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Additional comments might be made in response to suggestions heard during the second panel. First, it was argued that because Kerryn O'Neill's parents did not receive compensation, the Feres doctrine is unfair and there is a "tremendous difference between worker's compensation laws and the Veterans Benefit Act." It is typical, however, for workers' compensation statutes that provide the exclusive remedy against a private employer to provide no benefits for the parents, grandparents, or siblings of injured workers, even if those family members would have a right to bring suit in tort if the workers' compensation remedy were not exclusive.

Second, in response to the point that the current military compensation system provides a uniform remedy for all service members with similar injuries, it was suggested that if suit were allowed for a category of claims, that uniformity would be preserved. Thus, the argument goes, if suit is allowed for injuries arising from auto accidents, every service member who is injured by an auto accident would stand in the same position. This argument is flawed, however, for two reasons. First, this approach would treat people with the same injury (for example, an amputated leg) differently based upon whether the injury was a training injury involving a tank, a combat injury involving hostile fire, or an auto accident injury. There is no rational basis for providing a more favorable remedy for an amputation resulting from an auto accident versus an amputation resulting from hostile enemy fire in combat. Second, such an approach would produce different results even within the class of auto accident injuries. Service members injured in auto accidents inside the United States would have a tort remedy, but service members injured by auto accidents in other countries would be barred from bringing suit by the foreign claims exception to the FTCA, 28 U.S.C. § 2680(k). These disparities would be unjustified, and underscore the wisdom and fairness of the existing uniform compensation system.

Third, it was suggested that the Feres doctrine was a misinterpretation of the combatant activity exception to the Act, 28 U.S.C. § 2680(j). The combatant activity exception, however, addresses claims brought by any party. It is not directed at or limited to members of the military, as is the Feres doctrine. Moreover, the Feres doctrine would remain a correct interpretation of the FTCA even if the combatant activity exception rendered it ambiguous whether the FTCA waived the government's immunity for some torts incident to service, because any such ambiguity must be resolved in favor of immunity. See, e.g., Lane v. Pena, 518 U.S. 187, 192 (1996) ("when confronted with a purported waiver of the Federal Government's sovereign immunity, the Court will 'constru[e] ambiguities in favor of immunity") (quoting United States v. Williams, 514 U.S. 527, 531 (1995)).

Finally, it should be emphasized that amending the FTCA to alter the Feres doctrine would not in any way increase the accountability of individual military officers or their military departments for negligent acts or bad decisions. Judgments awarded under the FTCA are never paid by the federal employee who committed the tort; most, including those awarded for Department of Defense or Coast Guard torts, are not paid by the negligent employee's agency. Rather, such payment comes from the Judgment Fund, a statutory mechanism which provides for the payment of judgments entered against the United States, the payment of which is not otherwise provided for. 31 U.S.C. §1304.

RESPONSES

OF

MAJOR GENERAL NOLAN SKLUTE
UNITED STATES AIR FORCE (RETIRED)
TO WRITTEN QUESTIONS POSED BY
THE SENATE COMMITTEE ON THE JUDICIARY
CONCERNING THE OCTOBER 8, 2002

HEARING ON THE FERES DOCTRINE

I appreciate the opportunity to respond herein to the questions posed by the Committee, and I remain available to provide any further assistance in this most important matter.

WRITTEN QUESTIONS FROM SENATOR PATRICK LEAHY

Question 1:

You testified in general terms about the need for the Feres Doctrine. I would like to ask you about the specific case of Kerryn O'Neill. As you know, she and a fellow officer were murdered by a third officer, who then killed himself. As I understand it, the actor whose negligence was at issue in the litigation was a civilian employee. (A) Could you explain why - in that specific case - it would harm military morale and cohesion to allow her estate to bring a lawsuit? (B) Why must we have a blanket rule preventing all lawsuits by members of the Armed Forces, rather than allowing case-by-case determinations?

Answer:

(A) The severity of the impact on unit cohesion, morale, good order and discipline, which would result from eliminating the Feres doctrine, is fact specific and will vary from case to case. There are undoubtedly instances in which the impact might appear less severe--and the O'Neill case may fall into this category. In fact, one might conclude that allowing the Estate of Kerryn O'Neill to bring a lawsuit, would pose little harm to these critical elements. I am sure the same conclusion could follow, if an exception to Feres was carved out for fact patterns in some other situations which present extreme, tragic circumstances. But I must emphasize that one cannot look at these cases in a vacuum.

(B) The foregoing conclusions do not, however, alter my position that the Feres Doctrine, as currently structured, should not be modified. My position in this regard was solidified during my efforts to comply with Senator Spector's request during the hearing to redraft the proposed legislation in order to accommodate the concerns expressed in regard to unit cohesion, morale, good order and discipline. My efforts proved totally unsuccessful. I found it virtually impossible to craft language that would in effect reverse Feres and at the same time protect those principles essential to the effective operations of

our Armed Forces. While the severity of the impact of eliminating the Feres doctrine might be less in some cases, such as the O'Neill case, I could not develop a statutory framework to accommodate these rare instances. Each attempt resulted in "the baby being thrown out with the bath water."

One cannot limit the consequence of abolishing Feres to the O'Neill case. While that case was truly a tragedy, allowing the estate of a service member to sue under the O'Neill facts, while prohibiting other service members and their families from suing when injuries occur during military operations, would clearly present inequities and adversely affect morale. It would result in actual and perceived unfair treatment among service members. Similarly, assuming the visiting officer had been injured rather than killed in the situation involved in the O'Neill case, it would have been highly inequitable to have permitted Mrs. O'Neill to sue on behalf of her daughter's estate, but precluded the surviving fellow officer from filing suit for his personal injuries. Furthermore, if the decision that allegedly led to the triple death could be the subject of litigation, then as a necessary consequence, all actions and decisions made by the chain of command that result in injuries could also be the subject of lawsuits. It is clear that attempting to pick and choose among plaintiffs through legislation is not a viable option.

In the statement I submitted prior to the hearing and in my remarks at the hearing, I discussed the significant adverse effects that would flow from eliminating the Feres Doctrine. It might be appropriate, at this point, to summarize these effects. First, we would create a situation in which the courts would be reviewing and second guessing military decisions that are routinely made in furtherance of the mission. The potential for disastrous consequences is readily apparent. Second, opening the gates to myriad suits by military members will impose on the armed forces the disruptive influence of civil litigation. It is the lawsuits themselves, not the recovery, that would be disruptive of discipline and the orderly conduct of military affairs.

Third, uniformity, consistency and fairness in treatment among all military personnel would be replaced with discriminatory treatment. There would be disparate results depending on whether the incident occurred stateside, where lawsuits could be filed, or whether it occurred overseas, where suits are barred. Imagine the effect on morale if two military members are similarly injured by a government vehicle on base, one stateside where he or she can file suit alleging negligence by the military driver, and the other overseas where he or she would be precluded by the foreign country exception from filing suit under the FTCA. What could be more abhorrent then barring one soldier who is injured in the battlefield from suing, but permitting another to sue for malpractice, for example? Similarly, because of the application of state law under the FTCA, recoveries for similarly injured military members would not be uniform or consistent, and perhaps be viewed as unfair due to disparate state laws on recovery. Fourth, inequitable treatment would result between military personnel, who would not be precluded from filing lawsuits, and civil service personnel, whose sole remedy would be the Federal Employees Compensation Act.

For all of these reasons, permitting tort lawsuits would have a negative effect upon the military mission, and would serve to undermine unit cohesion, morale, good order and discipline. As I stated at the hearing, if the rationale underlying the proposed amendment to the FTCA is the inadequacy of compensation under the current statutory scheme, then that may be a matter which should be analyzed, not in relation to tort litigation, but rather on behalf of all military members. If, on the other hand the rationale focuses on accountability, there already exist adequate mechanisms internal to the Armed Services in this regard1--all of which are governed by directives that do not present the disruptive effects inherent in civil litigation.

Question 2:

(A) Would you agree that our tort system is designed not only to compensate victims but also to deter and prevent negligent behavior? (B) Do you believe that negligent behavior by the Department of Defense would decrease were we to abolish the Feres Doctrine? Why or why not?

Answer:

(A) I would agree that our tort system under the FTCA is designed to compensate victims. I disagree that tort lawsuits have a deterrent effect on or prevent negligent behavior of federal employees. There are no statistics that would support either proposition.

(B) As reflected above, I do not agree that abolishing the Feres doctrine would deter or diminish negligent behavior. The military has in place a system that holds its employees personally accountable for their negligent/criminal behavior, which system is far more effective than private lawsuits against the United States for money damages. Indeed, I totally disagree that civil lawsuits are essential to achieving such accountability.

I firmly believe that accountability should focus on individuals, i.e. those persons whose inappropriate conduct caused, or contributed to, the injuries or deaths. The Services employ a wide variety of investigative measures directed towards accountability, yet none of them carries the highly invasive, divisive, disruptive effect implicit in civil lawsuits. These investigative measures do not undermine unit cohesiveness. Rather, they are integral to the makeup of all military organizations. They focus ultimately on two objectives: (1) identifying deficiencies and initiating corrective actions; and (2) disciplining (judicially or administratively) those responsible.

1 The potential for adverse administrative actions, as well as criminal actions under the Uniform Code of Military Justice, exist within all of the Military Services.

2 There are a plethora of investigative mechanisms widely used throughout all military organizations-e.g. Inspector General inquiries and investigations, safety investigations, commander-directed investigations, and inquiries conducted in response to complaints of wrongs under Article 138 of the Uniform Code of Military Justice, to mention only a few.

There have been countless situations in which the Services have held its members accountable for resulting injuries and deaths. Many involve scenarios in which Feres would be applicable. Actions designed to ensure accountability may include a wide range of adverse administrative actions, as well as criminal actions under the Uniform Code of Criminal Justice.3

Question 3:

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?

Answer:

The exclusive remedy feature of all Federal and State laws prohibiting tort litigation by an employee against an employer for injuries or death covered by no-fault workers' compensation is not premised on the notion that every potential plaintiff will receive the largest award under that system. Rather, it is premised on the notion that overall it is the best system for the most people, and it has general acceptance on that basis. In the same way, my view of the impact of Feres on military morale is not based on any notion that every potential plaintiff is content with that doctrine; rather it is based on the proposition that overall reliance on a uniform, no-fault compensation system has general acceptance as a fairer system than one that would result in potentially enormous compensation differences.. It is in this context that I believe partial or total repeal of the Feres doctrine would be harmful to military morale.

'During the hearing, a discussion took place in which the conclusion was erroneously reached that no criminal actions are available to hold individuals accountable in cases to which the Feres doctrine has been applied. While this conclusion might be correct in a total civilian setting, it overlooks the unique nature of the military. As Congress stated in one of its findings in 10 U.S.C. 864-

[T]the military society is characterized by its own laws,
rules, customs, and traditions, including numerous restrictions
on personal behavior, that would not be acceptable in civilian
society.

For example, under Article 92 of the Uniform Code of Military Justice, there exists the crime of dereliction in the performance of duties, under which military members could be tried by court-martial if they are, willfully or through neglect, derelict in the performance of their duties. Under Article 92, "Any person subject to this chapter who--is derelict in the performance of his duties; shall be punished as a court-martial may direct." The elements of proof for dereliction in the performance of duties are; “(a) That the accused had certain duties; (b) That the accused knew or reasonably should have known of the duties; and (c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties."

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