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88–833 PDF 2003

S. HRG. 107–977

THE FERES DOCTRINE: AN EXAMINATION OF

THIS MILITARY EXCEPTION TO THE FEDERAL

TORT CLAIMS ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 8, 2002

Serial No. J–107–109

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 69

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 21

prepared statement .......................................................................................... 79

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

prepared statement .......................................................................................... 88

WITNESSES

Altenburg, John, Major General (retired), former Assistant Judge Advocate 

General, United States Army, Washington, D.C. .............................................. 11

Fidell, Eugene R., Counsel, Feldsman, Tucker, Leifer, Fidell & Bank, LLP, 

Washington, D.C. ................................................................................................. 14

Harris, Paul, Deputy Associate Attorney General, Department of Justice,Washington, D.C. .......................................................................................... 2

Joseph, Daniel, Counsel, Akin, Gump, Strauss, Hauer and Feld, LLP, Washington, D.C. ........................................................................................................... 15

O’Neill, Bonnie, Kingston, Pennsylvania ............................................................... 17

Sklute, Nolan, Major General (retired), former Judge Advocate General, 

United States Air Force, Bethesda, Maryland ................................................... 9

Sprague, Richard A., Counsel, Sprague and Sprague, Philadelphia, Pennsylvania ...................................................................................................................... 12

Weaver, Christopher E., Rear Admiral and Commandant, Naval District 

Washington, United States Navy, Washington, D.C. ........................................ 4

QUESTIONS AND ANSWERS

Responses of General Altenburg to questions submitted by Senator Leahy ...... 29

Response of the Department of Justice to a question submitted by Senator 

Hatch ..................................................................................................................... 32

Responses of General Sklute to questions submitted by Senators Leahy and 

Hatch ..................................................................................................................... 36

Response of Admiral Weaver to a question submitted by Senator Hatch .......... 43

SUBMISSIONS FOR THE RECORD

Altenburg, John, Major General (retired), former Assistant Judge Advocate 

General, United States Army, Washington, D.C., prepared statement ........... 46

Fidell, Eugene R., Counsel, Feldsman, Tucker, Leifer, Fidell & Bank, LLP, 

Washington, D.C., prepared statement .............................................................. 55

Harris, Paul, Deputy Associate Attorney General, Department of Justice,Washington, D.C., prepared statement ....................................................... 59

Joseph, Daniel, Counsel, Akin, Gump, Strauss, Hauer and Feld, LLP, Washington, D.C., prepared statement ....................................................................... 71

Sklute, Nolan, Major General (retired), former Judge Advocate General, 

United States Air Force, Bethesda, Maryland, prepared statement ............... 81

Sprague, Richard A., Counsel, Sprague and Sprague, Philadelphia, Pennsylvania, prepared statement .................................................................................. 93

Veterans Equal Rights Protection Advocacy, Inc.: 

letter, October 3, 2002 ...................................................................................... 102

letter and attachment, October 20, 2002 ........................................................ 104

Weaver, Christopher E., Rear Admiral and Commandant, Naval District 

Washington, United States Navy, Washington, D.C., prepared statement .... 123

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THE FERES DOCTRINE: AN EXAMINATION OF 

THIS MILITARY EXCEPTION TO THE FEDERAL TORT CLAIMS ACT 

TUESDAY, OCTOBER 8, 2002

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:05 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter presiding. 

Present: Senators Specter and Leahy. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SPECTER. The Committee on the Judiciary will now proceed with our hearing on proposed legislation to amend the Federal 

Tort Claims Act to reverse the so-called Feres doctrine. 

This hearing has been scheduled on a particularly busy day with, 

as you doubtless know, arguments proceeding on the floor of the 

Senate on a resolution to authorize the President to use force in 

Iraq. I think we will probably have sparsely attended membership 

from the committee, but staff is here and the hearing will be followed. 

I have introduced legislation to amend the so-called Feres doctrine because it seems to me that the doctrine has produced anomalous results which reflect neither the will of the Congress nor 

common sense. 

There have been many examples where a soldier who is the victim of medical malpractice at an Army hospital cannot sue the 

Government for compensation, but a civilian who suffers the same 

treatment on an allegation of malpractice would be entitled to recover against the Government. Similarly, if a soldier driving home 

from work on an Army post is hit by a negligently driven Army 

truck, that soldier is barred from suing the Government, but a civilian in identical circumstances would not be so barred. 

In the interest of brevity, my entire statement will be admitted, 

without objection, which sets forth the outlines and parameters of 

the pending legislation. 

[The prepared statement of Senator Specter appears as a submission for the record.] 

Senator SPECTER. I have long been concerned about the Feres

doctrine, handed down in 1950. When I practiced law before coming 

to the Senate, I had serious questions about it, and I was especially 

2

troubled by it when I noted the dissenting opinion of Chief Judge 

Becker, of the Court of Appeals for the Third Circuit, in the case 

of O’Neill v. United States, decided in 1998, when a claim was denied under the Feres doctrine, with Chief Judge Becker saying that 

the doctrine ought to be reversed. 

That was particularly impressive for me. I have known Chief 

Judge Becker just about as long as the Feres doctrine has been in 

effect. The case was handed down in 1950 and Edward R. Becker 

and I started to ride the elevated subway train to the University 

of Pennsylvania in the same year—not duly relevant to the issue, 

but just a note as to the concerns which I have had. 

In the interest of full disclosure, let me say that one of our witnesses today, a very distinguished Philadelphia lawyer, Richard A. 

Sprague, and I have been close friends and associates since we 

were assistant district attorneys together in the late 1950’s. We 

worked together when I was district attorney of Philadelphia and 

he was first assistant. 

With that relatively brief introduction, let’s turn now to our first 

panel of witnesses: the Honorable Paul Harris, Deputy Associate 

Attorney General of the Department of Justice. We are going to try 

to stay pretty close within the time parameters. As I think all of 

you have been informed, our practice is to have 5 minutes. This 

light—and you have one on the desk—will start at 4 minutes and 

stop with the red light going on when it goes to five. 

Mr. Harris, thank you for joining us and the floor is yours. 

STATEMENT OF PAUL HARRIS, DEPUTY ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, 

D.C. 

Mr. HARRIS. Thank you, Senator Specter. I am very pleased to 

be before this committee this afternoon to present the views of the 

Department of Justice on the Feres doctrine and its importance to 

the United States. 

I ask that my full written statement be entered into the record 

of this hearing. 

Senator SPECTER. Without objection, it will be made part of the 

record. 

Mr. HARRIS. Thank you, sir. 

To begin, a brief explanation of the Feres doctrine and its 

underpinnings is in order. In Feres and its progeny, the Court has 

held that members of the armed services cannot sue the Federal 

Government or other service members or civilian Government employees in tort for injuries that arise out of or are incurred in the 

course of activity incident to military service. 

The Feres Court relied upon three principal reasons in coming to 

its decision: First, the existence and availability of a separate, uniform, comprehensive, no-fault compensation scheme for injured 

military personnel; second, the effect upon military order, discipline, and effectiveness of its service members if service members 

were permitted to sue the Government or each other; and, third, 

the distinctively Federal relationship between the Government and 

the members of the armed services and the corresponding unfairness of permitting service-connected claims to be determined by 

non-uniform local tort law. 

3

Case law today recognizes that the policy underpinnings of the 

Feres doctrine are as valid today as they were in 1950. Today, as 

in 1950, the military service does not leave those permanently injured in the line of duty uncompensated. Congress has attended to 

such injuries or death through the creation of an efficient and comprehensive compensation system. 

The second consideration that has led to the broad application of 

the Feres doctrine by the courts through the years can be understood as an aspect of the traditional reluctance of American courts 

to intervene in military affairs and the reluctance of the Congress 

to force such intervention. 

Simply put, Feres’ prohibition of intra-military tort litigation derives from society’s most elemental instinct—self-preservation 

through a strong military. This consideration comes into play even 

when the issue is not military discipline in the strictest sense. The 

Feres doctrine serves to avoid the general judicial intrusion into the 

area of military performance. 

The third policy consideration—the Federal nature of the relationship in the absence of an analogous private liability—led the 

Supreme Court in Feres to conclude that a service member suit 

failed to state a claim under the Federal Tort Claims Act. 

While it sometimes is argued that the Feres doctrine is unfair to 

service members who are victims of medical malpractice, it is 

worth noting that the Feres doctrine is an adjunct to the military 

disability compensation package available to service members 

which, on the whole, is far more generous, even-handed, and fair 

than compensation available to private citizens under analogous 

State worker’s compensation schemes. 

This is because service members, unlike their civilian counterparts who suffer serious adverse consequences from medical care, 

generally are eligible for compensation whether or not those consequences are or can be proven to be the result of substandard 

medical care. 

The fact is that all of these service members are eligible for such 

compensation, rather than only a small handful who can show a 

causal link between their condition and substandard medical care. 

Thus, the arbitrariness and uncertainty associated with tort litigation is effectively eliminated. 

The Department believes that the policy considerations outlined 

above are as valid today as they were when they were first articulated. Today, to allow soldiers to sue their Government for tort 

damages implies that the military has failed its own, and that only 

by taking the boss to court can justice be attained. Fostering that 

attitude within a community which demands uncompromising trust 

and teamwork would have dire consequences and implications for 

our national defense. 

It is the view of the Department of Justice that the Feres doctrine continues to be a sound and necessary limit on the FTCA’s 

waiver of sovereign immunity, essential to the accomplishment of 

the military’s mission and to the safety of the Nation. 

I will be pleased to answer any questions that you may have. 

[The prepared statement of Mr. Harris appears as a submission 

for the record.] 

Senator SPECTER. Thank you very much, Mr. Harris. 

4

We now turn to the Commandant of the United States Naval 

Academy, Rear Admiral Christopher Weaver. 

Thank you for joining us, Admiral, and we look forward to your 

testimony. 

STATEMENT OF CHRISTOPHER E. WEAVER, REAR ADMIRAL, 

AND COMMANDANT, NAVAL DISTRICT WASHINGTON, WASHINGTON, D.C. 

Admiral WEAVER. Thank you very much, sir. If I could correct a 

point there, I am the Commandant of the Naval District of Washington. 

Senator SPECTER. Pardon me. Would it be a demotion or a promotion? That is my first question. 

Admiral WEAVER. No, sir. Actually, there are only two commandants left in the Navy, and that is the two of us. 

Good afternoon, sir, to you and to other members of the committee. My name is Rear Admiral Chris Weaver. I am the Commandant of the Naval District and the Navy’s Regional Commander for the National Capital Region. I graduated from the U.S. 

Naval Academy and have been a Naval officer for 31 years. 

I appreciate the opportunity to provide testimony to the committee on the views of the Department of Defense on the Feres doctrine. The Department of Defense believes the Feres doctrine is 

sound public policy and national defense policy that should not be 

disturbed. 

To begin with, sir, I am not a lawyer. I am a surface warfare officer. My primary focus is on maintaining good order and discipline, 

providing support to our military members in the Washington, 

D.C., area, to those who are forward-deployed and prosecuting the 

war on terrorism, and sustaining the larger architecture of military 

readiness, our ability to fight and win our Nation’s wars. 

Before I go further, I want to express my condolences to the family of Kerryn O’Neill. Her murder several years ago was a terrible 

tragedy. Our hearts continue to go out to the O’Neill family. Although I do not question their sincere desire to seek redress, I am 

here to testify that allowing service members to bring suits in Federal court against each other and their chain of command will 

interfere with mission accomplishment and adversely affect our 

operational readiness. 

With the challenges confronting our military and Nation today, 

I respectfully submit that the Feres doctrine should be preserved 

for the following three reasons. First, the Feres doctrine is important to maintaining good order and discipline in the military. In its 

current form, the doctrine is essential to maintaining military readiness. Litigation is inherently divisive and disruptive. 

Absent this doctrine, opposing participants would often both be 

military members and include a member’s commanding officer and 

military superiors. Military effectiveness and readiness are based 

on cohesiveness, obedience, discipline, putting the interest of the 

service ahead of the interest of the individual, and an inherent, 

unencumbered and unfettered trust and confidence up and down 

the chain of command. This degree of trust and confidence cannot 

exist in an adversarial legal environment. 

5

Discipline, morale, and unit cohesion are the hallmarks of an effective fighting force. Everything the commander does is designed 

to embed these values throughout the organization. Litigation is 

based on allegations, compulsory process, and aggressively asserting the interests of the individual against the service. Because of 

the disruptive effect of litigation, the concept of sailors suing their 

shipmates and their Government is alien to our traditional philosophy of military discipline and U.S. jurisprudence. 

Second, the Feres doctrine is not a bar to remedies because of the 

existence of the no-fault compensation system currently applicable 

to any disability or death incurred during military service. All 

State and Federal worker’s compensation laws provide a no-fault 

compensation system as the exclusive remedy for work-related injuries. 

Employees may not sue the employer to seek larger recoveries, 

but employees will be compensated even if there was no negligence 

or the injured employee was personally negligent. The military 

compensation system has the same premise, except that the military member is considered to be on the job 24 hours a day, 7 days 

a week. Their no-fault compensation applies to virtually all injuries 

at work or at home, in the U.S. or overseas, whether nobody was 

at fault or everybody was at fault. To be sure, the benefits available under the comprehensive no-fault compensation system are 

not extravagant, but the system is fair. 

The third reason for preserving the Feres doctrine is that it is essential to maintaining equity among military members injured or 

killed during military service. If the Feres doctrine were repealed 

in whole or in part, disparities would exist, depending on whether 

the member’s death or injury was based on negligence or combat. 

Other disparities would arise based on many variations in State 

tort law, the fact that the Federal Tort Claims Act does not apply 

outside the United States, and the vagaries of liability jurisprudence. 

Military training would also be affected adversely if a commander or non-commissioned officer must focus on varying and 

multiple tort issues and State laws when conducting exercises and 

training evolutions instead of focusing on operational readiness. 

In conclusion, the Feres doctrine is an important element of public policy and national defense policy. It is a necessary component 

of maintaining good order and discipline in the military and of enhancing the effectiveness and operational capability of our armed 

forces. 

It is also a part of a comprehensive no-fault compensation system 

which, similar to worker’s compensation laws, provides the exclusive remedy for deaths and injuries during military service. Preservation of this exclusive remedy is the only way to maintain equity 

for all of the military members and families who shoulder the sacrifices endured for our Nation’s defense. 

Thank you very much, and I ask that my full written testimony 

be made part of the record, sir. 

Senator SPECTER. Your full statement will be made a part of the 

record, without objection. 

[The prepared statement of Admiral Weaver appears as a submission for the record.] 

6

Senator SPECTER. Admiral Weaver, you talk about not affecting 

military effectiveness, and I note your reference to the case of 

O’Neill v. United States. We have with us today Ms. Bonnie 

O’Neill, whose daughter, Ensign Kerryn O’Neill, was the victim in 

that case. 

The essential facts were that Kerryn O’Neill was murdered by 

her former fiance, George Smith, a Naval ensign. The two of them 

had met at the Academy and had become engaged, and then 

Kerryn O’Neill broke off the engagement. She was then stalked by 

Mr. Smith. One night, while she was sitting in her on-base apartment watching a movie with a friend, Smith came to her building, 

killed her, her friend, and then himself. 

As you know, after the murders, Kerryn O’Neill’s family learned 

that Mr. Smith had scored in the 99.99th percentile for aggressive, 

destructive behavior in a Navy psychological test. Under Naval procedures, those results should have been forwarded to the department of psychiatry at the Naval hospital for a full psychological 

evaluation. Now, that, of course, is a case which isn’t battlefield, 

isn’t combat, isn’t military duty. 

Why should that kind of a case be barred, and do the rationales, 

the three reasons you say, have any applicability at all to that kind 

of a case? 

Admiral WEAVER. Well, sir, in my judgment, it is a matter of equity. This was a terrible and tragic case, but to focus on this and 

use this as an element to create a new standard, which I would 

submit to you, sir, with respect, would create inequities in other 

parts of the system—I don’t believe that that is the way to address 

it. 

Senator SPECTER. What inequities, Admiral? 

Admiral WEAVER. I am sorry, sir? 

Senator SPECTER. What inequities? 

Admiral WEAVER. The ability to afford, for instance, redress on 

the part of the O’Neill family as opposed to providing a similar circumstance under the Federal Tort Claims Act against an overseas 

incident of that kind. In other words, how would we provide the 

same type of treatment, regardless of the circumstances? 

Senator SPECTER. If the incident had occurred overseas, you 

would apply the same law. It does not involve order and discipline. 

It is not a matter which involves the combat items which you mentioned in your opening statement. 

Can you give me a factual situation where there would be an unfairness in allowing a lawsuit, if you could, as to Kerryn O’Neill? 

Why not as to others? 

Admiral WEAVER. Sir, I cannot provide an answer to that at this 

moment. I will provide that to you, if I could. 

Senator SPECTER. Well, I would appreciate it if you would do so. 

I don’t see that the analogy is apt. 

Mr. Harris, when you articulate the rationales and you talk 

about order and discipline, and Admiral Weaver makes a reference 

to combat, I can certainly see the need for order and discipline in 

combat. The comment was made about one sailor suing another, 

apparently, in the course of duty, but how would that affect a case 

like Kerryn O’Neill’s horrendous murder? 

7

Mr. HARRIS. Well, to begin with, I would like to also echo the Department’s sympathies for the O’Neill family. 

I would remind the committee that the Constitution provides the 

basis for the Congress having a special relationship with the military and establishing the rules and regulations that govern the 

military. 

Within that rubric, under Article I, section 8, the Congress has 

deferred to the military a certain amount of authoritarian power 

that would be intolerable in civilian life. One of those powers in 

this case is the power and the authority of the military to govern 

its housing for military personnel. 

Ensign O’Neill in this incident, as the Senator recognizes, was in 

military-provided housing when this took place. This is inescapably 

an area that is within the discretion of the military to provide for 

order and discipline—the regulations governing military housing 

are quite specific. 

Senator SPECTER. Mr. Harris, what has the housing got to do 

with it? If it had been off-base, would you say that Kerryn O’Neill’s 

parents would have been able to sue? 

Mr. HARRIS. Well, of course, if it was off-base, the military still 

does provide for housing even off-base by providing a housing allowance to military members, for example. 

Senator SPECTER. Is either relevant——

Mr. HARRIS. Very relevant, because these decisions are——

Senator SPECTER [continuing]. Whether you are on-base or an allowance is being provided? 

Mr. HARRIS. I am sorry, Senator? 

Senator SPECTER. Is either relevant to the underlying rationale? 

You talk about order and discipline, and I can see that, but order 

and discipline has nothing to do with the Kerryn O’Neill case. And 

whether she is on-base or off-base, housing allowance or not, or in 

an apartment which is more expensive than the housing allowance—what has that got to do with the facts of the case with respect to the underlying rationale of order and discipline? 

Mr. HARRIS. Well, here, I think it is important to remember that 

the order and discipline fits within a broader context of a command 

structure in the military. The military has got to function in a 

manner in peacetime; that is, it operates on the command structure 

in peacetime so that it can effectively work in wartime. 

Senator SPECTER. Tell me how the command structure is implicated in the O’Neill case. 

Mr. HARRIS. If a commander, for example, had the choice of providing additional security at the barracks that a service member is 

living in and at which a service member is injured in a particular 

case, versus taking that amount of money and providing it to buy 

additional aircraft or providing additional security at some other 

place on the base, this decision that is made within the command 

structure of the military is one that should function independent 

of judicial intrusion. The Congress has recognized that for a long 

time and has deferred generally to the military to make these 

kinds of decisions. 

But beyond that, in this case where we have the case of Smith, 

who had a psychological examination that allegedly revealed that 

there were perhaps some psychological problems associated with 

8

the serviceman, clearly the military should not be in the position 

where commanders are hauled into court to justify why a command 

decision was made in this case to assign Smith to a submarine and 

that the assignment of Smith to a submarine had caused him to 

be distraught. 

If we get into this kind of second-guessing of command decisions 

in the military, we will slowly grind down the efficiency and effectiveness of our military within the command structure. 

Moreover, even if Feres didn’t apply in this case, there are a 

number of exceptions articulated within the text of the FTCA that 

would bar a recovery, specifically the assault and battery exception 

and the discretionary function exception. 

Senator SPECTER. Well, I am listening to you, but I don’t see anything that has to do with the command structure. 

One final question, Mr. Harris. You did not mention cost. I infer 

from that that it is not a relevant factor in the Government’s position. 

Mr. HARRIS. Cost? 

Senator SPECTER. Cost, payment of damages. 

Admiral WEAVER. If I may take that question, sir, if you don’t 

mind. 

Senator SPECTER. You may, after Mr. Harris does. 

Mr. HARRIS. I think cost is always a concern. 

Senator SPECTER. Well, never mind whether it is always a concern. You didn’t mention it. Is it a concern in your opposition to 

a change in the Feres doctrine? 

Mr. HARRIS. Well, the question that I answered was related to 

the command structure and that has nothing to do with the cost 

issue. 

Senator SPECTER. I am aware of that. 

Mr. HARRIS. As I would re-articulate, the Government, of 

course—the Department of Justice would be concerned about cost, 

which would be one other reason, the protection of the Federal public fisc, for not opening up the military to all sorts of lawsuits that 

are controlled by plaintiffs. 

The FTCA does attempt to control cost by limiting attorney’s 

fees, but we think that the overall compensation system that the 

military has in place, which is a very generous compensation system, is one that for the most part compensates those who are injured or killed in the line of duty in a fair and consistent manner. 

Senator SPECTER. You testified to that, but this question is very 

different. This question is whether the Government contends that 

it would be very expensive if these lawsuits could be brought if the 

Government had to pay damages. 

Mr. HARRIS. There is no question that it would be expensive, but 

the payment of damages is not our primary concern. 

Senator SPECTER. Admiral Weaver, why don’t you go ahead? Do 

you have an answer to it? 

Admiral WEAVER. Sir, I can’t address the specific impact of judgments. My intervention was simply to say that regardless of the financial cost, I think the greater risk is, again, on the good order 

and discipline and the relations that exist in a military organization one to another. 

9

Senator SPECTER. OK, I think your positions are understood. 

Thank you very much, gentlemen. 

Now, I would like to call the second panel: Major General Sklute, 

retired; Major General Altenburg, also retired; Mr. Sprague; Mr. 

Fidell; Mr. Joseph; and Ms. O’Neill. 

Our first witness on panel two is listed as Major General Nolan 

Sklute, Former Judge Advocate General, United States Air Force. 

He received his bachelor’s degree from Union College in 1962, his 

law degree from Cornell, and was the Judge Advocate General of 

the Air Force from 1993 to 1996. 

I think you can see the timer there which has five on it, and the 

minutes go down and the red light comes on when time is up. 

Thank you for joining us, General Sklute, and the floor is yours. 

STATEMENT OF NOLAN SKLUTE, MAJOR GENERAL (RETIRED), 

FORMER JUDGE ADVOCATE GENERAL, U.S. AIR FORCE, BETHESDA, MARYLAND 

Mr. SKLUTE. Thank you, Senator Specter. At the outset, I would 

like to ask that my complete written statement be entered into the 

record. 

Senator SPECTER. Your statement will be made a part of the 

record in full, and everyone’s written statement will be made a part 

of the record in full. 

Mr. SKLUTE. First, let me apologize for my voice today. I seemed 

to have picked up a football cold over the weekend. 

I do appreciate, sir, very much the opportunity to be here today 

and to share my thoughts with you and the committee concerning 

the proposed legislation to amend the Federal Tort Claims Act 

eliminating the effects of the Feres doctrine. 

As indicated in my written statement, I submitted there and I 

submit here that the proposed legislation poses significant risks to 

the effectiveness of our Nation’s armed forces, and I would like to 

take a few moments to explain why I and many others have 

reached this conclusion. 

I don’t intend to reiterate all of that have been discussed by the 

courts in formulating, applying, affirming, and expanding on the 

incident to service exception which has become known as the Feres

doctrine. You already have sufficient information in this regard before you, both written and verbal. 

What I would like to do is address the adverse impact the proposed legislation will have on those elements that are critical to the 

unit cohesiveness so very critical to the combat effectiveness of our 

armed forces. 

The elements that make up unit cohesiveness—and they have 

been set out by the Congress in statute in many respects—these 

elements are integral to the unique and special relationship that 

exists within military organizations and that exists among and between its members, and these elements are absolutes; they can’t be 

compromised. 

They include such things as strict obedience to orders; total loyalty to one’s organization, one’s service, and our Nation; total loyalty up and down the chain of command; complete trust among and 

between members of the organization; and, finally, discipline. 

10

The proposed legislation would attack the requirement for unit 

cohesion in certain respects. First of all, it will create a certain degree of divisiveness within an organization. It will create discord, 

it will create perceived and real unfairness, and it will create the 

not insignificant turmoil associated with civil lawsuits. 

Such activities are far removed from the various internal accountability measures undertaken by the services within the structure of various departmental regulations and directives. There is 

no end to the type of decisions, actions, and activities which would 

become litigation targets with the abandonment of Feres. One just has to visualize the impact on an organization from the 

following two examples which really just barely scratch the surface. 

A solider or airman injured during a training exercise seeks monetary damages, alleging his injuries resulted from the negligence of 

his commander and others within his organization during the planning and execution of the training event. 

A maintenance crew chief bails out of an F–16 when it flames 

out during an incentive flight or a training flight and files a claim 

for his resulting injuries, alleging negligence on the part of the 

pilot, the maintenance crew that maintained that aircraft with 

whom he works, and the military air traffic controllers. 

The services are already subject to lawsuits in a wide variety of 

circumstances. Superimposing the process of civil litigation in the 

manner proposed by abandoning Feres will impose an even greater 

disruptive influence upon military operations. The courts have recognized this and acknowledged their reluctance to intervene in 

military affairs. 

The adverse impact upon unit cohesiveness inherent in these two 

examples and a million others that could be discussed must not be 

overlooked. Abandonment of Feres as proposed would pave the way 

for lack of uniformity, inconsistency, and unfairness in fact and in 

appearance. It promotes disparate treatment based on geographic 

location of the incident giving rise to the injury; i.e. stateside or 

overseas, since the FTCA doesn’t apply overseas. 

It promotes disparate treatment based upon the combat exclusion during wartime. A soldier alleging negligent medical treatment at a stateside military hospital will be allowed to proceed 

under the Federal Tort Claims Act. Yet, his buddy, a solider receiving medical treatment in combat, would not. 

I share fully the concerns of the families of those whose lives are 

lost while serving their country. I remember very well accompanying my wing commander and advising various spouses that 

their husbands were killed in aircraft accidents. The loss is no less 

severe, regardless of how the injury or death is sustained. 

The bottom line is the Feres doctrine has stood for over 50 years 

without legislative change and there should be tremendous hesitation to work a change at this point. 

[The prepared statement of Mr. Sklute appears as a submission 

for the record.] 

Senator SPECTER. Thank you very much, General. 

We now turn to Major General John Altenburg (Retired), former 

Assistant Judge Advocate General, United States Army, currently 

with the Office of Ethics and Business Conduct, the World Bank 

Group. General Altenburg received his bachelor’s degree from 

11

Wayne State and his legal degree from the University of Cincinnati. 

Thank you for joining us, Judge Altenburg, and I note in your 

resume you were born in Philadelphia. 

Mr. ALTENBURG. Yes, sir. 

Senator SPECTER. We look forward to your testimony. 

STATEMENT OF JOHN ALTENBURG, MAJOR GENERAL (RETIRED), FORMER ASSISTANT JUDGE ADVOCATE GENERAL, 

U.S. ARMY, WASHINGTON, D.C. 

Mr. ALTENBURG. Senator Specter, thank you for allowing me to 

appear before the committee. I understand that my written testimony will be submitted in the record. 

Senator SPECTER. Without objection, your full statement will appear in the record. 

Mr. ALTENBURG. Yes, sir. 

There are several reasons to support the Feres doctrine, as General Sklute just mentioned, and I also am going to confine my remarks to the good order and discipline prong of the Feres doctrine. 

I am only going to discuss the effect upon military order, discipline, 

and effectiveness if service members are permitted to sue the Government or each other. 

I think there are two aspects to the good order, discipline, and 

effectiveness argument. One is the uniqueness of the military setting and the military mission that produces the examples that several of us have provided for you, the examples of inherently dangerous equipment and inherently dangerous training and the missions that we have talked about. 

But the second is one that we haven’t talked about very often 

and I think it may be very significant, and that is the extraordinary regulation and control that the military exerts on itself directly related to the demands that have no civilian counterparts 

that we make on our soldiers that are different in kind and degree 

from the civilian sector. I think this is why the Supreme Court consistently defers to the military. 

The words ‘‘good order and discipline’’ sort of flow off our tongue, 

but we don’t look behind those words very often to see, well, what 

are we really talking about, what is the unique about the military 

culture and the military society that would justify this kind of 

treatment. 

I think that the Supreme Court mainly works in favor of the 

military in this regard because of the disruption and the time-consuming nature the litigation would have on our commands. 

Now, it is true that our own accountability systems frequently 

cause disruption and frequently demand time away from duties for 

our soldiers and our leaders. But the additional reason of civilian 

courts not having the expertise to address many of the issues inherent in these inquiries is why I believe the Supreme Court has 

upheld Feres for so long. 

Soldiers die in training incidents, even though training is strictly 

controlled and regulated. Sometimes, training injuries and deaths 

are the result of negligence. The Congress provides compensation 

for these cases, and if compensation is the issue, then perhaps we 

12

need to work together to increase the compensation that would be 

available. 

If Feres did not apply to injured soldiers and families of dead soldiers, soon the military would, in my opinion, undermine our ability, No. 1, to maintain our combat readiness and, No. 2, to ensure 

accountability so that we can continue to conduct realistic training, 

while minimizing future incidents. 

Page 7 of my written testimony refers to an infantry platoon in 

training that I think illustrates the potential far-reaching effects of 

allowing civil litigation. An infantry platoon is the essential building block of your and my Army in this country. A ready example 

of a platoon is the group of statues that comprise the Korean War 

Memorial here in the District of Columbia. 

If a soldier on a platoon exercise were injured or killed in what 

is a common training event for such a platoon, to rehearse and execute a ground assault on a house or a hilltop or a cave, live fire, 

potential defendants would include two team leaders probably between the ages of 19 and 22 years old, three squad leaders, and a 

platoon sergeant, and that is before we even get to officers. 

A concern of mine has been that it sounds like we are worried 

always about the chain of command and superior officers, when, in 

fact, the real divisiveness would come because of all the junior 

leaders that could eventually be involved in civil litigation in instances like this. 

There are over 650 infantry platoons in this Army, sir, and when 

you think about how often they conduct this type of training—and 

that is just one sector of one arm of the service—I think it shows 

the far-reaching effects that civil litigation could have on our Army. 

Thank you, sir. 

[The prepared statement of Mr. Altenburg appears as a submission for the record.] 

Senator SPECTER. Thank you very much, General Altenburg. 

We now turn to Mr. Richard A. Sprague. He has a bachelor’s degree from Temple in 1949 and a law degree from the University of 

Pennsylvania in 1953. He served as chief counsel to the House of 

Representatives Select Committee on the Kennedy Assassination 

and as first assistant district attorney in Philadelphia. 

Welcome, Mr. Sprague, and we look forward to your testimony. 

STATEMENT OF RICHARD A. SPRAGUE, COUNSEL, SPRAGUE 

AND SPRAGUE, PHILADELPHIA, PENNSYLVANIA 

Mr. SPRAGUE. Thank you, Senator Specter, and I thank the committee for inviting me to speak here. I also ask that my complete 

statement be made part of the record. 

Senator SPECTER. Without objection, it will be. 

Mr. SPRAGUE. Dealing with the argument I just heard made to 

you, Senator Specter, by the military personnel, I notice that they 

focus on training. I think that in the event the Congress were to 

recognize the error in the present interpretation of the Feres doctrine, you will find the military using as a basis of an exception the 

discretionary function when it comes to training, and I think the 

issue of training is being used as a red herring here. 

It is significant to me, Senator, that nobody has spoken about 

what it is that the Act specifically provides. There is no question 

13

about it that the Federal Tort Claims Act in 1946 for the first time 

allowed suits against the Government for the negligent acts of governmental employees. 

The Feres doctrine which has been applied arises from the words 

which nobody seems to deal with of precluding claims by servicemen for claims arising out of the combatant activities—the combatant activities, I stress—of the military or naval forces or the Coast 

Guard during time of war. 

Notwithstanding that language, under the interpretation that 

the U.S. Supreme Court gave in Feres, we have these kinds of situations, as you yourself pointed out: A serviceman went into an 

Army hospital for having abdominal surgery. Eight months later, 

he has another surgery where a towel 30 inches long by 18 inches 

wide, marked ‘‘Medical Department, United States Army,’’ from the 

earlier abdominal surgery was discovered within his stomach. No 

one can question in that situation there was negligence, and had 

he been a civilian or had it happened in a civilian hospital, appropriate litigation could be brought. Yet, that is the precise fact pattern in the Feres doctrine that was applied by the Supreme Court. 

Another example—and there are hundreds of them—a Coast 

Guard rescue pilot is called out on a stormy night to rescue a boater in distress. The weather is so bad that the pilot requests radar 

guidance from the FAA, a civilian agency of the Federal Government. Following the FAA’s direction, the pilot flies into the side of 

a mountain and is killed. If it were a civilian pilot, no question that 

his family and wife would be able to maintain a suit. Yet, under 

the Feres doctrine, no suit allowed. How you get it from the words 

of that exemption is beyond me. 

I do point out, as I think you said earlier, Senator Specter, Judge 

Scalia in his dissent in the Johnson case, which I believe is very 

persuasive, states that Feres was wrongfully decided and heartily 

deserves the widespread, almost universal criticism it has received. 

As for the local tort law rationale, he pointed out how, in United 

States v. Muniz, we allow Federal prisoners to sue the Federal authorities, depending on which State they are in and the various 

laws. We allow Federal prisoners to bring suit against the Government, but not our men in service. And we are not talking about in 

terms of combat and we are not talking about the kind of situation 

that they are dredging up in order to try to prevent the Congress 

from rectifying this wrong. 

Feres now has been interpreted to bar all injuries suffered by 

military personnel that are even remotely connected to his status 

as a member of the military. Judge Becker’s dissent in the O’Neill

case, joined by Judges Sloviter and McKee—and you, Senator Specter, and I hope the Congress recognize what an esteemed member 

of the judiciary Judge Becker is. He received recently the prodigious Devitt Award. In that case, how in the world can anybody 

say that the killing of this officer by the other officer in some way 

is harming military discipline? 

I notice that the caution light is coming up. 

The simple fact, Senator Specter, is the Feres doctrine as it is 

being applied now, not in the way the Congress originally wrote 

it—and by the way, if you read the Supreme Court opinions, they 

are going further and further away from what was even the origiVerDate 0ct 09 2002 17:07 Aug 14, 2003 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 C:\HEARINGS\88833.TXT SJUD4 PsN: CMORC
14

nal interpretations, being interpreted more broadly than ever, and 

they use as a basis that the Congress hasn’t acted. Judge 

Higginbotham, a distinguished member of the Third Circuit, while 

he applied the Feres doctrine, decried it. He said it is unjust, it is 

not fair. 

The simple fact is the Feres doctrine saves the Government some 

money, but it is money saved at the expense of our servicemen and 

women who have been injured or killed as a result of acts or omissions of the Federal Government. We spend billions of dollars on 

military machinery and equipment. We should not be so parsimonious when it comes to providing proper redress to the most 

important resource of our military, the men and women who serve 

our country. 

Thank you. 

[The prepared statement of Mr. Sprague appears as a submission 

for the record.] 

Senator SPECTER. Thank you very much, Mr. Sprague. 

We now turn to Mr. Eugene Fidell, of the law firm of Feldesman, 

Tucker, Leifer, Fidell and Bank; a bachelor’s degree cum laude 

from Queens College, a law degree from Harvard, active duty in 

the Coast Guard from 1969 to 1972. 

Welcome, Mr. Fidell. We look forward to your testimony. 

STATEMENT OF EUGENE R. FIDELL, COUNSEL, FELDESMAN, 

TUCKER, LEIFER, FIDELL AND BANK, LLP, WASHINGTON, D.C. 

Mr. FIDELL. Thank you, Senator. 

First, one of the points that was made a few moments ago had 

to do with the notion of unit cohesion. The reference, of course, is 

to the legislation that was passed some years ago, a few years ago, 

for the ‘‘don’t ask, don’t tell’’ policy. Without developing the point 

more broadly because of time constraints, I would only say that I 

sincerely doubt that the Congress had in mind the Feres doctrine 

when it enacted its comments concerning unit cohesion. 

Now, is unit cohesion a potent factor? Obviously, it is. You don’t 

want to do anything that will unduly generate friction within a 

military unit. Notwithstanding that, Congress obviously has to do 

some balancing and decide whether the game is worth the candle, 

and I think history teaches and experience teaches that the kinds 

of issues that may come up in Feres or Federal Tort Claims Act litigation are not the kind that really erode military discipline. 

Let me be very specific. It is certainly the case that already, 

under current law in a variety of contexts, GIs have a right to go 

to court, they have a right to make allegations, and they have a 

right to a judicial determination, rather than have the courthouse 

door slammed in their face, which is what the Feres doctrine does, 

obviously. You never get into court with the Feres doctrine, or you 

are out as soon as you are in. 

Let me give some illustrations. A GI can sue under the Tucker 

Act. A GI can sue to have his record corrected, for Administrative 

Procedure Act review of the decision of the boards for correction of 

military or naval records. These are the kinds of issues that may 

well bring into play command decisions of one kind or another. 

Yet, our society has sufficient flex in it that we recognize that 

larger public interests are served by giving GIs resort to the same 

15

kinds of judicial forums that other Americans have as well. I think 

civilian court proceedings arising out of those kinds of contexts may 

well be a nuisance to commanders, but without them civilian control of the military would be no more effective here than in a nondemocratic society. 

Issues of malpractice, for example, to take the one that is so potent today and that many lawyers in private practice regularly get 

inquiries about, have nothing whatever to do with military discipline or any notions of command or unit cohesion. 

If the simple duty to respond to legal process or produce documents, such as agency records, and in some cases even be subjected 

to the normal discovery process contemplated by the Federal Rules 

of Civil Procedure, or even a trial from time to time, is too much 

of an intrusion, then the result would be to bar actions by military 

personnel under a raft of other statutes where their right to sue 

has never been questioned. 

[The prepared statement of Mr. Fidell appears as a submission 

for the record.] 

Senator SPECTER. Thank you very much, Mr. Fidell. 

Our next witness is Mr. Daniel Joseph from the firm of Akin, 

Gump, Strauss, Hauer and Feld; a bachelor’s degree from Columbia 

in 1963, Harvard Law School, 1966, law clerk to Fifth Circuit 

Judge Irving Goldberg. He was with the Department of Justice 

from 1967 to 1971. 

Thank you for joining us, Mr. Joseph, and we look forward to 

your testimony. 

STATEMENT OF DANIEL JOSEPH, COUNSEL, AKIN, GUMP, 

STRAUSS, HAUER, AND FELD, LLP, WASHINGTON, D.C. 

Mr. JOSEPH. Thank you, Senator Specter. On behalf of Bonnie 

O’Neill and my firm and myself, we really do appreciate this opportunity to appear before the committee. I would like to thank you 

for organizing and chairing this hearing and looking into this old 

Supreme Court decision that we think is having an unfair and an 

unnecessary impact. 

I also would like to say that we represented, of course, Bonnie 

O’Neill all the way through her litigation. I want to stress that we 

did that without the payment of any fee, and this is the only Federal Tort Claims Act case in which I have represented a plaintiff. 

I represented the United States a little bit when I was at Justice. 

And I don’t expect to be handling other such cases. 

Although the Supreme Court originally claimed in the Feres decision that its holding was based on the language of the Act, it later 

altered that rationale and now it doesn’t hold, and the United 

States doesn’t argue either here or in court, that there is any language in the Act that supports the doctrine. 

The Feres doctrine is therefore not a statutory, but a court-imposed restriction on a right that Congress gave to sue. The Court 

has taken back part of the right to sue that Congress intended to 

give members of the military. For three reasons, I think the Supreme Court had no power under the Constitution to impose the 

Feres doctrine. 

First, as I said, the doctrine has no foundation in the text and 

it is a judicially imposed limitation on the right to sue. But the SuVerDate 0ct 09 2002 17:07 Aug 14, 2003 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 C:\HEARINGS\88833.TXT SJUD4 PsN: CMORC
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preme Court doesn’t have any power to condition or to partially repeal legislation passed by Congress that is not unconstitutional. 

Second, the subject matter of Feres is lawsuits by members of the 

military, and the Supreme Court says that the doctrine exists We 

have heard it justified today, on grounds of preventing threats to 

military decisionmaking and discipline. But it isn’t the Supreme 

Court under the Constitution and it isn’t the executive branch that 

gets to determine that. 

Under the Constitution, Article I, section 8, clause 14, it is the 

Congress that has the power to govern the ground and naval 

forces, and the Court has no business second-guessing Congress on 

judgments made in this area. The fact that the Court did so in 

Feres, based on the request of the executive branch as a party in 

a lawsuit, makes it all the more important for Congress to act to 

restore the appropriate constitutional balance. 

Finally, the Federal Tort Claims Act, of course, was a larger 

waiver of the sovereign immunity of the United States, and the Supreme Court has held many times, except in the Feres case itself, 

that it is only the Congress that gets to determine how large or 

how small a waiver of sovereign immunity should be. 

A second extremely important point is that the Feres doctrine 

was not necessary. Congress did the job of crafting the Act to take 

account of the particular problems that might be raised by extending that Act to military activities, and there are some very important exceptions in the statute itself that show that. 

Under Section 2680(j) of Title 28, there can’t be any liability for 

combatant activities of the military in time of war. This represents 

Congress making a balance that the Court has not respected. It extended the ban far further than that. In addition, there can’t be 

any liability for a cause of action arising in a foreign country. 

Again, that is a congressional balance that Congress struck that 

the Court has ignored. 

Finally, and perhaps most importantly, as has been referred to, 

Congress said that there can’t be any liability under the Federal 

Tort Claims Act based on performance or non-performance of a discretionary function, whether or not the discretion is abused. Thus, 

the examples that we have been told about this morning, such as 

choices on how much security to supply in a military context or 

training exercises that have gone awry, would all be covered under 

the discretionary function exception that Congress imposed without 

the unnecessary additional breadth of the Feres doctrine. 

Now, one point I would like to make that I was kind of surprised 

to hear—I have heard repeatedly about the Veterans Benefits Act 

and this compensation system. The O’Neills did not receive any 

benefits at all under that system, which only applies to service people themselves and their dependents. If you are young and you are 

not married, as Kerryn O’Neill was not, you are not likely to have 

dependents. Thus, there is a tremendous difference between worker’s compensation laws and the Veterans Benefits Act, and in many 

cases there are no benefits that are available. 

The other point that I just wanted to mention briefly here that 

is mentioned at length in the statement that I have filed is that 

it is possible for civilians to sue in many of the same contexts in 

which military are barred from suing. The best example is a case 

17

called Sheridan that involved at the Bethesda Naval Hospital a soldier who apparently at least was disorderly, who fired a rifle into 

the street there and hit a civilian passing in a car. The civilian successfully filed suit. 

If that person had been in the Army or a member of the military, 

suit would have been barred. But a suit by a civilian is permitted, 

and that is irrational if the purpose is to bar possible potential interference with military matters. 

So in our view, the Feres doctrine is both over-broad and doesn’t 

cover things that purportedly arise out of the same concern. That 

is the reason why it needs comprehensive attention from the Congress. 

Thank you. 

[The prepared statement of Mr. Joseph appears as a submission 

for the record.] 

Senator SPECTER. Thank you, Mr. Joseph. 

We now turn to Ms. Bonnie O’Neill, from Kingston, Pennsylvania. Ms. O’Neill’s daughter, Ensign Kerryn O’Neill, was the victim of the case which we have been talking about. 

We know this is a difficult situation for you, Ms. O’Neill, but we 

appreciate your being here to tell us your views on this matter. 

Chairman LEAHY. If I might, Mr. Chairman——

Senator SPECTER. Senator Leahy, let me welcome you to the 

hearing. 

Chairman LEAHY. Thank you. I just want to thank you for taking 

on this hearing. I am in another hearing when I am not here, but 

I did also want to come over and thank Ms. O’Neill for being here. 

I can only imagine how difficult this must be for you being here. 

I appreciate you taking the time and it is very good of you to do 

that. 

Senator SPECTER. Thank you. 

Ms. O’Neill, we look forward to your testimony. The floor is 

yours. 

STATEMENT OF BONNIE O’NEILL, KINGSTON, PENNSYLVANIA 

Ms. O’NEILL. My following statements may seem like a plea for 

help, but how as a mother can I address you otherwise? I am overwhelmed to be here and my aim is one I have had in mind for 9 

years. 

I would like to thank you, Senator Specter and Senator Leahy, 

for doing all the work to hold this hearing. The issue is important 

to me and my family, and also to other members of the military 

and their families. 

I was notified of my daughter Kerry’s death in work December 

1, 1993, an occurrence not imaginable previously even in my most 

horrible nightmares. Kerry was the youngest of my three children, 

with a brother, Ed, and a sister, Kristen, who is just 1 year older 

than Kerry. 

Since our family had no military background, I found Kerry’s desire to apply to the United States Naval Academy surprising. Her 

final selection possibilities included some extremely prestigious colleges. Kerry decided to combine some suspense with humor by 

waiting until May 1, the deadline for admission to the Naval AcadVerDate 0ct 09 2002 17:07 Aug 14, 2003 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\HEARINGS\88833.TXT SJUD4 PsN: CMORC
18

emy, to make her announcement of college selection to us. We were 

all on edge. 

She designed a selection form with a box in front of each college, 

and on the morning of May 1 this form was hanging on my bedroom door with the United States Naval Academy checked. Kerry 

told me she had made her choice because she wanted the combination of academics with the opportunity of serving her country. 

Although I had always let Kerry know I would accept any decision she made, internally I was quite apprehensive. I realized, as 

she did, her future would be very difficult and demanding. I knew 

I had to trust the military with Kerry’s life. Her next 4 years constantly challenged her and yet she responded to all of the challenges, excelling in every aspect of her naval career. We were all 

so very proud of her accomplishments. 

Kerry graduated in the top 5 percent of her class. In addition, 

she excelled in sports, receiving 12 varsity letters in 4 years. Although she was a walk-on at the track, she was the first female 

Division II All-American in women’s cross-country and the first female athlete to qualify for NCAA Division I championships at the 

Academy. 

She set Academy records in cross-country and other track events, 

and she was honored in her senior year by receiving the award of 

the top honor for a female athlete, the Vice Admiral William P. 

Lawrence Award. Kerry was selected to serve as a representative 

of the United States Naval Academy in the Australian Navy during 

her final summer at the Academy. But most important, Kerry was 

a kind, sincere, and loving woman with high aspirations. People 

whose lives she touched will always remember her. 

Upon graduation from the Academy, Kerry received an appointment in the Civil Engineering Corps. After training in California, 

she was stationed at Coronado Naval Base and received the position of leader on a reconstruction project at the base. She loved the 

Navy and the naval base. She once said to me, I wake up with the 

sun in the morning and run with the sun going down at night, and 

I love my freedom. 

I am presenting this background to you to emphasize the possibilities Kerry’s life held. Then came December 1, 1993, and her life 

was abruptly ended by her ex-fiance, George Smith, who also graduated from the United States Naval Academy. They were serving 

at different naval installations, working in entirely different jobs 

near San Diego, California. 

Smith seemed unable to deal with the ending of the engagement. 

As the time got closer to his serving his first tour of duty on a submarine, Smith’s erratic behavior got more pronounced. He followed 

Kerry around and he appeared uninvited where she was socializing 

with other people. While this was disturbing, it did not seem all 

that unusual to people, considering Smith’s situation. 

But 2 days before Smith was to start his first submarine tour, 

Kerry was obviously concerned and asked a friend, John Dye, at 

the office at which she worked to visit her that evening. Unfortunately, he could not. Then, while working out at the gym, Kerry 

met Lieutenant Alton Grizzard, another friend from the Academy 

who was well known as having been the quarterback on the AcadVerDate 0ct 09 2002 17:07 Aug 14, 2003 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\HEARINGS\88833.TXT SJUD4 PsN: CMORC
19

emy’s football team, and she asked for help. Grizzard agreed and 

paid her a visit, during which they watched a movie. 

George Smith appeared uninvited and he and Kerry had a heated discussion in the lobby of the bachelor officer’s quarters where 

she lived at the Coronado Naval Base. Smith went back to his 

apartment and, in fact, telephoned me at midnight, California time, 

which is 3 a.m. in Pennsylvania, as I was sitting up with a sick 

friend, to tell me that Kerry was dating another man asked what 

he could do. I told him to give her time to make up her mind. She 

is only 21. I have had to live with the memory of that phone call 

ever since. 

George did not listen to me. He returned to Kerry’s BOQ carrying two loaded handguns past the guard to her room. He fired 

seven shots, killing Kerry, Alton Grizzard, and Smith then killed 

himself. A great emptiness grew in the lives of our family, friends, 

and associates. 

As the months went on, our family requested the Navy’s results 

of the investigation into these murders. The Navy supplied that information and this is what we discovered. Kerry had been killed a 

day before he was to report for submarine duty. The Navy also 

found that Smith was psychologically unfit for submarine duty. He 

had a serious personality disorder, was extremely aggressive, and 

could not control his behavior under stress. 

In addition, he could not deal with the months of isolation from 

friends and family and the lack of apparent control of his personal 

situation that submarine duty involves. The Navy was made aware 

of this because 2 months earlier it had required Smith, like all candidates for submarine duty, to take a psychological screening test. 

The results of the screening under normal procedure would have 

dictated whether further psychological testing would be necessary. 

Smith’s results were so unusual and departed so far from the 

norm that in its later investigation the Navy concluded that in 

Smith’s case no further psychological testing would have been necessary to immediately disqualify him from submarine service. 

These results showed Smith to be more than four standard deviations above normal, above the 99.99 percentile in aggressive and 

destructive behavior, and more than two standard deviations above 

norm in six other categories, including low situational control, impulsive behavior, and negative motivation. These are obviously not 

impressive traits for a future nuclear engineer scheduled to report 

to duty on a nuclear submarine. George responded to test questions 

with answers such as ‘‘I know how to make people uneasy when 

I want to. I can get away with anything I want.’’

With the screening test abnormal results so pronounced, why 

didn’t Smith’s obvious mental unsuitability for submarines disqualify him for that duty? Why was screening performed if normal 

procedures wouldn’t be followed for United States Naval Academy 

graduates? 

If Smith were disqualified, he would not have been under severe 

pressure that caused him to kill Kerry, himself, and Alton 

Grizzard. If these deaths had not occurred that December 1, could 

numerous military lives aboard a submarine have been sacrificed 

in the future when Smith suffered acute stress? 

20

The answer was and remains shocking and amazing to me. It is 

in violation of the Navy’s procedures that the psychological screening tests were not read or scored by the Navy’s civilian psychologist 

whose job it was to do that. Thus, the evil in these results was not 

discovered until a subsequent investigation, until after Kerry’s life, 

Smith’s life, and Grizzard’s life and their future naval careers had 

been lost. 

I think that someone needs to assume responsibility for this. The 

Navy had appropriate measures which had identified Smith’s very 

erratic and troubling mental problems, even though he may have 

appeared to be normal to those who knew him. But Dr. John Wallace, the Navy’s civilian psychologist, just didn’t read them. Although Dr. Wallace at first claimed he had never received these results until after Kerry’s death, he indicated during the investigation that while testing of enlistees was worthwhile, that for officers 

who attended the Naval Academy it was unnecessary. 

The Navy finally read Smith’s test results after Smith had killed 

three naval officers. Lieutenant Commander E.C. Calix, a Navy 

psychologist, performed the review and concluded that the test results showed that Smith would have been screened psychologically 

before being allowed to serve on duty, but also that the test results 

and other evidence of Smith’s behavior showed clearly without further testing that Smith was not suited for submarine duty, including false answers to certain background questions on which he 

falsely stated, for example, that he had been married for 6 months. 

The test evaluation, according to Navy regulations, should have 

triggered further counseling and psychological evaluations, which 

most certainly would have necessitated additional treatment. 

Smith needed their help. If the Navy’s procedures had been followed, my daughter’s death most likely would not have occurred. 

The correct step defined by the Navy were not followed. 

The Navy admitted the negligence and oversight in their investigation, knowing that the Supreme Court’s Feres doctrine would 

protect them from legal responsibility. I can’t imagine why any entity, whether a person, a business, or a military service, should not 

be held accountable for its careless actions. Kerry had devoted her 

life to the military, and because of this fact her death was accepted 

without any possible repercussions. The rights of a civilian were 

denied her. 

Dan Joseph and his firm, Akin, Gump, Strauss, Hauer and Feld, 

did everything in their power to right this situation. For several 

years, we went from the district court, to the Third Circuit Court 

of Appeals, to the Supreme Court, and every appeal was denied. 

How could this injustice be perpetuated? 

We were told that the Supreme Court interprets the laws, but 

Congress is the country’s lawmaker. We were told that the Feres

doctrine is not based on any part of what Congress wrote in the 

Federal Tort Claims Act, and that if the statute would have applied 

as written, the Navy would have been responsible for its failure to 

read the test results. 

I think that the Congress, which we elect, understands these 

issues better than the Supreme Court, and I ask that the Congress 

do away with the Court’s doctrine. I am here because I need your 

help. We have lost our case and there is no way we can change 

21

that. I am trying to prevent what happened to Kerry from happening to others. 

All of you, unless you had lived through a similar situation, could 

not possibly imagine the pain and frustration Kerry’s family has 

endured. My goal today is to do what I can to prevent this from 

happening to others, to ask you to require that the United States 

assume responsibility for their actions when not in time of war. 

This will reduce the amount of negligence which the Feres doctrine 

licenses. The Feres doctrine should be repealed. We have lost 

Kerry, but her death will not be in vain. 

Senator SPECTER. Take your time, Ms. O’Neill. 

Ms. O’NEILL. I am finished. Thank you. 

Senator SPECTER. Thank you very much for coming in today and 

for sharing with us your views. 

Senator Leahy? 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Chairman LEAHY. I will put my statement in the record, Mr. 

Chairman. I also have some questions that I will submit. 

Given the Johnson case where Justice Scalia questioned why morale is not equally harmed by barring recovery on behalf of servicemen injured by Government negligence, there is a question on that. 

I rhetorically ask the question, do you think the friends and classmates of Kerryn O’Neill think her family was treated fairly? I 

don’t. I think it is high time to be looking at the Feres doctrine. 

I think it is a doctrine whose time has come and gone. 

I can’t add to anything you have said, Ms. O’Neill. Obviously, everybody in this room, whether they are for or against the Feres doctrine, if they could make a wish, it would be to bring your daughter 

back. We can’t do that, but I also agree with you that we ought to 

listen to you so that other families are not put in the bind you and 

your family were put in. 

I think you are very courageous to come here. I think Senator 

Specter deserves a great deal of credit for having this hearing. I 

will put my statement in the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator SPECTER. Thank you very much, Senator Leahy. 

As I think all of you know, Senator Leahy is the chairman of the 

full committee and it was through his good offices that this hearing 

was scheduled. Senator Leahy makes the decision on which matters are of sufficient importance to call for the attention of the Judiciary Committee, so we thank him. 

Ms. O’Neill, you have obviously gone through a long litigation 

process and you had had the trauma of your daughter being murdered, and then to find out what had happened with respect to the 

Navy psychological test where people should have been on notice 

and it was an incident which should have been prevented. 

Then you went to counsel, Mr. Joseph, and your testimony shows 

your familiarity with the legalisms. It is a little hard for lawyers 

to understand how the court interpreted this provision, and we are 

going to come to that in the discussion among the lawyers here in 

just a moment or two. 

22

I would like to start with your reaction to what happened in the 

interpretation by the Federal courts in Pennsylvania where you are 

resident, where you litigated, from the language which has already 

been read, but let me repeat it. ‘‘The Federal Tort Claims Act 

which provides for claims does not apply to any claim arising out 

of the combatant activities of the military or naval forces or the 

Coast Guard during time of war.’’

Now, obviously, you didn’t feel that your daughter’s murder involved a combatant activity during time of war, did you? 

Ms. O’NEILL. No, I did not. 

Senator SPECTER. And how did you respond to your expectation 

that your claims could be pursued in a court of law when that provision, which on its face does not apply to the circumstances involving your daughter’s murder—how did you feel about that? 

Ms. O’NEILL. I felt very upset when I realized there were things 

like the Feres doctrine coming into play. I felt very cheated. I feel 

more cheated for Kerry and the other people who may be involved 

because they are not held responsible for negligence. 

I did know when I approached Dan Joseph that it was going to 

be a very difficult lawsuit to ever win, unfortunately. I realized 

that, but we all wanted to go forward and their firm was gracious 

enough to feel the same dedication to it that I did. 

Senator SPECTER. Well, Ms. O’Neill, in the law there is an effort 

made to honor expectations, and when the law allows a recovery 

but has an exception and the exception doesn’t apply at all to the 

case involving the murder of your daughter, I can see how you 

would respond. You would be resentful and surprised and really 

questioning what had happened. 

Ms. O’NEILL. Obviously, obviously. I can’t imagine this being allowed to continue. I have such strongly feelings also for other 

young men and women who are going to be in the same situation. 

I hear all these people talking about the military and how it protects them and the laws of order and what they need to have. 

This in no way, in my mind, even touches near what they are 

saying, in no way. There is no leadership, there are no general 

issues of war, there is nothing. I have a daughter. A man walked 

in and killed her. I can’t imagine how it could apply. I can’t imagine that this would be allowed to continue to go forward with this 

Feres doctrine. 

Senator SPECTER. Well, Mr. Joseph, thank you for pursuing this 

case on behalf of Ms. O’Neill. I have no doubt that when you examined the case law and agreed to undertake the case not on a time 

basis but perhaps on a contingent fee basis that you thought your 

chances of recovery were very slight. Why did you take the case? 

Mr. JOSEPH. Well, frankly, Senator, I knew something about 

the——

Senator SPECTER. Let me ask you the ancillary question. Did you 

think you had any chance to win this case? 

Mr. JOSEPH. Well, we had seen Justice Scalia’s dissent in the 

Johnson case which was joined by Justices Brennan, Marshall and 

Stevens. 

Senator SPECTER. But this was not a case for original jurisdiction 

in the Supreme Court. 

23

Mr. JOSEPH. No, but we thought that we had a chance of getting 

the Supreme Court to take the case. I knew it was small. I mean, 

it was not taken because we thought we had a large chance, and 

we thought it was an unjust decision and worth trying to fight. You 

can never say that you expect the Supreme Court to take something. 

Senator SPECTER. Did you petition for cert? 

Mr. JOSEPH. Yes. 

Senator SPECTER. Were there any dissents? You only need four 

to get cert granted. 

Mr. JOSEPH. That is right. No dissents were noted. As I think 

you know, it is rare that a dissent is noted on a denial of certiorari. 

Frankly, when Judge Becker said in his opinion in the Third Circuit that he thought that the Feres decision was wrong and that 

the Supreme Court should grant cert and reexamine it, I will tell 

you that at that point I had a flutter in my heart because I knew 

that Judge Becker is very highly respected at the Supreme Court. 

And we had our hopes that that might be our ticket in, but it 

wasn’t. 

Senator SPECTER. Judge Becker has gotten the Court to take 

quite a few cases. 

Mr. JOSEPH. Yes. 

Senator SPECTER. General Sklute, how about this language, the 

language of exclusion: ‘‘The Government is not liable under the 

Federal Tort Claims Act for injuries to servicemen that arise out 

of or in the course of activity incident to military service’’ ? That is 

what the Court said in Feres. Give me your best lawyer’s interpretation as to how you could get 

that rule out of the Federal Tort Claims Act. You have a right to 

remain silent. That is a pretty tough question, but I am interested 

in your answer. 

Be on guard, General Altenburg, you are next. 

Mr. SKLUTE. Can I answer that question in this way, sir? I am 

going to refer back to what Ms. O’Neill just said, and believe me, 

all of us express our condolences to you. This is a tragic, tragic 

case, a case that cries out for some—it cries out for——

Senator SPECTER. Legislation? 

Mr. SKLUTE. Not legislation, sir. It cries out for action to be 

taken against those who were involved in the incident and may 

have committed some types of negligence that may be—I don’t 

know what the facts of this case would show, other than the fact 

that——

Senator SPECTER. Whom would Ms. O’Neill sue, Mr. Smith, who 

killed himself? Did he have an estate? 

Mr. SKLUTE. If there is evidence of a violation of the UCMJ, 

criminal action should be taken against individuals. 

Senator SPECTER. Who? 

Mr. SKLUTE. Accountability within the Navy. 

Senator SPECTER. Criminal charges? You are going to exonerate 

the service from civil liability, but allow criminal charges to be 

brought? 

Mr. SKLUTE. If the purpose of the civil action is——

Senator SPECTER. They would have to go to Mr. Sprague for that. 

Mr. SKLUTE. Excuse me, sir. I am sorry. 

24

Senator SPECTER. Go ahead. 

Mr. SKLUTE. If the purpose of the civil action is compensation 

and accountability, there is already a scheme in place for compensation. If compensation is inadequate, then action could be 

taken to adjust that, No. 1. 

No. 2, if it is accountability, I can assure you that the services 

have so many different tools at their disposal to assure accountability——

Senator SPECTER. General Sklute, come to my question. How can 

you read the Federal Tort Claims Act and derive the principle of 

Feres that the Government is not liable under the Federal Tort 

Claims Act for injury to servicemen that arise out of or in the 

course of activity incident to military service? 

Mr. SKLUTE. I would have to go back to the Feres decision itself, 

sir. When I read Feres 10 years when I was on active duty—8 years 

ago——

Senator SPECTER. Would you supplement your testimony with an 

answer to that question? 

Mr. SKLUTE. I certainly will, yes, sir. 

Senator SPECTER. I have been a lawyer for a little longer than 

you have and I couldn’t answer that question, but perhaps General 

Altenburg can answer the question. 

How under the Act, General, can you find a justification for that 

holding? 

Mr. ALTENBURG. You can’t find it in the words of the Act, sir. It 

is clearly judge-made law. 

Senator SPECTER. That may just be the testimony to push us 

over the top on our legislative effort. 

Mr. ALTENBURG. Well, Senator, I think it was a recognition by 

the Court at that time and in the 50 years since of the uniqueness 

of the military mission and why the military quite frankly needs 

that protection. 

Senator SPECTER. Well, in this room the most frequently repeated statements relate to judges should interpret the law, not 

make law. Senator Thurmond has made that standard operational 

procedure and everybody who comes in agrees with that. 

When the comment is made that Congress has had the opportunity to correct it for 50 years, that is true. Congress hasn’t 

passed a budget act this term. Congress hasn’t passed any of 13 

appropriations bills. We have in conference the energy bill and the 

insurance bill on terrorism and the patient’s bill of rights. 

To say that because Congress hasn’t done something that Congress agrees with it is really as much a non sequitur as the holding 

in Feres is from the case. But, of course, that is on this side of the 

bar, not on your side. 

Mr. Fidell, you are an expert in matters involving the military. 

I understand that you have lectured on the subject and have extensive experience and qualify as an expert. Based on your expert 

knowledge, what effect do you think a repeal of Feres would have 

on good order and discipline in the military? 

Mr. FIDELL. I think it would have, in fact, a positive effect, and 

I would like to explain why. Senator, we have for a generation been 

living in an all-volunteer environment. There is no conscription, 

and my hunch is I am not alone on this panel in the view that 

25

maybe reinstatement of the draft would be a salutary thing for a 

variety of social and national reasons, but there is no immediate 

prospect of that change being made. 

Therefore, people of the age bracket that we look to for enlistments, for accession of new personnel, have to have the feeling that 

they are going to be basically treated fairly when they are in the 

military. That means the military justice system has to operate in 

a fair manner. 

It also means that the basic terms and conditions under which 

people are asked to put their lives on the line have to be essentially 

fair. If that is there, then people will continue to do the patriotic 

thing and step forward and help defend the country and our entire 

way of life. If it is not there, then we have placed an impediment 

in the path of national defense. 

While no one can say that this, that, or the other thing is going 

to make or break the military’s ability to defend the country, every 

factor that bears on the conviction that our military personnel have 

that they are being treated fairly has to be viewed as a precious 

and significant matter. 

When you have military personnel and their families—who play 

a potent role in the entire system—when you have those constituencies, if you will, having a shade of doubt, having an erosion of 

their confidence in the essential fairness of the arrangements 

under which they or their loved ones serve the country, then I 

think you have paid a penalty, not a measurable one, but a penalty 

nonetheless. That is, I think, what is involved here. 

Senator SPECTER. Mr. Sprague, you heard General Sklute’s suggestion for criminal prosecution to redress the wrong. You have 

had a lot of experience in the criminal law. Can you see any way 

that a criminal sanction would lie or be bringable under any of the 

cases we have talked about, the medical malpractice or the automobile case or any of the examples that we have seen, as an alternative to repealing the Feres doctrine? 

Mr. SPRAGUE. None whatsoever, Senator. I think that response 

was typical of the in-bred feeling by the military that this judgemade law which they conceded, the Feres doctrine, they want to 

keep. They want to keep it for a great number of reasons, which 

I think basically are that they don’t want to have the civilian supervision. I don’t think they want to have the investigation referred 

to by Ms. O’Neill. 

Liability and paying of damages isn’t just paying people money. 

The people that have to pay then learn from that process and they 

learn to improve their own system. I have been in the military, I 

have been in the submarine service in World War II. Obviously, the 

military wants to keep everything within itself and exclude the civilian supervision to the extent it can. 

I would like to point out, Senator Specter, to show this judgemade law that we are talking about, Feres, and its horribleness, 

had the person who was with Ms. O’Neill’s daughter not also been 

a naval personnel, same facts—had that person been a civilian, he 

could have sued. This judge-made law discriminates, in fact, 

against people in the service. 

If the courts recognize that Congress does something that is unconstitutional, the courts have no reluctance in ruling on that conVerDate 0ct 09 2002 17:07 Aug 14, 2003 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\HEARINGS\88833.TXT SJUD4 PsN: CMORC
26

stitutional issue. This time, it is the reverse. The Congress passed 

a very specific exception which you have read—combatant, time of 

war. It is time for the Congress to assert itself and keep that exception as the Congress intended it to be, not this judge-made law. It 

operates in a discriminatory fashion. 

One of the officers referred to it as a compensation system. Did 

they not hear Ms. O’Neill and did they not hear her counsel say 

there was no compensation? I could go into case after case where 

the benefits that one may get has nothing to do with the compensation that one should get for the negligence by Government. 

Thank you. 

Senator SPECTER. Can you see any basis at all—the same question I asked the Generals—for this sort of a rule to come out of the 

Federal Tort Claims Act? 

Mr. SPRAGUE. None whatsoever. 

Senator SPECTER. What would you think, Mr. Sprague, of trying 

to restructure the Feres doctrine so that we made an exclusion for 

items like order and discipline or training programs or matters 

which were broader, say, than being a combatant and not limited 

to time of war, because you have a lot of training and you have a 

lot of military matters in peacetime—I am going to ask the same 

questions of the other witnesses—but to try to structure it in a way 

which accommodates the core rationale that the military has used 

so that you don’t have this blanket rule which bars all sorts of 

cases totally unrelated to the military? 

Mr. SPRAGUE. Well, as I said, you have in there present the exemption for discretionary functions. I happen to think that covers 

the kinds of situations that they were dredging up here. 

Senator SPECTER. I don’t believe it will help the judicial interpretation, but who can tell? 

Mr. SPRAGUE. Who can tell? I think the proposed bill that you 

submitted, Senator, would make it clear that service people are entitled to the protection of the Federal——

Senator SPECTER. I have seldom seen you prompted in the courtroom, Mr. Sprague. You are at a hearing. Let the record show that 

Tom Sprague handed you a book. 

Mr. SPRAGUE. Servicemen should be entitled to the coverage of 

the Federal Tort Claims Act, except in the situations that Congress 

intended in the first place. The amendment that you proposed really says exactly that. You are now stating that servicemen shall be 

entitled to the coverage of the Federal Tort Claims Act, except for 

the limitation that you initially spelled out. 

If you are willing to hear a suggestion, however, you use the 

words ‘‘military personnel’’ in your proposed bill. I think, to be consistent with other parts of the Act, it should be ‘‘uniform services’’ 

and would suggest that correction. 

I would also suggest that you talk about—you have ‘‘military or 

naval forces of the United States.’’ I would make it ‘‘uniform services of the United States or employees of the Federal Government.’’ 

Last, I would make a proposal that your amendment state that the 

amendment shall apply to all claims that have not been finally adjudicated as of the effective date of the Act, and final adjudication 

to mean a claim in which the trial court has entered a final order 

27

for which there is no outstanding motion for reconsideration, appeal, or petition for writ of certiorari. 

Those would be what I would suggest as some corrections to your 

bill, but I think your bill would correct this problem.

Senator SPECTER. Well, thank you for the suggestions. We will 

take a close look at them.

General Altenburg, what would you think of leaving you some 

latitude for the considerations you raised, order and discipline, but 

allow suits, say, in matters like Ms. O’Neill’s?

Mr. ALTENBURG. Senator Specter, we haven’t talked much about 

the medical corps and the medical business of the military, and 

there is probably not time here to do that. But one of the reasons 

that I would be opposed to any modification in the Feres doctrine 

is because the medical business of the military is directly linked to 

command and to good order and discipline. It is not a medical care 

system, simply.

Senator SPECTER. Well, suppose you left medical out, too?

Mr. ALTENBURG. I am not sure what would be left, Senator.

Senator SPECTER. Well, you would have auto accident cases. You 

would have the murder of Ms. O’Neill’s daughter.

We have gone longer than anticipated. What I would like you to 

do, General Altenburg, and also General Sklute and Mr. Fidell and 

Mr. Joseph—Mr. Sprague, you have already answered the question—give some thought to the way you might structure a bill 

which would accommodate the core considerations that have been 

raised here with respect to unit cohesiveness, the issues of order 

and discipline, et cetera.

If you would provide that to the committee, I think that Senator 

Leahy’s agreement with the bill is significant. He controls the docket, he puts it on the docket, and you have got two votes; you only 

need eight more to have it reported out. And although we are close 

to adjournment on this session and nothing will happen, this hearing will be on the books and will carry forward for the next Congress.

Mr. Sprague?

Mr. SPRAGUE. Senator Specter, let me just read to you the language of the discretionary function that is in there now because I 

think it covers what you are asking. The exception is any claim—

and it is 2680(a)—any claim based upon an act or omission of an 

employee of the Government exercising due care in the execution 

of a statute or regulation, whether or not such statute or regulation 

be valid, or based upon the exercise or performance, or the failure 

to exercise or perform, a discretionary function or duty on the part 

of a Federal agency or an employee of the Government, whether or 

not the discretion involved be abused.

I suggest to you that covers everything you are talking about.

Senator SPECTER. Well, perhaps it does. When you give me your 

suggestions, gentlemen, give me a comment on that point as well.

We will leave the record open for 14 days, which is the customary time.

28

Ms. O’Neill, we are not giving you any more assignments. We are 

just going to thank you for coming.

Thank you all. That concludes the hearing.

[Whereupon, at 3:42 p.m., the committee was adjourned.]

[Questions and answers and submissions for the record follow.]

[Additional material is being retained in the Committee files.]

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