United States v. Johnson (1987)
United States v. Johnson, 481 U.S. 681 (1987), was a United States Supreme Court case in which the Court barred the widow of a serviceman killed while piloting a helicopter on a United States Coast Guard rescue mission from bringing her claim under the Federal Tort Claims Act (the "FTCA" or the "Act"). The decision was based upon the Supreme Court's holding in "Feres v. United States" (1950): "[T]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course  of activity incident to service." Background. Lieutenant Commander Johnson, a Coast Guard helicopter pilot stationed in Hawaii, was dispatched along with his crew, to search for a vessel in distress. Because of inclement weather and poor visibility, Johnson "requested radar assistance from the Federal Aviation Administration ("FAA"), . . . the FAA controllers assumed positive radar control over the helicopter. Shortly thereafter, the helicopter crashed into the side of a mountain and . . . all the crew members, including Johnson, were killed in the crash." Johnson's widow and personal representative of his estate brought a wrongful death action against the government pursuant to the  FTCA. Plaintiff alleged that Johnson's death was due to the negligence of the FAA flight controllers. The government filed a motion to dismiss, claiming that the plaintiff was barred from recovering damages from the federal government, because Johnson died while performing his military duties. The district court granted the motion, based solely on the Supreme Court's decision in "Feres". The Court of Appeals for the Eleventh Circuit reversed, noting that the action did not involve military service. The court determined that since the alleged tortfeasors were civilian employees of the government, rather than military employees, judicial second-guessing  of the civilian's conduct would not adversely affect military discipline. The Eleventh Circuit's original opinion antedated the Supreme Court's opinion in "United States v. Shearer" (1985). The Eleventh Circuit therefore granted the government's petition for rehearing "en banc" to reconsider Johnson's case in light of the Supreme Court's upcoming decision in "Shearer"; by the time consideration had occurred, "Shearer" had been decided. In a "per curiam" opinion on rehearing, a majority of the Eleventh Circuit concluded that "Shearer" "reinforced the analysis set forth in the panel opinion." Majority Opinion. The Supreme Court, in a  5–4 decision authored by Justice Powell, reversed, holding that the cause of action was barred by "Feres". The opinion indicates that "Stencel" required the reversal. The Court's opinion then restated the three rationales offered in "Stencel": The Court then found each of the three "Stencel" reasons for the "Feres" bar applicable to Johnson. Since decedent's death-producing injuries had been incident to his military service, the first reason applied. Because his widow had applied for and received compensation for her husband's death pursuant to the Veterans' Benefits Act, the second reason applied. As for the third reason , the Court wrote: Dissent. Justice Scalia, with three Justices joining, filed a dissenting opinion. He concluded that "Feres" had been "wrongly decided," but noted that since "[w]e have not been asked by the plaintiff to overrule Feres, we need not resolve whether considerations of stare decisis should induce us, despite the plain error of the case, to leave bad enough alone." Rather, Justice Scalia would have declined to apply "Feres" to a case in which the allegedly negligent actors were civilian employees of the government. He conceded that the limitation it sought was more a product of pragmatism than logical  symmetry: "We confess that the line between FTCA suits alleging military negligence and those alleging civilian negligence has nothing to recommend it except that it would limit our clearly wrong decision in Feres and confine the unfairness and irrationality that decision has bred. But that, we think, is justification enough." As the dissent noted, the Court itself had disavowed the reasons originally offered in "Feres" and substituted as the only rationale (until "Johnson" resurrected the other two) the after-discovered military discipline concern. Justice Scalia concluded that none of the reasons that the Court has asserted, from "Feres" through "Shearer , persuasively supported the Feres" bar. He further disagreed with the majority opinion in that it did not regard the Congressional failure to amend the FTCA in the years since "Feres" as bespeaking to congressional acquiescence in the Court's interpretation of the Act: