1492, 1494 (1 th Cir. 1986) (relying on Shearer's
emphasis that there are no bright lines and that each case must be evaluated to determine if
suit questions military decisions or implicates discipline), rev'd, 107 S.Ct. 2063 (1987).
169. See Uptegrove v. United States, 600 F.2d 1248, 1250-51 (9th Cir. 1979) (dismissing
claim identical to Johnson where civilian air traffic controller's negligence caused aircraft
crash), cert. denied, 444 U.S. 1044 (1980). The Eleventh Circuit in its decision noted that "a
case strikingly similiar to this one, has reached the opposite conclusion," but it concluded that
Uptegrove was wrongly decided. Johnson, 749 F.2d at 1539 (finding that Ninth Circuit had improperly employed a straight status of victim analysis in determination of Feres' applicability
and noting that decision made prior to Shearer).
170. United States v.Johnson, 107 S.Ct. 2063, 2066 (1987).
171. Id. at 2064-65. The Coast Guard is a military service and branch of the United
States' armed forces. See 14 U.S.C. § 1 (1982). The Coast Guard operates under the auspices
of the Department of Transportation, except during time of war. Id. at §§ 1,3.
172. Johnson, 107 S.Ct. at 2064. The Coast Guard is required to maintain and operate
rescue facilities for the promotion of maritime safety. See 14 U.S.C. § 2 (1982).
1988]
UNITED STATES V. JOHNSON
the Federal Government.17 3 Civilian air traffic controllers assumed
positive radar control and while directing Johnson back to the airport after the mission was aborted, negligently vectored his helicop1 74
ter into the mountain.
Mrs. Johnson sued the United States under the FTCA, alleging
that a civilian federal employee's negligence caused her husband's
death. 175 While the district court dismissed the claim, relying on the
176
Feres doctrine, the Eleventh Circuit Court of Appeals reversed.
The Eleventh Circuit found that the suit did not fall within the typii 77
cal Feres fact pattern, when one military member injured another.
Because the tortfeasor in Johnson was a civilian employee of a civilian
agency, the applicability of Feres turned not on whether the injury
arose incident to service but whether the suit affected military discipline, the sole rationale for the Feres doctrine. 7 8 The appellate
court found that the claim did not question military decisions or
threaten military discipline.179 The court held, therefore, that Feres
did not bar Mrs. Johnson's FTCA tort claim.18 0 The Eleventh Circuit granted the government's motion for a rehearing en banc and
withdrew its decision pending the outcome of the rehearing.' 8 ' On
rehearing, the court determined that the recent Supreme Court decision in Shearer reinforced the panel opinion, and the court rein82
stated its decision.'
B.
1.
Supreme Court Decision
Majority strengthens Feres and its rationale
The Supreme Court, in a 5-4 decision, reversed the Eleventh Cir-
173. Johnson, 107 S. Ct. at 2064-65. In requesting assistance from the FAA, Johnson was
complying with federal regulations applicable to all aviators, which require pilots to utilize
FAA assistance in poor visibility. See 14 C.F.R. § 91.105 (1988). Military pilots must comply
with the regulations except for "military emergency or urgent military necessity, when appropriate military authority so determines, and when prior notice thereof is given to the Secretary
of Transportation." See 49 U.S.C. § 1348(0 (1982). The FAA is a civilian federal agency
operating under the Department of Transportation. See 49 U.S.C. § 1341(a) (1982).
174. Johnson, 107 S. Ct. at 2065. All crew members were killed. Id. Positive radar control
means that the FAA controller plotted the course for the helicopter pilot to follow and actively guided the aircraft through the inclement weather.
175. Id.
176. Johnson v. United States, 749 F.2d 1530 (11th Cir.), vacatedfor reh'gen banc, 760 F.2d
244 (11th Cir. 1985), reinstated, 779 F.2d 1492 (11 th Cir. 1986), rev'd, 107 S. Ct. 2063 (1987).
177. Johnson, 749 F.2d at 1537 (concluding that if tortfeasor is not military, court should
follow Feres rationales).
178. Id. at 1539.
179. Id.
180. Id.
181. Johnson v. United States, 779 F.2d 1492, 1493 (11th Cir. 1986), rev'd, 107 S. Ct.
2063 (1987).
182. Id. at 1493-94.
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cuit, holding that the Feres doctrine barred any FTCA suit based on
an injury arising out of an activity incident to service, even if the
18 3
tortfeasor was a civilian employee of a federal civilian agency.
The Court stated that Feres had consistently barred tort claims
brought by or on behalf of military personnel injured incident to
service.1 8 4 Additionally, the Court noted that while all of its other
Feres-based decisions involved military tortfeasors, the Court never
held this factor crucial to the applicability of Feres. l8 5
The majority emphatically endorsed the three broad Stencel rationales for the Feres doctrine and applied them to the facts in Johnson. 186 First, the relationship between Johnson and the government
was "distinctively federal in character" because Johnson was a military member of the Coast Guard, an armed service of the United
States.1 8 7 Johnson undertook the rescue mission because of his mil188
itary duty status; therefore, his death arose incident to service.
This relationship required a statutorily-based compensation system
that was unaffected by the situs of the alleged negligence.' 8 9
Second, Mrs. Johnson received generous veterans' benefits as a
result of her husband's death. 190 The Court reasoned that these
183. United States v. Johnson, 107 S. Ct. 2063, 2066-67, 2069 (1987). Justice Powell
delivered the opinion of the Court joined by Chief Justice Rehnquist and Justices White,
Blackmun, and O'Connor. Justice Scalia filed a dissenting opinion joined by Justices Bren-
nan, Marshall, and Stevens.
184. Id. at 2066 (citing United States v. Shearer, 473 U.S. 52, 57 (1985); Chappell v. Wallace, 462 U.S. 296, 299 (1983); Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671
(1977); United States v. Muniz, 374 U.S. 150, 159 (1963); United States v. Brown, 348 U.S.
110, 112 (1954)). The Court stated that after approximately forty years it would be inappropriate to change the doctrine. Id. at 2067. The Court emphasized that Congress had not
accepted the Court's invitation to modify Feres if it was an incorrect interpretation. Id. at
2066. See supra note 129 and accompanying text.
185. Johnson, 107 S. Ct. at 2066. The Court acknowledged that in two places in Feres and
one in Brown, the Court suggested that the tortfeasor's military status was relevant. Id. at
2066 n.7. The Court noted, however, that the lower courts had never considered the
tortfeasor's status relevant. Id. at 2066-67 & n.8 (listing lower court decisions barring claims
under Feres doctrine when tortfeasor was civilian employee of government).
186. Id. at 2068-69 (finding that Feres rationales demonstrate that status of tortfeasor is
irrelevant); see also supra notes 150-57 and accompanying text (discussing the Stencel rationales
for the Feres doctrine).
187. Johnson, 107 S. Ct. at 2068-69; see also Feres v. United States, 340 U.S. 135, 143
(1950).
188. Johnson v. United States, 107 S. Ct. 2063, 2069 (1987).
189. Id. at 2068 (noting that FTCA claims are decided under diverse state laws). The
Supreme Court in Feres stated that a "simple, certain, and uniform compensation system for
injuries or death of those in armed services" was necessary. See Feres, 340 U.S. at 143.
190. Johnson, 107 5. Ct. at 2069. The Court noted that Mrs. Johnson received $35,690.66
in life insurance proceeds, a $3,000 death gratuity, and approximately $868 per month in
statutorily-derived compensation payments. Id. at 2065 n.l.
It is interesting that the Court finds this minor amount of monetary compensation adequate. Mrs. Johnson received the life insurance proceeds because her husband participated,
by making monthly payments, in a group term life insurance policy. See 38 U.S.C. § § 765-767
(1982 & Supp. III 1985). Additionally, her monthly stipend of $868 per month is subject to
1988]
UNITED STATES V. JOHNSON
213
statutorily-derived benefits provided the sole remedy for injuries
received incident to service.' 9 ' The benefits were not only comparable to those received under various workman's compensation stat92
utes, but they were also quick and automatic.'
Third, the Court found thatJohnson died while acting under standard Coast Guard operating procedures, and any litigation could
potentially threaten military discipline.193 The Court indicated that
Feres barred any suit seeking redress for injuries incurred incident to
service because it generally required the judiciary to second-guess
military decisions to the detriment of military discipline and effectiveness.' 9 4 Even though military negligence was not alleged in
Mrs. Johnson's complaint, suits involving military activities would
inevitably implicate the military judgments and decisions that accompany any military operation.' 9 5 In light of the "consistently articulated" Feres rationales, the Court, therefore, concluded that the
case fell within the Feres doctrine.' 96
2.
Dissent expresses dissatisfaction with Feres doctrine
The decision in Johnson included a vigorous dissent in which four
Justices concluded that Feres was wrongly decided.' 9 7 The dissent,
written by Justice Scalia, based its conclusion on a literal reading of
the unambiguous text of the FTCA, coupled with a thorough examination of the original and post-Feres rationales. 98 The dissent
various conditions. See supra note 125 and accompanying text (explaining that, unlike work-
man's compensation, veteran's benefits are not vested rights). Most notably, MrsJohnson will
lose her monthly compensation payments the minute she remarries. See 38 U.S.C. §§ 101-103
(1982 & Supp III 1985). This is not adequate compensation to a grieving widow whose husband gave his life while attempting to rescue others.
191. Johnson, 107 S. Ct. at 2068-69 (quoting Stencel Aero Eng'g Corp. v. United States,
431 U.S. 666, 673 (1977) (stating VA benefits established government's upper limit of liability
for service-connected injuries) and Hatzlachh Supply Co. v. United States, 444 U.S. 460, 464
(1980) (per curiam) (noting that Veterans' Benefits Act compensation provided sole remedy
to servicemen injured incident to service)).
192. Id. at 2068 (quoting Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673
(1977)). Also, the Court pointed out that servicemembers and their dependents received VA
benefits without litigation. Id. (quoting United States v. Feres, 340 U.S. 135, 145 (1950)).
193. Id. at 2069.
194. Id. (quoting United States v. Shearer, 473 U.S. 52, 59 (1985)).
195. Id. In this case, even though the suit alleged negligence by a civilian employee of the
FAA, the Court determined that an inquiry into the civilian's conduct would affect military
discipline. Id. at 2069 (defining military discipline in extremely broad terms). The Court
reasoned that because FAA employees on other occasions actively participated in military
activities, this suit could negatively affect future activities when military decisions were involved. Id. at 2069 n.ll.
196. Id. at 2069.
197. Id. at 2074 (Scalia, J., dissenting) (joined byJustices Brennan, Marshall, and Stevens)
(stating that "Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received.") (quoting In re Agent Orange Prod. Liab. Litig., 580 F. Supp.
1242, 1246 (E.D.N.Y.), appeal dismissed, 745 F.2d 161 (2d Cir. 1984)).
198. Id. at 2070-75.
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strongly disagreed with the majority's interpretation of the FTCA
and concluded that Congress clearly intended to allow military personnel suits under the Act.199
The dissent maintained that none of the original rationales justified the judicially-created doctrine. 200 The dissent noted that under
recent Supreme Court decisions the original Feres rationales were no
longer controlling. 20 Furthermore, the dissent pointed out that recent Supreme Court decisions were based on the military discipline
rationale-a post hoc rationalization that the language of the FTCA
did not support. 20 2 The dissent found that the post-Feresrationale,
likewise, did not justify the doctrine. 20 3 Justice Scalia admitted that
some suits by military personnel might adversely affect discipline or
199. Id. at 2073 (Scalia, J., dissenting) (stating that Court should adopt plain meaning of
statute and not read exceptions into it); see supra notes 61, 67 and accompanying text (discussing principles of statutory construction).
200. United States v.Johnson, 107 S. Ct. 2063, 2071 (1987) (criticizing majority's acceptance of Feres rationales).
201. Id. at 2071-72 (citing United States v. Shearer, 473 U.S. 52, 58 n.4 (1985)). The
dissent discussed the history of the three original Feres rationales and noted how subsequent
Supreme Court decisions had refuted or dismissed them. Id. at 2071-72; see supra notes 10926 and accompanying text (discussing Feres rationales). The dissent found that only the parallel private liability rationale had textual support in the FTCA, citing 28 U.S.C. § 2674, but
noted that such an interpretation conflicted with the express exceptions of 28 U.S.C. § 2680.
Johnson, 107 S. Ct. at 2071. Furthermore, the dissent stated that later Supreme Court decisions refuted and abandoned the parallel private liability rationale. Id. (citing Rayonier, Inc.
v. United States, 352 U.S. 315, 319 (1957) and Indian Towing Co. v. United States, 350 U.S.
61, 66-69 (1955)).
The dissent considered the distinctively federal relationship and the need for uniformity
rationales absurd. Id. It pointed out that from a servicemember's perspective, non-uniform
recovery was better than no recovery at all. Id. at 2071-72 (quoting United States v. Muniz,
374 U.S. 150, 162 (1963)). From the government's perspective, the uniformity justification
also made little sense, particularly in light of the FTCA's language. Id. at 2072 (noting that
Congress considered diversity of law when it created exceptions to FTCA's broad waiver of
immunity). The dissent also noted the government was subject to diverse state laws when
civilians or military personnel not injured incident to service sued under FTCA. Id. (citing
Indian Towing Co., 350 U.S. at 61). The dissent also remarked that the distinctively federal
relationship between the government and the military was no different than the one between
the government and other federal agencies, where suits were allowed. Id. at 2072 (citing
Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 675 (1977) (Marshall, J., dissenting)).
After noting that the Shearer Court had found the availability of alternative compensation
argument "no longer controlling," the dissent discussed the fallacy of the Court's reasoning.
Id. Justice Scalia pointed out that servicemen sustaining non-incident to service injuries could
receive VA benefits and still sue under the FTCA. Id. at 2072-73 (citing Brooks v. United
States, 337 U.S. 49 (1949) and United States v. Brown, 348 U.S. 110, 111 (1954) (finding that
neither FTCA nor Veterans' Benefits Act provided for exclusive remedy and refusing to create one judicially)). The dissenters found that receipt of veterans' benefits only softened the
harshness of the Feres doctrine, but it did not explain or justify the preclusion of servicemember FTCA tort claims. Id. at 2073 (quoting Hunt v. United States, 636 F.2d 580, 598
(D.C. Cir. 1980)).
202. Johnson, 107 S. Ct. at 2073; see United States v. Shearer, 473 U.S. 52, 57 (1985);
Chappell v. Wallace, 462 U.S. 296, 299 (1983); United States v. Muniz, 374 U.S. 150, 162-63
(1963).
203. United States v.Johnson, 107 S. Ct. 2063, 2073 (1987) (Scalia,J., dissenting) (noting
that military discipline rationale supplies "best" explanation because others are so poor).
1988]
UNITED STATES V. JOHNSON
215
call into question military decisions, but argued that the plain language of the FTCA did not preclude suits on this basis. 20 4 He also
questioned whether the effect on discipline was ever so substantial
as to bar all suits by military personnel.2 0 5 The dissent also wondered why neither the Congress that enacted the FTCA nor the Feres
Court explained why concerns about military discipline dictated that
206
the FTCA bar military personnel tort claims.
Finally, the dissent concluded that the judicially-created Feres doctrine had not accomplished the Court's goal of establishing a uniform, equitable system of remedies.2 0 7 Rather, the doctrine had led
to inconsistencies and unfairness.2 0 8 The dissent saw no reason to
expand this ill-founded doctrine to preclude suits that alleged that a
civilian employee's tortious conduct caused the servicemember's incident-to-service injury.2 0 9 In fact, the dissent hinted that if asked, it
204. Id. (indicating that Congress meant what it plainly stated).
205. Id. Justice Scalia pointed out that military decisions were routinely questioned and
discipline potentially affected in many cases allowed under the FTCA. Id. at 2074 (referring
to civilian suits alleging military negligence, servicemember claims for non-incident to service
injuries, and soldier suits against manufacturers of military equipment).
206. Id. at 2073 (noting that Congress deemed it necessary to expressly exclude injuries
arising out of combat activities). Justice Scalia offered four possible explanations for Congress' failure to expressly exclude Feres-type suits. Id. at 2073-74. First, Congress may have
recognized that all suits did not substantially affect military discipline. Id. at 2073. Second,
Congress assumed that the express exceptions of the FTCA would bar the suits most likely to
have a negative impact on military authority. Id. at 2073-74. Third, Congress assumed that
such suits did not affect military discipline because they were being brought against the government and not the individual. Id. at 2074. Finally, Congress believed that barring military
personnel suits would adversely affect soldier morale and discipline. Id.
207. Id. at 2074-75 (finding that Court was partially responsible for resulting inconsistencies in law because it ignored what Congress wrote). The dissent presented a hypothetical
that highlighted some of these inconsistencies in the law.
A serviceman is told by his superior officer to deliver some papers to the local United
States Courthouse. As he nears his destination, a wheel on his government vehicle
breaks, causing the vehicle to injure him, his daughter (whose class happens to be
touring the Courthouse that day), and a United States marshal on duty. Under our
case law and federal statutes, the serviceman may not sue the Government (Feres); the
guard may not sue the Government (because of the exclusivity provision of the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8116); the daughter may not
sue the Government for the loss of her father's companionship (Feres) but may sue
the Government for her own injuries (FTCA). The serviceman and the guard may
sue the manufacturer of the vehicle, as may the daughter, both for her own injuries
and for the loss of her father's companionship. The manufacturer may assert contributory negligence as a defense in any of the suits. Moreover, the manufacturer
may implead the Government in the daughter's suit (United States v. Yellow Cab
Co., 340 U.S. 543 ... (1951)) and in the guard's suit (Lockheed Aircraft Corp. v.
United States, 460 U.S. 190 . .. (1983)), even though the guard was compensated
under a statute that contains an exclusivity provision (FECA). But the manufacturer
may not implead the Government in the serviceman's suit (Stencel Aero Engineering
Corp. v. United States, 431 U.S. 666 ... (1977)), even though the serviceman was
compensated under a'statute that does not contain an exclusivity provision (VBA).
Id. at 2074-75.
208. Id. at 2075 (concluding that disharmony resulting from Feres was caused by ignoring
plain meaning of text). "
209. Id. The dissent confessed that there was no reason to deny suits alleging military
216
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[Vol. 38:185
would consider overruling Feres.210
III. ANALYSIS
A.
Johnson Improperly Decided
Johnson represented the first Supreme Court case that questioned
whether the Feres doctrine barred suits by servicemembers alleging
negligence by civilian employees of the government.2 11 Prior to
Johnson, all of the Court's decisions involved intramilitary disputes,
in which both the victim and the tortfeasor were military personnel. 2 12 While acknowledging that it had never before squarely ad-
dressed the issue, the Johnson Court stated that the Court's past
decisions never indicated that the tortfeasor's status controlled the
applicability of the Feres doctrine. 213
Without explanation, the
Court dismissed the importance of the tortfeasor's status and extended the Feres doctrine to bar all military personnel suits for injuries incurred incident to service, even when a civilian employee of a
civilian agency negligently caused the injury. 214 The Court's decision was based exclusively on the status of the victim. 2 1 5
The Feres doctrine, however, is not founded solely on the status of
the victim. 2 16 Rather, it is based on court-enunciated rationales.
The language and legislative history of the FTCA clearly indicate
that Congress intended the FTCA to protect aggrieved military personnel.2 17 Additionally, the Supreme Court has held in Brooks and
negligence and to allow suits alleging civilian negligence, except to limit the clearly erroneous
and unfair Feres doctrine. Id.
210. Id. (stating "[w]e have not been asked by respondent to overrule Feres and so need
not resolve whether considerations of stare decisis should induce us, despite the plain error of
the case, to leave bad enough alone").
211. See id. at 2066 & n.7 (acknowledging all previous cases involved military victim and
military tortfeasor); see also Brief for the Respondent at 10 n.2, United States v.Johnson, 107
S. Ct. 2063 (1987) [hereinafter Brief for the Respondent].
212. Johnson, 107 S. Ct. at 2066 & n.7.
213. Id. at 2066. The Court also noted that the lower courts had never considered this
factor relevant. Id. at 2066-67. The Court cited numerous cases in which the lower courts
had barred claims by servicemembers injured by the negligence of civilian employees. Id. at
2067 n.8. The Court, however, failed to recognize that each of these cases was decided prior
to the Court's decision in Shearer and that each had relied on the status of the victim as the
controlling factor in dismissing the suits. See Brief for the Respondent, supra note 211, at 1112. In these cases, not one court analyzed whether the service person's claim implicated military decisions or adversely affected military discipline.
214. Johnson, 107 S. Ct. at 2067.
215. See supra note 106 and accompanying text (analyzing how Court relied on status of
victim to deny claim).
216. See Feres v. United States, 340 U.S. 135, 141-45 (1950); see also supra notes 109-26
and accompanying text (discussing rationales for doctrine).
217. See supra notes 50-75 and accompanying text (discussing language, purpose, and legislative history of FTCA). See also supra notes 198-99 and accompanying text (discussing dissent's interpretation of FTCA).
1988]
UNITED STATES V. JOHNSON
217
Brown that the FTCA waives sovereign immunity for certain types of
military personnel claims. 2 18 Because Feres is a judicially-created exception to the FTCA, the Court's rationales define the scope of the
Feres doctrine. The application of Feres is, therefore, only warranted
in situations that comport with the doctrine's rationales. 21 9
Over the years, the Supreme Court has refined and narrowed the
foundations of Feres to the point where the military discipline rationale best explains the doctrine. 22 0 It is the only rationale the Court
has relied on in each of its post-Feres decisions. 2 2' Under these rulings, any court that denies a servicemember access to the FTCA
must show that the suit threatens military discipline or decision
making. 2 22 Accordingly, a court must evaluate all the facts and circumstances of a case and not just the status of the victim. 2 23 One
important factor in determining whether a suit will implicate military decisions or discipline is the status of the tortfeasor. 224 If the
tortfeasor is not part of the military structure or involved in military
decisions, then his conduct is unlikely to implicate the Feres
25
rationale.2
Lieutenant Johnson's death while flying a Coast Guard helicopter
search and rescue mission was correctly determined as incident to
service.2 26 There was nothing in the record to indicate, however,
that the suit filed on his behalf affected military decisions or discipline.2
27
In fact, the Eleventh Circuit clearly stated that the facts did
218. See Brown v. United States, 348 U.S. 110, 112 (1954) (medical malpractice by VA
hospital); Brooks v. United States, 337 U.S. 49, 54 (1949) (servicemember killed in accident
with civilian driver of Army truck).
219. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 669, 670 (1977) (finding it
necessary to examine doctrine's rationale to determine if Feres bars claim).
220. See United States v. Shearer, 473 U.S. 52, 57-58 (1985); Chappell v. Wallace, 462
U.S. 296, 299 (1983); United States v. Muniz, 374 U.S. 150, 162-63 (1963); see also supra notes
148-49, 158-60, 165 and accompanying text (discussing significance of military discipline
rationale).
221. See Shearer, 473 U.S. at 57-59; Chappell, 462 U.S. at 296; Stencel, 431 U.S. at 673;
Brown, 348 U.S. at 112.
222. SeeJohnson v. United States, 704 F.2d 1431, 1440 (9th Cir. 1983) (allowing serviceman's claim after determining that suit did not threaten military discipline or decision making
even though tortfeasor was another serviceman); see also supra note 9 (listing cases where court
held that suit must affect military discipline for Feres to apply).
223. Accord Brown v. United States, 739 F.2d 362, 366 (8th Cir. 1984) (explaining that
court must analyze facts of case in light of Feres rationales to see if doctrine applies) (quoting
Miller v. United States, 643 F.2d 481,493 (8th Cir. 198 1));Johnson v. United States, 704 F.2d
1431, 144041 (9th Cir. 1983) (noting that court must look at all facts to determine if Feres
applies).
224. See Parker v. United States, 611 F.2d 1007, 1010-11 (5th Cir. 1980) (noting that status of tortfeasor is one of many important factors to consider in determining if Feres applies).
225. See Brown, 739 F.2d at 369 (allowing suit where tortfeasor of same rank was injured
party because tortfeasor's status did not implicate military decisions).
226. See supra note 106 and accompanying text (discussing the term "incident to service").
227. See Brief for the Respondents, supra note 211, at 21-24.
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not even suggest that the case would affect military discipline or decision making. 228 Nevertheless, the Supreme Court dismissed the
suit based on the faulty reasoning that all suits by on-duty military
2 29
personnel implicitly affect military discipline.
TheJohnson Court did not scrutinize the facts of the case to determine whether the suit did indeed implicate military discipline. 23 0
Instead, the Court merely used the doctrine's rationales to demonstrate that the tortfeasor's status was not critical. 2 3' The Court's
analysis only showed that a civilian's tortious conduct might implicate military discipline. Unfortunately, it did not answer the central
issue: will an examination of this particular tortfeasor's conduct interfere with military discipline or require the judiciary to secondguess military decisions? The Johnson Court, therefore, failed to acknowledge that a civilian's negligence might cause an injury incident
23 2
to service yet not implicate the Feres doctrine.
The Court in Johnson seems to base its holding on the broad assumption that military personnel claims based on injuries incurred
incident to service inevitably involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.
While this statement is generally true, it is not always so.233 At the
time of the accident, Johnson was no different than a regular civilian
pilot flying in inclement weather. 2 34 When he sought radar assistance from the FAA, he complied with federal regulations that apply
to all pilots, not just military pilots. 23 5 The crash occurred because
Johnson was complying with the air traffic controller's orders, not
military orders. Additionally, the FAA controller breached a duty of
care that he owed equally to all members of the general public; it
was not a special duty owed Lieutenant Johnson as a serviceman. 23 6
Johnson's suit only questioned the civilian controller's conduct,
which the FAA admitted was negligent and caused Lieutenant John228. Johnson v. United States, 749 F.2d 1530, 1539 (11 th Cir.), vacatedfor reh 'g en banc,
760 F.2d 224 (1 1th Cir. 1985), reinstated, 779 F.2d 1492 (1 1th Cir. 1986), rev'd, 107 S. Ct. 2063
(1981).
229. United States v. Johnson, 107 S. Ct. 2063, 2069 (1987) (concluding that all suits
based on incident to service injuries by their nature implicate military decisions and
discipline).
230. Id. (stating that potential for affecting military discipline is substantial) (emphasis
added).
231. Id. at 2068.
232. Id. at 2073 (Scalia, J., dissenting) (finding that in some cases, but not all, civilian
conduct potentially may implicate military discipline).
233. See United States v. Shearer, 473 U.S. 52, 57 (1985) (emphasizing that there are no
bright line rules to apply when determining if Feres doctrine applies).
234. See 14 C.F.R. § 91.105 (1988);see also Brief for the Respondent, supra note 211, at 2124.
235. See 14 C.F.R. § 91.105 (1988).
236. See Brooks v. United States, 337 U.S. 49, 52 (1949).
1988]
UNITED STATES V. JOHNSON
son's fatal accident. 23 7 The Court, therefore, was not required to
second-guess a military decision that could adversely affect military
discipline or decision making. In light of this, the Court improperly
dismissed Johnson's FTCA suit.
B.
Revitalization of Dormant Rationales Signals the Endfor
Servicemember Tort Claims
In Johnson, the Court reaffirmed the three Feres rationales enunciated in Stencel.23 8 The Court emphasized that the distinctively federal relationship between the government and its military
personnel, the availability of generous statutory disability and death
benefits, and the potential impact servicemembers' suits could have
on military discipline and decision making supported the Feres doctrine. 23 9 The reaffirmation of these Stencel rationales represented a
significant change from recent Supreme Court decisions. 24 0 In
Shearer, the Court dearly stated that the distinctively federal relationship and alternative compensation rationales no longer controlled. 24 1 At the same time, both Chappell and Shearer emphasized
24 2
that the military discipline rationale was the sole reason for Feres.
In fact, since Feres the Court consistently held that the military disci243
pline rationale best explained the Feres doctrine.
Resurrection of the distinctively federal relationship and alternative compensation rationales does not explain why Feres should bar a
particular claim. 2 44 The rationales are merely labels that apply to all
servicemember claims. 245 Because all military personnel work for
the federal government, their employment creates a distinctively
federal relationship. Additionally, all military personnel injured in
the line of duty not due to their own misconduct are entitled to com237.
See Brief for the Respondent, supra note 211, at 3-4, 21.
238. United States v.Johnson, 107 S. Ct. 2063, 2068 (1987); see also supra notes 153-54
and accompanying text (discussing Stencel rationales).
239. Johnson, 107 S. Ct. at 2068-69.
240. See supra notes 158-60 and accompanying text (discussing Chappell and Shearer-most
recent Supreme Court decisions).
241. United States v. Shearer, 473 U.S. 52, 58 n.4 (1985).
242. Id. at 57; Chappell v. Wallace, 462 U.S. 296, 299 (1983).
243. See supra note 222 (listing post-Feres Supreme Court cases).
244. See, e.g., Hunt v. United States, 636 F.2d 580, 598 (D.C. Cir. 1980) (stating that alternative compensation system does not explain or justify Feres doctrine); Parker v. United
States, 611 F.2d 1007, 1011-12 (5th Cir. 1980) (finding that distinctively federal relationship
and alternative compensation rationales do not assist court in determining if Feres applicable
to particular case); Healy v. United States, 192 F. Supp. 325, 328 n.13 (S.D.N.Y.) (stating that
"presence or absence of compensation system is by no means controlling"), aft'd, 295 F.2d
958 (2d Cir. 1961).
245. See Brief for the Respondent, supra note 211, at 12 (pointing out that these rationales
exist in every serviceman's claim because they define a serviceman's status).
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pensation under the Veterans' Benefits Act. 24 6 Strict application of
the distinctively federal relationship and alternative compensation
rationales automatically bars every servicemember's claim. Such an
2 47
approach conflicts with prior Court decisions.
In Brooks and Brown, the Court allowed servicemember FTCA
claims.2 48 Both cases involved military personnel who were injured
while on active duty and who received alternative compensation for
their injuries. 249 The Brooks and Brown Courts held that veterans'
benefits were not an exclusive remedy.2 5 0 The reason Feres did not
bar their claims was because their suits did not implicate military
discipline or decision making. While Brooks and Brown are still good
law, it is difficult to belieVe that the Court would reach the same
251
results employing the rationales espoused in Johnson.
By breathing new life into these rationales, the Court ensures that
the Feres doctrine will bar any active duty servicemember's negligence suit brought under the FTCA. The resurrection of the distinctively federal character and alternative compensation rationales
subtly shifts the emphasis from the military discipline rationale to
the status of the victim. 2 52 This shift signals the demise of servicemember FTCA suits because these suits inherently involve the
distinctively federal relationship or alternative compensation rationales of Feres.
Lower court decisions, prior to Chappell and Shearer, demonstrate
that courts focusing on the military status of the individual have routinely barred military personnel claims. 2 53 The outcome is quite dif246. See 38 U.S:C. §§ 101-5228 (1982 & Supp. III 1985).
247. See United States v. Shearer, 473 U.S. 52, 57 (1985) (finding that there are no bright
line rules for determining applicability of Feres); Brown v. United States, 348 U.S. 110, 112
(1954) (determining that payment of compensation under Veterans Act does not bar recovery
under FTCA); Brooks v. United States, 337 U.S. 49, 52-53 (1949) (allowing servicemen to
recover under FTCA even though they received alternative compensation and distinctively
federal relationship existed).
248. See supra notes 85-88, 135-39 and accompanying text (discussing Brooks and Brown
decisions).
249. Id.
250. Id.
251. See Major v. United States, 835 F.2d 641, 645 n.2 (6th Cir. 1987) (noting that lower
courts likely to ignore Brooks because ofJohnson decision, even though Brooks technically good
law), cert. denied, 108 S Ct. 2871 (1988); see also United States v. Johnson, 107 S. Ct. 2063,
2072-73 (1987) (Scalia, J., dissenting) (noting inconsistency between Brooks, Brown, and
Johnson).
252. Johnson, 107 S. Ct. at 2068-69.
253. See, e.g., Carter v. City of Cheyenne, 649 F.2d 827, 830 (10th Cir. 1981) (concluding
that status of victim determines if claimant can sue under FTCA); Uptegrove v. United States,
600 F.2d 1248, 1249 (9th Cir. 1979) (holding that status of victim determines applicability of
Feres), cert. denied, 444 U.S. 1044 (1980); United States v. Lee, 400 F.2d 558, 562 (9th Cir.
1968) (noting that status of victim controls outcome of litigation), cert. denied, 393 U.S. 1053
(1969); see also Brief for the Respondent, supra note 211, at 11-20 (discussing recent develop-
1988]
UNITED STATES V JOHNSON
221
ferent, however, when courts do not find a person's military status
dispositive, but rather focus on whether military discipline is truly
affected. 254 This approach focuses on the true reason for the Feres
doctrine and pushes courts beyond labels to an examination of the
facts of the case to see if the Feres rationales are implicated. The
Johnson Court, however, has failed to perform such an examination.
After Johnson, courts will be forced to bar servicemember claims
even if the suit does not question military decisions or adversely affect discipline.2 55 The victim's military status will always implicate
the other Feres rationales.2 56 By reaffirming the military-status based
rationales, the Court clarifies that it has interpreted the FTCA to
waive sovereign immunity for all claims but those of military
57
personnel.2
C.
Significance of Johnson
In its limited holding, the Eleventh Circuit in Johnson concluded
that when a servicemember seeks to recover for injuries caused by
the negligence of a civilian employee of the government, the Feres
doctrine did not automatically bar the suit.2 5 8 Instead, a court
should examine the facts of each case, in light of the rationale supporting the doctrine, to determine if hearing the petitioner's claim
would circumvent the purposes of the Act as construed by the
ment); see generally 1 JAYSON, supra note 26, § 155.02, at 5-73 to 5-86 (explaining that courts
focusing on duty status find injury incurred incident to service and bar claim).
254. See, e.g., Brown v. United States, 739 F.2d 362 (8th Cir. 1984) (holding that suit
against fellow servicemembers of equal rank who staged mock lynching of black soldier not
barred because suit did not implicate military discipline or decision making); West v. United
States, 729 F.2d 1120 (7th Cir. 1984) (allowing suit for child's injury caused by medical malpractice on servicemember father), cert. denied, 471 U.S. 1053 (1985); Brown v. United States,
715 F.2d 463 (9th Cir. 1983) (considering all facts and circumstances court found serviceman,
who was injured when injected with swine flu innoculation, could recover under FTCA because military discipline not implicated even though military required serviceman to receive
shots); Johnson v. United States, 704 F.2d 1431 (9th Cir. 1983) (allowing serviceman's claim
who was injured in auto accident even though tortfeasor was serviceman who became intoxicated at illegal, after-hours party held on military base); see generally I JAYSON, supra note 26,
§ 155.02, at 5-73 to 5-86 (finding that later cases required that there be nexus between injury
and discipline to bar suit under Feres).
255. Accord Atkinson v. United States, 804 F.2d 561 (9th Cir. 1986) (allowing active duty
servicewoman's medical malpractice suit for improper prenatal care at military hospital because military discipline not implicated), rev'd, 825 F.2d 202, 206 (9th Cir. 1987) (reversing in
light ofJohnson decision).
256. See supra notes 201-08 and accompanying text (noting effect of revitalized rationales
on servicemen claims).
257. See Major v. United States, 835 F.2d 641, 645 n.2 (6th Cir. 1987) (stating that contrary to the Court's holding in United States v. Brooks, 337 U.S. 49, 51 (1949), afterjohnson,
the FTCA bars all servicemen suits), cert. denied, 108 S. Ct. 2871 (1988).
258. Johnson v. United States, 749 F.2d 1530, 1537 (11th Cir.), vacatedfor reh'g en banc,
760 F.2d 246 (11th Cir. 1985), reinstated, 779 F.2d 1492 (1 1th Cir. 1986), revud, 107 S. Ct. 2063
(1987).
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Court. 25 9 This is a logical approach and one that should apply to all
servicemember tort claims. 260 The Supreme Court, however, has
rejected this approach. In doing so, the Court has missed a golden
opportunity to limit the scope of a harsh and frequently criticized
261
doctrine.
The Supreme Court inJohnson clearly holds that the Feres doctrine
applies to any servicemember's claims based on injuries incurred incident to service. When such an injury occurs, the rationales for the
doctrine are irrelevant. The Supreme Court will not allow the lower
courts to determine the applicability of Feres on a case-by-case basis.
The Court in Johnson clarifies that the majority strongly supports
Feres and has no intention of modifying or abandoning it.
Nevertheless, despite this recent broadening, there is hope that
the Supreme Court will ultimately overrule Feres. With one notable
exception, 2 62 all prior Supreme Court decisions barring servicemember suits have been unanimous decisions. Johnson, on the
other hand, contains a dissent in which four Justices strongly criticize the Court's holding and refute the rationales for the doctrine.
The dissent clearly indicates that it would consider overruling
Feres.2 63 The recent retirement of Justice Powell, who wrote the
Court's opinion in Johnson, provides hope that the Court will
reevaluate Feres and overrule it.
CONCLUSION
The Feres doctrine is a judicially-created exception to the government's broad waiver of sovereign immunity. The doctrine is premised on the Court's interpretation of what Congress must have
intended when it enacted the FTCA. This interpretation, however,
is clearly inconsistent with the plain language and legislative history
of the statute. For approximately forty years, the Court, with little
success, has struggled to justify its interpretation. The Feres rationales have been discredited and repeatedly criticized.
The unfairness of the doctrine is particularly evident when a civilian FAA air traffic controller's negligence causes a military helicop259. Id. at 1537-38 (quoting Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 670
(1977) (noting Supreme Court applied similar approach in circumstances not fitting within
"Feres factual paradigm")).
260. See supra notes 222-25 and accompanying text (noting that other courts adopt this
approach in analyzing all servicemen claims).
261. For a partial list of the various courts and scholars criticizing the Feres doctrine, see
United States v. Johnson, 107 S. Ct. 2063, 2074 (Scalia, J., dissenting).
262. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666 (1977) (voting 7-2 to
deny claim based on Feres).
263. Johnson, 107 S. Ct. at 2075 (Scalia, J., dissenting).
19881
UNITED STATES V. JOHNSON
223
ter to crash, injuring both a civilian and a military person. The
civilian can seek recovery under the FTCA, but the Feres doctrine
bars the serviceman's claim. The doctrine's rationales do not adequately justify this inconsistent result. Both claims are founded on
the same negligent act. Both suits potentially implicate military discipline and decision making, and both suits are subject to the laws of
the state where the accident occurred. Despite the similarities, only
the civilian's suit is allowed. The serviceman's recovery is limited to
the compensation received under the Veterans' Benefits Act, even if
inadequate.
The Court has noted on numerous occasions that the FTCA
should be liberally construed and courts should not read exceptions
into the Act. The Court has adhered to this policy in all cases but
one, Feres. The Court has taken solace in the fact that Congress has
not remedied its interpretation despite an open invitation to do so.
Congressional silence, however, is no justification for the continuing adherence to an improper and unjust decision. 264 The Supreme
Court should correct its own error and overrule Feres.
264. See supra note 129 and accompanying text (noting that there are numerous explanations for why Congress does not do something).