Lead Opinion
delivered the opinion of the Court
This case presents the question whether the doctrine established in Feres v. United States,
HH
Lieutenant Commander Horton Winfield Johnson was a helicopter pilot for the United States Coast Guard, stationed
Respondent, Johnson’s wife, applied for and received compensation for her husband’s death pursuant to the Veterans’ Benefits Act, 72 Stat. 1118, as amended, 38 U. S. C. § 301 et seq. (1982 ed. and Supp. III).
The Court of Appeals for the Eleventh Circuit reversed.
Applying its new analysis to the facts of this case, the court found “absolutely no hint. . . that the conduct of any alleged tortfeasor even remotely connected to the military will be scrutinized if this case proceeds to trial.”
The Court of Appeals granted the Government’s suggestion for rehearing en banc. The en banc court found that this Court’s recent decision in United States v. Shearer,
We granted certiorari,
In Feres, this Court held that service members cannot bring tort suits against the Government for injuries that “arise out of or are in the course of activity incident to service.”
A
This Court has emphasized three broad rationales underlying the Feres decision. See Stencel Aero Engineering Corp.
Second, the existence of these generous statutory disability and death benefits is an independent reason why the Feres doctrine bars suit for service-related injuries.
Third, Feres and its progeny indicate that suits brought by service members against the Government for injuries incurred incident to service are barred by the Feres doctrine because they are the “type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” United States v. Shearer,
B
In this case, Lieutenant Commander Johnson was killed while performing a rescue mission on the high seas, a primary duty of the Coast Guard. See 14 U. S. C. §§ 2, 88(a)(1).
Ill
We reaffirm the holding of Feres 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.”
It is so ordered.
Notes
Respondent has received $36,690.66 in life insurance and a $3,000 death gratuity, and receives approximately $868 per month in dependency and compensatory benefits. Brief for United States 3, n. 1. The dependency and compensatory benefits normally are payable for the life of the surviving spouse and include an extra monthly sum for any surviving child of the veteran below age 18. See 38 U. S. C. §§410, 411 (1982 ed. and Supp. III); 38 CFR §3.461 (1986).
We have identified three factors that underlie the Feres doctrine:
“First, the relationship between the Government and members of its Armed Forces is ‘ “distinctively federal in character” it would make little sense to have the Government’s liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans’ Benefits Act establishes, as a substitute for tort liability, a statutory ‘no fault’ compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor . . . [is] ‘[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty....’” Stencel Aero Engineering Corp. v. United States,
In Uptegrove, the wife of a Navy lieutenant killed while flying home on an Air Force C-141 transport brought suit against the Government under the FTCA, alleging negligence on the part of three FAA air traffic controllers. The court in Uptegrove dismissed the suit on the basis of Feres.
In addition to the decision of the Court of Appeals for the Ninth Circuit in Uptegrove v. United States,
See United States v. Brown,
Congress has recently considered, but not enacted, legislation that would allow service members to bring medical malpractice suits against the Government. See H. R. 1161, 99th Cong., 1st Sess. (1985); H. R. 1942, 98th Cong., 1st Sess. (1983).
In two places in the Feres opinion, the Court suggested that the military status of the tortfeasor might be relevant to its decision. First, the Comrt identified “[t]he common fact underlying the three cases” as being “that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces.”
Although one decision since Feres noted the military status of the tortfeasors, see United States v. Brown, supra, at 112, it did not rely on that fact. See
The list of cases compiled by the dissent below,
Justice Scalia indicates that he would consider overruling Feres had this been requested by counsel, but in the absence of such a request he would “confine the unfairness and irrationality [of] that decision” to eases where the allegations of negligence are limited to other members of the military. Post, at 703. In arguing “unfairness” in this case, Justice Scalia assumes that had respondent been “piloting a commercial helicopter” his family might recover substantially more in damages than it now may recover under the benefit programs available for a serviceman and his family. Ibid. It hardly need be said that predicting the outcome of any damages suit — both with respect to liability and the amount of damages — is hazardous, whereas veterans’ benefits are guaranteed by law. Post, at 697. If “fairness” — in terms of pecuniary benefits — were the issue, one could respond to the dissent’s assumption by noting that had the negligent instructions that led to Johnson’s death been given by another serviceman, the consequences — under the dissent’s view — would be equally “unfair.” “Fairness” provides no more justification for the line drawn by the dissent than it does for the line upon which application of the
Service members receive numerous other benefits unique to their service status. For example, members of the military and their dependents are eligible for educational benefits, extensive health benefits, home-buying loan benefits, and retirement benefits after a minimum of 20 years of service. See generally Uniformed Services Almanac (L. Sharff & S. Gordon eds. 1985).
Civilian employees of the Government also may play an integral role in military activities. In this circumstance, an inquiry into the civilian activities would have the same effect on military discipline as a direct inquiry into military judgments. For example, the FAA and the United States Armed Services have an established working relationship that provides for FAA participation in numerous military activities. See FAA, United States Dept, of Transportation, Handbook 7610.4F: Special Military Operations (Jan. 21, 1981).
The Coast Guard, of course, is a military service, and an important branch of the Armed Services. 14 U. S. C. § 1.
Dissenting Opinion
with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.
As it did almost four decades ago in Feres v. United States,
I — I
Much of the sovereign immunity of the United States was swept away in 1946 with passage of the FTCA, which renders the Government liable
“for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United*693 States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b).
Read as it is written, this language renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees. Other provisions of the Act set forth a number of exceptions, but none generally precludes FTCA suits brought by servicemen. One, in fact, excludes “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war,” §2680(j) (emphasis added), demonstrating that Congress specifically considered, and provided what it thought needful for, the special requirements of the military. There was no proper basis for us to supplement — i. e., revise — that congressional disposition.
In our first encounter with an FTCA suit brought by a serviceman, we gave effect to the plain meaning of the statute. In Brooks v. United States,
That “wholly different case” reached us one year later in Feres. We held that servicemen could not recover under the FTCA for injuries that “arise out of or are in the course of activity incident to service,”
In my view, none of these rationales justifies the result. Only the first of them, the “parallel private liability” argument, purports to be textually based, as follows: The United States is liable under the FTCA “in the same manner and to the same extent as a private individual under like circumstances,” 28 U. S. C. §2674; since no “private individual” can raise an army, and since no State has consented to suits by members of its militia, §2674 shields the Government from liability in the Feres situation.
Perhaps without that scant (and subsequently rejected) textual support, which could be pointed to as the embodiment of the legislative intent that its other two rationales speculated upon, the Feres Court would not as an original matter have reached the conclusion that it did. Be that as it may, the speculation outlived the textual support, and the Feres rule is now sustained only by three disembodied estimations of what Congress must (despite what it enacted) have intended. They are bad estimations at that. The first of them, Feres’ second rationale, has barely escaped the fate of the “parallel private liability” argument, for though we have not yet acknowledged that it is erroneous we have described it as “no longer controlling.” United States v. Shearer,
The unfairness to servicemen of geographically varied recovery is, to speak bluntly, an absurd justification, given that, as we have pointed out in another context, nonuniform
To the extent that the rationale rests upon the military’s need for uniformity, it is equally unpersuasive. To begin with, that supposition of congressional intent is positively contradicted by the text. Several of the FTCA’s exemptions show that Congress considered the uniformity problem, see, e. g., 28 U. S. C. §§ 2680(b), 2680(i), 2680(k), yet it chose to retain sovereign immunity for only some claims affecting the military. § 2680(j). Moreover, we have effectively disavowed this “uniformity” justification — and rendered its benefits to military planning illusory — by permitting servicemen to recover under the FTCA for injuries suffered not incident to service, and permitting civilians to recover for injuries caused by military negligence. See, e. g., Indian Towing Co. v. United States, supra. Finally, it is difficult to explain why uniformity (assuming our rule were achieving it) is indispensable for the military, but not for the many other federal departments and agencies that can be sued under the FTCA for the negligent performance of their “unique, nationwide function[s],” Stencel Aero Engineering Corp. v. United States, supra, at 675 (Marshall, J., dissenting), including, as we have noted, the federal prison system which may be sued under varying state laws by its inmates. See United States v. Muniz, supra. In sum, the second Feres rationale, regardless of how it is understood, is not a plausible estima
Feres’s third basis has similarly been denominated “no longer controlling.” United States v. Shearer, supra, at 58, n. 4. Servicemen injured or killed in the line of duty are compensated under the Veterans’ Benefits Act (VBA), 72 Stat. 1118, as amended, 38 U. S. C. §301 et seq. (1982 ed. and Supp. III), and the Feres Court thought it unlikely that Congress meant to permit additional recovery under the FTCA,
The credibility of this rationale is undermined severely by the fact that both before and after Feres we permitted injured servicemen to bring FTCA suits, even though they had been compensated under the VBA. . In Brooks v. United States,
Brooks and Brown (neither of which has ever been expressly disapproved) plainly hold that the VBA is not an “exclusive” remedy which places an “upper limit” on the Government’s liability. Because of Feres and today’s decision, however, the VBA will in fact be exclusive for service-connected injuries, but not for others. Such a result can no more be reconciled with the text of the VBA than with that of the FTCA, since the VBA compensates servicemen without regard to whether their injuries occur “incident to service” as Feres defines that term. See 38 U. S. C. § 105. Moreover, the VBA is not, as Feres assumed, identical to federal and state workers’ compensation statutes in which exclusivity provisions almost invariably appear. See, e. g., 5 U. S. C. § 8116(c). Recovery is possible under workers’ compensation statutes more often than under the VBA, and VBA benefits can be terminated more easily than can workers’ compensation. See Note, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery?, 77 Mich. L. Rev. 1099, 1106-1108 (1979). In sum, “the presence of an alternative compensation system [neither] explains [n]or justifies the Feres doctrine; it only makes the effect of the doctrine more palatable.” Hunt v. United States, 204 U. S. App. D. C. 308, 326,
The foregoing three rationales —the only ones actually relied upon in Feres — are so frail that it is hardly surprising that we have repeatedly cited the later-conceived-of “military discipline” rationale as the “best” explanation for that deci
It is strange that Congress’ “obvious” intention to preclude Feres suits because of their effect on military discipline was discerned neither by the Feres Court nor by the Congress that enacted the FTCA (which felt it necessary expressly to exclude recovery for combat injuries). Perhaps Congress recognized that the likely effect of Feres suits upon military discipline is not as clear as we have assumed, but in fact has long been disputed. See Bennett, The Feres Doctrine, Discipline, and the Weapons of War, 29 St. Louis U. L. J. 383, 407-411 (1985). Or perhaps Congress assumed that the FTCA’s explicit exclusions would bar those suits most threatening to military discipline, such as claims based upon combat command decisions, 28 U. S. C. § 2680(j); claims based upon performance of “discretionary” functions, § 2680(a); claims
To the extent that reading the FTCA as it is written will require civilian courts to examine military decisionmaking and thus influence military discipline, it is outlandish to consider that result “outlandish,” Brooks v. United States,
In sum, neither the three original Feres reasons nor the post hoc rationalization of “military discipline” justifies our failure to apply the FTCA as written. Feres was wrongly decided and heartily deserves the “widespread, almost universal criticism” it has received. In re “Agent Orange”
1 — I HH
The Feres Court claimed its decision was necessary to make “the entire statutory system of remedies against the Government ... a workable, consistent and equitable whole.”
The point is not that all of these inconsistencies are attributable to Feres (though some of them assuredly are), but merely that bringing harmony to the law has hardly been the consequence of our ignoring what Congress wrote and imagining what it should have written. When confusion results from our applying the unambiguous text of a statute, it is at least a confusion validated by the free play of the democratic process, rather than what we have here: unauthorized rationalization gone wrong. We realized seven years too late that “[tjhere is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it.” Rayonier, Inc. v. United States,
I cannot take comfort, as the Court does, ante, at 686, and n. 6, from Congress’ failure to amend the FTCA to overturn Feres. The unlegislated desires of later Congresses with regard to one thread in the fabric of the FTCA could hardly
We have not been asked by respondent to overrule Feres, and so need not resolve whether considerations of stare deci-sis should induce us, despite the plain error of the case, to leave bad enough alone. As the majority acknowledges, however, “all of the cases decided by this Court under Feres have involved allegations of negligence on the part of members of the military.” Ante, at 686. I would not extend Feres any further. I confess that the line between FTCA suits alleging military negligence and those alleging civilian negligence has nothing to recommend it except that it would limit our clearly wrong decision in Feres and confine the unfairness and irrationality that decision has bred. But that, I think, is justification enough.
Had Lieutenant Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country’s Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received. If our imposition of that sacrifice bore the legitimacy of having been prescribed by the people’s elected representatives, it would (insofar as we are permitted to inquire into such things) be just. But it has not been, and it is not. I respectfully dissent.
See, e. g., Sanchez v. United States,