proposed

to the way it was originally intended by Congress. My bill is very short and simple. It amends the Federal Tort Claims Act to specifically provide that the Act applies to military personnel on active duty the same as it applies to anyone else. My bill further specifies that military personnel will be limited by the exceptions to government liability already included in the Act, including the bar on liability for injuries sustained by military personnel in combat and the bar on liability for claims which arise in a foreign country. In short, my bill will ensure that members of our armed forces will be entitled to damages they deserve when injured through the negligence or wrongful actions of the Federal government or its agents, except for certain limited cases contemplated by Congress when it originally passed the Act.

Congress passed the Federal Tort Claims Act in 1946 to give the general consent of the government to be sued in tort, subject to several specific restrictions. Under the common law doctrine of sovereign immunity, the United States cannot be sued without such specific consent. The Act provides that the government will be held liable "in the same manner and to the same extent as a private individual under the circumstances." Thus, the Act makes the United States liable for the torts of its employees and agents to the extent that private employers are liable under state law for the torts of their employees and agents.

The Act contains many exceptions to government liability, but it does not contain an explicit exception for injuries sustained by military personnel incident to service. In fact, one of the Act's exceptions prevents "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard during time of war." By including this exception, Congress clearly contemplated the special case of military personnel and decided that certain limits must be placed on government liability in this context. But by drawing this exception narrowly and

limiting it to combat situations, Congress rejected any broad exception for injuries sustained "incident to service." The Supreme Court did far more than interpret our statute when it significantly broadened the limited combat exception provided by Congress.

The Feres doctrine has been the subject of harsh criticism by some of the leading jurists in the nation. In the 1987 case of United States v. Johnson, a 5 to 4 majority of the Supreme Court held that the Feres doctrine bars suits on behalf of military personnel injured incident to service even in cases of torts committed by employees of civilian agencies. Justice Scalia wrote a scathing dissent in Johnson, in which he was joined by Justices Brennan, Marshall, and Stevens. Scalia wrote that Feres was "wrongly decided and heartily deserves the widespread, almost universal criticism it has received."

Judge Edward Becker, the Chief Judge of the Third Circuit Court of Appeals, has also spoken out strongly against the Feres doctrine. He has noted that "the scholarly criticism of the

doctrine is legion" and has urged the Supreme Court to grant cert. to reconsider Feres. Judge of

Becker has written to me that given the failure to the Court to overturn Feres thus far, I should

introduce legislation doing so.

Even in the Feres opinion itself, the Supreme Court expressed an uncharacteristic doubt about its decision. The justices recognized that they may be misinterpreting the Federal Tort Claims Act. They called upon Congress to correct their mistake if this were the case. The Court

wrote:

There are few guiding materials for our task of statutory construction.
No committee reports or floor debates disclose what effect the statute
was designed to have on the problem before us, or that it even was in
mind. Under these circumstances, no conclusion can be above challenge,

but if we misinterpret the Act, at least Congress possesses a ready
remedy.

Congress does possess a ready remedy, and I call upon my colleagues to exercise it. The

propose

bill I introduce today will eliminate the judicially created Feres doctrine and revive the original

framework of the Federal Tort Claims Act. There is no reason to deny compensation to the men and women of our armed services who are injured or killed in domestic accidents or violence outside the heat of combat. I hope that when we resume our business next year my colleagues will join me in supporting and passing this legislation.

Statement of Richard A. Sprague, Esquire
Regarding The "Feres" Doctrine

I would like to thank the Committee for inviting me to speak with you today about an

outrageous, unfair, and discriminatory judicially-created exception to the Federal Tort Claims Act

known as the "Feres" doctrine pursuant to a United States Supreme Court decision in 1950. Before I discuss with you what the "Feres" doctrine is and why it should be corrected legislatively, let me give you some illustrations of how the doctrine is so unfair.

A serviceman goes into an Army hospital for abdominal surgery. Eight months later he
has another surgery where a towel 30 inches long by 18 inches wide marked "Medical
Department U.S. Army" from the earlier abdominal surgery is discovered within his
stomach. No one would question that there was negligence and that were he a civilian
or had it happened in a civilian hospital, appropriate litigation could be brought. Yet
this precise fact pattern was one of the trilogy of cases decided under the name Feres
v. United States, 340 U.S. 135, 71 S. Ct. 153 (1950), in which the Supreme Court
found that the patient-serviceman could not bring suit.

A Coast Guard rescue pilot is called out on a stormy night to rescue a boater in
distress. The weather is so bad that the pilot requests radar guidance from the FAA, a
civilian agency of the federal government. Following the FAA's directions, the pilot
flies into the side of a mountain and is killed. If he were a civilian pilot there is no
question that his wife and family would be able to maintain a suit, yet, because he was

an active duty Coast Guard pilot his family's claim was tossed out of court because of

2

the Feres doctrine. United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063

(1987).

A soldier is ordered to stand unprotected in a field while a nuclear device is detonated a
short distance away. Not surprisingly, he subsequently develops inoperable cancer and
dies some years later. His estate is barred from the courthouse by Feres. Jaffee v.
United States, 663 F. 2d 1226 (3rd Cir. 1981). Not only is his estate barred from
seeking redress for the terrible thing done to their husband and father, but the children
cannot bring their own actions for their severe birth defects resulting from the
chromosomal damage caused by the radiation poisoning of their father. Hinkie v.
United States, 715 F. 2d 96 (3rd Cir. 1983).

Hypothetically, suppose that my good friend Senator Specter and I were driving in a
car accompanied by an active duty serviceman and an Army truck runs a red light
crashing into our vehicle and all are injured. The active duty serviceman in our vehicle
is rendered a quadriplegic. Senator Specter and I, even though not as seriously injured,
can bring a claim for negligence under the FTCA while the serviceman cannot. Such an
outcome is patently unfair and discriminatory.

Before 1946, even a civilian could not recover damages from the government in any of the situations that I have just described because of the doctrine of sovereign immunity. However, in 1946, Congress passed the Federal Tort Claims Act (“FTCA”), which waived much of the sovereign immunity of the United States in "recognition of the Government's obligation to pay claims on account of ... personal injury or death caused by negligent or wrongful acts of employees of the Government."