[Congressional Record Volume 145, Number 164 (Thursday, November 18, 1999)]
[Senate]
[Pages S14821-S14822]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 1970. A bill to amend chapter 171 of title 28, United States Code, 
with respect to the liability of the United States for claims of 
military personnel for damages for certain injuries; to the Committee 
on the Judiciary.


                  feres doctrine reversal legislation

  Mr. SPECTER. Mr. President, I seek recognition to introduce a bill 
which will overturn what has come to be known as the ``Feres 
doctrine.'' In the 1950 case of Feres v. U.S., the Supreme Court held 
that the United States Government is not liable under the Federal Tort 
Claims Act for injuries to military personnel where the injuries are 
sustained ``incident to service.'' Under the Feres doctrine, therefore, 
a soldier would not be able to seek compensation from the government 
for injuries sustained due to government negligence unless the soldier 
happened to be on leave or furlough at the time he or she sustained the 
injuries.
  Over the years, we have seen the Feres doctrine produce anomalous 
results which reflect neither the will of

[[Page S14822]]

the Congress nor basic common sense. For instance, under Feres, a 
soldier who is the victim of medical malpractice at an army hospital 
cannot sue the government for compensation. Likewise, his family cannot 
sue for compensation if the soldier dies from the malpractice. But a 
civilian who suffers from the same malpractice would be entitled to 
file suit against the government. Likewise, if a soldier driving home 
from work on an army base is hit by a negligently driven army truck, he 
is barred from suing the government for compensation. If the soldier 
dies in the accident, his family will be barred from suing for 
compensation. Meanwhile, a civilian hit by the same truck would have a 
cause of action against the United States. Unfortunately, the 
individuals hurt by the Feres doctrine are the men and women of our 
armed forces--people whom we should protect and reward, not punish.
  The recent decision of the Third Circuit Court of Appeals in O'Neil 
v. United States illustrates the troubling results produced by the 
Feres doctrine. In O'Neil, the family of slain Naval officer Kerryn 
O'Neil was barred from pursuing a wrongful death claim against the 
government under the Feres doctrine. O'Neil was murdered by her former 
fiance, George Smith, a Navy ensign. The two met at the U.S. Naval 
Academy and were stationed at the same Naval base in California. After 
Ms. O'Neil broke off their engagement, Mr. Smith began to stalk her. 
One night while Ms. O'Neil was sitting in her on-base apartment 
watching a movie with a friend, Smith came to her building and killed 
her, her friend, and then himself.
  After the murders, Kerryn O'Neil's family learned that Mr. Smith had 
scored in the 99.99th percentile for aggressive/destructive behavior in 
Navy psychological tests. Under Naval procedures, these results should 
have been forwarded to the Department of Psychiatry at the Naval 
Hospital for a full psychological evaluation. Had their claim not been 
barred, the O'Neils would have argued that the Navy was negligent in 
failing to follow up on these extreme test results. I do not know 
whether the O'Neil's deserved to be compensated under the Act--this 
depends on the specific facts and the case law in this area. But it 
does seem clear to me that the O'Neils should not have been barred from 
pursuing their claim because their daughter's fatal injuries were 
sustained ``incident to service.''
  Of course, there are situations in which soldiers should not be 
allowed to sue the government in tort. For example, in a combat 
situation, countless judgment calls are made which result in death or 
injuries to soldiers. We cannot have lawyers and juries second guessing 
the decisions made by field commanders and combatants in the heat of 
battle. But such considerations do not necessitate that military 
personnel should lose the right to sue the government in any context.
  The bill I introduce today will reverse the court-created Feres 
doctrine and return the law to the way it was originally intended by 
Congress. My bill is very short and simple. It amends the Federal Tort 
Claims Act to specifically provide that the Act applies to military 
personnel on active duty the same as it applies to anyone else. My bill 
further specifies that military personnel will be limited by the 
exceptions to government liability already included in the Act, 
including the bar on liability for injuries sustained by military 
personnel in combat and the bar on liability for claims which arise in 
a foreign country. In short, my bill will ensure that members of our 
armed forces will be entitled to damages they deserve when injured 
through the negligence or wrongful actions of the Federal government or 
its agents, except for certain limited cases contemplated by Congress 
when it originally passed the Act.

  Congress passed the Federal Tort Claims Act in 1946 to give the 
general consent of the government to be sued in tort, subject to 
several specific restrictions. Under the common law doctrine of 
sovereign immunity, the United States cannot be sued without such 
specific consent. The Act provides that the government will be held 
liable ``in the same manner and to the same extent as a private 
individual under the circumstances.'' Thus, the Act makes the United 
States liable for the torts of its employees and agents to the extent 
that private employers are liable under state law for the torts of 
their employees and agents.
  The Act contains many exceptions to government liability, but it does 
not contain an explicit exception for injuries sustained by military 
personnel incident to service. In fact, one of the Act's exceptions 
prevents ``any claim arising out of the combatant activities of the 
military or naval forces, or the Coast Guard during time of war.'' By 
including this exception, Congress clearly contemplated the special 
case of military personnel and decided that certain limits must be 
placed on government liability in this context. But by drawing this 
exception narrowly and limiting it to combat situations, Congress 
rejected any broad exception for injuries sustained ``incident to 
service.'' The Supreme Court did far more than interpret our statute 
when it significantly broadened the limited combat exception provided 
by Congress. This bill leaves intact the government's exemption for 
injuries sustained in combat.
  The Feres doctrine has been the subject of harsh criticism by some of 
the leading jurists in the nation. In the 1987 case of United States v. 
Johnson, a 5 to 4 majority of the Supreme Court held that the Feres 
doctrine bars suits on behalf of military personnel injured incident to 
service even in cases of torts committed by employees of civilian 
agencies. Justice Scalia wrote a scathing dissent in Johnson, in which 
he was joined by Justices Brennan, Marshall, and Stevens. Scalia wrote 
that Feres was ``wrongly decided and heartily deserves the widespread, 
almost universal criticism it has received.''
  Judge Edward Becker, the Chief Judge of the Third Circuit Court of 
Appeals, has also spoken out strongly against the Feres doctrine. He 
has noted that ``the scholarly criticism of the doctrine is legion'' 
and has urged the Supreme Court to grant cert. to reconsider Feres. 
Judge Becker has written to me that given the failure of the Court to 
overturn Feres thus far, I should introduce legislation doing so.
  Even in the Feres opinion itself, the Supreme Court expressed an 
uncharacteristic doubt about its decision. The justices recognized that 
they may be misinterpreting the Federal Tort Claims Act. They called 
upon Congress to correct their mistake if this were the case. The Court 
wrote:

       There are few guiding materials for our task of statutory 
     construction. No committee reports or floor debates disclose 
     what effect the statute was designed to have on the problem 
     before us, or that it even was in mind. Under these 
     circumstances, no conclusion can be above challenge, but if 
     we misinterpret the Act, at least Congress possesses a ready 
     remedy.

  Congress does possess a ready remedy, and I call upon my colleagues 
to exercise it. The bill I introduce today will eliminate the 
judicially created Feres doctrine and revive the original framework of 
the Federal Tort Claims Act. There is no reason to deny compensation to 
the men and women of our armed services who are injured or killed in 
domestic accidents or violence outside the heat of combat. I hope that 
when we resume our business next year my colleagues will join me in 
supporting and passing this legislation.

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