[Senate Hearing 107-977]
[From the U.S. Government Publishing Office]
S. Hrg. 107-977
THE FERES DOCTRINE: AN EXAMINATION OF THIS MILITARY EXCEPTION TO THE
FEDERAL TORT CLAIMS ACT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
OCTOBER 8, 2002
__________
Serial No. J-107-109
__________
Printed for the use of the Committee on the Judiciary
______
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WASHINGTON : 2003
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 69
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 21
prepared statement........................................... 79
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
prepared statement........................................... 88
WITNESSES
Altenburg, John, Major General (retired), former Assistant Judge
Advocate General, United States Army, Washington, D.C.......... 11
Fidell, Eugene R., Counsel, Feldsman, Tucker, Leifer, Fidell &
Bank, LLP, Washington, D.C..................................... 14
Harris, Paul, Deputy Associate Attorney General, Department of
Justice,Washington, D.C........................................ 2
Joseph, Daniel, Counsel, Akin, Gump, Strauss, Hauer and Feld,
LLP, Washington, D.C........................................... 15
O'Neill, Bonnie, Kingston, Pennsylvania.......................... 17
Sklute, Nolan, Major General (retired), former Judge Advocate
General, United States Air Force, Bethesda, Maryland........... 9
Sprague, Richard A., Counsel, Sprague and Sprague, Philadelphia,
Pennsylvania................................................... 12
Weaver, Christopher E., Rear Admiral and Commandant, Naval
District Washington, United States Navy, Washington, D.C....... 4
QUESTIONS AND ANSWERS
Responses of General Altenburg to questions submitted by Senator
Leahy.......................................................... 29
Response of the Department of Justice to a question submitted by
Senator Hatch.................................................. 32
Responses of General Sklute to questions submitted by Senators
Leahy and Hatch................................................ 36
Response of Admiral Weaver to a question submitted by Senator
Hatch.......................................................... 43
SUBMISSIONS FOR THE RECORD
Altenburg, John, Major General (retired), former Assistant Judge
Advocate General, United States Army, Washington, D.C.,
prepared statement............................................. 46
Fidell, Eugene R., Counsel, Feldsman, Tucker, Leifer, Fidell &
Bank, LLP, Washington, D.C., prepared statement................ 55
Harris, Paul, Deputy Associate Attorney General, Department of
Justice,Washington, D.C., prepared statement................... 59
Joseph, Daniel, Counsel, Akin, Gump, Strauss, Hauer and Feld,
LLP, Washington, D.C., prepared statement...................... 71
Sklute, Nolan, Major General (retired), former Judge Advocate
General, United States Air Force, Bethesda, Maryland, prepared
statement...................................................... 81
Sprague, Richard A., Counsel, Sprague and Sprague, Philadelphia,
Pennsylvania, prepared statement............................... 93
Veterans Equal Rights Protection Advocacy, Inc.:
letter, October 3, 2002...................................... 102
letter and attachment, October 20, 2002...................... 104
Weaver, Christopher E., Rear Admiral and Commandant, Naval
District Washington, United States Navy, Washington, D.C.,
prepared statement............................................. 123
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 injuries.
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.]
Senator Specter. Admiral Weaver, you talk about not
affecting military effectiveness, and I note your reference to
the case of O'Neill v. United States. We have with us today Ms.
Bonnie O'Neill, whose daughter, Ensign Kerryn O'Neill, was the
victim in that case.
The essential facts were that Kerryn O'Neill was murdered
by her former fiance, George Smith, a Naval ensign. The two of
them had met at the Academy and had become engaged, and then
Kerryn O'Neill broke off the engagement. She was then stalked
by Mr. Smith. One night, while she was sitting in her on-base
apartment watching a movie with a friend, Smith came to her
building, killed her, her friend, and then himself.
As you know, after the murders, Kerryn O'Neill's family
learned that Mr. Smith had scored in the 99.99th percentile for
aggressive, destructive behavior in a Navy psychological test.
Under Naval procedures, those results should have been
forwarded to the department of psychiatry at the Naval hospital
for a full psychological evaluation. Now, that, of course, is a
case which isn't battlefield, isn't combat, isn't military
duty.
Why should that kind of a case be barred, and do the
rationales, the three reasons you say, have any applicability
at all to that kind of a case?
Admiral Weaver. Well, sir, in my judgment, it is a matter
of equity. This was a terrible and tragic case, but to focus on
this and use this as an element to create a new standard, which
I would submit to you, sir, with respect, would create
inequities in other parts of the system--I don't believe that
that is the way to address it.
Senator Specter. What inequities, Admiral?
Admiral Weaver. I am sorry, sir?
Senator Specter. What inequities?
Admiral Weaver. The ability to afford, for instance,
redress on the part of the O'Neill family as opposed to
providing a similar circumstance under the Federal Tort Claims
Act against an overseas incident of that kind. In other words,
how would we provide the same type of treatment, regardless of
the circumstances?
Senator Specter. If the incident had occurred overseas, you
would apply the same law. It does not involve order and
discipline. It is not a matter which involves the combat items
which you mentioned in your opening statement.
Can you give me a factual situation where there would be an
unfairness in allowing a lawsuit, if you could, as to Kerryn
O'Neill? Why not as to others?
Admiral Weaver. Sir, I cannot provide an answer to that at
this moment. I will provide that to you, if I could.
Senator Specter. Well, I would appreciate it if you would
do so. I don't see that the analogy is apt.
Mr. Harris, when you articulate the rationales and you talk
about order and discipline, and Admiral Weaver makes a
reference to combat, I can certainly see the need for order and
discipline in combat. The comment was made about one sailor
suing another, apparently, in the course of duty, but how would
that affect a case like Kerryn O'Neill's horrendous murder?
Mr. Harris. Well, to begin with, I would like to also echo
the Department's sympathies for the O'Neill family.
I would remind the committee that the Constitution provides
the basis for the Congress having a special relationship with
the military and establishing the rules and regulations that
govern the military.
Within that rubric, under Article I, section 8, the
Congress has deferred to the military a certain amount of
authoritarian power that would be intolerable in civilian life.
One of those powers in this case is the power and the authority
of the military to govern its housing for military personnel.
Ensign O'Neill in this incident, as the Senator recognizes,
was in military-provided housing when this took place. This is
inescapably an area that is within the discretion of the
military to provide for order and discipline--the regulations
governing military housing are quite specific.
Senator Specter. Mr. Harris, what has the housing got to do
with it? If it had been off-base, would you say that Kerryn
O'Neill's parents would have been able to sue?
Mr. Harris. Well, of course, if it was off-base, the
military still does provide for housing even off-base by
providing a housing allowance to military members, for example.
Senator Specter. Is either relevant----
Mr. Harris. Very relevant, because these decisions are----
Senator Specter [continuing]. Whether you are on-base or an
allowance is being provided?
Mr. Harris. I am sorry, Senator?
Senator Specter. Is either relevant to the underlying
rationale? You talk about order and discipline, and I can see
that, but order and discipline has nothing to do with the
Kerryn O'Neill case. And whether she is on-base or off-base,
housing allowance or not, or in an apartment which is more
expensive than the housing allowance--what has that got to do
with the facts of the case with respect to the underlying
rationale of order and discipline?
Mr. Harris. Well, here, I think it is important to remember
that the order and discipline fits within a broader context of
a command structure in the military. The military has got to
function in a manner in peacetime; that is, it operates on the
command structure in peacetime so that it can effectively work
in wartime.
Senator Specter. Tell me how the command structure is
implicated in the O'Neill case.
Mr. Harris. If a commander, for example, had the choice of
providing additional security at the barracks that a service
member is living in and at which a service member is injured in
a particular case, versus taking that amount of money and
providing it to buy additional aircraft or providing additional
security at some other place on the base, this decision that is
made within the command structure of the military is one that
should function independent of judicial intrusion. The Congress
has recognized that for a long time and has deferred generally
to the military to make these kinds of decisions.
But beyond that, in this case where we have the case of
Smith, who had a psychological examination that allegedly
revealed that there were perhaps some psychological problems
associated with the serviceman, clearly the military should not
be in the position where commanders are hauled into court to
justify why a command decision was made in this case to assign
Smith to a submarine and that the assignment of Smith to a
submarine had caused him to be distraught.
If we get into this kind of second-guessing of command
decisions in the military, we will slowly grind down the
efficiency and effectiveness of our military within the command
structure.
Moreover, even if Feres didn't apply in this case, there
are a number of exceptions articulated within the text of the
FTCA that would bar a recovery, specifically the assault and
battery exception and the discretionary function exception.
Senator Specter. Well, I am listening to you, but I don't
see anything that has to do with the command structure.
One final question, Mr. Harris. You did not mention cost. I
infer from that that it is not a relevant factor in the
Government's position.
Mr. Harris. Cost?
Senator Specter. Cost, payment of damages.
Admiral Weaver. If I may take that question, sir, if you
don't mind.
Senator Specter. You may, after Mr. Harris does.
Mr. Harris. I think cost is always a concern.
Senator Specter. Well, never mind whether it is always a
concern. You didn't mention it. Is it a concern in your
opposition to a change in the Feres doctrine?
Mr. Harris. Well, the question that I answered was related
to the command structure and that has nothing to do with the
cost issue.
Senator Specter. I am aware of that.
Mr. Harris. As I would re-articulate, the Government, of
course--the Department of Justice would be concerned about
cost, which would be one other reason, the protection of the
Federal public fisc, for not opening up the military to all
sorts of lawsuits that are controlled by plaintiffs.
The FTCA does attempt to control cost by limiting
attorney's fees, but we think that the overall compensation
system that the military has in place, which is a very generous
compensation system, is one that for the most part compensates
those who are injured or killed in the line of duty in a fair
and consistent manner.
Senator Specter. You testified to that, but this question
is very different. This question is whether the Government
contends that it would be very expensive if these lawsuits
could be brought if the Government had to pay damages.
Mr. Harris. There is no question that it would be
expensive, but the payment of damages is not our primary
concern.
Senator Specter. Admiral Weaver, why don't you go ahead? Do
you have an answer to it?
Admiral Weaver. Sir, I can't address the specific impact of
judgments. My intervention was simply to say that regardless of
the financial cost, I think the greater risk is, again, on the
good order and discipline and the relations that exist in a
military organization one to another.
Senator Specter. OK, I think your positions are understood.
Thank you very much, gentlemen.
Now, I would like to call the second panel: Major General
Sklute, retired; Major General Altenburg, also retired; Mr.
Sprague; Mr. Fidell; Mr. Joseph; and Ms. O'Neill.
Our first witness on panel two is listed as Major General
Nolan Sklute, Former Judge Advocate General, United States Air
Force. He received his bachelor's degree from Union College in
1962, his law degree from Cornell, and was the Judge Advocate
General of the Air Force from 1993 to 1996.
I think you can see the timer there which has five on it,
and the minutes go down and the red light comes on when time is
up.
Thank you for joining us, General Sklute, and the floor is
yours.
STATEMENT OF NOLAN SKLUTE, MAJOR GENERAL (RETIRED), FORMER
JUDGE ADVOCATE GENERAL, U.S. AIR FORCE, BETHESDA, MARYLAND
Mr. Sklute. Thank you, Senator Specter. At the outset, I
would like to ask that my complete written statement be entered
into the record.
Senator Specter. Your statement will be made a part of the
record in full, and everyone's written statement will be made a
part of the record in full.
Mr. Sklute. First, let me apologize for my voice today. I
seemed to have picked up a football cold over the weekend.
I do appreciate, sir, very much the opportunity to be here
today and to share my thoughts with you and the committee
concerning the proposed legislation to amend the Federal Tort
Claims Act eliminating the effects of the Feres doctrine.
As indicated in my written statement, I submitted there and
I submit here that the proposed legislation poses significant
risks to the effectiveness of our Nation's armed forces, and I
would like to take a few moments to explain why I and many
others have reached this conclusion.
I don't intend to reiterate all of that have been discussed
by the courts in formulating, applying, affirming, and
expanding on the incident to service exception which has become
known as the Feres doctrine. You already have sufficient
information in this regard before you, both written and verbal.
What I would like to do is address the adverse impact the
proposed legislation will have on those elements that are
critical to the unit cohesiveness so very critical to the
combat effectiveness of our armed forces.
The elements that make up unit cohesiveness--and they have
been set out by the Congress in statute in many respects--these
elements are integral to the unique and special relationship
that exists within military organizations and that exists among
and between its members, and these elements are absolutes; they
can't be compromised.
They include such things as strict obedience to orders;
total loyalty to one's organization, one's service, and our
Nation; total loyalty up and down the chain of command;
complete trust among and between members of the organization;
and, finally, discipline.
The proposed legislation would attack the requirement for
unit cohesion in certain respects. First of all, it will create
a certain degree of divisiveness within an organization. It
will create discord, it will create perceived and real
unfairness, and it will create the not insignificant turmoil
associated with civil lawsuits.
Such activities are far removed from the various internal
accountability measures undertaken by the services within the
structure of various departmental regulations and directives.
There is no end to the type of decisions, actions, and
activities which would become litigation targets with the
abandonment of Feres.
One just has to visualize the impact on an organization
from the following two examples which really just barely
scratch the surface. A solider or airman injured during a
training exercise seeks monetary damages, alleging his injuries
resulted from the negligence of his commander and others within
his organization during the planning and execution of the
training event.
A maintenance crew chief bails out of an F-16 when it
flames out during an incentive flight or a training flight and
files a claim for his resulting injuries, alleging negligence
on the part of the pilot, the maintenance crew that maintained
that aircraft with whom he works, and the military air traffic
controllers.
The services are already subject to lawsuits in a wide
variety of circumstances. Superimposing the process of civil
litigation in the manner proposed by abandoning Feres will
impose an even greater disruptive influence upon military
operations. The courts have recognized this and acknowledged
their reluctance to intervene in military affairs.
The adverse impact upon unit cohesiveness inherent in these
two examples and a million others that could be discussed must
not be overlooked. Abandonment of Feres as proposed would pave
the way for lack of uniformity, inconsistency, and unfairness
in fact and in appearance. It promotes disparate treatment
based on geographic location of the incident giving rise to the
injury; i.e. stateside or overseas, since the FTCA doesn't
apply overseas.
It promotes disparate treatment based upon the combat
exclusion during wartime. A soldier alleging negligent medical
treatment at a stateside military hospital will be allowed to
proceed under the Federal Tort Claims Act. Yet, his buddy, a
solider receiving medical treatment in combat, would not.
I share fully the concerns of the families of those whose
lives are lost while serving their country. I remember very
well accompanying my wing commander and advising various
spouses that their husbands were killed in aircraft accidents.
The loss is no less severe, regardless of how the injury or
death is sustained.
The bottom line is the Feres doctrine has stood for over 50
years without legislative change and there should be tremendous
hesitation to work a change at this point.
[The prepared statement of Mr. Sklute appears as a
submission for the record.]
Senator Specter. Thank you very much, General.
We now turn to Major General John Altenburg (Retired),
former Assistant Judge Advocate General, United States Army,
currently with the Office of Ethics and Business Conduct, the
World Bank Group. General Altenburg received his bachelor's
degree from Wayne State and his legal degree from the
University of Cincinnati.
Thank you for joining us, Judge Altenburg, and I note in
your resume you were born in Philadelphia.
Mr. Altenburg. Yes, sir.
Senator Specter. We look forward to your testimony.
STATEMENT OF JOHN ALTENBURG, MAJOR GENERAL (RETIRED), FORMER
ASSISTANT JUDGE ADVOCATE GENERAL, U.S. ARMY, WASHINGTON, D.C.
Mr. Altenburg. Senator Specter, thank you for allowing me
to appear before the committee. I understand that my written
testimony will be submitted in the record.
Senator Specter. Without objection, your full statement
will appear in the record.
Mr. Altenburg. Yes, sir.
There are several reasons to support the Feres doctrine, as
General Sklute just mentioned, and I also am going to confine
my remarks to the good order and discipline prong of the Feres
doctrine. I am only going to discuss the effect upon military
order, discipline, and effectiveness if service members are
permitted to sue the Government or each other.
I think there are two aspects to the good order,
discipline, and effectiveness argument. One is the uniqueness
of the military setting and the military mission that produces
the examples that several of us have provided for you, the
examples of inherently dangerous equipment and inherently
dangerous training and the missions that we have talked about.
But the second is one that we haven't talked about very
often and I think it may be very significant, and that is the
extraordinary regulation and control that the military exerts
on itself directly related to the demands that have no civilian
counterparts that we make on our soldiers that are different in
kind and degree from the civilian sector. I think this is why
the Supreme Court consistently defers to the military.
The words ``good order and discipline'' sort of flow off
our tongue, but we don't look behind those words very often to
see, well, what are we really talking about, what is the unique
about the military culture and the military society that would
justify this kind of treatment.
I think that the Supreme Court mainly works in favor of the
military in this regard because of the disruption and the time-
consuming nature the litigation would have on our commands.
Now, it is true that our own accountability systems
frequently cause disruption and frequently demand time away
from duties for our soldiers and our leaders. But the
additional reason of civilian courts not having the expertise
to address many of the issues inherent in these inquiries is
why I believe the Supreme Court has upheld Feres for so long.
Soldiers die in training incidents, even though training is
strictly controlled and regulated. Sometimes, training injuries
and deaths are the result of negligence. The Congress provides
compensation for these cases, and if compensation is the issue,
then perhaps we need to work together to increase the
compensation that would be available.
If Feres did not apply to injured soldiers and families of
dead soldiers, soon the military would, in my opinion,
undermine our ability, No. 1, to maintain our combat readiness
and, No. 2, to ensure accountability so that we can continue to
conduct realistic training, while minimizing future incidents.
Page 7 of my written testimony refers to an infantry
platoon in training that I think illustrates the potential far-
reaching effects of allowing civil litigation. An infantry
platoon is the essential building block of your and my Army in
this country. A ready example of a platoon is the group of
statues that comprise the Korean War Memorial here in the
District of Columbia.
If a soldier on a platoon exercise were injured or killed
in what is a common training event for such a platoon, to
rehearse and execute a ground assault on a house or a hilltop
or a cave, live fire, potential defendants would include two
team leaders probably between the ages of 19 and 22 years old,
three squad leaders, and a platoon sergeant, and that is before
we even get to officers.
A concern of mine has been that it sounds like we are
worried always about the chain of command and superior
officers, when, in fact, the real divisiveness would come
because of all the junior leaders that could eventually be
involved in civil litigation in instances like this.
There are over 650 infantry platoons in this Army, sir, and
when you think about how often they conduct this type of
training--and that is just one sector of one arm of the
service--I think it shows the far-reaching effects that civil
litigation could have on our Army.
Thank you, sir.
[The prepared statement of Mr. Altenburg appears as a
submission for the record.]
Senator Specter. Thank you very much, General Altenburg.
We now turn to Mr. Richard A. Sprague. He has a bachelor's
degree from Temple in 1949 and a law degree from the University
of Pennsylvania in 1953. He served as chief counsel to the
House of Representatives Select Committee on the Kennedy
Assassination and as first assistant district attorney in
Philadelphia.
Welcome, Mr. Sprague, and we look forward to your
testimony.
STATEMENT OF RICHARD A. SPRAGUE, COUNSEL, SPRAGUE AND SPRAGUE,
PHILADELPHIA, PENNSYLVANIA
Mr. Sprague. Thank you, Senator Specter, and I thank the
committee for inviting me to speak here. I also ask that my
complete statement be made part of the record.
Senator Specter. Without objection, it will be.
Mr. Sprague. Dealing with the argument I just heard made to
you, Senator Specter, by the military personnel, I notice that
they focus on training. I think that in the event the Congress
were to recognize the error in the present interpretation of
the Feres doctrine, you will find the military using as a basis
of an exception the discretionary function when it comes to
training, and I think the issue of training is being used as a
red herring here.
It is significant to me, Senator, that nobody has spoken
about what it is that the Act specifically provides. There is
no question about it that the Federal Tort Claims Act in 1946
for the first time allowed suits against the Government for the
negligent acts of governmental employees.
The Feres doctrine which has been applied arises from the
words which nobody seems to deal with of precluding claims by
servicemen for claims arising out of the combatant activities--
the combatant activities, I stress--of the military or naval
forces or the Coast Guard during time of war.
Notwithstanding that language, under the interpretation
that the U.S. Supreme Court gave in Feres, we have these kinds
of situations, as you yourself pointed out: A serviceman went
into an Army hospital for having abdominal surgery. Eight
months later, he has another surgery where a towel 30 inches
long by 18 inches wide, marked ``Medical Department, United
States Army,'' from the earlier abdominal surgery was
discovered within his stomach. No one can question in that
situation there was negligence, and had he been a civilian or
had it happened in a civilian hospital, appropriate litigation
could be brought. Yet, that is the precise fact pattern in the
Feres doctrine that was applied by the Supreme Court.
Another example--and there are hundreds of them--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 direction, the pilot
flies into the side of a mountain and is killed. If it were a
civilian pilot, no question that his family and wife would be
able to maintain a suit. Yet, under the Feres doctrine, no suit
allowed. How you get it from the words of that exemption is
beyond me.
I do point out, as I think you said earlier, Senator
Specter, Judge Scalia in his dissent in the Johnson case, which
I believe is very persuasive, states that Feres was wrongfully
decided and heartily deserves the widespread, almost universal
criticism it has received.
As for the local tort law rationale, he pointed out how, in
United States v. Muniz, we allow Federal prisoners to sue the
Federal authorities, depending on which State they are in and
the various laws. We allow Federal prisoners to bring suit
against the Government, but not our men in service. And we are
not talking about in terms of combat and we are not talking
about the kind of situation that they are dredging up in order
to try to prevent the Congress from rectifying this wrong.
Feres now has been interpreted to bar all injuries suffered
by military personnel that are even remotely connected to his
status as a member of the military. Judge Becker's dissent in
the O'Neill case, joined by Judges Sloviter and McKee--and you,
Senator Specter, and I hope the Congress recognize what an
esteemed member of the judiciary Judge Becker is. He received
recently the prodigious Devitt Award. In that case, how in the
world can anybody say that the killing of this officer by the
other officer in some way is harming military discipline?
I notice that the caution light is coming up.
The simple fact, Senator Specter, is the Feres doctrine as
it is being applied now, not in the way the Congress originally
wrote it--and by the way, if you read the Supreme Court
opinions, they are going further and further away from what was
even the original interpretations, being interpreted more
broadly than ever, and they use as a basis that the Congress
hasn't acted. Judge Higginbotham, a distinguished member of the
Third Circuit, while he applied the Feres doctrine, decried it.
He said it is unjust, it is not fair.
The simple fact is the Feres doctrine saves the Government
some money, but it is money saved at the expense of our
servicemen and women who have been injured or killed as a
result of acts or omissions of the Federal Government. We spend
billions of dollars on military machinery and equipment. We
should not be so parsimonious when it comes to providing proper
redress to the most important resource of our military, the men
and women who serve our country.
Thank you.
[The prepared statement of Mr. Sprague appears as a
submission for the record.]
Senator Specter. Thank you very much, Mr. Sprague.
We now turn to Mr. Eugene Fidell, of the law firm of
Feldesman, Tucker, Leifer, Fidell and Bank; a bachelor's degree
cum laude from Queens College, a law degree from Harvard,
active duty in the Coast Guard from 1969 to 1972.
Welcome, Mr. Fidell. We look forward to your testimony.
STATEMENT OF EUGENE R. FIDELL, COUNSEL, FELDESMAN, TUCKER,
LEIFER, FIDELL AND BANK, LLP, WASHINGTON, D.C.
Mr. Fidell. Thank you, Senator.
First, one of the points that was made a few moments ago
had to do with the notion of unit cohesion. The reference, of
course, is to the legislation that was passed some years ago, a
few years ago, for the ``don't ask, don't tell'' policy.
Without developing the point more broadly because of time
constraints, I would only say that I sincerely doubt that the
Congress had in mind the Feres doctrine when it enacted its
comments concerning unit cohesion.
Now, is unit cohesion a potent factor? Obviously, it is.
You don't want to do anything that will unduly generate
friction within a military unit. Notwithstanding that, Congress
obviously has to do some balancing and decide whether the game
is worth the candle, and I think history teaches and experience
teaches that the kinds of issues that may come up in Feres or
Federal Tort Claims Act litigation are not the kind that really
erode military discipline.
Let me be very specific. It is certainly the case that
already, under current law in a variety of contexts, GIs have a
right to go to court, they have a right to make allegations,
and they have a right to a judicial determination, rather than
have the courthouse door slammed in their face, which is what
the Feres doctrine does, obviously. You never get into court
with the Feres doctrine, or you are out as soon as you are in.
Let me give some illustrations. A GI can sue under the
Tucker Act. A GI can sue to have his record corrected, for
Administrative Procedure Act review of the decision of the
boards for correction of military or naval records. These are
the kinds of issues that may well bring into play command
decisions of one kind or another.
Yet, our society has sufficient flex in it that we
recognize that larger public interests are served by giving GIs
resort to the same kinds of judicial forums that other
Americans have as well. I think civilian court proceedings
arising out of those kinds of contexts may well be a nuisance
to commanders, but without them civilian control of the
military would be no more effective here than in a non-
democratic society.
Issues of malpractice, for example, to take the one that is
so potent today and that many lawyers in private practice
regularly get inquiries about, have nothing whatever to do with
military discipline or any notions of command or unit cohesion.
If the simple duty to respond to legal process or produce
documents, such as agency records, and in some cases even be
subjected to the normal discovery process contemplated by the
Federal Rules of Civil Procedure, or even a trial from time to
time, is too much of an intrusion, then the result would be to
bar actions by military personnel under a raft of other
statutes where their right to sue has never been questioned.
[The prepared statement of Mr. Fidell appears as a
submission for the record.]
Senator Specter. Thank you very much, Mr. Fidell.
Our next witness is Mr. Daniel Joseph from the firm of
Akin, Gump, Strauss, Hauer and Feld; a bachelor's degree from
Columbia in 1963, Harvard Law School, 1966, law clerk to Fifth
Circuit Judge Irving Goldberg. He was with the Department of
Justice from 1967 to 1971.
Thank you for joining us, Mr. Joseph, and we look forward
to your testimony.
STATEMENT OF DANIEL JOSEPH, COUNSEL, AKIN, GUMP, STRAUSS,
HAUER, AND FELD, LLP, WASHINGTON, D.C.
Mr. Joseph. Thank you, Senator Specter. On behalf of Bonnie
O'Neill and my firm and myself, we really do appreciate this
opportunity to appear before the committee. I would like to
thank you for organizing and chairing this hearing and looking
into this old Supreme Court decision that we think is having an
unfair and an unnecessary impact.
I also would like to say that we represented, of course,
Bonnie O'Neill all the way through her litigation. I want to
stress that we did that without the payment of any fee, and
this is the only Federal Tort Claims Act case in which I have
represented a plaintiff. I represented the United States a
little bit when I was at Justice. And I don't expect to be
handling other such cases.
Although the Supreme Court originally claimed in the Feres
decision that its holding was based on the language of the Act,
it later altered that rationale and now it doesn't hold, and
the United States doesn't argue either here or in court, that
there is any language in the Act that supports the doctrine.
The Feres doctrine is therefore not a statutory, but a
court-imposed restriction on a right that Congress gave to sue.
The Court has taken back part of the right to sue that Congress
intended to give members of the military. For three reasons, I
think the Supreme Court had no power under the Constitution to
impose the Feres doctrine.
First, as I said, the doctrine has no foundation in the
text and it is a judicially imposed limitation on the right to
sue. But the Supreme Court doesn't have any power to condition
or to partially repeal legislation passed by Congress that is
not unconstitutional.
Second, the subject matter of Feres is lawsuits by members
of the military, and the Supreme Court says that the doctrine
exists We have heard it justified today, on grounds of
preventing threats to military decisionmaking and discipline.
But it isn't the Supreme Court under the Constitution and it
isn't the executive branch that gets to determine that.
Under the Constitution, Article I, section 8, clause 14, it
is the Congress that has the power to govern the ground and
naval forces, and the Court has no business second-guessing
Congress on judgments made in this area. The fact that the
Court did so in Feres, based on the request of the executive
branch as a party in a lawsuit, makes it all the more important
for Congress to act to restore the appropriate constitutional
balance.
Finally, the Federal Tort Claims Act, of course, was a
larger waiver of the sovereign immunity of the United States,
and the Supreme Court has held many times, except in the Feres
case itself, that it is only the Congress that gets to
determine how large or how small a waiver of sovereign immunity
should be.
A second extremely important point is that the Feres
doctrine was not necessary. Congress did the job of crafting
the Act to take account of the particular problems that might
be raised by extending that Act to military activities, and
there are some very important exceptions in the statute itself
that show that.
Under Section 2680(j) of Title 28, there can't be any
liability for combatant activities of the military in time of
war. This represents Congress making a balance that the Court
has not respected. It extended the ban far further than that.
In addition, there can't be any liability for a cause of action
arising in a foreign country. Again, that is a congressional
balance that Congress struck that the Court has ignored.
Finally, and perhaps most importantly, as has been referred
to, Congress said that there can't be any liability under the
Federal Tort Claims Act based on performance or non-performance
of a discretionary function, whether or not the discretion is
abused. Thus, the examples that we have been told about this
morning, such as choices on how much security to supply in a
military context or training exercises that have gone awry,
would all be covered under the discretionary function exception
that Congress imposed without the unnecessary additional
breadth of the Feres doctrine.
Now, one point I would like to make that I was kind of
surprised to hear--I have heard repeatedly about the Veterans
Benefits Act and this compensation system. The O'Neills did not
receive any benefits at all under that system, which only
applies to service people themselves and their dependents. If
you are young and you are not married, as Kerryn O'Neill was
not, you are not likely to have dependents. Thus, there is a
tremendous difference between worker's compensation laws and
the Veterans Benefits Act, and in many cases there are no
benefits that are available.
The other point that I just wanted to mention briefly here
that is mentioned at length in the statement that I have filed
is that it is possible for civilians to sue in many of the same
contexts in which military are barred from suing. The best
example is a case called Sheridan that involved at the Bethesda
Naval Hospital a soldier who apparently at least was
disorderly, who fired a rifle into the street there and hit a
civilian passing in a car. The civilian successfully filed
suit.
If that person had been in the Army or a member of the
military, suit would have been barred. But a suit by a civilian
is permitted, and that is irrational if the purpose is to bar
possible potential interference with military matters.
So in our view, the Feres doctrine is both over-broad and
doesn't cover things that purportedly arise out of the same
concern. That is the reason why it needs comprehensive
attention from the Congress.
Thank you.
[The prepared statement of Mr. Joseph appears as a
submission for the record.]
Senator Specter. Thank you, Mr. Joseph.
We now turn to Ms. Bonnie O'Neill, from Kingston,
Pennsylvania. Ms. O'Neill's daughter, Ensign Kerryn O'Neill,
was the victim of the case which we have been talking about.
We know this is a difficult situation for you, Ms. O'Neill,
but we appreciate your being here to tell us your views on this
matter.
Chairman Leahy. If I might, Mr. Chairman----
Senator Specter. Senator Leahy, let me welcome you to the
hearing.
Chairman Leahy. Thank you. I just want to thank you for
taking on this hearing. I am in another hearing when I am not
here, but I did also want to come over and thank Ms. O'Neill
for being here. I can only imagine how difficult this must be
for you being here. I appreciate you taking the time and it is
very good of you to do that.
Senator Specter. Thank you.
Ms. O'Neill, we look forward to your testimony. The floor
is yours.
STATEMENT OF BONNIE O'NEILL, KINGSTON, PENNSYLVANIA
Ms. O'Neill. My following statements may seem like a plea
for help, but how as a mother can I address you otherwise? I am
overwhelmed to be here and my aim is one I have had in mind for
9 years.
I would like to thank you, Senator Specter and Senator
Leahy, for doing all the work to hold this hearing. The issue
is important to me and my family, and also to other members of
the military and their families.
I was notified of my daughter Kerry's death in work
December 1, 1993, an occurrence not imaginable previously even
in my most horrible nightmares. Kerry was the youngest of my
three children, with a brother, Ed, and a sister, Kristen, who
is just 1 year older than Kerry.
Since our family had no military background, I found
Kerry's desire to apply to the United States Naval Academy
surprising. Her final selection possibilities included some
extremely prestigious colleges. Kerry decided to combine some
suspense with humor by waiting until May 1, the deadline for
admission to the Naval Academy, to make her announcement of
college selection to us. We were all on edge.
She designed a selection form with a box in front of each
college, and on the morning of May 1 this form was hanging on
my bedroom door with the United States Naval Academy checked.
Kerry told me she had made her choice because she wanted the
combination of academics with the opportunity of serving her
country.
Although I had always let Kerry know I would accept any
decision she made, internally I was quite apprehensive. I
realized, as she did, her future would be very difficult and
demanding. I knew I had to trust the military with Kerry's
life. Her next 4 years constantly challenged her and yet she
responded to all of the challenges, excelling in every aspect
of her naval career. We were all so very proud of her
accomplishments.
Kerry graduated in the top 5 percent of her class. In
addition, she excelled in sports, receiving 12 varsity letters
in 4 years. Although she was a walk-on at the track, she was
the first female Division II All-American in women's cross-
country and the first female athlete to qualify for NCAA
Division I championships at the Academy.
She set Academy records in cross-country and other track
events, and she was honored in her senior year by receiving the
award of the top honor for a female athlete, the Vice Admiral
William P. Lawrence Award. Kerry was selected to serve as a
representative of the United States Naval Academy in the
Australian Navy during her final summer at the Academy. But
most important, Kerry was a kind, sincere, and loving woman
with high aspirations. People whose lives she touched will
always remember her.
Upon graduation from the Academy, Kerry received an
appointment in the Civil Engineering Corps. After training in
California, she was stationed at Coronado Naval Base and
received the position of leader on a reconstruction project at
the base. She loved the Navy and the naval base. She once said
to me, I wake up with the sun in the morning and run with the
sun going down at night, and I love my freedom.
I am presenting this background to you to emphasize the
possibilities Kerry's life held. Then came December 1, 1993,
and her life was abruptly ended by her ex-fiance, George Smith,
who also graduated from the United States Naval Academy. They
were serving at different naval installations, working in
entirely different jobs near San Diego, California.
Smith seemed unable to deal with the ending of the
engagement. As the time got closer to his serving his first
tour of duty on a submarine, Smith's erratic behavior got more
pronounced. He followed Kerry around and he appeared uninvited
where she was socializing with other people. While this was
disturbing, it did not seem all that unusual to people,
considering Smith's situation.
But 2 days before Smith was to start his first submarine
tour, Kerry was obviously concerned and asked a friend, John
Dye, at the office at which she worked to visit her that
evening. Unfortunately, he could not. Then, while working out
at the gym, Kerry met Lieutenant Alton Grizzard, another friend
from the Academy who was well known as having been the
quarterback on the Academy's football team, and she asked for
help. Grizzard agreed and paid her a visit, during which they
watched a movie.
George Smith appeared uninvited and he and Kerry had a
heated discussion in the lobby of the bachelor officer's
quarters where she lived at the Coronado Naval Base. Smith went
back to his apartment and, in fact, telephoned me at midnight,
California time, which is 3 a.m. in Pennsylvania, as I was
sitting up with a sick friend, to tell me that Kerry was dating
another man asked what he could do. I told him to give her time
to make up her mind. She is only 21. I have had to live with
the memory of that phone call ever since.
George did not listen to me. He returned to Kerry's BOQ
carrying two loaded handguns past the guard to her room. He
fired seven shots, killing Kerry, Alton Grizzard, and Smith
then killed himself. A great emptiness grew in the lives of our
family, friends, and associates.
As the months went on, our family requested the Navy's
results of the investigation into these murders. The Navy
supplied that information and this is what we discovered. Kerry
had been killed a day before he was to report for submarine
duty. The Navy also found that Smith was psychologically unfit
for submarine duty. He had a serious personality disorder, was
extremely aggressive, and could not control his behavior under
stress.
In addition, he could not deal with the months of isolation
from friends and family and the lack of apparent control of his
personal situation that submarine duty involves. The Navy was
made aware of this because 2 months earlier it had required
Smith, like all candidates for submarine duty, to take a
psychological screening test. The results of the screening
under normal procedure would have dictated whether further
psychological testing would be necessary.
Smith's results were so unusual and departed so far from
the norm that in its later investigation the Navy concluded
that in Smith's case no further psychological testing would
have been necessary to immediately disqualify him from
submarine service.
These results showed Smith to be more than four standard
deviations above normal, above the 99.99 percentile in
aggressive and destructive behavior, and more than two standard
deviations above norm in six other categories, including low
situational control, impulsive behavior, and negative
motivation. These are obviously not impressive traits for a
future nuclear engineer scheduled to report to duty on a
nuclear submarine. George responded to test questions with
answers such as ``I know how to make people uneasy when I want
to. I can get away with anything I want.''
With the screening test abnormal results so pronounced, why
didn't Smith's obvious mental unsuitability for submarines
disqualify him for that duty? Why was screening performed if
normal procedures wouldn't be followed for United States Naval
Academy graduates?
If Smith were disqualified, he would not have been under
severe pressure that caused him to kill Kerry, himself, and
Alton Grizzard. If these deaths had not occurred that December
1, could numerous military lives aboard a submarine have been
sacrificed in the future when Smith suffered acute stress?
The answer was and remains shocking and amazing to me. It
is in violation of the Navy's procedures that the psychological
screening tests were not read or scored by the Navy's civilian
psychologist whose job it was to do that. Thus, the evil in
these results was not discovered until a subsequent
investigation, until after Kerry's life, Smith's life, and
Grizzard's life and their future naval careers had been lost.
I think that someone needs to assume responsibility for
this. The Navy had appropriate measures which had identified
Smith's very erratic and troubling mental problems, even though
he may have appeared to be normal to those who knew him. But
Dr. John Wallace, the Navy's civilian psychologist, just didn't
read them. Although Dr. Wallace at first claimed he had never
received these results until after Kerry's death, he indicated
during the investigation that while testing of enlistees was
worthwhile, that for officers who attended the Naval Academy it
was unnecessary.
The Navy finally read Smith's test results after Smith had
killed three naval officers. Lieutenant Commander E.C. Calix, a
Navy psychologist, performed the review and concluded that the
test results showed that Smith would have been screened
psychologically before being allowed to serve on duty, but also
that the test results and other evidence of Smith's behavior
showed clearly without further testing that Smith was not
suited for submarine duty, including false answers to certain
background questions on which he falsely stated, for example,
that he had been married for 6 months.
The test evaluation, according to Navy regulations, should
have triggered further counseling and psychological
evaluations, which most certainly would have necessitated
additional treatment. Smith needed their help. If the Navy's
procedures had been followed, my daughter's death most likely
would not have occurred. The correct step defined by the Navy
were not followed.
The Navy admitted the negligence and oversight in their
investigation, knowing that the Supreme Court's Feres doctrine
would protect them from legal responsibility. I can't imagine
why any entity, whether a person, a business, or a military
service, should not be held accountable for its careless
actions. Kerry had devoted her life to the military, and
because of this fact her death was accepted without any
possible repercussions. The rights of a civilian were denied
her.
Dan Joseph and his firm, Akin, Gump, Strauss, Hauer and
Feld, did everything in their power to right this situation.
For several years, we went from the district court, to the
Third Circuit Court of Appeals, to the Supreme Court, and every
appeal was denied. How could this injustice be perpetuated?
We were told that the Supreme Court interprets the laws,
but Congress is the country's lawmaker. We were told that the
Feres doctrine is not based on any part of what Congress wrote
in the Federal Tort Claims Act, and that if the statute would
have applied as written, the Navy would have been responsible
for its failure to read the test results.
I think that the Congress, which we elect, understands
these issues better than the Supreme Court, and I ask that the
Congress do away with the Court's doctrine. I am here because I
need your help. We have lost our case and there is no way we
can change that. I am trying to prevent what happened to Kerry
from happening to others.
All of you, unless you had lived through a similar
situation, could not possibly imagine the pain and frustration
Kerry's family has endured. My goal today is to do what I can
to prevent this from happening to others, to ask you to require
that the United States assume responsibility for their actions
when not in time of war. This will reduce the amount of
negligence which the Feres doctrine licenses. The Feres
doctrine should be repealed. We have lost Kerry, but her death
will not be in vain.
Senator Specter. Take your time, Ms. O'Neill.
Ms. O'Neill. I am finished. Thank you.
Senator Specter. Thank you very much for coming in today
and for sharing with us your views.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. I will put my statement in the record, Mr.
Chairman. I also have some questions that I will submit.
Given the Johnson case where Justice Scalia questioned why
morale is not equally harmed by barring recovery on behalf of
servicemen injured by Government negligence, there is a
question on that. I rhetorically ask the question, do you think
the friends and classmates of Kerryn O'Neill think her family
was treated fairly? I don't. I think it is high time to be
looking at the Feres doctrine. I think it is a doctrine whose
time has come and gone.
I can't add to anything you have said, Ms. O'Neill.
Obviously, everybody in this room, whether they are for or
against the Feres doctrine, if they could make a wish, it would
be to bring your daughter back. We can't do that, but I also
agree with you that we ought to listen to you so that other
families are not put in the bind you and your family were put
in.
I think you are very courageous to come here. I think
Senator Specter deserves a great deal of credit for having this
hearing. I will put my statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter. Thank you very much, Senator Leahy.
As I think all of you know, Senator Leahy is the chairman
of the full committee and it was through his good offices that
this hearing was scheduled. Senator Leahy makes the decision on
which matters are of sufficient importance to call for the
attention of the Judiciary Committee, so we thank him.
Ms. O'Neill, you have obviously gone through a long
litigation process and you had had the trauma of your daughter
being murdered, and then to find out what had happened with
respect to the Navy psychological test where people should have
been on notice and it was an incident which should have been
prevented.
Then you went to counsel, Mr. Joseph, and your testimony
shows your familiarity with the legalisms. It is a little hard
for lawyers to understand how the court interpreted this
provision, and we are going to come to that in the discussion
among the lawyers here in just a moment or two.
I would like to start with your reaction to what happened
in the interpretation by the Federal courts in Pennsylvania
where you are resident, where you litigated, from the language
which has already been read, but let me repeat it. ``The
Federal Tort Claims Act which provides for claims does not
apply to any claim arising out of the combatant activities of
the military or naval forces or the Coast Guard during time of
war.''
Now, obviously, you didn't feel that your daughter's murder
involved a combatant activity during time of war, did you?
Ms. O'Neill. No, I did not.
Senator Specter. And how did you respond to your
expectation that your claims could be pursued in a court of law
when that provision, which on its face does not apply to the
circumstances involving your daughter's murder--how did you
feel about that?
Ms. O'Neill. I felt very upset when I realized there were
things like the Feres doctrine coming into play. I felt very
cheated. I feel more cheated for Kerry and the other people who
may be involved because they are not held responsible for
negligence.
I did know when I approached Dan Joseph that it was going
to be a very difficult lawsuit to ever win, unfortunately. I
realized that, but we all wanted to go forward and their firm
was gracious enough to feel the same dedication to it that I
did.
Senator Specter. Well, Ms. O'Neill, in the law there is an
effort made to honor expectations, and when the law allows a
recovery but has an exception and the exception doesn't apply
at all to the case involving the murder of your daughter, I can
see how you would respond. You would be resentful and surprised
and really questioning what had happened.
Ms. O'Neill. Obviously, obviously. I can't imagine this
being allowed to continue. I have such strongly feelings also
for other young men and women who are going to be in the same
situation. I hear all these people talking about the military
and how it protects them and the laws of order and what they
need to have.
This in no way, in my mind, even touches near what they are
saying, in no way. There is no leadership, there are no general
issues of war, there is nothing. I have a daughter. A man
walked in and killed her. I can't imagine how it could apply. I
can't imagine that this would be allowed to continue to go
forward with this Feres doctrine.
Senator Specter. Well, Mr. Joseph, thank you for pursuing
this case on behalf of Ms. O'Neill. I have no doubt that when
you examined the case law and agreed to undertake the case not
on a time basis but perhaps on a contingent fee basis that you
thought your chances of recovery were very slight. Why did you
take the case?
Mr. Joseph. Well, frankly, Senator, I knew something about
the----
Senator Specter. Let me ask you the ancillary question. Did
you think you had any chance to win this case?
Mr. Joseph. Well, we had seen Justice Scalia's dissent in
the Johnson case which was joined by Justices Brennan, Marshall
and Stevens.
Senator Specter. But this was not a case for original
jurisdiction in the Supreme Court.
Mr. Joseph. No, but we thought that we had a chance of
getting the Supreme Court to take the case. I knew it was
small. I mean, it was not taken because we thought we had a
large chance, and we thought it was an unjust decision and
worth trying to fight. You can never say that you expect the
Supreme Court to take something.
Senator Specter. Did you petition for cert?
Mr. Joseph. Yes.
Senator Specter. Were there any dissents? You only need
four to get cert granted.
Mr. Joseph. That is right. No dissents were noted. As I
think you know, it is rare that a dissent is noted on a denial
of certiorari.
Frankly, when Judge Becker said in his opinion in the Third
Circuit that he thought that the Feres decision was wrong and
that the Supreme Court should grant cert and reexamine it, I
will tell you that at that point I had a flutter in my heart
because I knew that Judge Becker is very highly respected at
the Supreme Court. And we had our hopes that that might be our
ticket in, but it wasn't.
Senator Specter. Judge Becker has gotten the Court to take
quite a few cases.
Mr. Joseph. Yes.
Senator Specter. General Sklute, how about this language,
the language of exclusion: ``The Government is not liable under
the Federal Tort Claims Act for injuries to servicemen that
arise out of or in the course of activity incident to military
service'' ? That is what the Court said in Feres.
Give me your best lawyer's interpretation as to how you
could get that rule out of the Federal Tort Claims Act. You
have a right to remain silent. That is a pretty tough question,
but I am interested in your answer.
Be on guard, General Altenburg, you are next.
Mr. Sklute. Can I answer that question in this way, sir? I
am going to refer back to what Ms. O'Neill just said, and
believe me, all of us express our condolences to you. This is a
tragic, tragic case, a case that cries out for some--it cries
out for----
Senator Specter. Legislation?
Mr. Sklute. Not legislation, sir. It cries out for action
to be taken against those who were involved in the incident and
may have committed some types of negligence that may be--I
don't know what the facts of this case would show, other than
the fact that----
Senator Specter. Whom would Ms. O'Neill sue, Mr. Smith, who
killed himself? Did he have an estate?
Mr. Sklute. If there is evidence of a violation of the
UCMJ, criminal action should be taken against individuals.
Senator Specter. Who?
Mr. Sklute. Accountability within the Navy.
Senator Specter. Criminal charges? You are going to
exonerate the service from civil liability, but allow criminal
charges to be brought?
Mr. Sklute. If the purpose of the civil action is----
Senator Specter. They would have to go to Mr. Sprague for
that.
Mr. Sklute. Excuse me, sir. I am sorry.
Senator Specter. Go ahead.
Mr. Sklute. If the purpose of the civil action is
compensation and accountability, there is already a scheme in
place for compensation. If compensation is inadequate, then
action could be taken to adjust that, No. 1.
No. 2, if it is accountability, I can assure you that the
services have so many different tools at their disposal to
assure accountability----
Senator Specter. General Sklute, come to my question. How
can you read the Federal Tort Claims Act and derive the
principle of Feres that the Government is not liable under the
Federal Tort Claims Act for injury to servicemen that arise out
of or in the course of activity incident to military service?
Mr. Sklute. I would have to go back to the Feres decision
itself, sir. When I read Feres 10 years when I was on active
duty--8 years ago----
Senator Specter. Would you supplement your testimony with
an answer to that question?
Mr. Sklute. I certainly will, yes, sir.
Senator Specter. I have been a lawyer for a little longer
than you have and I couldn't answer that question, but perhaps
General Altenburg can answer the question.
How under the Act, General, can you find a justification
for that holding?
Mr. Altenburg. You can't find it in the words of the Act,
sir. It is clearly judge-made law.
Senator Specter. That may just be the testimony to push us
over the top on our legislative effort.
Mr. Altenburg. Well, Senator, I think it was a recognition
by the Court at that time and in the 50 years since of the
uniqueness of the military mission and why the military quite
frankly needs that protection.
Senator Specter. Well, in this room the most frequently
repeated statements relate to judges should interpret the law,
not make law. Senator Thurmond has made that standard
operational procedure and everybody who comes in agrees with
that.
When the comment is made that Congress has had the
opportunity to correct it for 50 years, that is true. Congress
hasn't passed a budget act this term. Congress hasn't passed
any of 13 appropriations bills. We have in conference the
energy bill and the insurance bill on terrorism and the
patient's bill of rights.
To say that because Congress hasn't done something that
Congress agrees with it is really as much a non sequitur as the
holding in Feres is from the case. But, of course, that is on
this side of the bar, not on your side.
Mr. Fidell, you are an expert in matters involving the
military. I understand that you have lectured on the subject
and have extensive experience and qualify as an expert. Based
on your expert knowledge, what effect do you think a repeal of
Feres would have on good order and discipline in the military?
Mr. Fidell. I think it would have, in fact, a positive
effect, and I would like to explain why. Senator, we have for a
generation been living in an all-volunteer environment. There
is no conscription, and my hunch is I am not alone on this
panel in the view that maybe reinstatement of the draft would
be a salutary thing for a variety of social and national
reasons, but there is no immediate prospect of that change
being made.
Therefore, people of the age bracket that we look to for
enlistments, for accession of new personnel, have to have the
feeling that they are going to be basically treated fairly when
they are in the military. That means the military justice
system has to operate in a fair manner.
It also means that the basic terms and conditions under
which people are asked to put their lives on the line have to
be essentially fair. If that is there, then people will
continue to do the patriotic thing and step forward and help
defend the country and our entire way of life. If it is not
there, then we have placed an impediment in the path of
national defense.
While no one can say that this, that, or the other thing is
going to make or break the military's ability to defend the
country, every factor that bears on the conviction that our
military personnel have that they are being treated fairly has
to be viewed as a precious and significant matter.
When you have military personnel and their families--who
play a potent role in the entire system--when you have those
constituencies, if you will, having a shade of doubt, having an
erosion of their confidence in the essential fairness of the
arrangements under which they or their loved ones serve the
country, then I think you have paid a penalty, not a measurable
one, but a penalty nonetheless. That is, I think, what is
involved here.
Senator Specter. Mr. Sprague, you heard General Sklute's
suggestion for criminal prosecution to redress the wrong. You
have had a lot of experience in the criminal law. Can you see
any way that a criminal sanction would lie or be bringable
under any of the cases we have talked about, the medical
malpractice or the automobile case or any of the examples that
we have seen, as an alternative to repealing the Feres
doctrine?
Mr. Sprague. None whatsoever, Senator. I think that
response was typical of the in-bred feeling by the military
that this judge-made law which they conceded, the Feres
doctrine, they want to keep. They want to keep it for a great
number of reasons, which I think basically are that they don't
want to have the civilian supervision. I don't think they want
to have the investigation referred to by Ms. O'Neill.
Liability and paying of damages isn't just paying people
money. The people that have to pay then learn from that process
and they learn to improve their own system. I have been in the
military, I have been in the submarine service in World War II.
Obviously, the military wants to keep everything within itself
and exclude the civilian supervision to the extent it can.
I would like to point out, Senator Specter, to show this
judge-made law that we are talking about, Feres, and its
horribleness, had the person who was with Ms. O'Neill's
daughter not also been a naval personnel, same facts--had that
person been a civilian, he could have sued. This judge-made law
discriminates, in fact, against people in the service.
If the courts recognize that Congress does something that
is unconstitutional, the courts have no reluctance in ruling on
that constitutional issue. This time, it is the reverse. The
Congress passed a very specific exception which you have read--
combatant, time of war. It is time for the Congress to assert
itself and keep that exception as the Congress intended it to
be, not this judge-made law. It operates in a discriminatory
fashion.
One of the officers referred to it as a compensation
system. Did they not hear Ms. O'Neill and did they not hear her
counsel say there was no compensation? I could go into case
after case where the benefits that one may get has nothing to
do with the compensation that one should get for the negligence
by Government.
Thank you.
Senator Specter. Can you see any basis at all--the same
question I asked the Generals--for this sort of a rule to come
out of the Federal Tort Claims Act?
Mr. Sprague. None whatsoever.
Senator Specter. What would you think, Mr. Sprague, of
trying to restructure the Feres doctrine so that we made an
exclusion for items like order and discipline or training
programs or matters which were broader, say, than being a
combatant and not limited to time of war, because you have a
lot of training and you have a lot of military matters in
peacetime--I am going to ask the same questions of the other
witnesses--but to try to structure it in a way which
accommodates the core rationale that the military has used so
that you don't have this blanket rule which bars all sorts of
cases totally unrelated to the military?
Mr. Sprague. Well, as I said, you have in there present the
exemption for discretionary functions. I happen to think that
covers the kinds of situations that they were dredging up here.
Senator Specter. I don't believe it will help the judicial
interpretation, but who can tell?
Mr. Sprague. Who can tell? I think the proposed bill that
you submitted, Senator, would make it clear that service people
are entitled to the protection of the Federal----
Senator Specter. I have seldom seen you prompted in the
courtroom, Mr. Sprague. You are at a hearing. Let the record
show that Tom Sprague handed you a book.
Mr. Sprague. Servicemen should be entitled to the coverage
of the Federal Tort Claims Act, except in the situations that
Congress intended in the first place. The amendment that you
proposed really says exactly that. You are now stating that
servicemen shall be entitled to the coverage of the Federal
Tort Claims Act, except for the limitation that you initially
spelled out.
If you are willing to hear a suggestion, however, you use
the words ``military personnel'' in your proposed bill. I
think, to be consistent with other parts of the Act, it should
be ``uniform services'' and would suggest that correction.
I would also suggest that you talk about--you have
``military or naval forces of the United States.'' I would make
it ``uniform services of the United States or employees of the
Federal Government.'' Last, I would make a proposal that your
amendment state that the amendment shall apply to all claims
that have not been finally adjudicated as of the effective date
of the Act, and final adjudication to mean a claim in which the
trial court has entered a final order for which there is no
outstanding motion for reconsideration, appeal, or petition for
writ of certiorari.
Those would be what I would suggest as some corrections to
your bill, but I think your bill would correct this problem.
Senator Specter. Well, thank you for the suggestions. We
will take a close look at them.
General Altenburg, what would you think of leaving you some
latitude for the considerations you raised, order and
discipline, but allow suits, say, in matters like Ms.
O'Neill's?
Mr. Altenburg. Senator Specter, we haven't talked much
about the medical corps and the medical business of the
military, and there is probably not time here to do that. But
one of the reasons that I would be opposed to any modification
in the Feres doctrine is because the medical business of the
military is directly linked to command and to good order and
discipline. It is not a medical care system, simply.
Senator Specter. Well, suppose you left medical out, too?
Mr. Altenburg. I am not sure what would be left, Senator.
Senator Specter. Well, you would have auto accident cases.
You would have the murder of Ms. O'Neill's daughter.
We have gone longer than anticipated. What I would like you
to do, General Altenburg, and also General Sklute and Mr.
Fidell and Mr. Joseph--Mr. Sprague, you have already answered
the question--give some thought to the way you might structure
a bill which would accommodate the core considerations that
have been raised here with respect to unit cohesiveness, the
issues of order and discipline, et cetera.
If you would provide that to the committee, I think that
Senator Leahy's agreement with the bill is significant. He
controls the docket, he puts it on the docket, and you have got
two votes; you only need eight more to have it reported out.
And although we are close to adjournment on this session and
nothing will happen, this hearing will be on the books and will
carry forward for the next Congress.
Mr. Sprague?
Mr. Sprague. Senator Specter, let me just read to you the
language of the discretionary function that is in there now
because I think it covers what you are asking. The exception is
any claim--and it is 2680(a)--any claim based upon an act or
omission of an employee of the Government exercising due care
in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise
or performance, or the failure to exercise or perform, a
discretionary function or duty on the part of a Federal agency
or an employee of the Government, whether or not the discretion
involved be abused.
I suggest to you that covers everything you are talking
about.
Senator Specter. Well, perhaps it does. When you give me
your suggestions, gentlemen, give me a comment on that point as
well.
We will leave the record open for 14 days, which is the
customary time.
Ms. O'Neill, we are not giving you any more assignments. We
are just going to thank you for coming.
Thank you all. That concludes the hearing.
[Whereupon, at 3:42 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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