Method to This Madness: Acknowledging the Legitimate Rationale behind the Feres Doctrine
![handle is hein.journals/bulr68 and id is 989 raw text is: METHOD TO THIS MADNESS: ACKNOWLEDGING THE
LEGITIMATE RATIONALE BEHIND THE FERES
DOCTRINE
In United States v. Stanley,' the Supreme Court held that a serviceman to
whom the Army had secretly administered LSD was barred from bringing a
claim against the government for violating his constitutional rights. Simi-
larly, in United States v. Johnson ,2 the widow of a serviceman killed while
piloting a*helicopter on a Coast Guard rescue mission was barred from
bringing her claim under the Federal Tort Claims Act (the FTCA or the
Act).3 These decisions were based upon the Supreme Court's holding in
Feres v. United States: [T]he 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.' ,4
Prior to the enactment of the FTCA, the doctrine of sovereign immunity
protected the United States government from liability for the tortious acts of
its agents or employees.5 Under the doctrine of sovereign immunity, the
government is immune from liability unless it consents.6 In 1946, Congress
enacted the FTCA, which contained a qualified consent by the federal
government to be liable in tort.7 The Feres doctrine, as it came to be known,
- 107 S. Ct. 3054 (1987).
2 107 S. Ct. 2063 (1987).
3 Federal Tort Claims Act, ch. 753, 60 Stat. 842 (1946) (codified as amended in
scattered sections of 28 U.S.C.).
4 Feres v. United States, 340 U.S. 135, 146 (1950); see Stanley, 107 S. Ct. at 3062
(stating that the analysis in Feres guided the analysis of Stanley's claim); Johnson,
107 S. Ct. at 2069 (denying the claim because it fell within the Feres doctrine).
5 W. PROSSER & W. KEETON, PROSSER AND KEETON ON THE LAW OF TORTS
§ 131, at 1033 (W. Keeton 5th ed. 1984). The doctrine of sovereign immunity was
originally associated with the idea that the King can do no wrong. Id. The idea has
been maintained in modern times partly on the ground that it seem[s] illogical to
enforce a claim against the very authority that create[s] the claim in the first place.
Id.
6 Id.
The consent to liability is contained in § 1346(b) which grants jurisdiction to the
United States District Courts for claims against the United 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, accruing on and after January 1, 1945, 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.
28 U.S.C. § 1346(b) (1982).](ViewImageLocal?handle=hein.journals/bulr68&div=32&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Method to This Madness: Acknowledging the Legitimate Rationale behind the Feres Doctrine
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most