negligent behavior by the Department of Defense would decrease were we to abolish the Feres Doctrine? Why or why not?

A2A. I believe that our torts jurisprudence is based at the state level in order to allow the flexibility necessary for the varied circumstances we find in the various states. While the remedies for certain causes of action are designed to deter certain behavior, these remedies are generally found in concepts such as "punitive damages" rather than compensatory damages, which was the expressed goal of Congress in the Federal Torts Claims Act. In fact, the recovery of punitive damages against the United States is prohibited (28 USC 2674). I believe that the FTCA is a compensation system, pure and simple. It has little, if any, utility as an accountability tool or preventive measure; I'll explain why I say that. This is true especially when it is compared to the extraordinary accountability mechanisms already existing in the military departments. More than any institution in the United States, the military concerns itself with protecting its people and goes to greater lengths than any other institutions to ensure accountability. While state tort law is, in theory, designed to encourage accountability through liability, it is because of the threat of money damages the defendant will have to pay. To some degree, the existence of insurance ameliorates this accountability principle; however, most individuals and corporations don't carry unlimited insurance and there is always the possibility of judgments exceeding their insurance coverage. Plus, once an insurance claim is paid, the cost of future insurance for the tortfeasor goes up and, theoretically, the incentive to conform behavior to that of the reasonable man is strengthened to avoid increased costs of doing business. None of this applies to the FTCA. Judgments are paid from government funds and not from the personal assets of the actual tortfeasor. Whether there is any actual “accountability” in the case of a government tort claim paid under the FTCA, incident to service or otherwise, it is through the institutional mechanisms I mentioned earlier, not through the tort compensation system. In fact, the tortfeasor has been granted absolute immunity by Congress. 28 US Code 2679 (b) (1). Congress has recognized that the tort system of accountability through liability is particularly inappropriate in the context of government employee tortfeasors. The FTCA, in my opinion, is designed only to compensate victims for pecuniary loss, not serve as a behavior modification system.

A2B. I do not believe that abolition of the Feres Doctrine would increase or decrease the number of negligent incidents. The military is already concerned with reducing accidents. No other organization in the country is as concerned with safety, selfevaluation, and training, both personal and unit. As the Chairman knows, combat is inherently chaotic; one way to reduce its inherent chaos and confusion is through effective training and drilling to minimize uncertainties and accidents. Mistakes occur in spite of these best efforts and the military has numerous protocols and procedures when they do. Many incidents of negligence are referred to as "career enders" because of the inevitable adverse evaluation reports, relief for cause transfers, administrative eliminations from service, and potential referrals to civilian credentialing authority (such as reporting misconduct by an attorney to his or her state bar). In addition, Congress has provided that negligent actions by soldiers can lead to criminal prosecution under the Uniform Military Code of Justice. For example, under Article 92 of the UCMJ a soldier

can face court-martial for dereliction of duty even through simple negligence. Another example of responsibility imposed on soldiers that has no civilian counterpart is Article 108, UCMJ, which provides that a soldier can be criminally punished for damaging, destroying or losing military property through neglect. I do not believe that adding the potential for fiscal liability on the United States Government will provide greater incentive for responsible behavior than the individual criminal sanctions and administrative procedures already in place.

Q3. You argued that it would harm morale to allow military personnel to bring claims under the FTCA under any circumstances. In the Johnson case, Justice Scalia questioned why morale is not equally harmed by barring recovery from or on the behalf of servicemen injured by government negligence. (A) Do you believe that the Feres Doctrine might produce any loss of morale among the armed forces? (B) Do you believe that the friends and classmates of Kerryn O'Neill think her family was treated fairly by the government?

A3A. Soldiers understand that they are different than the civilian population and give up certain rights for the privilege of serving the nation. For instance, under UCMJ Article 88 it is a criminal offense for an officer to write a letter to the editor of a local newspaper criticizing the President or a Member of Congress. While the loss of this right may upset some soldiers, it is necessary for the good order and discipline of the whole. Similarly, while I believe there are individuals who are disappointed that they cannot sue and receive money for alleged negligent actions, I believe that a far larger adverse impact on morale would result if we treated similarly situated soldiers differently. Soldiers can make an Olympic sport out of grousing how much better life is on the outside - but many of these same soldiers will be first in line when it's time to reenlist. In my years of service, I have had the opportunity to watch units deteriorate when perceived inequities take place, never with the soldier vis-à-vis the civilian, but frequently between soldiers. This is a real danger to morale if claims are determined by non-uniform state law. The O'Neill case also illustrates the uniqueness of military society that the Feres doctrine protects. The Navy imposed on itself the very standard (psychological screening for submarine duty) that generated the allegation of negligence.

A3B. The one thing that everyone at the Hearing knew in their heart of hearts, with not a scintilla of disagreement from any quarter, was that Ensign O'Neill's death was a tragedy. But what was just as clear from Mrs. O'Neill's testimony is that the Navy's investigation was thorough and when the family requested the Navy's investigation, the Navy was responsive and forthcoming with the circumstances of Ensign O'Neill's death. I'm also confident that friends and classmates of Ensign Smith suffered because of the tragedy. The friends one makes at a service academy are life-long and communication continues no matter where you are assigned. A drawn out lawsuit might have caused this graduating class to break into camps arguing who was most at fault in what was clearly a senseless tragedy. This schism would have lasted the length of the careers of these classmates.

Please find enclosed a response to Senator Hatch's written question from the Senate Judiciary Committee's hearing on the Feres Doctrine held October 8, 2002.

Thank you for the opportunity to respond. If we can be of further assistance, please do not hesitate to contact this office.

QUESTION:

Given the testimony presented at the hearing, is there anything further you would like to add to your testimony, or any issues on which you would like to elaborate further?

ANSWER:

Thank you for the opportunity to provide a response to some of the testimony heard from the second panel. The Administration strongly disagrees with the erroneous suggestion that the Feres doctrine is a judge-made exception to the Federal Tort Claims Act (FTCA) or "a court imposed restriction on a right that Congress gave to sue"; it is not. To the contrary, a review of the Court's unanimous opinion in Feres v. United States, 340 U.S. 135 (1950), demonstrates that Feres was a careful decision that correctly ascertained Congress' intent. Importantly, to the extent that congressional intent in the FTCA is ambiguous with respect to waiver of sovereign immunity, the Act must be construed strictly and in favor of non-waiver. See, e.g., Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) ("We have frequently held... that a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.").

The Feres Court began by recognizing that the issue before it was "whether the Tort Claims Act extends its remedy to one sustaining 'incident to the service' what under other circumstances would be an actionable wrong," and that this issue presented a "task of statutory construction." 340 U.S. at 138. Because there were no committee reports or floor debate to illuminate Congress' intent on this question, the Court had to make its best judgment as to congressional intent by "constru[ing] [the FTCA] to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole." Id. at 139.

First, the Court emphasized that the FTCA waived immunity only for liability analogous to existing bases of liability for private actors. See id. at 141 ("The United States shall be liable ..in the same manner and to the same extent as a private individual under like circumstances") (quoting 28 U.S.C. § 2674). As the Court explained, there existed "no liability of a 'private individual' even remotely analogous to that which [plaintiffs] are asserting against the United States." Id.

Second, the Court made the related point that the FTCA did not create any new causes of action: "Its effect is to waive immunity from recognized causes of action and was not to visit the Goverment with novel and unprecedented liabilities." Id. at 142; see also id. at 141 ("this is not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence"). And as the Court explained, there existed no recognized cause of action for the liability that the plaintiffs were asserting: "We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." Id. Likewise, the Court observed that "claimants cite us no state, and we know of none, which has permitted members of its militia to maintain tort actions

for injuries suffered in the service." Id. at 142. This lack of an analogous existing basis of liability was central to the Court's conclusion that Congress had not intended to authorize the plaintiffs' claims: "We find no parallel liability before, and we think no new one has been created by, this Act." Id.

Next, the Court focused upon another provision of the FTCA that further suggested that Congress had not intended to authorize claims for injuries incident to service. By requiring liability to be judged pursuant to "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b), the FTCA "assimilates into federal law the rules of substantive law of the several states, among which divergencies are notorious." 340 U.S. at 142. However, "[w]ithout exception, the relationship of military personnel to the Government has been governed exclusively by federal law." Id. at 146. As a result, it would be at the very least highly anomalous for the Government's liability to service members to depend on variations in state law. See id. at 143 ("That the geography of an injury should select the law to be applied to [a service member's] tort claims makes no sense.").

The Court properly reasoned that it would not be rational for Congress to have created a non-uniform remedy for members of the uniformed military system who, for example, were exposed to the same danger and suffered the same harm at the same time, merely because of the happenstance that the injuries occurred in different states with different tort laws. As such, the Court correctly declined to impute to Congress an intent to create such an anomaly "in the absence of express congressional command." Id. at 146.

In ascertaining Congress's intent, the Court also relied on the existence of other "enactments by Congress which provide systems of simple, certain, and uniform compensation for injuries or death of those in armed services." Id. at 144. These enactments predated the FTCA, but the FTCA did not mention them. "If Congress had contemplated that [the FTCA] would be held to apply in cases of this kind, it is difficult to see why it should have omitted any provision to adjust these two types of remedy to each other. The absence of any such adjustment is persuasive that there was no awareness [by Congress] that the Act might be interpreted to permit recovery for injuries incident to military service." Id.

Finally, the Court pointed out that the "systems of simple, certain, and uniform compensation for injuries or death of those in armed services," id. also were fair to service members. These programs were more generous than most states' workers compensation programs, id. at 145, and provided certain compensation without the need for litigation. The Court reasoned that, had Congress contemplated that the Federal Tort Claims Act would be applied to suits by service members, it would have enacted a specific provision to adjust compensation provided under the uniform military system with any awards issued in tort. Id. at

144.

To summarize, the Feres Doctrine is not a judicially created exception to the Tort Claims Act; rather, it is the Supreme Court's statutory interpretation of what Congress reasonably intended.