UNITED STATES V. JOHNSON: THE DISSENT'S FLAWED ATTACK ON FERES V. UNITED STA TES

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1 UNITED STATES V. JOHNSON: THE DISSENT'S FLAWED ATTACK ON FERES V. UNITED STA TES JoAN M. BERNOTr* One of last term's decisions came as a surprise: the Supreme Court divided five to four in United States v. Johnson,' a case so simple that all nine Justices agreed the circuit court's 'civilian agency' exception to the Feres doctrine 2 was illogical and unprecedented. 3 The majority reversed. The sticking point for the dissent was the perceived error of Feres v. United States as statutory interpretation, and its unfairness. The dissent voted to dismantle one section of the Feres jurisdictional bar simply to contain the effects of a doctrine that "was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received." 4 The Johnson dissent marks a Supreme Court minority's first significant embrace of lower courts' and commentators' longstanding criticism of the supposedly inequitable doctrine announced in Feres. 5 * Joan Bernott is Special Litigation Counsel in the Torts Branch of the Civil Division, United States Department of Justice. The views expressed here are those of the author, and do not necessarily reflect the official position of the United States Department of Justice S. Ct (1987). 2. Feres v. United States, 340 U.S. 135 (1950). 3. Johnson, 107 S. Ct. at 2067 n.8 (listing lower courts of contrary authority). Justice Scalia, dissenting, stated: I confess that the line between... 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. 4. Id. at Johnson, 107 S. Ct. at 2074 (Scalia, J., dissenting) (quoting In re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242, 1246 (E.D.N.Y. 1984), appeal dismissed, 745 F.2d 161 (2d Cir. 1984)). 5. Of the six preceding Supreme Court decisions on the Feres doctrine, three were unanimous holdings on the Feres question. See Feres v. United States, 340 U.S. 135 (1950); United States v. Shearer, 473 U.S. 52 (1985) (eight Justices deciding); Chappell v. Wallace, 462 U.S. 296 (1983). In the three remaining decisions, moreover, the Court split on whether the Feres doctrine applied to the facts at bar, not on whether the doctrine was wise, fair, or, least of all, correct statutory interpretation. See United States v. Brown, 348 U.S. 110 (1954) (splitting 6 to 3; Justices Black, Reed and Minton dissenting from the majority's holding that Feres did not bar a veteran's suit for medical malpractice by the Veterans Administration during surgery on his knee, which had been injured incident to active service); Brooks v. United States, 337 U.S. 49 (1949) (Justices Frankfurter and Douglas dissenting from the majority's affirmance of FTCA relief for non-incident-to-service injuries sustained by servicemen not on active duty or subject to military discipline); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977) (Justices Marshall and Brennan dissenting from the majority's holding

2 CREIGHTON LAW REVIEW [Vol. 21 It also marks a relative novelty among such critical commentary: a frontal attack on the correctness of that decision as statutory interpretation. 6 The dissent's failure to engage the issue of Feres' equity is unfortunate. 7 But its claim that the High Court wrongly decided Feres is more important. If Feres was wrongly decided, there can be no serious quarrel that the Feres doctrine is just. Certainly a judicial usurpation of the legislative power, whether or not well-intentioned, is unjust by constitutional definition. The dissent's criticism carries heavy baggage. The dissenting opinion extends an implicit invitation for a certiorari petitioner's request that the Supreme Court officially abandon Feres. 8 As a possible first phase in the demise of a long-established rule of law, the Johnson dissent deserves serious consideration. Already it has been welcomed in the community of Feres critics as a "masterpiece of logic and language." 9 Is it? How effectively does the Johnson dissent discredit the Supreme Court's statutory interpretation in Feres? A. FERES V. UNITED STATES In 1946, after decades of debate, Congress passed the Federal Tort Claims Act ("FTCA") 10 which, with certain exceptions, waived that Feres also bars a product manufacturer's third-party action premised on a serviceman's injury sustained incident to service). 6. Ample criticism of the Feres doctrine exists but tends to focus on the doctrine's supposed inequity, not its validity as statutory interpretation. But see Note, The Federal Tort Claims Act- A Cause of Action for Servicemen, 14 VAL. U. L. REV. 527, (1980) (arguing that the Feres Court ignored Congressional intent). For a survey and reply to equity-based Feres criticism, see Bernott, Fairness and Feres: A Critique of the Presumption of Irustice, 44 WASH. & LEE L. REV. 51 (1987). 7. Had the dissenting Justices focussed on Feres' inequity, they may have recognized the large element of illusion in it. See Bernott, 44 WASH. & LEE L. REV. at 51. Their failure to examine the issue also impairs the predictability of future Supreme Court treatment of the doctrine. The Johnson minority is not obviously comprised of philosophically like-minded jurists. It would be helpful to prognosticators on the doctrine's destiny to know how many of the dissenters were motivated not by the conviction that Feres is "plain error," but by abhorrence at the doctrine's perceived inequity. Johnson, 107 S. Ct. at 2075 (Scalia, J., dissenting). Those members of the minority who dissented primarily on the latter basis may lend more support to Feres in less sympathetic cases than Johnson. Each dissenting Justice's view, moreover, will weigh differently on "considerations of stare decisis," should the Court ever directly consider overruling Feres. See id. 8. See Johnson, 107 S. Ct. at 2075 (Scalia, J., dissenting) (stating: "We have not been asked by the respondents to overrule Feres, and so need not resolve whether considerations of stare decisis should induce us, despite the plain error of the case, to leave bad enough alone."). 9. Weisgall, 'Feres' Holding Lives: Split Court Upholds Limit on Liability, Legal Times, Sept. 7, 1987 at U.S.C. 1346, 2671 to 2680 (West 1976 & Supp. 1987).

3 19871 FERES REVISITED sovereign immunity for the "ordinary common law torts" of federal employees. 1 1 Three years later, the Supreme Court held in Brooks v. United States that servicemen qua servicemen were entitled to FTCA relief, at least so long as the injuries for which they sued were not sustained incident to service. 12 Almost immediately, the Court was confronted with the "wholly different case" of servicemen's suits for injuries sustained incident to military service in Feres v. United States.' 3 Feres was a consolidation of three cases from three circuits: Mrs. Feres' decedent perished in an alleged negligently caused barracks fire while on active duty, and the other two cases involved medical malpractice committed against active duty servicemen. 14 Of the twelve federal judges that considered the cases in the lower courts, nine had held that the respective plaintiffs failed to state a cause of action. 15 All nine Supreme Court Justices in Feres agreed with them. 16 The Feres Court stressed by way of introduction that since "few guiding materials" illuminated their task of statutory interpretation, "no conclusion can be above challenge, but.., at least Congress possess[ed] a ready remedy" for any misinterpretation of the FTCA. 17 The Court began by delineating "considerations persuasive of liability,"'" and by closely reading the FTCA "private person" liability provisions. 19 It found that Section 2674's "test of allowable claims... embodies the same idea [as] its English equivalent," the Crown Proceedings Act of The Court stated the Section 2674 test of allowable claims was "not the creation of new causes of action but acceptance of liability under circumstances that would bring private 11. Dalehite v. United States, 346 U.S. 15, 28 (1953) U.S. 49, 52 (1949). 13. Feres, 340 U.S. at Feres v. United States, 177 F.2d 535 (2d Cir. 1949); Jefferson v. United States, 77 F. Supp. 706 (D. Md. 1948), qffd, 178 F.2d 518 (4th Cir. 1949); Griggs v. United States, 178 F.2d 1 (10th Cir. 1949). 15. A split Tenth Circuit panel reversed dismissal of the medical malpractice wrongful death complaint in Griggs v. United States. Griggs, 178 F.2d at 3. The dissenting judge in Griggs adopted the reasoning of Jeferson. Id. (Huxan, J., dissenting). 16. Feres, 340 U.S. at Id. at Id. at Id. at The private person liability provisions are quoted and discussed in Part C(1), infra. Justice Jackson's consideration of the statutory language was fine to the point of delicate. Regarding the statute's grant to the District Courts of " 'exclusive jurisdiction of civil actions on claims against the United States for money damages'" (28 U.S.C. 1346(b)), he observes: "This [provision] confers jurisdiction to render judgment upon all such claims. But it does not say that all claims must be allowed." Feres, 340 U.S. at Feres, 340 U.S. at 141 (citing 10 and 11 Geo. VI, c. 44, p. 863).

4 CREIGHTON LAW REVIEW [Vol. 21 liability into existence." 21 The Court then employed a strictly syllogistic analysis in pursuit of Congressional intent: the FTCA created no new causes of action; the liability proposed by petitioner Feres was new; therefore such liability a fortiori was not created by the FTCA. The Court also noted that FTCA liability-based on "'the law of the [state] where the act or omission occurred'" - made no sense in any serviceman's "incident-to-service" case. 2 2 Finally, the Court observed that the statutory scheme of compensation for injuries or death to servicemen was "simple, certain, and uniform;" was neither "negligible [n]or niggardly;" and "normally require[d] no litigation," at which soldiers are at a peculiar disadvantage anyway. 23 The "vital distinction" between Brooks and Feres was that "the injury to Brooks did not arise out of or in the course of military duty." '24 The Feres Court stated: 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. 25 In the ensuing thirty-six years,,the Supreme Court refined this incident-to-service test by permitting a veteran to sue for a post-discharge injury caused by post-discharge federal negligence 26 and by confirming that the Feres doctrine could not be avoided through third-party process, 27 or by suing military officers in their individual capacities. 28 In a case that proved to have particular importance to 21. Feres, 340 U.S. at U.S. at (quoting 28 U.S.C. 1346(b) (1976 & Cum. Supp. 1987)). The Court stated: "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." Feres, 340 U.S. at Feres, 340 U.S. at Feres, 340 U.S. at Id. (emphasis added). 26. United States v. Brown, 348 U.S. 110 (1954). The Court stressed that the "injury for which [Brooks sued] was not incurred while [he] was on active duty or subject to military discipline. The injury occurred after his discharge, while he enjoyed a civilian status." Id. at 112. "Since the negligent act giving rise to the injury... was not incident to the military service, the Brooks case governs and the judgment must be affirmed." Id. at 113. Troubled by the "unjustifiable discrimination" favoring veterans over active-duty servicemen, three Justices dissented. Id. They reasoned that "but for" his military entitlement to treatment in a veterans' hospital, "this veteran could not have been injured." Id. at 114 (Black, J., dissenting). 27. See Stencel Aero Engineering Corporation v. United States, 431 U.S. 666 (1977) (affirming the dismissal of a third-party FTCA claim brought by an aircraft manufacturer sued by a military pilot injured when his ejection mechanism malfunctioned). 28. Chappell v. Wallace, 462 U.S. 296 (1983).

5 19871 FERES REVISITED United States v. Johnson, the Court in 1985 firmly refused to endorse an on-base, on-duty litmus test of incidence-to-service in United States v. Shearer. 29 B. UNITED STATES v. JOHNSON Some courts soon construed United States v. Shearer as the Supreme Court's supposed abandonment of Feres' "non-core" concerns. In a prime example, the Eleventh Circuit en banc found Shearer "most helpful... reinforce[ment]" for a new incident-to-service test that permitted FTCA redress for a Coast Guard helicopter pilot's death sustained in active service during a military rescue mission in peacetime. 30 The Eleventh Circuit, split eight to four, theorized that since "the claims presented are based solely upon the conduct of civilian employees of the Federal Aviation Administration (a civilian administration.. ) who were not in any way involved in military activities," the claims would not "implicate civilian courts in conflicts involving the military structure of military decisions," and thus passed jurisdictional muster despite Feres. 31 This new Johnson test redefined incidence-to-service to mean direct implication of the "management of the military" or impact on military discipline. 32 If broadly applied, this case-by-case approach could have led in time to a wholesale revocation of Feres in broad categories of cases, such as civilian-style medical malpractice, vehicle collision, and recreational torts. Arguably, such an exception to Feres would have consumed the original doctrine, excluding only those cases that the discretionary function and/or combatant activities exceptions to the FTCA might nevertheless proscribe U.S. 52 (1985). All eight participating Justices disavowed reduction of the Feres doctrine to a "few bright-line rules" such as on-base situs of injury. Id. at 57. The Court reversed the Third Circuit's remand of a wrongful death action premised on one serviceman's murder by another serviceman while both were off-duty and off the military base, noting that the claims struck at the "core" of Feres' concerns: i.e., they "went directly to the 'management' of the military;... question[ing] basic choices about discipline, supervision and control of a serviceman." Id. (footnote omitted). 30. Johnson v. United States, 779 F.2d 1492, 1493 (11th Cir. 1986). 31. Id. at A three-judge panel had previously reached the identical result without the help of Shearer. Johnson v. United States, 749 F.2d 1530 (11th Cir. 1985) (reversing dismissal of FTCA wrongful death action). The panel determined that-excepting cases involving something called the "Feres factual paradigm," i.e., a serviceman's tort claim premised on another serviceman's negligence-evolution of the Feres doctrine required the Court to determine whether each of Feres' classic rationales would be undermined by prosecution of a complaint. The panel opinion illustrates the error into which a court can be led by putting the cart before the horse, that is, by construing certain analytical components of Feres as justifications for the doctrine's existence. See discussion ifra Part C(2). Id. at Shearer, 473 U.S. at 58.

6 CREIGHTON LAW REVIEW [Vol. 21 Indeed, this reading of Shearer produced some inane results before the Supreme Court interred it in Johnson. 3 3 The Supreme Court reversed the Eleventh Circuit's remand of Mrs. Johnson's wrongful death action in Feres' own language: 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.' This Court has never deviated from this characterization of the Feres bar. Nor has Congress changed this standard in the close to 40 years since it was articulated [T]his Court has never suggested that the military status of the alleged tortfeasor is crucial to the application of the doctrine... Instead, the Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based upon service-related injuries. We decline to modify the doctrine at this late date.... The circumstances of this case thus fall within the heart of Feres as it consistently has been articulated.... 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.' 34 In addition to thus endorsing the classically articulated incidentto-service test, Justice Powell briefly discussed how an alleged tortfeasor's civilian status is irrelevant to Feres' traditional rationales, particularly the need to protect military discipline and the military's constitutional accountability to the public. 35 As Justice Powell put it: Even if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission. Moreover, military discipline involves not only obedience to orders, but more generally duty and loyalty to one's service and one's country. 36 He also observed that the "distinctively federal" relationship between 33. For example, until preempted on rehearing en banc, a Ninth Circuit panel in Atkinson v. United States, 804 F.2d 561 (9th Cir. 1986), modified 813 F.2d 1006 (9th Cir. 1987), confirmed that Shearer endorsed a case-by-case approach that emphasized "second-guessing of military decisions or... the impairment of military discipline" as Feres' overriding concerns. Id. at 563. The panel reversed dismissal of a pregnant servicewoman's medical malpractice claim because it failed to implicate Feres' "underlying disciplinary rationale." Id. at 564. Also, the panel reasoned, "pregnant servicewomen did not serve on active duty in 1950 when Feres was decided" so the Supreme Court could not have intended to bar Ms. Atkinson's claim. Id. 34. Johnson, 107 S. Ct. at , 2069 (footnotes omitted) (citations omitted). 35. Johnson, 107 S. Ct. at Id. at 1069.

7 19871 FERES REVISITED servicemen and sovereign was well served by the classic Feres test, and that servicemen's "generous" statutory benefits compare extremely favorably with civilian workers' compensation benefits. 37 Justice Scalia's dissenting opinion, in which Justices Brennan, Marshall and Stevens joined, presented three reasons in support of affirmance. First, the plain language of the FTCA fails to exclude servicemen's claims. 38 Second-by far the most comprehensive- "neither the three original Feres reasons nor the post hoc rationalization of 'military discipline' justifies the failure to apply the FTCA as written." 3 9 And third, the creation of the Feres doctrine has not fulfilled its promise of "bringing harmony to the law." 40 The dissent in sum maintained that "Congress not only failed to provide such [a servicemen's] exemption [to the FTCA], but quite plainly excluded it," thus "Feres was wrongly decided," and "the petitioner's invitation to extend it" should be refused. 4 1 C. A CRITICAL ANALYSIS OF THE JOHNSON DISSENT It is apparent that Justice Jackson, who wrote the opinion rendered in Feres, and Justice Scalia disagree. But how successfully does Justice Scalia's analysis discredit Justice Jackson's? Does Justice Scalia proffer a statutory interpretation of servicemen's access to FTCA relief that is patently sounder than Justice Jackson's? 1. The Dissent's "Plain Language" Argument The dissent's premier argument is based upon plain language statutory interpretation. A single paragraph long, it opens with the first provision of the FTCA, rendering 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 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. 4 2 It is ironic that the dissent's very statement of the plain language argument promptly veers into a misreading of certain terms of Section 1346(b) and an obfuscation-indeed an implicit denial--of others. Justice Scalia states that read as written, Section 1346(b) "renders 37. Id. at 2068 (citing Feres, 340 U.S. at 145). 38. Johnson, 107 S. Ct. at 2070 (Scalia, J., dissenting). 39. Id. at 2074 (Scalia, J., dissenting). 40. Id. at (Scalia, J., dissenting). 41. Id. at 2070, 2074 (Scalia, J., dissenting). 42. Id. at 2070 (Scalia, J., dissenting).

8 CREIGHTON LAW REVIEW [Vol. 21 the United States liable to all persons. '43 It does not; rather, it renders the United States liable for certain kinds of injury, i.e., injury or loss of property or personal injury or death caused by a federal employee's in-scope negligence. In fact, the FTCA fails to make the United States liable to "all" or even "some" persons anywhere in its text. 44 The statute's comprehensive focus is not on the identity of plaintiffs, but on injuries, 45 claims, 46 and tortfeasors. 47 The distinction between making the United States liable "to" persons and "for" injuries is certainly a fine one, but fine distinctions are the stuff of plain meaning statutory interpretation, which loathes the light dismissal of legislators' choice of words. Moreover, the distinction may have held considerable significance for the FTCA drafters. By virtue of a comprehensive, pre-existing system of servicemen's active duty and veterans' benefits, the United States already was statutorily liable for all injuries to active servicemen and a good many injuries to veterans at the time Section 1346(b) was written. 48 Congress may well have focussed deliberately on FTCA liability "for" injuries rather than "to" persons to avoid the very conundrum that absorbs the Johnson dissent. That is, it may have attempted to avoid even the implicit endorsement of the "outlandish" concept of federal tort liability "to" its servicemen unless it was able to come up with a perfectly phrased incident-to-service test; 49 and to obviate the need to delineate each and every sub-group of potential plaintiffs covered and not covered by the FTCA that would attend any statutory reference to plaintiffs' identities. 5 0 Entirely ignoring 43. Id. 44. Of course, contrary to Justice Scalia's inference, no federal court has ever held that the FTCA bars servicemen-plaintiffs per se. The Supreme Court's own first confrontation with that question produced the opposite holding: i.e., servicemen as servicemen are not an excluded plaintiff class for purposes of the FTCA. Brooks v. United States, 337 U.S. 49 (1949). The Court has never departed from Brooks. Justice Scalia, consequently, here seems not only to be misreading the plain language of Section 1346(b), but doing so in order to fell a straw man U.S.C. 1346(b), 2674 (1976). 46. See, e.g., 28 U.S.C. 2680(a)-(n) (1976). These provisions list the FTCA exemptions which uniformly exclude any claim arising out of or based upon certain kinds of federal actions U.S.C.A (1976). 48. See Feres, 340 U.S. at , nn.12 & 13 (for certain "enactments of Congress which provide systems of simple, certain, and uniform compensation for injuries or death of parties in the armed services"). 49. Brooks v. United States, 337 U.S. at 53. This position was discussed in the Johnson dissent. Johnson, 107 S. Ct. at Two standard precepts of statutory interpretation may have influenced Congress' refusal to identify either included or excluded plaintiff groups: expressio unius personai est exclusio alterius ("the mention of one person is the exclusion of another"), and expressio unius est exclusio alterius ("the expression of one is the exclu-

9 1987] FERES REVISITED plaintiffs' identities gave the FTCA drafters a convenient and efficient escape from these readily-perceivable difficulties. Of course, Congress' reference "for injuries" rather than "to persons" is inconclusive on the Feres question. But so are the dissent's ensuing observations: that none of the FTCA's exemptions exclude FTCA suits by servicemen, and that the so-called "combatant activities" exception proves that Congress did in fact "specifically consider and provide" for military needs. 5 1 The dissent's own conclusion, that "[t]here was no proper basis for [the Supreme Court] to supplement-i.e., revise-that congressional disposition" is not so much argument as ipse dixit proclamation. 5 2 The Feres Court was as well aware of the terms of the FTCA as the Johnson dissent, but the Feres Court believed it did have a proper basis to construe the Act to preclude servicemen's incident-to-service claims. Equally inconsistent with a plain meaning statutory interpretation and even more important to the issue at hand, however, is the dissent's disposal of statutory language whose plain meaning arguably negates FTCA liability to servicemen. This discussion is not, strictly speaking, a part of the dissent's first argument; Justice Scalia instead places it at the beginning of his criticism of Feres' rationales. 53 Nevertheless, it bears directly on the integrity of the dissent's plain language argument, so it makes sense to address it in that context. Section 1346(b) of the United States Code, Title 28, provides for liability only "under circumstances where the United States, if a private person, would be liable to the claimant" under local law.5 Section 2674 does likewise; the United States is liable under the FTCA "in the same manner and to the same extent as a private individual sion of another"). People v. One 1941 Ford 8 Stake Truck, 26 Cal. 2d 503, -, 159 P.2d 641, 642 (1945). This precept did not prevent Congress from listing exceptions to FTCA jurisdiction in 28 U.S.C. 2680, but these exceptions involve claims, not plaintiff groups. 51. Johnson, 107 S. Ct. at Id. 53. Id. at See 28 U.S.C. 1346(b) (1976). The relevant portion of 28 U.S.C.A. 1346(b) states: Subject to the provisions of chapter 171 of this title, the district courts... shall have exclusive jurisdiction of civil actions on claims against the United States, 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 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. 48 U.S.C. 1346(b) (1976).

10 CREIGHTON LAW REVIEW [Vol. 21 under like circumstances. ' 55 Justice Scalia notes Justice Jackson's immutable observation that "since no 'private individual' can raise an army, and since no State has consented to suits by members of its militia, Section 2674 [and by implication, Section 1346(b)] shields the Government from liability in the Feres situation." 5 6 But Justice Scalia rejects this conclusion, saying that [u]nder this reasoning, of course, many of the Act's exceptions are superfluous, since private individuals typically do not, for example, transmit postal matter... In any event, we subsequently recognized our error and rejected Feres's [sic] 'parallel private liability' rationale. 57 Justice Jackson's reading of Section 2674 may make "many [FTCA] exceptions superfluous," but Justice Scalia's reading of Section 2674 makes it (and Section 1346(b) in the bargain) meaningless. On the face of the matter, the former reading seems truer to plain language and Congressional intent. More interesting, however, is the Johnson dissent's failure to grapple with, let alone put to rest, the evident possibility that the Supreme Court's rejection of the "parallel private liability" rationale-if it occurred-was error, as it would seem to be from the standpoint of plain language statutory interpretation. That possibility is intriguing, but need not be entertained here. 58 The Supreme Court simply has not wholly repudiated Section 2674's plain meaning. Like many courts and commentators who denigrate Feres' "parallel private liability" rationale, the Johnson dissent relies almost entirely on a familiar triplet of cases, Indian Towing v. United States, 5 9 Rayonier v. United States, 60 and United States v. Muniz 6 ' as support for this categorical assertion. 62 Such heavy reli U.S.C (1965). That section states: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. Id. 56. Johnson, 107 S. Ct. at 2071 (citing Feres v. United States, 340 U.S. 135, (1950)). 57. Id. at 2071 (Scalia, J., dissenting). 58. Considered in light of their on-point progeny, i.e., the degree to which they have shaped federal FTCA liability (as opposed to, for example, the degree to which they have been distinguished or generated dicta), Feres alone carries more weight than Indian Towing, Rayonier and Muniz combined. See infra Part C(2). It is certainly plausible that the more important Feres decision better reflects Congressional intent than the decisionally opaque, less influential latter three. See irfra, Part C(2) U.S. 61 (1955) U.S. 315 (1957) U.S. 150 (1963). 62. Johnson, 107 S. Ct. at (Scalia, J., dissenting).

11 1987] FERES REVISITED ance is uncautious. 63 These cases support no across-the-board revocation of the "parallel private liability" rationale, and they contradict the dissent's purported defense of statutory plain language. If Indian Towing, Rayonier and Muniz really stood for the proposition that the dissent attributes to them, there would be no case law upholding sovereign immunity for negligent performance of federal duties that have no "private person" analogy under state law. But the contrary is true; such case law is so ample that district courts routinely dismiss FTCA claims that lack a local-law analogy in private person liability, or, put differently, that lack an analogous actionable duty under local law. 64 And these rulings are not just consistent with the precise holdings and terms of Indian Towing, Rayonier and Muniz. They are in a sense required by them, for all three cases expressly and emphatically sustain the FTCA prerequisite of analogous private person liability See id. at Citing Muniz, Justice Scalia stated in his dissent: "w]e have abandoned this peculiar rule of solicitude in allowing federal prisoners.., to recover under the FTCA for injuries caused by the negligence of prison authorities." Id. at 2072 (Scalia, J., dissenting). Scalia also cited Indian Towing for the proposition that the Supreme Court "effectively disavowed the 'uniformity' justification--and rendered its benefits to military planning illusory." Id. Justice Scalia cited Muniz in stating: "[iut is difficult to explain why uniformity... 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].'" Id. Further, Scalia cited Rayonier as evidence that: "[W]hat we have here... [is] unauthorized rationalization gone wrong. We realized seven years too late that "[t]here 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." Id. at 2075 (Scalia, J., dissenting) (citing Rayonier, 352 U.S. at 320.). 64. The rule probably is best illustrated by the class of federal -regulatory tort cases held barred in United States v. Varig Airlines, 467 U.S. 797 (1984). Such cases are commonly dismissed for failure to state an actionable claim even before the court engages in a discretionary function analysis. See Tuepker v. Farmers Home Administration, 708 F.2d 1329, 1333 (8th Cir. 1983); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558, 563 (8th Cir. 1979); In re Franklin Nat'l Bank Securities Litigation, 478 F. Supp. 210 (E.D.N.Y. 1979). However, the rule also operates outside the regulatory tort context. See, e.g., George Byers Sons, Inc. v. East Europe Import Export, Inc., 463 F. Supp. 135, 137 (D. Md. 1979) (stating that "[i]t is well settled that no [such] cause of action... will lie... in the absence of a violation of some other common law duty under applicable state law"). 65. On its facts and by its language, Rayonier is a four-square reassertion of the need for an analogous private person liability. The Court stressed that the district judge "indicated that the facts alleged were sufficient to show actionable negligence on the part of a private person" under local law, but nevertheless cautioned the district court on remand to redetermine the complaints' "sufficien[cy] to impose liability on a private person under the laws of the [s]tate." 352 U.S. at 317, 321. This is also the position taken by the Court in Indian Towing and Muniz: "[I]t is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his 'good Samaritan' task in a careful manner." Indian Towing, 350 U.S. at Similarly, the Court in Muniz stated: "Whether [an] [FTCA] claim could be

12 CREIGHTON LAW REVIEW [Vol. 21 There are several reasons for the amenability of Indian Towing, Rayonier and Muniz to misconstruction as revocations of the plain meaning of the FTCA's two "private person" provisions. These three decisions were absorbed with two interpretational boogeymen, the theory of an FTCA exception for "uniquely governmental" functions, 66 and the FTCA's preclusion of novel liability because of its novelty per se. 67 In deciding them, the Supreme Court was more concerned with responding to these ambiguous catch-concepts-and it spurned both as FTCA interpretive precepts-than it was interested in conceding the large element of truth in each, 68 or in definitively interpreting the FTCA's private person liability standard, which is how Justice Scalia reads them. Nor were these three decisions premised on any apparent willingness to second-guess or undercut Feres, notwithstanding the Johnson dissent's expansive use of them for that purpose. The Indian Towing majority considered Feres inapplicable to the case at bar, and made out would depend upon whether a private individual under like circumstances would be liable under state law." Muniz, 374 U.S. at In Indian Towing, for example, the Court states that the government's argument for an FTCA exemption of "uniquely governmental" functions "reads [Section 2674] as if it imposed liability to the same extent as would be imposed on a private individual 'under the same circumstances.'" Indian Towing, 350 U.S. at 64 (emphasis added). However, "the statutory language is 'under like circumstances.'" Id. at 64 (emphasis added). The Court rejected the uniquely governmental axiom because it was a "quagmire" of proprietary-governmental function line-drawing and, in any event, "all Government activity is inescapably 'uniquely governmental' in that it is performed by the Government." Id. at 65, 67. The Court conveniently ignored the appearance of the word "same" appearing twice in Section 2674: making the government liable "in the same manner and to the same extent." 28 U.S.C (1965). See also Rayonier, 352 U.S. at 319 (repudiating the "uniquely governmental" argument and also rejecting the government's invocation of "municipal corporation or other public body" liability as the required FTCA analogous liability). 67. For example, Justice Jackson wrote that the "effect [of the FTCA was] to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities." Feres, 340 U.S. at 142. Without the slightest genuine impeachment of Fe-es, the Court was later able to state in Rayonier that it "may be...'novel and unprecedented' to hold the United States accountable [here],... but the very purpose of the Tort Claims Act was to... establish novel and unprecedented governmental liability." Rayonier, 352 U.S. at 319. The predicate for FTCA liability in Rayonier included negligent maintenance of private property and negligent containment of a conflagration on private property-both far more mundane premises for private person liability than exist for negligent firefighting by a non-proprietary fire department, before or even after Rayonier. 68. Notwithstanding the Court's expansive refusal to endorse a "uniquely governmental" FTCA defense, there are any number of uniquely governmental functions for which the United States has never--and almost certainly will never-be held liable in tort, e.g., war-making;. execution of cabinet or judicial appointments; law-making; contractual disbarment, etc. And, notwithstanding similarly expansive language apparently repudiating it by the Court, the FTCA's "novel and unprecedented liability" preclusion remains firm vis a vis breaches of any duty so novel that such duty has never served as a predicate to private person liability under any state's law.

13 1987] FERES REVISITED even reiterated one of the very elements of Feres that Justice Scalia cited Indian Towing to discredit: the "exclusively... federal" nature of the government's relationship with its servicemen. 69 Similarly, the Muniz decision endorsed legislative history analysis in the Feres style, 70 found "no occasion to question Feres" itself, 71 and patiently distinguished Feres' rationales-preserving intact the concern for uniformity that Justice Scalia says the Muniz Court discarded. 7 2 Indeed, it was the existence of analogous private person liability in Muniz that permitted the Court to specifically weigh the impact of non-uniformity on federal prison operations, and to conclude that the impact appeared largely speculative and, in the experience of the states, moderate. 73 Finally, as these three cases demonstrate, even when undertaken by a court that considers Sections 1346(b) and 2674 in isolation from other FTCA provisions, 74 application of the private person liability limitation is far from an objective exercise. The terms of Sections 1346(b) and 2674 cover a spectrum of what might be called analogousness: "[t]he United States shall be liable... in the same manner and to the same extent as a private person under like circumstances. '75 There is an art to applying this language to particular claims: it is not an all-or-nothing proposition. 76 Moreover, none of these three 69. Feres, 350 U.S. at 69; Johnson, 107 S. Ct. at (Scalia, J., dissenting). It is Indian Towing rather than Feres-or even the long-criticized Dalehite v. United States, 346 U.S. 15 (1953)-that the Supreme Court has read narrowly. See, e.g., United States v. Varig, 467 U.S. '797, 811 (1984) (rejecting respondents' argument that the Court's construction of the FTCA's discretionary function exception in Dalehite has been "eroded, if not overruled" by cases such as Indian Towing). 70. Muniz, 374 U.S. at Id. at Id. at ; Johnson, 107 S. Ct. at 2071 (Scalia, J., dissenting). 73. Muniz, 374 U.S. at Unlike Feres, wherein the Court considered the actionability vel non of a certain type of claim under the FTCA in all its provisions, Indian Towing, Rayonier and Muniz each only permitted the Court to decide whether Section 1346(b) and/or 2674 barred plaintiffs' causes under Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). See Indian Towing, 350 U.S. at 64; Muniz, 374 U.S. at 163; Rayonier, 352 U.S. at (discussing exclusively Sections 1346(b) and 2674). In none of these cases did the Court consider any other statutory provision, such as 28 U.S.C. 2680(a), the discretionary function exception, which courts commonly understand to codify the FTCA's 'private person liability' standard in conjunction with Sections 1346(b) and The Court's necessarily narrow focus in these cases may account in part for both its failure to significantly alter the overall development of FrCA case law or to broadly impeach Justice Jackson's visceral understanding of the Tort Claims Act as a waiver of sovereign immunity to mundane torts U.S.C (1976). Cf. 28 U.S.C. 1346(b) (1976) (rendering the Government liable "under circumstances where... a private person would be liable," i.e., neither the same nor like circumstances). 76. In Fe-es itself, for example, the Court observed: 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

14 CREIGHTON LAW REVIEW [Vol. 21 decisions was issued by a full Court, thus each reflects less cohesion on the issues than Feres. 77 In short, that the Supreme Court found the FTCA private person liability provisions failed to bar the suits in Indian Towing, Rayonier and Muniz says nothing about the correctness of Justice Jackson's conclusion that the provisions' plain language proscribed federal liability in Feres. Likewise, it says nothing about the actionability of similar claims under the FTCA as a whole, 78 or about the validity of Justice Jackson's syllogistic interpretive analysis of Congress' intent in passing the FTCA. It is Feres, not Indian Towing, Muniz or Rayonier, that is the jurisprudential watershed in the history of FTCA liability and statutory interpretation. Thus, the Johnson dissent does not adhere to a consistent plain meaning interpretation of FTCA provisions, and does not give the FTCA's private person liability requirement its due. These shortcomings, of course, do not support the correctness of the Feres doctrine except by default. They leave unsettled the question of the 1946 Congress' intent vis a vis FTCA liability for servicemen's incident-to-service injuries. Nevertheless, these analytic flaws do take the wind out of the dissent's mainsail. As shown below, the dissent's plain language argument is not only its first, but also-relatively speaking-its best argument against the Feres doctrine as statutory interpretation. analogous private liability... 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. Feres, 340 U.S. at Indian Towing was decided by a Court split five to four; Rayonier by a Court split seven to two; and Muniz by a panel of eight Justices, Justice White taking no part. 78. Rayonier notably has failed to generate a body of FTCA judgments premised on negligent firefighting; in fact, there appear to be no such reported cases. There is some case law endorsing the concept of Muniz-style FTCA liability for negligent treatment of prison inmates. See, e.g., Wooten v. United States, 825 F.2d 1039 (6th Cir. 1987) (remanding to determine whether failure to provide medical care resulted in a compensable physical injury to plaintiff). But no judgments of FTCA liability appear in reported cases, and what few cases exist demonstrate the viability of other FTCA defenses to such actions. See, e.g., Logue v. United States, 412 U.S. 521 (1973). A student author has stated, "rather than weakening the logic of Feres... Muniz merely recognized that Feres was the exception rather than the rule." Comment, Why Congress Should Not Legislatively Repeal the Feres Doctrine-A Struggle in Equity, 18 TEx. TECH L. REV. 819, 829 (1987) (footnote omitted). Similarly, while the United States has been held liable for negligent buoy placement or maintenance, the discretionary function exception has proved a reliable jurisdictional defense to many such lawsuits. See, e.g., United States Fire Insurance Co. v. United States, 806 F.2d at 1529 (11th Cir. 1986); American Nat'l Bank and Trust Co. v. United States, No (N.D. Ill. 1987); Emily Moody Body v. United States, No C (E.D. Old. 1987); Honour Brown v. United States, 790 F.2d 199 (1st Cir. 1986), cert denied, 107 S. Ct. 938 (1987); Wiggins v. United States, 799 F.2d 962 (5th Cir. 1986).

15 1987] FERES REVISITED 2. The Dissent's Criticisms of Feres' "Rationales" The bulk of the dissenting opinion is devoted to an academically interesting but irrelevant enterprise: an effort to discredit what it calls Feres' four rationalizations or justifications (i.e., "the three original Feres reasons [and] the post hoc rationalization of 'military discipline'-").79 This discussion deserves attention for it raises some important points about statutory interpretation and is sincerely, even intensely, delivered. But as impeachment of the Supreme Court's statutory interpretation in Feres, the discussion completely misses the mark. The Feres doctrine, i.e., the statutory interpretation that the doctrine capsulizes, rests not on three or four justifications or rationales as Justice Scalia insists, 8 0 but on plain statutory language and a syllogistic interpretive analysis of the FTCA. It is a product not of "unauthorized rationalization gone wrong, ''81 but rather of a single-minded concern for Congressional intent. 82 As explained by Justice Jackson, the FTCA created no new causes of action; the liability proposed by petitioner Feres was new; therefore such liability a fortiori was not created by the FTCA. 8 3 As noted above, the centrality of this reasoning to the Court's conclusion could not have been more clear: [P]laintiffs 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 79. Johnson, 107 S. Ct. at 2074 (Scalia, J., dissenting). 80. See e.g., Johnson, 107 S. Ct. at 2070 (Scalia, J., dissenting). In Feres, Scalia stated, "we gave... three reasons for our holding." Id. Scalia went on to state that "the Feres rule is now sustained only by three disembodied estimations of what Congress must (despite what it enacted) have intended." Id. at "[T]he second rationale... is not a plausible estimation of congressional intent." Id. at 2072 (Scalia, J., dissenting). These 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 decision." Id. at 2073 (Scalia, J., dissenting) (citations omitted). On the other hand Justice Scalia stated that "neither the three original Feres reasons nor the post hoc rationalization of 'military discipline' justifies our failure to apply the FTCA as written." Johnson, 107 S. Ct. at 274 (Scalia, J., dissenting), Justice Scalia is not alone, however, in construing these considerations as justifications for the doctrine's existence. That tendency is almost universally displayed by Feres critics. See, e.g., Weisgall, Legal Times, Sept. 7, 1987, at 44; Bernott, 44 WAsH. & LEE L. REV. at (discussing critical commentary and case law). 81. Johnson, 107 S. Ct. at 2075 (Scalia, J., dissenting). 82. Justice Jackson's opening remark sets the tone for his opinion: 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. Feres, 340 U.S. at Feres, 340 U.S. at 141.

16 CREIGHTON LAW REVIEW [Vol. 21 which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any [private individual] liability 'under like circumstances.' 8 4 The Feres Court expressly contemplated the 'local law' anomaly posed by 28 U.S.C. Section 1346(b), 8 5 and the availability of alternative statutory relief. 8 6 And it may well have considered them reinforcement for its holding. But what produced the holding was a careful reading of Sections 1346(b) and 2674,87 and a perception of Congressional intent aided by syllogistic logic. 8 8 These are a far more objective criterion than any Supreme Court panel's opinions about vaguely defined policy considerations. Unlike the relative validity of such policy considerations or their relative popularity with sitting Supreme Court justices-which subjects almost monopolize the Johnson dissent's attention-the correctness of Justice Jackson's reading of the FTCA's private person liability standard, and the relative validity of his syllogistic reasoning as a method of statutory interpretation do bear on the correctness of the Feres doctrine. But the Johnson dissent never directly addresses them. 8 9 With the preface that this large part of the dissenting opinion has no relevance to the question at hand, the dissenters' assessment of these policy considerations may be considered. 90 The dissent reserves special disdain for the second Feres justifica- 84. Id. (emphasis added). The Court also stated that even "if we indulge plaintiffs the benefits of [a] comparison [with states and their militia], claimants cite us to no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service." Id. at 142. The Court continued, "[w]e find no parallel liability before, and we think no new one has been created by, this Act. Its effect.., was not to visit the Government with novel and unprecedented liabilities." Id. The Court found, "[w]e cannot impute to Congress such a radical departure from established law in the absence of express congressional command." Id. at Id. at Id. at Id. at Id. at Absent a change in perspective on its plain meaning argument, the dissent probably would not be swayed by Justice Jackson's central analysis even had it confronted it head-on. That analysis satisfied all nine Justices who decided Feres, as well as nine of the twelve Judges who rendered the lower courts' decisions in the consolidated Feres cases, as well as the overwhelming majority of scholars at the time Feres was decided, and for decades thereafter. See Bernott, 44 WASH. & LEE L. REV. at & n.32. The holding in Feres was not criticized at the time it was rendered, but the dissent doubted that the High Court "can ever be justified in holding... that Congress did not mean what it plainly said in the statute." Johnson, 107 S. Ct. at 2073 (Scalia, J., dissenting) (emphasis added). Of course, as previously noted, the statute is not so plain. 90. See supra, Part C(1) (addressing the dissent's disposal of parallel private liability).