[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

                              ----------                              

                    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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