FERES v. UNITED STATES.

Syllabus.

FERES, EXECUTRIX. v. UNITED STATES.

NO. 9. CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT.*

Argued October 12, 1950.-Decided December 4, 1950.

Ttie United States isnot liable under the Federal Tort Claims Act
for injuries to members of the armed forces sustained while on
active duty and not on furlough and resulting from the negligence
of others in the armed forces. Pp. 136-146.
(a) The 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. P. 139.
(h One of the purposes of the Act was to transfer from Congress
to the courts the burden of examining tort claims against the
Government; and Congress was not burdened with private bills
on behalf of military and naval personnel, because a comprehensive
system of relief had been authorized by statute for them and their
dependents. Pp. 139-140.
(e)The Act confers on the district courts broad jurisdiction over
'civil actions on claims against the United States, for nioney dam-
ages"; but it remains for the courts to determine whether any
claim is recognizable in law. Pp. 140-141.
(d) It does not create new causes of ,"ctioi but merely accepts
for the.Government liability under circumstances that would bring
private liability into existence. P. 141.
(e) There is no analogous liabilit,- of a "private individual"
growing out of "like circumstances," when the relationship of the
wronged to the wrongdoers in these cases is considered. Pp. 141-
142.
(f) The provision of the Act making "the law of the place where
the act or omission occurred" govern any consequent liability is
inconsistent with an intention to make the Government liable in

*Together with No. 29, Jefferson v. United States, on certiorari to

the United States Court of Appeals for the Fourth Circuit, argued
October 12-13, 1950, and No. 31, United States v. Griggs, Executrix,
on certiorari to the United States Court of Appeals for the Tenth
Circuit, argued October 13, 195C.
 OCTOBER TERM, 1950.
Opinion of the Court. 340 U. S.

the circumstances of these cases, since the relationship of the Gov-

ernment and members of its armed forces is "distinctively federal
in character." Pp. 142-144.
(g) The failure of the Act to provide for any adjustment between
the remedy provided therein and other established systems of
compensation for injuries or death of those in the armed services
is persuasive that the Tort Claims Act was not intended to be
applicable in the circumstances of these cases. Pp. 144-145.
(h) Brooks v. United States. 337 U. S. 49, distinguished. P.
146.
177 F. 2(d 535 and 178 F. 2d 518, affirmed; 176 F. 2(d 1, reversed.

The cases are stated in the opinion. The orders grant-

ing certiorari in Nos. 9 and 29 are reported at 339 U. S.
910 and in No. 31 at 339 U. S. 951. The decisions below
in Nos. 9 and 29 are affirmed and that in No. 31 is reversed,
p. 146.

David H. Moses argued the cause for petitioner in No. 9.

With him on the brief was Morris Pouser.
Morris Rosenberg argued the cause for petitioner in
No. 29. With him on the brief was Henry M. Decker, Jr.
Newell A. Clapp argued the cause for the United States.
With him on the briefs were Solicitor General Perlman,
Assistant A ttorney General Morison, PaulA. Sweeney and
Morton Hollander. John R. Benney was also with them
on the brief in No. 31.
Frederick P. Cranston argued the cause, and James S.
Henderson filed a brief, for respondent in No. 31.

MR. JUSTICE JACKSON delivered the opinion of the

Court.
A common issue arising under the Tort Claims Act,
as to which Courts of Appeals are in conflict, makes it
appropriate to consider three cases in one opinion.
The Feres case: The District Court dismissed an action
by the executrix of Feres against the United States to
 FERES v. UNITED STATES.
135 Opinion of the Court.

recover for death caused by negligence. Decedent per-

ished by fire in the barracks at Pine Camp, New York,
while on active duty in service of the United States.
Negligence was alleged in quartering him in barracks
known or which should have been known to be unsafe
because of a defective heating plant, and in failing to
maintain an adequate fire watch. The Court of Appeals,
Second Circuit, affirmed.'
The Jefferson case: Plaintiff, while in the Army, was
required to undergo an abdominal operation. About
eight months later, in the course of another operation
after plaintiff was discharged, a towel 30 inches long by
18 inches wide, marked "Medical Department U. S.
Army," was discovered and removed from his stomach.
The complaint alleged that it was negligently left there by
the army surgeon. The District Court, being doubtful
of the law, refused without prejudice the Government's
pretrial motion to dismiss the complaint After trial,
finding negligence as a fact, Judge Chesnut carefully
reexamined the issue of law and concluded that the Act
does not charge the United States with liability in this
type of case.' The Court of Appeals, Fourth Circuit,
affirmed.'
The Griggs case: The District Court dismissed the
complaint of Griggs' executrix, which alleged that while
on active duty he met death because of negligent and
unskillful medical treatment by army surgeons. The
Court of Appeals, Tenth Circuit, reversed and, one judge
dissenting, held that the complaint stated a cause of action
under the Act.'
1 177 F. 2d 535.
2 74 F. Supp. 209.
3 77 F. Supp. 706.
4 178 F. 2d 518.
5178 F. 2d 1.
 OCT['OBEIR TERM. 1950.

()pinlon of the Court. 340 U. S.

The common fact underlying the three cases is that

each claimant, while on active duty and not on furlough,
sustained injury due to negligence of others in the armed
forces. The only issue of law raised is whether the Tort
Claims Act extends its remedy to one sustaining "incident
to the service" what, under other circumstances would be
an actionable wrong. This is the "wholly different case"
reserved from our decision in Brooks v. United States, 337
U. S. 49, 52.
There are few guiding materials for our task of statu-
tory 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.
We do not overlook considerations persuasive of lia-
bility in these cases. The Act does confer district
court jurisdiction generally over claims for money dam-
ages against the United States founded on negligence.
28 U. S. C. § 1346 b. It does contemplate that the
Government will sometimes respond for negligence of
military personnel, for it, defines "employee of the Gov-
ernment" to include .mennmers of the military or naval
forces of the United States," and provides that " 'acting
within the scope of his office or employment', in the case
of a member of the military or naval forces of the United
States, means acting in line of duty." 28 U. S. C.
§ 2671. Its exceptions might also imply inclusion of
claims such as we have here. 28 U. S. C. § 2680 (j)
excepts "any claim arising out of the combatant activities
of the military or naval forces, or the Coast Guard, dur-
ing time of war" (emphasis supplied), from which it is
said we should infer allowance of claims arising from non-
combat activities in peace. Section 2680 (k) excludes
"any claim arising in a foreign country." Significance
 FERES v. UNITED STATES.

135 Opinion of the Court.

also has been attributed in these cases, as in the Brooks

case, supra, p. 51, to the fact that eighteen tort claims bills
were introduced in Congress between 1925 and 1935 and
all but two expressly denied recovery to members of the
armed forces; but the bill enacted as the present Tort
Claims Act from its introduction made no exception. We
also are reminded that the Brooks case, in spite of its
reservation of service-connected injuries, interprets the
Act to cover claims not incidental to service, and it is
argued that much of its reasoning is as apt to impose
liability in favor of a man on duty as in favor of one on
leave. These considerations, it is said, should persuade
us to cast upon Congress, as author of the confusion, the
task of qualifying and clarifying its language if the lia-
bility here asserted should prove so depleting of the public
treasury as the Government fears.
This Act, however, 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. The Tort
Claims Act was not an isolated and spontaneous flash
of congressional generosity. It marks the culmination
of a long effort to mitigate unjust consequences of sov-
ereign immunity from suit. While the political theory
that the King could do no wrong was repudiated in
America, a legal doctrine derived from it that the Crown
is immune from any suit to which it has not consented 6
was invoked on behalf of the Republic and applied by
our courts as vigorously as it had been on behalf of the
Crown 7 As the Federal Government expanded its activi-
ties, its agents caused a multiplying number of remedi-
less wrongs-wrongs which would have been actionable
if inflicted by an individual or a corporation but remedi-
The Crown has recently submitted itself to suit, see post, p. 141.
6

United States v. McLemore, 4 How. 286; Reeside v. Walker, 11

How. 272, 290; Ickes v. Fox, 300 U. S. 82, 96.
 OCTOBER TERM, 1950.

Opinion of the Court. 340 U. S.

less solely because their perpetrator was an officer or em-

ployee of the Government. Relief was often sought and
sometimes granted through private bills in Congress, the
number of which steadily increased as Government ac-
tivity increased. The volume of these private bills, the
inadequacy of congressional machinery for determination
of facts, the importunities to which claimants subjected
members of Congress, and the capricious results, led to
a strong demand that claims for tort wrongs be sub-
mitted to adjudication. Congress already had waived
immunity and made the Government answerable for
breaches of its contracts and certain other types of
claims.' At last, in connection with the Reorganization
Act, it waived immunity and transferred the burden of
examining tort claims to the courts. The primary pur-
pose of the Act was to extend a remedy to those who had
been without; if it incidentally benefited those already
well provided for, it appears to have been unintentional.
Congress was suffering from no plague of private bills
on the behalf of military and naval personnel, because a
comprehensive system of relief had been authorized for
them and their dependents by statute.
Looking to the detail of the Act, it is true that it pro-
vides, broadly, that the District Court "shall have ex-
clusive jurisdiction of civil actions on claims against the
United States, for money damages . . . ,," This con-
fers jurisdiction to render judgment upon all such claims.

828 U. S. C. § 1491.
9 28 U. S. C. § 1346 (b). The provisions of the Tort Claims Act
are now found in Title 28, §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402,
2411, 2412, 2671-2680. In recodifying Title 28 of the United States
Code, changes in language were made. The Tort Claims Act, as
originally enacted, 60 Stat. 843, provided in § 410 that the District
Court "shall have exclusive jurisdiction to hear, determine, and
render judgment on any claim against the United States, for money
only . .. . (Emphasis supplied.) We attribute to this change of
language no substantive change of law.
 FERES v. UNITED STATES.

135 Opinion of the Court.

But it does not say that all claims must be allowed.

Jurisdiction is necessary to deny a claim on its merits
as matter of law as much as to adjudge that liability
exists. We interpret this language to mean all its says,
but no more. Jurisdiction of the defendant now exists
where the defendant was immune from suit before; it
remains for courts, in exercise of their jurisdiction, to
determine whether any claim is recognizable in law.
For this purpose, the Act goes on to prescribe the
test of allowable claims, which is, "The United States
shall be liable . . . in the same manner and to the same
extent as a private individual under like circumstances
" with certain exceptions not material here. 28
U. S. C. § 2674. It will be seen that this is not the crea-
tion of new causes of action but acceptance of liability
under circumstances that would bring private liability
into existence. This, we think, embodies the same idea
that its English equivalent enacted in 1947 (Crown Pro-
ceedings Act 1947; 10 and 11 Geo. VI, c. 44, p. 863)
expressed, "Where any person has a claim against the
Crown after the commencement of this Act, and, if this
Act had not been passed, the claim might have been en-
forced, subject to the grant . . ." of consent to be sued,
the claim may now be enforced without specific consent.
One obvious shortcoming in these claims is that plain-
tiffs can point to no liability of a "private individual"
even remotely analogous to that which they are assert-
ing against the United States. We know of no American
law which ever has permitted a soldier to recover for
negligence, against either his superior officers or the Gov-
ernment he is serving."0 Nor is there any liability "under
like circumstances," for no private individual has power
to conscript or mobilize a private army with such au-
thorities over persons as the Government vests in echelons
10Cf. Dinsman v. Wilkes, 12 How. 390, and Weaver v. Ward, Ho-
bart 135, 80 Eng. Rep. 284 (1616), as to intentional torts.
 OCTOBER TERM, 1950.

Opinion of the Court. 340 U. S.

of command. The nearest parallel, even if we were to

treat "private individual" as including a state, would
be the relationship between the states and their militia.
But if we indulge plaintiffs the benefit of this comparison,
claimants cite us no state, and we know of none, which has
permitted members of its militia to maintain tort actions
for injuries suffered in the service, and in at least one
state the contrary has been held to be the case. 1 It is
true that if we consider relevant only a part of the cir-
cumstances and ignore the status of both the wronged
and the wrongdoer in these cases we find analogous pri-
vate liability. In the usual civilian doctor and patient
relationship, there is of course a liability for malpractice.
And a landlord would undoubtedly be held liable if an
injury occurred to a tenant as the result of a negligently
maintained heating plant. But the liability assumed by
the Government here is that created by "all the cir-
cumstances," not that which a few of the circumstances
might create. We find no parallel liability before, and
we think no new one has been created by, this Act. Its
effect is to waive immunity from recognized causes of
action and was not to visit the Government with novel
and unprecedented liabilities.
It is not without significance as to whether the Act
should be construed to apply to service-connected injuries
that it makes ". . . the law of the place where the act or
omission occurred" govern any consequent liability. 28
U. S. C. § 1346 (b). This provision recognizes and as-
similates into federal law the rules of substantive law
of the several states, among which divergencies are notori-
ous. This perhaps is fair enough when the claimant is not
on duty or is free to choose his own habitat and thereby
limit the jurisdiction in which it will be possible for federal

11Goldstein v. New York, 281 N. Y. 396, 24 N. E. 2d 97.

 FERES v. UNITED STATES.

135 Opinion of the Court.

activities to cause him injury. That his tort claims should

be governed by the law of the location where he has
elected to be is just as fair when the defendant is the Gov-
ernment as when the defendant is a private individual.
But a soldier on active duty has no such choice and must
serve any place or, under modern conditions, any number
of places in quick succession in the forty-eight states, the
Canal Zone, or Alaska. or Hawaii. or any other territory
of the United States. That the geography of an injury
should select the law to be applied to his tort, claims makes
no sense. We cannot ignore the fact that most states
have abolished the common-law action for damages be-
tween employer and employee and superseded it with
workmen's compensation statutes which provide, in most
instances, the sole basis of liability. Absent this, or where
such statutes are inapplicable, states have differing pro-
visions as to limitations of liability and different doctrines
as to assumption of risk, fellow-servant rfles and contribu-.
tory or comparative negligence. 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.
The relationship between the Government and members
of its armed forces is "distinctively federal in character,"
as this Court recognized in United States v. Standard Oil
Co., 332 U. S. 301, whereii the Goverrnent unsuccessfully
sought to recover for losses incurred by virtue of injuries
to a soldier. The considerations which lead to that de-
cision apply with even greater force to this case:
"... To whatever extent state law may apply to
govern the relations between soldiers or others in the
armed forces and persons outside them or nonfederal
governmental agencies, the scope, nature, legal inci-
dents and consequences of the relation between
 OCTOBER TERM, 1950.
Opinion of the Court. 340 U. S.

persons in service and the Government are funda-

mentally derived from federal sources and governed
by federal authority. See Tarble's Case, 13 Wall.
397; Kurtz v. Moffitt, 115 U. S. 487. . . ." Pp.
305-306.
No federal law recognizes a recovery such as claimants
seek. The Military Personnel Claims Act, 31 U. S. C.
§ 223b (now superseded by 28 U. S. C. § 2672), permitted
recovery in some circumstances, but it specifically ex-
cluded claims of military personnel "incident to their
service."
This Court, in deciding claims for wrongs incident to
service under the Tort Claims Act, cannot escape attribut-
ing some bearing upon it to enactments by Congress which
provide systems of simple, certain, and uniform compen-
sation for injuries or death of those in armed services.2
We might say that the claimant may (a) enjoy both
types of recovery, or (b) elect which to pursue, thereby
waiving the other, or (c) pursue both, crediting the larger
liability with the proceeds of the smaller, or (d) that
the compensation and pension remedy excludes the tort
remedy. There is as much statutory authority for one
as for another of these conclusions. If Congress had con-
templated that this Tort Act would be held to apply in
cases of this kind, it is difficult to see why it should have
omitted any provision to adjust these two types of remedy
to each other. The absence of any such adjustment is
persuasive that there was no awareness that the Act might
be interpreted to permit recovery for injuries incident to
military service.

12 4 Stat. S (1933), as amended, 38 U. S. C. § 701 (1946); 48 Stat.

I ( 193:3), as amended, 38 U.S.C.§ 718 (1946); 55 Stat. 608 (1941),

38 U.S.C.§ 725 (1946); 57 Stat. 55S (1943 , as amended, 38 U. S. C.
§7:31(1946); 62 Stat. 1219, 1220 (1948), 38 U. S. C. (Supp. III)
§§ 740,741 (1950).
 FERES v. UNITED STATES.

135 Opinion of the Court.

A soldier is at peculiar disadvantage in litigation.13

Lack of time and money, the difficulty if not impossibility
of procuring witnesses, are only a few of the factors work-
ing to his disadvantage. And the few cases charging
superior officers or the Government with neglect or mis-
conduct which have been brought since the Tort Claims
Act, of which the present are typical, have either been suits
by widows or surviving dependents, or have been brought
after the individual was discharged." The compensation
system, which normally requires no litigation, is not negli-
gible or niggardly, as these cases demonstrate. The re-
coveries compare extremely favorably with those pro-
vided by most workmen's compensation statutes. In
the Jefferson case, the District Court considered actual
and prospective payments by the Veterans' Administra-
tion as diminution of the verdict. Plaintiff received
$3,645.50 to the date of the court's coml)utation and on
estimated life expectancy under existing legislation would
prospectively receive $31,947 in addition. In the Griggs
case, the widow, in the two-year period after her husband's
death, received payments in excess of $2,100. In addi-
tion, she received $2,695, representing the six months'
death gratuity under the Act of December 17, 1919, as
amended, 41 Stat. 367, 57 Stat. 599, 10 U. S. C. § 903.
It is estimated that her total future pension payments
will aggregate $18,000. Thus the widow will receive an
amount in excess of $22,000 from Government gratuities,
whereas she sought and could seek under state law only
$15,000, the maximum permitted by Illinois for death.
13Relief was provided in the Soldiers' and Sailors' Civil Relief Act
of 1940, 54 Stat. 1178, 50 U. S. C. App. § 501 et seq.
14 Brooks v. United States, supra (discharged at time of suit);

Santana v. United States, 175 F. 2( :320 (C. A. 1st Cir.) (suit by sole
heirs); Ostrander v. United States, 178 F. 2d 923 (C. A. 2d Cir.)
(suit by widow); Samson v. United States. 79 F. Supp. 406 (D. C.
S. D. N. Y.) (suit by administrator); Alansky v. Northwest Airlines,
77 F. Supp. 556 (D. C. D. Mont.) (suit by widow and son).
 OCTOBER TERM, 1950.
Opinion of the Court. 340 U. S.

It is contended that all these considerations were before

the Court in the Brooks case and that allowance of recov-
ery to Brooks requires a similar holding of liability here.
The actual holding in the Brooks case can support liability
here only by ignoring the vital distinction there stated.
The injury to Brooks did not arise out of or in the
course of military duty. Brooks was on furlough, driv-
ing along the highway, under compulsion of no orders
or duty and on no military mission. A government
owned and operated vehicle collided with him. Brooks'
father, riding in the same car, recovered for his injuries
and the Government did not further contest the judgment
but contended that there could be no liability to the sons,
solely because they were in the Army. This Court re-
jected the contention, primarily because Brooks' relation-
ship while on leave was not analogous to that of a soldier
injured while performing duties under orders.
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. Without exception, the rela-
tionship of military personnel to the Government has
been governed exclusively by federal law. We do not
think that Congress, in drafting this Act, created a new
cause of action dependent on local law for service-con-
nected injuries or death due to negligence. We cannot
impute to Congress such a radical departure from estab-
lished law in the absence of express congressional coin-
inand. Accordingly, the judgments in the Feres and
Jefferson cases are affirmed and that in the Griggs case is
reversed.
Nos. 9 and 29, affirmed.
No. 31, reversed.

MR. JUS'rlCE DOUGLAS concurs in the result.