INCIDENT TO SERVICE: THE FERES DOCTRINE AND THE UNIFORM CODE OF MILITARY JUSTICE.

• Author: Brennan, James M.

1. Introduction II. The Feres Doctrine A. The Feres Doctrine's Origin and Expansion 1. The Need for the FTCA 2. Text and Structure of the FTCA 3. Supreme Court Interpretation of the FTCA as Applied to Service Members B. Applications and Criticism of Feres 1. Struggles in Applying Feres 2. Criticisms of the Feres Doctrine 3. Alternative Tests and Legal Analogies III. Military Discipline and the Reach of Military Justice A. Origin and Basics of Military Justice B. Structure of the UCMJ Jurisdiction Provisions C. Constitutionality of the UCMJ Jurisdiction Provisions 1. Article 2(a)(11) and Persons Accompanying the Armed Forces Overseas 2. Article 2(a)(10) and Persons Accompanying the Armed Forces in the Field 3. Jurisdiction over the Offense D. Alternative Interpretations of Article 2(a)(10) and "In the Field" IV. The Intersection of Feres and the UCMJ A. The Limited Correctness of the Feres Doctrine B. Weakness of Current Feres Alternatives C. Tying "Incident to Service" to the UCMJ D. Operationalizing Article 2(a)(10) for Feres 1. Assumptions for Application 2. Medical Malpractice 3. Intra-Military Violence E. Anticipated Concerns 1. Differences between Civilians and Service Members 2. Congressional Intent 3. Treatment of Precedent and Stare Decisis 4. Unresolved Questions of Military Jurisdiction V. Conclusion I. Introduction

   The Federal Tort Claims Act (FTCA) [1] is the principal statute enabling individuals to hold the federal government liable for its tortious conduct. Every year, thousands of FTCA claims, alleging a wide variety of misconduct, are filed in courts and federal agencies. [2] While a substantial percentage of these claims are unsuccessful, [3] one class of claimants is particularly unlikely to obtain relief: military service members. Service member claimants face the unique hurdle of Feres v. United States, a 1950 Supreme Court case which held "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." [4]

   This holding, known as the Feres doctrine, has been the subject of "widespread, almost universal criticism." [5] Although Feres has largely stayed out of the popular press, [6] the doctrine is disfavored among military law experts, [7] many federal judges, [8] and the American Bar Association. [9] The most pervasive criticism of the Feres doctrine is that "incident to service" has come to encompass too many types of service member claims. [10] This criticism is particularly repeated in cases involving military-sponsored recreation [11] or medical malpractice. [12] Other critics attack the legal reasoning of Feres's "incident to service" test itself, [13] with the harshest declaring Feres to be a judicial usurpation of Congress's legislative role, [14] or a violation of the Equal Protection Clause. [15] Yet despite the weight of these criticisms, Congress has not abrogated the Feres doctrine, [16] a point oft-cited by defenders of Feres. [17]

   Today, the Feres doctrine is best justified as a means to protect the unique structure of military discipline from judicial interference and second-guessing. [18] Even critics of the Feres doctrine accept the validity of this rationale, if not its application. [19] However, the use and discussion of the military discipline rationale of Feres is strangely unmoored from a careful analysis of the most important source of military discipline: the Uniform Code of Military Justice (UCMJ). [20] The UCMJ does not initially appear useful in limiting the Feres doctrine's application to service members because active duty service members are subject to military discipline at all times. [21] However, the UCMJ covers more than just service members; it also contains provisions that subject civilians to military justice under certain circumstances. [22] This article suggests that a better understanding of "incident to service" can be gleaned from the circumstances under which civilians are subject to military justice. Furthermore, this article proposes that this understanding of "incident to service" can be operationalized in FTCA cases and suggests that Feres should only be used to bar service member claims when a civilian injured under similar circumstances could have been subject to military justice.

   Part II of this article addresses the current state of Feres doctrine jurisprudence. Section II.A provides background information on the legislative history of the FTCA, the text of the FTCA, and the Supreme Court's interpretations of the FTCA as applied to service members. Section II.B discusses how the courts and have approached the Feres doctrine and summarizes the alternative proposals to Feres that judges and commentators have put forth. Stepping back from Feres, Part III discusses military justice. Section III.A describes the basics of the American military justice system, including the development of the UCMJ. Sections III.B and III.C focus on the personal jurisdiction provisions of UCMJ Article 2. [23] Section III.D discusses the divergent approaches with respect to the UCMJ's principal civilian jurisdictional provision, Article 2(a)(10). [24] Part IV finally ties the two areas of jurisprudence together. Section IV.A first analyzes criticisms of Feres in light of the robust law on military justice. Section IV.B then discusses the weakness of current alternatives to Feres, with particular attention to the treatment of the military discipline rationale. Section IV.C advances a new test of "incident to service," where the Feres doctrine only bars a service member's claim when a civilian injured under similar circumstances would have been subject to military justice. Section IV.D applies this new "incident to service" test, in conjunction with other exceptions to the FTCA, to paradigm Feres cases. Section IV.E addresses anticipated concerns with this new understanding of "incident to service," including the ability of lower courts to apply this new understanding in line with precedent.

2. The Feres Doctrine

   1. The Feres Doctrine's Origin and Expansion

      Feres is first and foremost an interpretation of the FTCA. Thus, despite references to Feres in other caselaw, [25] the Feres doctrine cannot be understood without examining the FTCA. This section begins with a brief history of the FTCA, followed by an overview of the FTCA and its provisions. This section then outlines the Supreme Court's decisions on the FTCA's applicability to service members, both pre- and post-Feres.

      1. The Need for the FTCA

         Under the doctrine of sovereign immunity, the federal government cannot be sued without its consent. [26] While there are a variety of historical and policy-based justifications for sovereign immunity, the need for the government to waive its sovereign immunity is a "rule of strict construction" that applies in all circumstances, regardless of the strengths of the justifications in any particular case. [27] This absolute immunity is not lightly waived either; the government's consent to suit must be expressed both "unequivocally" [28] and via the legislative branch. [29] In order to relieve the harshness of sovereign immunity in individual cases, Congress may pass private bills that either grant relief directly or waive immunity to suit with respect to an individual matter. Congress also has the power to pass laws waiving sovereign immunity. [30] Before the FTCA, Congress passed a few acts waiving sovereign immunity in special circumstances: [31] The Private Vessels Act of 1887 allowed suits for damages caused by a public vessel, [32] and the Railroad Control Act of 1918 did the same for federally controlled railroad carriers. [33]

         These limited waivers of sovereign immunity, however, could not cover the wide range of torts caused by an expanding federal government. Individuals unable to sue the United States for their injuries because of sovereign immunity instead lobbied Congress for relief, which caused Congress to spend an inordinate amount of time and effort on private bills. [34] In response to this private bill logjam, Congress passed the FTCA [35] as Title IV of the Legislative Reorganization Act of 1946. [36] Congress prohibited the introduction of any private bill for its consideration when that private bill consists of claims that fall under the waiver of sovereign immunity contained in the new FTCA. [37] Thus, while the types of claims that fall under the FTCA's waiver (detailed below) can no longer be remedied via private bill, those claimants have the ability to sue the federal government in court pursuant to the FTCA's limitations. Meanwhile, claims that fall outside the FTCA waiver remained barred by sovereign immunity and remediable only through the disfavored and uncommon private bill process (unless there is an applicable sui generis statute waiving sovereign immunity). [38] The result of this dichotomy is that, for most potential claimants, the issue of inclusion within the FTCA's waiver will determine whether any reasonable prospect of relief exists.

      2. Text and Structure of the FTCA

         The FTCA's principal waiver provision, 28 U.S.C. [section] 1346(b)(1), generally waives sovereign immunity for claims that are:

         [1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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. [39] There are a few additional things to note about the general rule of the FTCA before addressing its exceptions. First, the FTCA provides that only the United States may be sued for tort claims arising from the negligent actions of its employees--not the employees themselves...