[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Extensions of Remarks]
[Pages E1368-E1369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE FERES DOCTRINE

                                 ______
                                 

                         HON. PAUL E. KANJORSKI

                            of pennsylvania

                    in the house of representatives

                        Thursday, July 27, 2000

  Mr. KANJORSKI. Mr. Speaker, I rise to seek recognition to introduce a 
bill that will overturn what has come to be known as the ``Feres 
doctrine.'' In introducing this legislation I hope to rectify a grave 
injustice that has been perpetuated upon our servicemen and women and 
pay tribute to a truly inspirational young woman, Kerryn O'Neill. Kerry 
O'Neill grew up in Kingston, Pennsylvania in my Congressional District, 
and I had the pleasure of nominating her for admission to the United 
States Naval Academy.
  On December 1, 1993, Kerry O'Neill, a ``graduate with the 
distinction'' of the United States Naval Academy in the top ten percent 
of her class, was brutally murdered by her former fiance, Ensign George 
Smith, while sitting in her on-base apartment watching a movie with a 
friend, who was also killed. Ensign Smith, who was to have commenced 
his first tour of duty on a nuclear submarine the next day, then shot 
himself.
  O'Neill had a superb record at the Academy setting athletic records 
for the fastest time run by an Academy cross-country runner and for the 
indoor and outdoor track 5,000 meter runs. In 1992 she was the first 
female athlete in any Naval Academy sport to qualify for the NCAS 
Division I Championships. She was also the recipient of the Vice 
Admiral William P. Lawrence Sword as the outstanding female athlete in 
her class.
  Her accomplishments, however, paled in comparison to her 
intelligence, dedication, and enthusiasm, which made her an 
``inspiration'' to those who knew her. As James E. Brockington, Jr., 
Commander, USN wrote of Kerry, ``Gone too soon is that smile that 
brightened the darkest of days. Lost are those sparkling eyes that 
mirrored our quest for perfection. A leader, a dreamer, a source of 
unparalleled excellence--she is gone too soon.''
  In attempting to understand this tragedy, and what could have caused 
Ensign Smith to commit such murderous act, Kerry's parents learned that 
Ensign Smith had scored in the 99.99th percentile for aggressive/
destructive behavior in Navy psychological tests. To evaluate his 
psychological fitness for the unique demands of submarine duty, Ensign 
Smith had, two months before the shooting, been required to submit to 
the Navy's ``Subscreen'' test. Ensign Smith scored more than four 
standard deviations above the normal levels for aggressive/destructive 
behavior and more than two standard deviations above normal levels in 
six other categories. Because Ensign Smith's results were well above 
the two-standard deviations above norms in multiple categories, under 
non-discretionary Navy regulations his abnormal test results were 
referred to a Navy psychologist, who in turn was required to conduct a 
full evaluation. The Navy civilian psychology responsible for reviewing 
the unusual scores and evaluating Smith, simply fail to conduct any 
such review or evaluation. This failure to review was a clear violation 
of Navy regulations (Compl. Paragraphs 10-15; Pet. App. 15a-17a). A 
psychological evaluation could have identified the potential for this 
destructive act and possibly prevented this tragedy from occurring.

[[Page E1369]]

  Based on this negligent behavior by the Navy psychologist, the 
O'Neills filed suit seeking damages for the injury and death of their 
daughter under the Federal Tort Claims Act. Their case was dismissed 
pursuant to the Feres doctrine, based on the reasoning that because at 
the time of her death Kerry O'Neill was in her military quarters and 
was on active duty status, her injuries and death were ``incident to 
military service.''
  In the 1950 case of Feres v. United States, the Supreme Court created 
a broad exception to the federal government's general liability under 
the Federal Tort Claims Act, where the service member's injury arises 
out of or is ``in the course of activity incident to service.'' Since 
this initial ruling, the Court has departed from the original 
justifications for its holding and has expanded the ruling based on 
vague and broad policy justifications, not intended by Congress when it 
enacted the Federal Tort Claims Act. In passing the Federal Tort Claims 
Act, Congress intended to prohibit tort claims against the federal 
government by a military member or his or her family only when the 
injuries arise ``out of the combatant activities of the military or 
naval forces, or the Coast Guard, during time of war.'' Kerry O'Neill's 
death was the result of a social relationship and the negligent failure 
of a Navy civilian psychiatrist to further evaluate Ensign Smith, not 
due to her involvement in combat, and in actuality, not incident to her 
service.
  Congress wrote the statute to prohibit claims for injuries ``arising 
out of the combatant activities of the military or naval forces, or the 
Coast Guard, during time of war,'' because we do not want to allow 
soldiers or their families to be able to sue the government in a combat 
situation, when countless decisions are made that ultimately result in 
the death or injury of the service member. In order to protect the 
integrity of military command decisions, we cannot have any and all 
instances of death or injury brought and questioned by juries.
  Such considerations, however, do not necessitate that military 
personnel lose their ability to recover for clearly negligent behavior 
by the federal government, just as every other individual in this 
country is allowed to do. Unfortunately, the individuals hurt most by 
the Feres doctrine are those men and women who commit their lives to 
the service of their country. These individuals should be protected by 
our laws, not punished. As case after case has demonstrated, the 
consequences of this doctrine are unjust. Private Charles A. Richards, 
Jr., who was off-duty, was killed by an Army truck, whose driver had 
run a red light. He was driving home from work at Fort Knox to care for 
his then-pregnant wife. His wife was unable to recover damages. Another 
service woman, who had given birth to twins, discovered one of her 
twins suffered bodily injury and the other died due to the negligent 
prenatal care at a military hospital. She was unable to recover 
damages. Such unjust outcomes were clearly not the intention of 
Congress.
  The Feres doctrine has been the subject of harsh criticism. In 
dissenting from the denial of rehearing en banc in Richards v. United 
States, four judges of the Third Circuit, including Chief Judge Becker, 
called the Feres doctrine a ``travesty'' and urged the Supreme Court to 
consider the case. Numerous law review articles have also been written 
on the case, decrying the doctrine. Additionally, Feres's critics have 
included at least three current Justices of the Supreme Court, who have 
argued that Feres was wrong when decided.
  My legislation, like the companion bill introduced by the senior 
Senator from the Commonwealth of Pennsylvania, simply seeks to overturn 
the judicially created Feres doctrine, while leaving in place the 
original intention of Congress to prohibit tort claims arising out of 
combatant activities during times of war. The legislation amends the 
Federal Tort Claims Act to specifically provide that the Act applies to 
military personnel on active duty to the same as it applies to anyone 
else. There is no reason to deny our military men and women the just 
compensation they deserve when they are injured or killed as a result 
of the negligent actions of the Federal government or its agents 
outside the heat of combat.
  Mr. Speaker, the legislation will not bring back Kerryn O'Neill, or 
the other two service members, who were harmed by their government in 
this one instance. Nor will this legislation bring compensation to 
their families. But hopefully, this legislation will right this unjust 
doctrine, and help to prevent similar tragedies in the future. We need 
to address this situation as quickly as possible and I urge my 
colleagues to support this bill.

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