Court noted that there is a special relationship of solider
to his superiors. Granting to him the right to bring an
action would have an adverse effect upon discipline and
would result in a judicial intrusion into the general area
of military performance. Congress had established a
system of uniform compensation for injuries or death of
those in the armed services.
This system provides
adequate and comprehensive benefits for service
personnel and compares favorably with workmens
compensation statutes. To allow individual suits would
circumvent the statutory schemes of veterans benefits.
The Court in Feres recognized the relationship
existing between the United States and its military
personnel as distinctively federal in character, so that it
would be inappropriate to apply local law to that
relationship by way of the FTCA. Applying the state
law of the area where the injury took place, given the
wide variety of local laws, would be unfair to the
military member who has no choice as to his or her duty
A major exception to the Feres doctrine exists when
the injury, death, or loss of the military member did not
occur incident to military service.
circumstances, the Feres doctrine will not prevent
FTCA recovery by a military claimant. The value of
benefits received from the government, such as medical
care, rehabilitation, and disability payments, however,
will be deducted from the compensation paid to the
The central issue in determining whether the Feres
doctrine will prevent a military member from
recovering under the FTCA is whether the injury or loss
occurred incident to military service. Courts decide this
issue only after considering all the facts and
circumstances of each case. As a general rule, however,
all the following factors must be present for an injury,
death, or loss of a military member to be held not
incident to military service:
The member must have been off duty.
The member must not have been aboard a
The member must not have been engaged in any
military duty or mission.
The member must not have been directly subject
to military orders or discipline.
any of the previous four factors are absent, the
claim usually will be held by the courts to be incident to
The Feres doctrine does not apply to claims by
military members who are acting solely in a
representative capacity (guardian, executor of an
estate). It will bar FTCA claims by nonmilitary persons
acting as legal representatives of injured or deceased
The following examples
demonstrate these principles.
Example: Johnny Doe, the minor child of LT Doe,
was the victim of medical malpractice at a military
hospital. LT Doe presents a $100,000 claim on behalf
of Johnny. The Feres doctrine will not apply. LT Doe
is presenting the claim solely as the parent and legal
representative of his minor son and the Feres doctrine
does not apply to injuries, death, or loss suffered by a
military dependentonly to military members
Example: While on duty, LT Doe was negligently
killed by a Marine Corps officer acting within the scope
of federal employment.
The executor of LT Does
estate, Mr. Rich, presents an FTCA claim for wrongful
death. The Feres doctrine will bar this claim. Although
Mr. Rich is a civilian, he is claiming only in his capacity
as LT Does legal representative. Because LT Does
death occurred incident to service the claim will be
denied, just as if LT Doe had presented it himself.
CIVILIAN FEDERAL EMPLOYEES.
Civilian federal employees usually cannot recover
under the FTCA for injury or death that occurs on the
job because of Federal Employees Compensation Act
(FECA) compensation benefits.
INTRA-AGENCY CLAIMS. One federal
agency usually may not assert an FTCA claim against
another federal agency. Government property is not
owned, for FTCA purposes, by any specific agency of
the government. Therefore, the federal government will
not normally reimburse itself for the loss of its own
MEASURE OF DAMAGES
The phrase measure of damages refers to the
method by which the amount of a claimants recovery
will be determined. In FTCA cases, the measure of
damages will be determined by the law of the
jurisdiction where the incident occurred. For example,
the measure of damages for a claim arising out of a tort
that occurred in Maryland will be determined by
When the local law conflicts with
applicable federal law, however, the federal statute will