|Military Attorneys Online
|The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty
(a) The Tort Claims Act should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against
(b) One of the purposes of the Act was to transfer from Congress to the courts the burden of examining tort claims against the Government;
and Congress was not burdened with private bills on behalf of military and naval personnel, because a comprehensive system of relief had
been authorized by statute for them and their dependents. Pp. 139-140.
(c) The Act confers on the district courts broad jurisdiction over "civil actions on claims against the United States, for money damages"; but it
remains for the courts to determine whether any claim is recognizable in law. Pp. 140-141.
(d) It does not create new causes of action but merely accepts for the Government liability under circumstances that would bring private
liability into existence. P. 141.
(e) There is no analogous liability of a "private individual" growing out of "like circumstances," when the relationship of the wronged to the
wrongdoers in these cases is considered. Pp. 141-142.
(f) The provision of the Act making "the law of the place where the act or omission occurred" govern any consequent liability is inconsistent
with an intention to make the Government liable in [340 U.S. 135, 136] the circumstances of these cases, since the relationship of the
Government and members of its armed forces is "distinctively federal in character." Pp. 142-144.
for injuries or death of those in the armed services is persuasive that the Tort Claims Act was not intended to be applicable in the
circumstances of these cases. Pp. 144-145.
(h) Brooks v. United States, 337 U.S. 49, distinguished. P. 146.
177 F.2d 535 and 178 F.2d 518, affirmed; 178 F.2d 1, reversed.
[Footnote *] Together with No. 29, Jefferson v. United States, on certiorari to the United States Court of Appeals for the Fourth Circuit,
argued October 12-13, 1950, and No. 31, United States v. Griggs, Executrix, on certiorari to the United States Court of Appeals for the Tenth
Circuit, argued October 13, 1950.
The cases are stated in the opinion. The orders granting certiorari in Nos. 9 and 29 are reported at 339 U.S. 910 and in No. 31 at 339 U.S. 951.
The decisions below in Nos. 9 and 29 are affirmed and that in No. 31 is reversed, p. 146.
David H. Moses argued the cause for petitioner in No. 9. With him on the brief was Morris Pouser.
Morris Rosenberg argued the cause for petitioner in No. 29. With him on the brief was Henry M. Decker, Jr.
Newell A. Clapp argued the cause for the United States. With him on the briefs were Solicitor General Perlman, Assistant Attorney General
Morison, Paul A. Sweeney and Morton Hollander. John R. Benney was also with them on the brief in No. 31.
Frederick P. Cranston argued the cause, and James S. Henderson filed a brief, for respondent in No. 31.
MR. JUSTICE JACKSON delivered the opinion of the Court.
A common issue arising under the Tort Claims Act, as to which Courts of Appeals are in conflict, makes it appropriate to consider three cases
in one opinion.
The Feres case: The District Court dismissed an action by the executrix of Feres against the United States to [340 U.S. 135, 137] recover for
death caused by negligence. Decedent perished by fire in the barracks at Pine Camp, New York, while on active duty in service of the United
States. Negligence was alleged in quartering him in barracks known or which should have been known to be unsafe because of a defective
heating plant, and in failing to maintain an adequate fire watch. The Court of Appeals, Second Circuit, affirmed.1
The Jefferson case: Plaintiff, while in the Army, was required to undergo an abdominal operation. About eight months later, in the course of
another operation after plaintiff was discharged, a towel 30 inches long by 18 inches wide, marked "Medical Department U.S. Army," was
discovered and removed from his stomach. The complaint alleged that it was negligently left there by the army surgeon. The District Court,
being doubtful of the law, refused without prejudice the Government's pretrial motion to dismiss the complaint.2 After trial, finding negligence
as a fact, Judge Chesnut carefully reexamined the issue of law and concluded that the Act does not charge the United States with liability in
this type of case.3 The Court of Appeals, Fourth Circuit, affirmed.4
The Griggs case: The District Court dismissed the complaint of Griggs' executrix, which alleged that while on active duty he met death because
of negligent and unskillful medical treatment by army surgeons. The Court of Appeals, Tenth Circuit, reversed and, one judge dissenting,
held that the complaint stated a cause of action under the Act.5 [340 U.S. 135, 138]
The common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to
negligence of others in the armed forces. The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining
"incident to the service" what under other circumstances would be an actionable wrong. This is the "wholly different case" reserved from our
decision in Brooks v. United States, 337 U.S. 49, 52.
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.
We do not overlook considerations persuasive of liability in these cases. The Act does confer district court jurisdiction generally over claims
for money damages against the United States founded on negligence. 28 U.S.C. 1346 (b). It does contemplate that the Government will
sometimes respond for negligence of military personnel, for it defines "employee of the Government" to include "members of the military or
naval forces of the United States," and provides that "`acting within the scope of his office or employment', in the case of a member of the
military or naval forces of the United States, means acting in line of duty." 28 U.S.C. 2671. Its exceptions might also imply inclusion of claims
such as we have here. 28 U.S.C. 2680 (j) excepts "any claim arising out of the combatant activities of the military or naval forces, or the Coast
Guard, during time of war" (emphasis supplied), from which it is said we should infer allowance of claims arising from noncombat activities in
peace. Section 2680 (k) excludes "any claim arising in a foreign country." Significance [340 U.S. 135, 139] also has been attributed in these
cases, as in the Brooks case, supra, p. 51, to the fact that eighteen tort claims bills were introduced in Congress between 1925 and 1935 and all
but two expressly denied recovery to members of the armed forces; but the bill enacted as the present Tort Claims Act from its introduction
made no exception. We also are reminded that the Brooks case, in spite of its reservation of service-connected injuries, interprets the Act to
cover claims not incidental to service, and it is argued that much of its reasoning is as apt to impose liability in favor of a man on duty as in
favor of one on leave. These considerations, it is said, should persuade us to cast upon Congress, as author of the confusion, the task of
qualifying and clarifying its language if the liability here asserted should prove so depleting of the public treasury as the Government fears.
This Act, however, should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the
Government to make a workable, consistent and equitable whole. The Tort Claims Act was not an isolated and spontaneous flash of
congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit. While the
political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from
any suit to which it has not consented6 was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on
behalf of the Crown.7 As the Federal Government expanded its activities, its agents caused a multiplying number of remediless wrongs -
wrongs which would have been actionable if inflicted by an individual or a corporation but remediless [340 U.S. 135, 140] solely because their
perpetrator was an officer or employee of the Government. Relief was often sought and sometimes granted through private bills in Congress,
the number of which steadily increased as Government activity increased. The volume of these private bills, the inadequacy of congressional
machinery for determination of facts, the importunities to which claimants subjected members of Congress, and the capricious results, led to a
strong demand that claims for tort wrongs be submitted to adjudication. Congress already had waived immunity and made the Government
answerable for breaches of its contracts and certain other types of claims.8 At last, in connection with the Reorganization Act, it waived
immunity and transferred the burden of examining tort claims to the courts. The primary purpose of the Act was to extend a remedy to those
who had been without; if it incidentally benefited those already well provided for, it appears to have been unintentional. Congress was
suffering from no plague of private bills on the behalf of military and naval personnel, because a comprehensive system of relief had been
authorized for them and their dependents by statute.
Looking to the detail of the Act, it is true that it provides, broadly, that the District Court "shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages . . . ."9 This confers jurisdiction to render judgment upon all such claims. [340 U.S. 135,
141] But it does not say that all claims must be allowed. Jurisdiction is necessary to deny a claim on its merits as matter of law as much as to
adjudge that liability exists. We interpret this language to mean all its says, but no more. Jurisdiction of the defendant now exists where the
defendant was immune from suit before; it remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable
For this purpose, the Act goes on to prescribe the test of allowable claims, which is, "The United States shall be liable . . . in the same manner
and to the same extent as a private individual under like circumstances . . .," with certain exceptions not material here. 28 U.S.C. 2674. It will
be seen that this is not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability
into existence. This, we think, embodies the same idea that its English equivalent enacted in 1947 (Crown Proceedings Act 1947; 10 and 11
Geo. VI, c. 44, p. 863) expressed, "Where any person has a claim against the Crown after the commencement of this Act, and, if this Act had
not been passed, the claim might have been enforced, subject to the grant . . ." of consent to be sued, the claim may now be enforced
without specific consent. One obvious shortcoming in these claims is that plaintiffs can point to no liability of a "private individual" even
remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a
soldier to recover for negligence, against either his superior officers or the Government he is serving.10 Nor is there any liability "under like
circumstances," for no private individual has power to conscript or mobilize a private army with such authorities over persons as the
Government vests in echelons [340 U.S. 135, 142] of command. The nearest parallel, even if we were to treat "private individual" as including
a state, would be the relationship between the states and their militia. But if we indulge plaintiffs the benefit of this comparison, claimants cite us
no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service, and in at
least one state the contrary has been held to be the case.11 It is true that if we consider relevant only a part of the circumstances and ignore
the status of both the wronged and the wrongdoer in these cases we find analogous private liability. In the usual civilian doctor and patient
relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as
the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by "all the
circumstances," not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has
been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel
and unprecedented liabilities.
It is not without significance as to whether the Act should be construed to apply to service-connected injuries that it makes ". . . the law of
the place where the act or omission occurred" govern any consequent liability. 28 U.S.C. 1346 (b). This provision recognizes and assimilates
into federal law the rules of substantive law of the several states, among which divergencies are notorious. This perhaps is fair enough when
the claimant is not on duty or is free to choose his own habitat and thereby limit the jurisdiction in which it will be possible for federal [340
U.S. 135, 143] activities to cause him injury. That his tort claims should be governed by the law of the location where he has elected to be is
just as fair when the defendant is the Government as when the defendant is a private individual. But a soldier on active duty has no such
choice and must serve any place or, under modern conditions, any number of places in quick succession in the forty-eight states, the Canal
Zone, or Alaska, or Hawaii, or any other territory of the United States. That the geography of an injury should select the law to be applied to
his tort claims makes no sense. We cannot ignore the fact that most states have abolished the common-law action for damages between
employer and employee and superseded it with workmen's compensation statutes which provide, in most instances, the sole basis of liability.
Absent this, or where such statutes are inapplicable, states have differing provisions as to limitations of liability and different doctrines as to
assumption of risk, fellow-servant rules and contributory or comparative negligence. It would hardly be a rational plan of providing for those
disabled in service by others in service to leave them dependent upon geographic considerations over which they have no control and to
laws which fluctuate in existence and value.
The relationship between the Government and members of its armed forces is "distinctively federal in character," as this Court recognized in
United States v. Standard Oil Co., 332 U.S. 301, wherein the Government unsuccessfully sought to recover for losses incurred by virtue of
injuries to a soldier. The considerations which lead to that decision apply with even greater force to this case:
". . . To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them
or nonfederal governmental agencies, the scope, nature, legal incidents and consequences of the relation between [340 U.S. 135, 144]
persons in service and the Government are fundamentally derived from federal sources and governed by federal authority. See Tarble's
Case, 13 Wall. 397; Kurtz v. Moffitt, 115 U.S. 487. . . ." Pp. 305-306.
No federal law recognizes a recovery such as claimants seek. The Military Personnel Claims Act, 31 U.S.C. 223b (now superseded by 28
U.S.C. 2672), permitted recovery in some circumstances, but it specifically excluded claims of military personnel "incident to their service."
This Court, in deciding claims for wrongs incident to service under the Tort Claims Act, cannot escape attributing some bearing upon it to
enactments by Congress which provide systems of simple, certain, and uniform compensation for injuries or death of those in armed
services.12 We might say that the claimant may (a) enjoy both types of recovery, or (b) elect which to pursue, thereby waiving the other, or
(c) pursue both, crediting the larger liability with the proceeds of the smaller, or (d) that the compensation and pension remedy excludes the
tort remedy. There is as much statutory authority for one as for another of these conclusions. If Congress had contemplated that this Tort
Act would be held to apply in cases of this kind, it is difficult to see why it should have omitted any provision to adjust these two types of
remedy to each other. The absence of any such adjustment is persuasive that there was no awareness that the Act might be interpreted to
permit recovery for injuries incident to military service. [340 U.S. 135, 145]
A soldier is at peculiar disadvantage in litigation.13 Lack of time and money, the difficulty if not impossibility of procuring witnesses, are only a
few of the factors working to his disadvantage. And the few cases charging superior officers or the Government with neglect or misconduct
which have been brought since the Tort Claims Act, of which the present are typical, have either been suits by widows or surviving
dependents, or have been brought after the individual was discharged.14 The compensation system, which normally requires no litigation, is
not negligible or niggardly, as these cases demonstrate. The recoveries compare extremely favorably with those provided by most workmen's
compensation statutes. In the Jefferson case, the District Court considered actual and prospective payments by the Veterans' Administration as
diminution of the verdict. Plaintiff received $3,645.50 to the date of the court's computation and on estimated life expectancy under existing
legislation would prospectively receive $31,947 in addition. In the Griggs case, the widow, in the two-year period after her husband's death,
received payments in excess of $2,100. In addition, she received $2,695, representing the six months' death gratuity under the Act of
December 17, 1919, as amended, 41 Stat. 367, 57 Stat. 599, 10 U.S.C. 903. It is estimated that her total future pension payments will aggregate
$18,000. Thus the widow will receive an amount in excess of $22,000 from Government gratuities, whereas she sought and could seek under
state law only $15,000, the maximum permitted by Illinois for death. [340 U.S. 135, 146]
It is contended that all these considerations were before the Court in the Brooks case and that allowance of recovery to Brooks requires a
similar holding of liability here. The actual holding in the Brooks case can support liability here only by ignoring the vital distinction there
stated. The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under
compulsion of no orders or duty and on no military mission. A government owned and operated vehicle collided with him. Brooks' father,
riding in the same car, recovered for his injuries and the Government did not further contest the judgment but contended that there could be
no liability to the sons, solely because they were in the Army. This Court rejected the contention, primarily because Brooks' relationship while
on leave was not analogous to that of a soldier injured while performing duties under orders.
We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or
are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been
governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local
law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law
in the absence of express congressional command. Accordingly, the judgments in the Feres and Jefferson cases are affirmed and that in the
Griggs case is reversed.
Nos. 9 and 29, affirmed.
No. 31, reversed.
MR. JUSTICE DOUGLAS concurs in the result.
340 U.S. 135
FERES, EXECUTRIX, v. UNITED STATES.
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
SECOND CIRCUIT.* No. 9.
Argued October 12, 1950.
Decided December 4, 1950.