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THE FERES DOCTRINE: AN EXAMINATION OF THIS MILITARY EXCEPTION TO THE FEDERAL TORT CLAIMS ACT

TUESDAY, OCTOBER 8, 2002

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 2:05 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter presiding.

Present: Senators Specter and Leahy.

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.
SENATOR FROM THE STATE OF PENNSYLVANIA

Senator SPECTER. The Committee on the Judiciary will now proceed with our hearing on proposed legislation to amend the Federal Tort Claims Act to reverse the so-called Feres doctrine.

This hearing has been scheduled on a particularly busy day with, as you doubtless know, arguments proceeding on the floor of the Senate on a resolution to authorize the President to use force in Iraq. I think we will probably have sparsely attended membership from the committee, but staff is here and the hearing will be followed.

I have introduced legislation to amend the so-called Feres doctrine because it seems to me that the doctrine has produced anomalous results which reflect neither the will of the Congress nor

common sense.

There have been many examples where a soldier who is the victim of medical malpractice at an Army hospital cannot sue the Government for compensation, but a civilian who suffers the same treatment on an allegation of malpractice would be entitled to recover against the Government. Similarly, if a soldier driving home from work on an Army post is hit by a negligently driven Army truck, that soldier is barred from suing the Government, but a civilian in identical circumstances would not be so barred.

In the interest of brevity, my entire statement will be admitted, without objection, which sets forth the outlines and parameters of the pending legislation.

[The prepared statement of Senator Specter appears as a submission for the record.]

Senator SPECTER. I have long been concerned about the Feres doctrine, handed down in 1950. When I practiced law before coming to the Senate, I had serious questions about it, and I was especially

troubled by it when I noted the dissenting opinion of Chief Judge Becker, of the Court of Appeals for the Third Circuit, in the case of O'Neill v. United States, decided in 1998, when a claim was denied under the Feres doctrine, with Chief Judge Becker saying that the doctrine ought to be reversed.

That_was particularly impressive for me. I have known Chief Judge Becker just about as long as the Feres doctrine has been in effect. The case was handed down in 1950 and Edward R. Becker and I started to ride the elevated subway train to the University of Pennsylvania in the same year-not duly relevant to the issue, but just a note as to the concerns which I have had.

In the interest of full disclosure, let me say that one of our witnesses today, a very distinguished Philadelphia lawyer, Richard A. Sprague, and I have been close friends and associates since we were assistant district attorneys together in the late 1950's. We worked together when I was district attorney of Philadelphia and he was first assistant.

With that relatively brief introduction, let's turn now to our first panel of witnesses: the Honorable Paul Harris, Deputy Associate Attorney General of the Department of Justice. We are going to try to stay pretty close within the time parameters. As I think all of you have been informed, our practice is to have 5 minutes. This light-and you have one on the desk-will start at 4 minutes and stop with the red light going on when it goes to five.

Mr. Harris, thank you for joining us and the floor is yours. STATEMENT OF PAUL HARRIS, DEPUTY ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

Mr. HARRIS. Thank you, Senator Specter. I am very pleased to be before this committee this afternoon to present the views of the Department of Justice on the Feres doctrine and its importance to the United States.

I ask that my full written statement be entered into the record of this hearing.

Senator SPECTER. Without objection, it will be made part of the record.

Mr. HARRIS. Thank you, sir.

To begin, a brief explanation of the Feres doctrine and its underpinnings is in order. In Feres and its progeny, the Court has held that members of the armed services cannot sue the Federal Government or other service members or civilian Government employees in tort for injuries that arise out of or are incurred in the course of activity incident to military service.

The Feres Court relied upon three principal reasons in coming to its decision: First, the existence and availability of a separate, uniform, comprehensive, no-fault compensation scheme for injured military personnel; second, the effect upon military order, discipline, and effectiveness of its service members if service members were permitted to sue the Government or each other; and, third, the distinctively Federal relationship between the Government and the members of the armed services and the corresponding unfairness of permitting service-connected claims to be determined by non-uniform local tort law.

Case law today recognizes that the policy underpinnings of the Feres doctrine are as valid today as they were in 1950. Today, as in 1950, the military service does not leave those permanently injured in the line of duty uncompensated. Congress has attended to such injuries or death through the creation of an efficient and comprehensive compensation system.

The second consideration that has led to the broad application of the Feres doctrine by the courts through the years can be understood as an aspect of the traditional reluctance of American courts to intervene in military affairs and the reluctance of the Congress to force such intervention.

Simply put, Feres' prohibition of intra-military tort litigation derives from society's most elemental instinct-self-preservation through a strong military. This consideration comes into play even when the issue is not military discipline in the strictest sense. The Feres doctrine serves to avoid the general judicial intrusion into the area of military performance.

The third policy consideration-the Federal nature of the relationship in the absence of an analogous private liability-led the Supreme Court in Feres to conclude that a service member suit failed to state a claim under the Federal Tort Claims Act.

While it sometimes is argued that the Feres doctrine is unfair to service members who are victims of medical malpractice, it is worth noting that the Feres doctrine is an adjunct to the military disability compensation package available to service members which, on the whole, is far more generous, even-handed, and fair than compensation available to private citizens under analogous State worker's compensation schemes.

This is because service members, unlike their civilian counterparts who suffer serious adverse consequences from medical care, generally are eligible for compensation whether or not those consequences are or can be proven to be the result of substandard medical care.

The fact is that all of these service members are eligible for such compensation, rather than only a small handful who can show a causal link between their condition and substandard medical care. Thus, the arbitrariness and uncertainty associated with tort litigation is effectively eliminated.

The Department believes that the policy considerations outlined above are as valid today as they were when they were first articulated. Today, to allow soldiers to sue their Government for tort damages implies that the military has failed its own, and that only by taking the boss to court can justice be attained. Fostering that attitude within a community which demands uncompromising trust and teamwork would have dire consequences and implications for our national defense.

It is the view of the Department of Justice that the Feres doctrine continues to be a sound and necessary limit on the FTCA's waiver of sovereign immunity, essential to the accomplishment of the military's mission and to the safety of the Nation.

I will be pleased to answer any questions that you may have. [The prepared statement of Mr. Harris appears as a submission for the record.]

Senator SPECTER. Thank you very much, Mr. Harris.

We now turn to the Commandant of the United States Naval Academy, Rear Admiral Christopher Weaver.

Thank you for joining us, Admiral, and we look forward to your testimony.

STATEMENT OF CHRISTOPHER E. WEAVER, REAR ADMIRAL, AND COMMANDANT, NAVAL DISTRICT WASHINGTON, WASHINGTON, D.C.

Admiral WEAVER. Thank you very much, sir. If I could correct a point there, I am the Commandant of the Naval District of Washington.

Senator SPECTER. Pardon me. Would it be a demotion or a promotion? That is my first question.

Admiral WEAVER. No, sir. Actually, there are only two commandants left in the Navy, and that is the two of us.

Good afternoon, sir, to you and to other members of the committee. My name is Rear Admiral Chris Weaver. I am the Commandant of the Naval District and the Navy's Regional Commander for the National Capital Region. I graduated from the U.S. Naval Academy and have been a Naval officer for 31 years.

I appreciate the opportunity to provide testimony to the committee on the views of the Department of Defense on the Feres doctrine. The Department of Defense believes the Feres doctrine is sound public policy and national defense policy that should not be disturbed.

To begin with, sir, I am not a lawyer. I am a surface warfare officer. My primary focus is on maintaining good order and discipline, providing support to our military members in the Washington, D.C., area, to those who are forward-deployed and prosecuting the war on terrorism, and sustaining the larger architecture of military readiness, our ability to fight and win our Nation's wars.

Before I go further, I want to express my condolences to the family of Kerryn O'Neill. Her murder several years ago was a terrible tragedy. Our hearts continue to go out to the O'Neill family. Although I do not question their sincere desire to seek redress, I am here to testify that allowing service members to bring suits in Federal court against each other and their chain of command will interfere with mission accomplishment and adversely affect our operational readiness.

With the challenges confronting our military and Nation today, I respectfully submit that the Feres doctrine should be preserved for the following three reasons. First, the Feres doctrine is important to maintaining good order and discipline in the military. In its current form, the doctrine is essential to maintaining military readiness. Litigation is inherently divisive and disruptive.

Absent this doctrine, opposing participants would often both be military members and include a member's commanding officer and military superiors. Military effectiveness and readiness are based on cohesiveness, obedience, discipline, putting the interest of the service ahead of the interest of the individual, and an inherent, unencumbered and unfettered trust and confidence up and down the chain of command. This degree of trust and confidence cannot exist in an adversarial legal environment.

Discipline, morale, and unit cohesion are the hallmarks of an effective fighting force. Everything the commander does is designed to embed these values throughout the organization. Litigation is based on allegations, compulsory process, and aggressively asserting the interests of the individual against the service. Because of the disruptive effect of litigation, the concept of sailors suing their shipmates and their Government is alien to our traditional philosophy of military discipline and U.S. jurisprudence.

Second, the Feres doctrine is not a bar to remedies because of the existence of the no-fault compensation system currently applicable to any disability or death incurred during military service. All State and Federal worker's compensation laws provide a no-fault compensation system as the exclusive remedy for work-related inju

ries.

Employees may not sue the employer to seek larger recoveries, but employees will be compensated even if there was no negligence or the injured employee was personally negligent. The military compensation system has the same premise, except that the military member is considered to be on the job 24 hours a day, 7 days a week. Their no-fault compensation applies to virtually all injuries at work or at home, in the U.S. or overseas, whether nobody was at fault or everybody was at fault. To be sure, the benefits available under the comprehensive no-fault compensation system are not extravagant, but the system is fair.

The third reason for preserving the Feres doctrine is that it is essential to maintaining equity among military members injured or killed during military service. If the Feres doctrine were repealed in whole or in part, disparities would exist, depending on whether the member's death or injury was based on negligence or combat. Other disparities would arise based on many variations in State tort law, the fact that the Federal Tort Claims Act does not apply outside the United States, and the vagaries of liability jurisprudence.

Military training would also be affected adversely if a commander or non-commissioned officer must focus on varying and multiple tort issues and State laws when conducting exercises and training evolutions instead of focusing on operational readiness.

In conclusion, the Feres doctrine is an important element of public policy and national defense policy. It is a necessary component of maintaining good order and discipline in the military and of enhancing the effectiveness and operational capability of our armed forces.

It is also a part of a comprehensive no-fault compensation system which, similar to worker's compensation laws, provides the exclusive remedy for deaths and injuries during military service. Preservation of this exclusive remedy is the only way to maintain equity for all of the military members and families who shoulder the sacrifices endured for our Nation's defense.

Thank you very much, and I ask that my full written testimony be made part of the record, sir.

Senator SPECTER. Your full statement will be made a part of the record, without objection.

[The prepared statement of Admiral Weaver appears as a submission for the record.]

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