"feres" and "stencel" revisited: liability of the united states for third-party...

"FERES" AND "STENCEL" REVISITED: LIABILITY OF THE UNITED STATES FOR THIRD-PARTYCONTRIBUTION AND INDEMNITYAuthor(s): Mark A. DombroffSource: The Forum (Section of Insurance, Negligence and Compensation Law, American BarAssociation), Vol. 18, No. 1 (Fall 1982), pp. 83-92Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25762728 .

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FERES AND STENCEL REVISITED: LIABILITY OF THE UNITED STATES FOR THIRD-PARTY CONTRIBUTION AND INDEMNITY

Mark A. Dombroff

INTRODUCTION

On April 14, 1982, the Subcommittee on Agency Administration, Com mittee on the Judiciary, U.S. Senate, held a hearing on what has been come to be known as the Feres doctrine. The doctrine derives its name from the case of Feres v. United States, 340 U.S. 135 (1950), and re tains as much vitality today as it did thirty-two years ago.

Simply stated, Feres stands for the basic proposition that a member of the uniformed services cannot sue the federal government, another serviceman or a civilian government employee in tort for injuries which arise out of or are in the course of activity incident to his/her military service. This doctrine is premised upon three principles:

1. the existence and availability of a separate, uniform, comprehen sive, no-fault compensation scheme, not unlike workers' compen sation plans;

2. the effect upon military rule, discipline and effectiveness if service men were permitted to sue the government or each other; and

3. the relationship between the federal government and members of the armed services, which is distinctly federal in nature. As a

result, there is a manifest unfairness in permitting claims arising incident to service to be determined by local law lacking in uni

formity. Ever since Feres was decided in 1950, it has been the subject of cri

tical comment by both the bench and the bar. However, the Supreme Court reaffirmed the essential rationale of Feres as recently as 1977 in Steneel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977),

Mark A. Dombroff is Director of the Torts Branch, Civil Division, of the U.S. Department of Justice in Washington, D.C. The views contained herein

represent those of the author and are not necessarily those of the Department

of Justice.

83



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reh'g denied, 434 U.S. 881, when it ruled that the Feres rationale pre cluded not only direct actions, but third-party actions against the United States as well.

In recent years the viability of the Feres/Stencel doctrine has been

vigorously challenged in a number of factual settings, involving both

military and civilian employment relationships. In virtually every in

stance, the original reasoning of the Supreme Court has been narrowly and strictly construed and in virtually every instance, suit against the United States has been precluded.

Recently the Supreme Court has granted a petition for a writ of cer tiorari in a classic Stencel case, Thomas v. Lockheed, 665 F.2d 1330

(D.C. Cir. 1981), cert, granted,_U.S.L.W._(April 5, 1982). Whether this action by the Court will result in a reevaluation or a reaffirmation of the Feres doctrine is something which will shortly be decided. At this

juncture however, given the fact that the policy reasons underlying the decision in 1950 are equally valid today, there is little reason or justifica tion for Feres/Stencel to be disturbed.

HISTORICAL BACKGROUND OF FERES/STENCEL

As a sovereign, the United States is clothed with absolute immunity from suit. United States v. Sherwood, 312 U.S. 584 (1940). Where this

sovereignty is waived, the United States may define the terms and conditions upon which it may be sued. Honda v. Clark, 386 U.S. 484

(1967); Soriano v. United States, 352 U.S. 270 (1957). In 1946, in large part due to the July 28, 1945 crash of an army

B-25 aircraft into the Empire State Building, Congress passed the Federal Tort Claims Act (FTCA), originally enacted as Title IV of the

Legislative Reorganization Act of 1946, 60 Stat. 842. The FTC A and its implementing regulations provide the statutory framework through

which the United States has waived a portion of its sovereign immunity and has become accountable as a defendant in negligence actions.

In 1950, the Supreme Court addressed the question of the effect of the FTCA waiver upon the sovereign immunity of the military. Feres v. United States, 340 U.S. 135 (1950), was an action brought on be half of a serviceman who was killed in the alleged negligent burning of a barracks. In what has been characterized as the only judicially fashioned exception to the FTCA, the Court held that the Act did not authorize such serviceman-related suits against the United States. The Court found that the Congress, in enacting the FTCA, did not intend to eliminate military immunity and reasoned that the existence of a no-fault compensation scheme for servicemen must have been intended

by Congress to provide an exclusive remedy. Feres was decided along with two companion cases, Jefferson v.

United States, 178 F.2d 518 (4th Cir. 1949), and Griggs v. United



U.S. Liability for Third Parties 85

States, 178 F.2d 1 (10th Cir. 1949). In Jefferson, the plaintiff under went abdominal surgery while in the army and, approximately eight months later, after his discharge, in the course of another operation a towel thirty by eighteen inches, marked "Medical Department, United States Army," was discovered and removed from his stomach. In

Griggs, an executrix alleged that her decedent died while on active duty as a result of the negligent and unskilled medical treatment of Army surgeons.

The common fact underlying Feres, Griggs and Jefferson was that each claimant or decedent was a serviceman on active duty who sus tained injury incident to his service due to the action or inaction of others in the armed forces.

In refusing to permit suit against the United States, the Supreme Court stated:

We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Govern

ment he is serving. . . . . . . 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.

340 U.S. at 141, 146. Not only has Feres withstood the test of time, but the Supreme Court

has extended the rationale. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), reh'g denied, 434 U.S. 881, involved the crash of an Air National Guard aircraft in which the injured guardsman sued both the United States and the manufacturer of an allegedly de fective ejection system. The manufacturer cross-claimed against the United States for contribution and indemnity.

In affirming the dismissal of both the direct action and the cross claim against the United States, the Supreme Court concluded that the same rationale indulging direct action immunity was also applicable

when a third party attempted to implead the United States for injuries to a serviceman. In essence, the Court found that the "distinctively federal character" of the relationship between the United States and

members of its armed forces, the existence of an alternative no-fault

compensation scheme and the potential adverse effects of such suits on

military discipline all mandated immunity.

POLICY BACKGROUND OF FERES/STENCEL

The first of the policy considerations underlying the Feres/Stencel ra tionale is the "distinctively federal character" of the relationship be tween the United States and members of the armed forces. Feres v. United States, 340 U.S. at 143; Stencel Aero Engineering Corp. v. United

States, 431 U.S. 671. In Feres the Court concluded that the plaintiff's



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suit failed to state a viable cause of action since the FTCA stated that, "The United States should be liable in the same manner and to the same extent as a private individual in like circumstances," 28 U.S.C.

section 2674, and there was no analogous private cause of action. Spe cifically, the Court stated:

Nor is there any liability "under the circumstances," for no private in

dividual has power to conscript or mobilize a private army with such authorities over persons as the government vests in echelons of com

mand.

340 U.S. at 141.

Similarly, in Stencel the Court found that the relationship between the United States and its ordnance suppliers was of a "distinctively federal character." Since the FTCA applies state substantive law, it

makes little sense to permit the fortuitousness of the situs of alleged negligence to affect the liability of the government to one of its con tractors. Stencel Aero Engineering Corp. v. United States, 431 U.S. at 671.

The second policy rationale underlying Feres/Stencel is the excel lence of congressionally provided comprehensive compensation plans for servicemen who are injured, or for survivors of servicemen who are killed, while performing activities incident to their service. These no-fault programs include:

1. compensation for service-connected disability or death, 38 U.S.C.

?? 301-362; 2. pensions for nonservice-connected disability or death, 38 U.S.C.

?? 501-562; 3. dependency compensation for service-connected deaths, 38 U.S.C.

?? 401-423; 4. hospital, domiciliary and medical care, 38 U.S.C. ?? 606-654; 5. life insurance, 38 U.S.C. ?? 701-788. The foregoing is precisely the type of comprehensive, no-fault com

pensation scheme contemplated by Congress, fashioned to provide for a swift and efficient remedy for servicemen, as well as to provide an upper limit on the liability of the United States.

In Feres, the Court stressed the fact that the Federal 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," 340 U.S. at 139, and that it was thus highly relevant that Congress had already pro vided, "systems of simple certain and uniform compensation for the injuries or death of those in the Armed Services." 340 U.S. at 144.

In 1977, the Court reaffirmed this consideration in the Stencel case, by stating:

A compensation scheme such as the Veterans Benefits Act serves a dual purpose: it not only provides a swift, efficient remedy for the injured




serviceman, but it also clothes the Government in the "protective mantle

of the Act's limitation-of-liability provision." (Citation omitted.) Given

the broad exposure of the Government, and the great variability in the

potentially applicable tort law, see Feres, 340 U.S. at 142-143, the mili

tary compensation scheme provides an upper limit of liability for the Government as to service-connected injuries.

431 U.S. at 673. The compensation scheme even prompted one court to comment as

follows:

The military service does not leave those permanently injured in the line of duty uncompensated. Congress has attended to such things in a rea

sonably adequate way. All we duty plaintiff appellant is a remedy he likes better.

Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965). The third and final policy reason underlying Feres/Stencel rationale

is the deleterious effect upon military order and discipline if servicemen were permitted to sue the federal government and each other. As the Court noted in Feres, no American court has ever permitted a soldier to recover for negligence against his superior officers or the govern

ment he is serving. Feres v. United States, 340 U.S. at 141. Accord, Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir. 1967); Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965). See also Misko v. United States, 453 F.

Supp. 513 (D.D.C. 1978), aff'd per curiam, No. 78-1882 (D.C. Cir.

1979). The prohibition in Feres against intra-military tort litigation derives

from one of society's elemental instincts of self-preservation. For the armed forces to be an effective fighting force, "[n]o question can be left

open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and con fidence among the soldiers in one another are impaired if any question be left open as to their attitude to each other." In re Grimley, 137 U.S. 147, 153 (1890). Accord, Brown v. Glines, 444 U.S. 348 (1980). What was sought by the Court to be avoided in Feres is the general

judicial intrusion into the area of military performance. See Mattos v. United States, 412 F.2d 793 (9th Cir. 1969); Callaway v. Garber, 289 F.2d 171 (9th Cir. 1961), cert, denied, 368 U.S. U.S. 874. For example, in Henninger v. United States, 473 F.2d 814 (9th Cir. 1973), the plain tiff had elective surgery just prior to being released from service. He

argued that since the operation was performed after he had been pro cessed for discharge, permitting him to sue for injuries incurred during its course could not have the undesirable consequences feared by the

Supreme Court. The U.S. Court of Appeals for the Ninth Circuit rejected this argument, stating:

To determine the effect that a particular type of suit would have upon

military discipline would be an exceedingly complex task, as Henninger concedes. The proximity of the injury to discharge would be only one



88 THE FORUM

factor. Whether it resulted from an allegedly negligent order would be

another. Whether it was caused by totally unrelated military personnel would be yet a third. In short, nearly every case would have to be liti

gated and it is the suit, not the recovery, that would be disruptive of discipline and the orderly conduct of military affairs. . . . This is a

classic situation where the drawing of a claim line is more important than being able to justify, in every conceivable case, the exact point at

which it is drawn. This is especially so because servicemen injured in

cident to their service are entitled to Veterans' benefits. We hold that Feres absolutely bars Federal Tort Claims actions by servicemen injured "while on active duty and not on furlough . . . due to the negligence of others in the Armed Forces."

Id. at 815-816.

STATUS OF THE LAW AND RECENT DEVELOPMENTS

The Feres/Stencel rationale has been consistently applied in situa tions embracing all manner of military activity including medical mal

practice, Hall v. United States, 451 F.2d 353 (1st Cir. 1971); recreation, Hass v. United States, 518 F.2d 1138 (4th Cir. 1975); voluntary service, Charland v. United States, 615 F.2d 508 (9th Cir. 1980); radiation, Lombard v. United States, et al, 530 F. Supp. 918 (D.D.C. 1981); chemical warfare testing, Schnurman v. United States, 490 F. Supp. 429 (E.D. Va. 1980); Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir. 1981); on-base activity, Miller v. United States, _ F.2d _ (8th Cir. 1981), and even intentional torts. Calhoun v. United States, et al, 475 F. Supp. 1 (S.D. Cal. 1977), aff'd, 604 F.2d 647 (9th Cir. 1979); James v. United States, 358 F. Supp. 1381 (D.R.I. 1973), aff'd, 530 F.2d 962 (1st Cir. 1976), cert, denied, 429 U.S. 998;

Rotko v. Abrams, 338 F. Supp. 46 (D. Conn. 1971), aff'd, 455 F.2d 992 (2d Cir. 1972); Gamage v. United States, 217 F. Supp. 381 (N.D. Cal. 1962); Birdwellv. Schlesinger, 403 F. Supp. 710 (D. Colo. 1975); Levin v. United States, 403 F. Supp. 99 (D. Mass. 1975); Citizens National Bank of Waukegan v. United States, 594 F.2d 1154 (7th Cir. 1979).

In Rotko, supra, the parents of a soldier killed in Vietnam sued the United States and several individual military officers alleging that his orders to engage in the Vietnam conflict were illegal, ultra vires and violative of the Constitution. When faced with Feres, the plaintiffs asserted that the Feres doctrine was not intended to cover instances of "illegality" but only instances of negligence. The court responded:

The plaintiff's attempts to limit the Feres doctine to negligence actions is rejected. The reasoning of the Supreme Court clearly indicates that it is the status of the claimant as a serviceman rather than the legal theory of his claim which governs in such cases.

338 F. Supp. at 47.

Feres/Stencel has also been applied to cases arising out of alleged




violations of constitutional rights. In Misko v. United States, 453 F.

Supp. 513 (D.D.C. 1978), aff'd, 593 F.2d 1371 (D.C. Cir. 1979), a Na tional Guard officer sued the United States and army medical officers

alleging that he had been administered drugs and confined in an army hospital against his will in violation of the Fifth Amendment to the Constitution.

In deciding for the United States, the court held that characterization of the claim in constitutional terms made no difference with respect to the Feres doctrine stating that, "any other result would mean that the Feres based immunity of Armed Forces medical officers could be ab

rogated through an exercise in pleading." 453 F. Supp. at 515. Similar

ridings have been made in Birdwell v. Schlesinger, 403 F. Supp. 710

(D. Colo. 1975); Rotko v. Abrams, supra, and in Calhoun v. United States, supra.

Additionally, Jaffee v. United States, et al, 663 F.2d 1226 (3d Cir.

1981), reflects the fact that the Feres doctrine applies to and protects individually named defendants sued outside of the parameters of the Federal Tort Claims Act as well as the United States. See also Tirrill v.

McNamara, 451 F.2d 579 (9th Cir. 1971); Rotko v. Abrams, 338 F.

Supp. 46 (D. Conn. 1971), aff'd, 455 F.2d 992 (2d Cir. 1972); Mattos v. United States, 412 F.2d 793 (9th Cir. 1969); Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965); Callaway v. Garber, 289 F.2d 171 (9th Cir. 1961); Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir. 1967), cert, de nied, 389 U.S. 923; Misko v. United States, et al, 453 F. Supp. 513 (D.D.C. 1978), aff'd, 593 F.2d 1371 (D.C. Cir. 1979); Birdwell v. Schles inger, 403 F. Supp. 710 (D. Colo. 1975); Martinez v. Schrock, 537 F.2d 765 (3d Cir. 1976); Roach v. Shields, 371 F. Supp. 1392 (E.D. Pa. 1974); Adams v. Banks, 407 F. Supp. 139 (E.D. Va. 1976).

In recent years several courts have attempted to avoid the Feres/ Stencel prohibitions. In Thornwell v. United States, 471 F. Supp. 344 (D.D.C. 1979), the court ruled that there was a narrow exception for cases involving intentional torts committed in the service followed by negligent failure to warn or treat after release from the service, the latter portion of the wrong being actionable. For the most part this case has not been followed and has even been criticized as posing an un workable formula. See also Schnurman v. United States, 490 F. Supp. 429 (E.D. Va. 1980); Stanley v. Central Intelligence Agency, supra, and Sweet v. United States, 528 F. Supp. 1068 (S.D. 1981).

The Fourth Circuit recently had addressed the application of the

Feres/Stencel doctrine in the admiralty context in Ionian Glow Marine, Inc. v. United States, 670 F.2d 462 (4th Cir. 1982).

The Ionian Glow case involved a collision between a Greek cargo vessel and the USS Francis Marion, which injured two officers and a crewman aboard the naval vessel. Ionian Glow Marine, Inc., brought suit seeking apportionment of damages under the divided damage rule in mutual fault collision cases in admiralty. The parties agreed that 65



90 THE FORUM

percent of the federal government's provable damages would be paid by Ionian Glow and 35 percent of Ionian Glow's provable damages would be paid by the federal government.

As part of its damages, Ionian Glow claimed $700,000 paid in settle ment of claims brought by the three injured servicemen. The district court agreed with the argument of the United States that such a re

covery would run afoul of the Feres/Stencel doctrine. On appeal, the Fourth Circuit held that the Feres/Stencel doctrine

did not preclude the inclusion of the servicemen's claim as a proper item of damages saying:

Nothing in Feres, Stencel Aero, or the cases that follow convinces us

that the Supreme Court intended to alter the Weyerhaeuser rule. Until that Court expresses its intention to modify the rule in Weyerhaeuser,

we are bound to follow it.

670 F.2d at 464.

Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597 (1963), the case relied on by the Fourth Circuit in Ionian Glow, involved a col lision between an army dredge and Weyerhaeuser's vessel. A civilian

employee of the United States was injured in the collision, claimed

compensation benefits under the Federal Employees' Compensation Act (FECA), 5 U.S.C. ? 8116(c), filed suit against Weyerhaeuser, settled that action for $16,000 and then repaid the entire settlement proceeds to the United States as required by the FECA (5 U.S.C. ? 777).

In a separate action, Weyerhaeuser sued the United States under the

Public Vessels Act (46 U.S.C. ?? 781 et seq.) and the United States filed a cross-libel.

The district court found that the collision had occurred through the mutual fault of both vessels and, applying the admiralty rule of divided

damages, held that each party was entitled to recover from the other one-half of its provable damages. The United States objected to the inclusion of the $16,000 settlement on the basis of the exclusivity pro vision of the FECA which made FECA recovery the exclusive recovery.

The Supreme Court held that the Public Vessels Act "was intended to impose on the United States the same liability ... as is imposed by the admiralty law on the private shipowner." According to the Court, a private shipowner in a case such as this would be liable for half of all of petitioner's provable damages, including the $16,000 settlement. The Court found with respect to the FECA that "there is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of

admiralty law affecting the mutual rights and liabilities of private ship owners in collision cases." (Emphasis added.)

Accordingly, the Court held that the scope of the divided damages rule in mutual fault collisions was unaffected by the FECA which was




enacted to limit the liability of one of the shipowners to unrelated third

parties. The Supreme Court has recently agreed to undertake what could

result in either a reevaluation, modification or clarification of the fed eral government's liability or nonliability in servicemen-related cases.

Thomas v. Lockheed Aircraft Corp., 665 F.2d 1330 (D.C. Cir. 1981), arises from the crash of a Lockheed C5A aircraft used by the United States to transport 301 passengers from Saigon to the United States. A

wrongful death action was filed against Lockheed on behalf of a civilian

employee of the Navy Department. Lockheed impleaded the United States seeking indemnity or contribution on a variety of tort and con tract theories. Two counts asserted a right to indemnity or contribution under the Federal Tort Claims Act; two counts were based upon ad

miralty law and the fifth count upon contractual indemnity. The district court held that indemnity was available to Lockheed and

that such a "claim over" was not barred by the FECA. The court of ap peals reversed, saying that there was no longer a "live controversy" as to whether or not the exclusivity provision barred a third-party claim not based upon an independent duty owned by the government to the

putative indemnitee. At the same time, however, the court of appeals noted that it had,

in a prior decision, left for another day the "difficult question" of whe ther a claim for noncontractual indemnity resting upon an independent duty running from the third-party defendant, the putative indemnitor, to the third-party plaintiff would also be barred under FECA. The court found no need to dwell upon the question, because it found that Lock heed had alleged only "derivative tort claims."

Accordingly, the court of appeals reversed, holding that the district court erred in failing to find FECA a bar to Lockheed's claim for contri bution and indemnity. It found that disposition of the admiralty ques tions was inappropriate on the record before it. In a footnote, however, the court said that "even if admiralty jurisdiction is appropriate, of course, the district court should examine with care "loose" characteriza

tion of Lockheed's claims for "contribution or indemnity." On April 5, 1982, the Supreme Court granted Lockheed's petition for

certiorari.

PRIVATE RELIEF BILLS

As a general matter, it is the position of the United States, especially where an alternative compensation scheme is in existence, that private relief legislation is not appropriate. Indeed, one of the major, if not the

central, reasons for the enactment of the FTCA was to stem the tide of private relief legislation. To allow those who have been legislatively or judicially precluded from recovery due to the existence of alterna



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tive compensation schemes to obtain private relief from Congress is

inequitable and inimical to the policies underlying the FTCA. To permit such an activity is nothing short of forum shopping between the legis lative and judicial branches.

Notwithstanding the foregoing, there is no question but that where an especially egregious result is worked in an individual case that Con

gress has the option of private relief. Private Law 96-77, passed in the 96th Congress, presents such a circumstance. James R. Thornwell, during the course of an espionage investigation and while a member of the armed forces, was intentionally imprisoned, mistreated for sev eral weeks and surreptitiously administered the drug LSD. Severe and

permanent damages resulted. The rarity of those situations where

private relief is justified is illustrated by the extreme nature of this situation.

CONCLUSION

The policy reasons underlying the rationale of the Feres/Stencel doctrine retain as much vitality today as they did when the Supreme Court decided Feres over thirty years ago. The law is most certainly a dynamic area changing as the needs and direction of society change. Yet the existence and relationship of a strong armed forces to its indi vidual members is one to be preserved and protected. While the char acter of the armed forces has changed, the basic concepts enunciated

by the Supreme Court in 1950 remain true today.



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