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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 9 |
| [3] | 1950.SCT.1245 <http://www.versuslaw.com>,
340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 |
| [4] | December 4, 1950 |
| [5] | FERES, EXECUTRIX, v. UNITED STATES |
| [6] | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.* |
| [7] | David H. Moses argued the cause for petitioner in No. 9. With him on the
brief was Morris Pouser. |
| [8] | Morris Rosenberg argued the cause for petitioner in No. 29. With him on
the brief was Henry M. Decker, Jr. |
| [9] | 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. |
| [10] | Frederick P. Cranston argued the cause, and James S. Henderson filed a
brief, for respondent in No. 31. |
| [11] | Vinson, Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark, Minton |
| [12] | The opinion of the court was delivered by: Jackson |
| [13] | 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 and
not on furlough and resulting from the negligence of others in the armed
forces. Pp. 136-146. |
| [14] | (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 the
Government to make a workable, consistent and equitable whole. P. 139. |
| [15] | (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. |
| [16] | (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. |
| [17] | (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. |
| [18] | (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. |
| [19] | (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 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. |
| [20] | (g) The failure of the Act to provide for any adjustment between the remedy
provided therein and other established systems of compensation 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. |
| [21] | (h) Brooks v. United States, 337 U.S. 49, distinguished. P. 146. |
| [22] | 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. |
| [23] | MR. JUSTICE JACKSON delivered the opinion of the Court. |
| [24] | 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. |
| [25] | The Feres case: The District Court dismissed an action by the executrix
of Feres against the United States to 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. *fn1 |
| [26] | 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. *fn2 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. *fn3
The Court of Appeals, Fourth Circuit, affirmed. *fn4 |
| [27] | 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. *fn5 |
| [28] | 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. |
| [29] | 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. |
| [30] | 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 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. |
| [31] | 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 consented
*fn6 was invoked on behalf of the
Republic and applied by our courts as vigorously as it had been on behalf
of the Crown. *fn7 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 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. *fn8 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. |
| [32] | 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 . . . ."
*fn9 This confers jurisdiction
to render judgment upon all such claims. 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 in law. |
| [33] | 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. *fn10
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 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. *fn11
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. |
| [34] | 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 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. |
| [35] | 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: |
| [36] | ". . . 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 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. |
| [37] | 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." |
| [38] | 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. *fn12
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. |
| [39] | A soldier is at peculiar disadvantage in litigation. *fn13
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. *fn14
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. |
| [40] | 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. |
| [41] | 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. |
| [42] | Nos. 9 and 29, affirmed. |
| [43] | No. 31, reversed. |
| [44] | JUSTICE DOUGLAS concurs in the result. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [45] | * 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. |
| [46] | *fn1 177 F.2d 535. |
| [47] | *fn2 74 F.Supp. 209. |
| [48] | *fn3 77 F.Supp. 706. |
| [49] | *fn4 178 F.2d 518. |
| [50] | *fn5 178 F.2d 1. |
| [51] | *fn6 The Crown has recently submitted
itself to suit, see post, p. 141. |
| [52] | *fn7 United States v. McLemore,
4 How. 286; Reeside v. Walker, 11 How. 272, 290; Ickes v. Fox, 300 U.S.
82, 96. |
| [53] | *fn8 28 U. S. C. § 1491. |
| [54] | *fn9 28 U. S. C. § 1346 (b).
The provisions of the Tort Claims Act are now found in Title 28, §§ 1291,
1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680. In recodifying
Title 28 of the United States Code, changes in language were made. The Tort
Claims Act, as originally enacted, 60 Stat. 843, provided in § 410 that
the District Court "shall have exclusive jurisdiction to hear, determine,
and render judgment on any claim against the United States, for money only
. . . ." (Emphasis supplied.) We attribute to this change of language
no substantive change of law. |
| [55] | *fn10 Cf. Dinsman v. Wilkes,
12 How. 390, and Weaver v. Ward, Hobart 135, 80 Eng. Rep. 284 (1616), as
to intentional torts. |
| [56] | *fn11 Goldstein v. New York,
281 N. Y. 396, 24 N. E. 2d 97. |
| [57] | *fn12 48 Stat. 8 (1933), as
amended, 38 U. S. C. § 701 (1946); 48 Stat. 11 (1933), as amended, 38 U.
S. C. § 718 (1946); 55 Stat. 608 (1941), 38 U. S. C. § 725 (1946); 57 Stat.
558 (1943), as amended, 38 U. S. C. § 731 (1946); 62 Stat. 1219, 1220 (1948),
38 U. S. C. (Supp. III) §§ 740, 741 (1950). |
| [58] | *fn13 Relief was provided in
the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, 50 U.
S. C. App. § 501 et seq. |
| [59] | *fn14 Brooks v. United States,
supra (discharged at time of suit); Santana v. United States, 175 F.2d 320
(C. A. 1st Cir.) (suit by sole heirs); Ostrander v. United States, 178 F.2d
923 (C. A. 2d Cir.) (suit by widow); Samson v. United States, 79 F.Supp.
406 (D.C. S. D. N. Y.) (suit by administrator); Alansky v. Northwest Airlines,
77 F.Supp. 556 (D.C. D. Mont.) (suit by widow and son). |
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