compensation" for military personnel. I am confident that the Administration's witnesses will discuss the federal remedies that are available to our military personnel in some detail, but I would like to comment on one aspect of these remedies. The statutory compensation systems provided to military personnel are, to a large extent, quite similar to the workers' compensation systems that cover most of our civilian workforce. The majority of our nation's workers are prevented by workers' compensation laws from suing their employers for injuries arising out of or incurred in the course of their employment. Of course there are differences between the remedies available to military versus non-military personnel under these schemes, but the basic limitation against employee lawsuits is substantially analogous. I understand that significant concerns have been raised regarding the way which different courts have applied the Feres Doctrine, particularly with regard to the inconsistent and potentially over-broad interpretation of the phrase "incident to service." I look forward to our witnesses providing a healthy discussion of the relevant legal decisions on that issue. I am also aware that some have criticized the levels of compensation provided to military personnel. Clearly, if the level of compensation currently afforded the members of our Armed Services is inadequate or inequitable, then that is something we need to take a hard look at. However, this type of concern should be addressed by changing the existing military compensation schemes, not by opening up military compensation to the trial bar. In closing, I should note that these types of problems do not require a wholesale reversal of the Feres Doctrine. These are issues that can be addressed by clarifying the application of the doctrine and by improving the statutory compensation and remedies available to members of the Armed Services. Despite the problems associated with the Feres Doctrine, I would argue that the most prudent course of action is to focus on addressing these problems from within the current system. I look forward to learning about these and other significant issues from our witnesses and thank them for being here today. I would also like to extend a special thank you to Bonnie O'Neill for traveling here today and also convey to her my heartfelt sympathy for the tragic death of her daughter Kerry. Thank you. OPENING STATEMENT OF DANIEL JOSEPH FOR UNITED STATES SENATE JUDICIARY COMMITTEE I am Daniel Joseph of the law firm Akin Gump Strauss Hauer & Feld. I am counsel for Bonnie O'Neill. I am submitting this statement and a legal memorandum expanding on it with citations to authorities. On behalf of Bonnie, my firm, and myself, we greatly appreciate very much the opportunity to appear before the Committee. I do want to say that we have represented and do represent Bonnie O'Neill without the payment of any fee, that this is the only Federal Tort Claims Act case in which I have ever represented a plaintiff, and that I do not expect to be handling other such cases. My firm and I undertook this representation because we thought that the Feres doctrine was wrong and should be corrected, not because we expected to earn any fees out of it. We represented Bonnie, as the executrix of the Estate of Kerryn O'Neill and as Kerryn's survivor, in litigation under the Federal Tort Claims Act in federal district court, the Court of Appeals for the Third Circuit, and the Supreme Court, in which we sought to recover under that Act, which we lost because of the Supreme Court's 1950 decision in Feres v. United States. Chief Judge Becker and Judges Sloviter and McKee of the Third Circuit said in dissenting from denial of rehearing in that case that the Feres decision was wrong and should be reviewed by the Supreme Court. Several years earlier, in dissenting from a decision in Johnson v. United States, Justice Scalia for himself and Justices Brennan, Marshall, and Stevens - I think that the Committee will agree that that is not a usual lineup of Justices - had concluded that Feres is not based upon the Federal Tort Claims Act and should be overruled. We strongly support legislative action that would remove the influence of the Feres decision and return the courts' treatment of suits brought by members of the military under the Federal Tort Claims Act to the statutory provisions of that Act without the additional and nonstatutory limitations now imposed by Feres. Under Feres, when a member of the military or the estate or survivor of a member of the military, brings suit against the United States under the Tort Claims Act, he or she faces a limitation on the ability to sue that does not appear in the Act's language. This is that the suit will fail if injury complained of arises incident to the plaintiff's military service. No similar restriction applies to any other class of person. Although the Supreme Court originally claimed in the 1951 Feres decision itself that this holding was based on language of the Act, it later altered that doctrine, and now the Court does not claim, nor does anyone else find, that there is any language in the Act that supports this doctrine. When Justice Scalia made this observation in his dissent in Johnson, neither the majority opinion nor any other Justice sought to supply any reason why the doctrine rests on the text of the statute. It is therefore not a statutory test but a court-imposed restriction on a right to sue that Congress gave - the Court has taken back part of the right to sue that Congress intended members of the military to have. It is our position that the Feres doctrine is not within the power of the Supreme Court under the Constitution, that it is not justified, that it is unnecessary for the purposes that the Supreme Court claims for it, that it is irrational and bars many suits, like Kerryn O'Neill's, that have nothing to do with its purported purposes. 1. For three major reasons the Supreme Court has no power under the Constitution to impose the Feres doctrine. First, the doctrine has no foundation in the text of the FTCA and constitutes a judicially imposed limitation on a right to sue granted by Congress. The Sixth Circuit observed in Major v. United States, 835 F.2d 641, 645 n2 (6th Circuit), that as a result of Feres it had been persuaded that the phrase "any claim" in the FTCA now means "any claim but that of servicemen". But the Supreme Court has no power so to condition or partially repeal legislation passed by Congress. The Supreme Court lacks the power to change legislation of Congress that it does not like. Second, the subject matter of Feres is lawsuits by members of the military, and the Supreme Court says that the doctrine exists to prevent threats to military decisionmaking and discipline. But the Constitution (Article I, section 8, clause 14) explicitly gives Congress, not the Court, the power to decide the "rights, duties and responsibilities” of the military services. The Court has no business second-guessing Congress on judgments made in this area. The fact that the Court did so in Feres at the behest of the Executive Brance makes it all the more important for Congress to act to restore the appropriate Constitutional balance. Third, the Federal Tort Claims Act constitutes a partial waiver of the sovereign immunity of the United States, and the Feres doctrine narrows the waiver that Congress gave. But the Supreme Court has elsewhere held that only Congress can decide how broad a waiver of sovereign immunity should be and that the courts lack power to broaden or to narrow a grant of sovereign immunity provided by Congress. United States v. Kubrick, 444 U.S. 111, 118 (1979); Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955). 2. The Feres doctrine was unnecessary. The Federal Tort Claims Act was carefully crafted by Congress to take appropriate account of particular problems that might be raised by extending that Act to military activities. But in Feres the Supreme Court replaced these carefully drawn provisions with its own, much broader, restriction. Because of the Feres doctrine, which was imposed by the Court when the enactment of the Federal Tort Claims Act was still quite recent, the particular limitations that Congress imposed have never been allowed to work in the military context. But they would be effective to cure all of the problems that the Supreme Court says are the impetus for the Feres doctrine today. Those Congressionally crafted limitations are: Under § 2680 (j) there can be no liability for combatant activities of the military in time of war. This is complete surplusage under the Feres doctrine. Under § 2680(k) there can be no liability for a cause of action arising in a foreign country. This restriction was clearly aimed largely at freeing all military activities overseas from the threat of tort litigation. Under § 2680 (a) there can be no liability based on the performance or non performance of any discretionary function, whether or not the discretion is abused. Thus decisions based upon military judgments are safe from interference or review by the courts under the FTCA, even without Feres. In all of its decisions based on Feres, the Supreme Court has never discussed what kinds of military activities that would be subject to judicial scrutiny under the FTCA were it not for the Feres doctrine. We submit that neither the Court nor the Defense Department can cite such an example. In fact, in the recent Shearer opinion, the Court held that Feres must apply because otherwise "commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions" - but it was to protect just those sorts of decisions that Congress enacted the discretionary function exception. The Court has never explained why that exception would not be sufficient. 3. At the same time, Feres clearly goes much further than it has to to protect military decisionmaking. Cases involving such matters as medical malpractice, ordinary traffic accidents, and other kinds of negligence that are identical in effect to things that happen in a civilian context are routinely barred by Feres but would be allowed under the Tort Claims Act. No one |