Vanderbilt Law Review


Anne R. Riley

First Page



The United States Government traditionally has enjoyed sovereign immunity from tort liability. In 1946, however, Congress waived this immunity by enacting the Federal Tort Claims Act (FTCA). The FTCA gives federal district courts original jurisdiction over any claims for personal injury or death caused by the negligence of any governmental employee." This broad waiver of immunity, however, is subject to certain exceptions. Although Congress made no explicit exception for noncombat claims of service members, the Supreme Court of the United States in Feres v. United States' construed the FTCA as creating an exception that bars all claims for injuries to service members when the injuries are "incident to service." This judicially created exception, known as the Feres doctrine, has been criticized extensively by lower federal courts and commentators. Even the Court itself has struggled with the original rationales supporting the doctrine." Over the last four decades, the Court has rejected its original rationales and adopted a new "military discipline" rationale, which serves as the predominate justification for the doctrine. The Supreme Court's in-consistent use of this rationale in relation to the definition of incident to service currently is creating confusion in the lower federal courts.

For example, in Shearer v. United States (Shearer II) the Supreme Court used the military discipline rationale in order to bring activity that normally would not be considered incident to service under the Feres bar. On a case-by-case basis, Shearer II's military discipline analysis focuses on the claim's possible impact on the effectiveness of military discipline to determine whether the activity was incident to service. After Shearer II, the lower federal courts applied this same military discipline analysis to allow recovery. In a complete turnaround,the Court in United States v. Johnson (Johnson III)" condemned the lower courts' application of this analysis.

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