Costo v. United States

FERGUSON, Circuit Judge,

dissenting:

I begin this dissent with the understanding that I and this Court of Appeals must abide by the decisions of the Supreme Court. I write to demonstrate that the Feres doctrine is unconstitutional and to present the Supreme Court with a case and controversy in order for it to be able to review the doctrine. See United States v. Johnson, 481 U.S. 681, 692 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting).

I believe that the Feres doctrine'violates the equal protection rights of military service men and women. I also believe that Feres violates our constitutional separation of powers.

In passing the Federal Tort Claims Act (FTCA), Congress chose to place all Americans on an equal footing in litigating the civil liability of the federal government for claims of tort injuries. 28 U.S.C. § 1346 . From this unprecedented, albeit limited, waiver of sovereign immunity, Congress excluded claims arising out of a number of government activities, including “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680 (j). This exception of liability for injuries in times of war was expanded by the Feres doctrine to all injuries of military personnel “where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950). This doctrine represents judicial legislation, effectively negating the Congressional limitations that the *870 excluded claims must arise from “combatant activities ... during time of war.” 28 U.S.C. § 2680 (j). The doctrine effectively declares that the members of the United States military are not equal citizens, as their rights against their government are less than the rights of their fellow Americans. 1

This judicially-created classification runs afoul of the Equal Protection clause of the 14th and 5th Amendments. Clearly, had Congress barred all claims by members of the military it would have been within its constitutional powers to do so. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 66-67, 83 , 101 S.Ct. 2646 , 69 L.Ed.2d 478 (1981) (holding that Congress acted within its constitutional authority in authorizing the military registration of men but not women). Indeed, as the Feres court noted, Congress was cognizant of potential military claims when drafting the FTCA and, had it chosen to do so, could have explicitly excluded them. See Feres, 340 U.S. at 138-39 , 71 S.Ct. 153 (noting that all but two of the eighteen drafts of the FTCA considered by Congress barred suits by members of the military); 28 U.S.C. § 2671 (specifically including “members of the military or naval forces of the United States” “acting in the line of duty” in its enumeration of individuals and acts for which the United States may be liable). Likewise, as Congress enacted the FTCA, its decision to bar suits by military members arising in combat during times of war easily passes equal protection scrutiny. Because service men and women are not a “suspect class,” and their access to federal court under the FTCA is not a “fundamental right,” see Miller v. United States, 73 F.3d 878, 881 (9th Cir.1995), Congress’ classification needed merely to be rationally related to a legitimate government interest. See Vacco v. Quill, 521 U.S. 793, 799-801 , 117 S.Ct. 2293 , 138 L.Ed.2d 834 (1997). This standard “does not allow us to substitute our personal notions of good public policy for those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234 , 101 S.Ct. 1074 , 67 L.Ed.2d 186 (1981). It is not for “the judiciary [to] sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” City of New Orleans v. Dukes, 427 U.S. 297, 303 , 96 S.Ct. 2513 , 49 L.Ed.2d *871 511 (1976). See also United States v. Johnson, 481 U.S. 681, 702 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) (arguing that the only possible justification for the chaos created by the Feres doctrine would be if it reflected a decision grounded in the democratic process).

When considering the Feres doctrine, however, we are not dealing with a legislative action, but rather with a judicial rewriting of an unambiguous and constitutional statute. Even to the courts that have considered it, the Feres decision stands not for an interpretation of statute but rather a “judicially created exception” to the FTCA. Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 674 , 97 S.Ct. 2054 , 52 L.Ed.2d 665 (1977) (Marshal, J., dissenting); Schoemer v. United States, 59 F.3d 26, 28 (5th Cir.1995); Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir.2000); Romero by Romero v. United States, 954 F.2d 223, 224 (4th Cir.1992). This judicial re-writing runs against our basic separation of powers principles and complicates a equal protection analysis of the resulting Feres doctrine. See THE FEDERALIST NO. 47 (James Madison) (“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator”) (quoting Montesquieu); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985) (“Courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices”); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194-195 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978) (“Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.”)

I do not suggest that judges never alter legislation, but that they should never overrule the plain language of Congress unless there is a constitutional violation. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-79, 2 L.Ed. 60 (1803). Although the Constitution clearly delegates law-making activities to the legislature and law-interpreting activities to the judiciary, the reality of our judicial system is that courts must occasionally take more active roles in order to interpret an ambiguous statute, Comm’r of Internal Revenue v. Asphalt Prods. Co., Inc., 482 U.S. 117, 121 , 107 S.Ct. 2275 , 96 L.Ed.2d 97 (1987) (“Judicial perception that a particular result would be unreasonable may enter into the construction of ambiguous provisions, but cannot justify disregard of what Congress has plainly and intentionally provided”), or to prevent a statute from running afoul of the Constitution, Elfbrandt v. Russell, 384 U.S. 11, 14-19 , 86 S.Ct. 1238 , 16 L.Ed.2d 321 (1966). Legislative silence on an issue may also require judges to determine, through history or analogy, the most appropriate legal rule in a particular situation. See, e.g., Georgia-Pacific Corp. v. United States Envtl. Prot. Agency, 671 F.2d 1235, 1240 (9th Cir.1982); Farouki v. Emirates Bank Int’l, Ltd., 14 F.3d 244 , 250 n. 17 (4th Cir.1994).

Feres presented neither ambiguity nor constitutional violation nor legislative silence. 2 Instead, Feres took a fairly small, *872 clearly defined, legislatively-created classification and broadened it considerably. As the Supreme Court has noted repeatedly, this kind of classification “inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." FCC v. Beach Communications, Inc., 508 U.S. 307, 315-16 , 113 S.Ct. 2096 , 124 L.Ed.2d 211 (1993) (quoting United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 , 101 S.Ct. 453 , 66 L.Ed.2d 368 (1981)) (emphasis added). The result raises both equal protection and separation of powers concerns and, I believe, violates our Constitution.

There is no authority suggesting a standard of review for an act of judicial legislation, and I hesitate to propose one. Surely, however, a more stringent standard than “rational review” applies to classifications created by the judiciary rather than the legislature, as the constitutional implications are greater. Cf. Bearden v. Georgia, 461 U.S. 660, 665 , 103 S.Ct. 2064 , 76 L.Ed.2d 221 (1983) (noting that in cases considering the constitutionality of court fees the Court applies a hybrid of its “due process” and “equal protection” analyses). The Supreme Court, in protecting another balance of constitutional powers, that between state and federal governments, has created an exacting standard requiring Congress to convincingly articulate concerns of sufficient urgency before encroaching on state immunity. See, e.g., Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 , -, 121 S.Ct. 955, 964 , 148 L.Ed.2d 866 (2001); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 639 , 119 S.Ct. 2199 , 144 L.Ed.2d 575 (1999). Even if the relationship between the ends and means need merely be rational, the judiciary should articulate a reason that it is necessary to ignore the balance of federal powers. This Feres failed to do.

A brief history of the fate of the four Feres rationales illustrates my point. 3 The *873 Feres Court initially proffered three rationales for the Feres decision. It subsequently rejected the first rationale, Indian Towing Co. v. United States, 350 U.S. 61, 66-69 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955), and noted that the other two rationales were “no longer controlling,” United States v. Shearer, 473 U.S. 52 , 58 n. 4, 105 S.Ct. 3039 , 87 L.Ed.2d 38 (1985). In the meantime, the Court developed a fourth rationale, not considered by Feres , and labeled it the “best” justification for the Feres decision. Id. at 57. This fourth rationale — the negative effect of lawsuits on military discipline and decision-making — did not do much to support a Feres bar in the Court’s most recent Feres case, which involved a civilian tortfeasor. United States v. Johnson, 481 U.S. 681 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987). The Court instead revived the second and third rationales from Feres and stated that all three surviving rationales applied. Id. at 688-91. If Congress had engaged in such inconsistent and post hoc rationalization to invade the spheres of executive, judicial, or state powers, the Constitution would not have permitted it. Cf. Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83-84 , 102 S.Ct. 2858 , 73 L.Ed.2d 598 (1982) (finding that the Bankruptcy Act of 1978 was invalid because it threatened to encroach upon Article III courts despite characterization to the contrary by Congress); Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 , 111 S.Ct. 2298 , 115 L.Ed.2d 236 (1991) (finding Congressional oversight committee effectively encroached on executive branch); Alden v. Maine, 527 U.S. 706, 731-35 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (1999) (finding that Congressional legislation impermissibly encroached on state immunity).

We can speculate forever upon reasons why Feres refused to apply a law written by Congress. It is clear that Feres recognized that the direct and unambiguous command of Congress created liability for claims caused by members of the military or naval forces of the United States, Feres, 340 U.S. at 138 , 71 S.Ct. 153 ; 28 U.S.C. § 2671 , and that the direct and unambiguous command of Congress exempted only claims arising out of combatant activities during time of war, Feres, 340 U.S. at 138 , 71 S.Ct. 153 ; 28 U.S.C. § 2680 (j). If a statute is ambiguous then it is a necessary judicial function to clarify it. But Feres did not take this approach in reaching its conclusion. Instead, it appears to have reevaluated the law. For example, the Court declared as one reason for its rejection of a Congressional mandate “[t]hat the geography of an injury should select the law to be applied to [a soldier’s] tort claims makes no sense.” Feres, 340 U.S. at 143 , 71 S.Ct. 153 . This language reveals that the Court simply did not agree with Congress and searched in puzzling ways to declare that military personnel are not equal to civilians.

The Court recently had occasion to evaluate a judicial classification in Bush v. Gore, 531 U.S. 98 , 121 S.Ct. 525 , 148 L.Ed.2d 388 (2000). There, the Court evaluated a decision by the Florida Supreme Court that .allowed disputed ballots to be counted according to an “intent of the voter” standard. Putting aside the separation of powers question, the Court stated that the “problem [with the judicially-created classification] inheres in the absence of specific standards to ensure its equal application.” Id. at 530. As many commentators have noted, one of the hall *874 marks of the Feres eases is the ill-defined standard “incident to service” that has lead to very unequal applications even within the military. See, e.g., Anne R. Riley, United States v. Johnson: Expansion of the Feres Doctrine to Include Service-members’ FTCA Suits Against Civilian Government Employees, 42 Vand. L. Rev. 233 , 266-67 (1989) (“Consistent in denying recovery, the Court is embarrassingly inconsistent in how it arrives at this result”); Martha J. Burns, They Fight to Protect Our Rights; Shouldn’t we do the Same for Them? Intramilitary Immunity in Light of United States v. Stanley, 38 Depaul L. Rev. 127, 154 (Fall, 1988) (“If the Supreme Court had established a definition for 'incident to service’ in this case, it would have negated the problems that result from the inconsistent definitions and applications of the term”). Compare, e.g., Ricks v. United States, 842 F.2d 300 (11th Cir.1988) (Feres barred claim for death of serviceman on temporary disability retired list), and Cortez v. United States, 854 F.2d 723 (5th Cir.1988) (Feres did not bar claim for death of serviceman on temporary disability retired list).

Even if we were to apply a rational basis analysis — the most lenient of equal protection inquiries — to the Feres doctrine, the Court’s jurisprudence in this area over the past fifty years defies this approach. In the last case to directly address Feres, United States v. Johnson, 481 U.S. 681 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987), Justice Scalia, in a dissent joined by Justices Brennan, Marshall, and Stevens, thoroughly and articulately rebutted the four most common justifications for the continued application of the Feres doctrine. Johnson, 481 U.S. at 692-703 , 107 S.Ct. 2063 (Scalia, J., dissenting). Not only is each justification belied by reality and the language of the FTCA, but each justification has, at various points, been discredited by the Court.

The first justification proffered by Feres was that there was no parallel private right of action whereby military members could sue their employer. Feres, 340 U.S. at 141-42 , 71 S.Ct. 153 . This ignores other provisions of the FTCA, however, which opened to liability a number of areas where parallel private rights of action did not previously exist, including the “trans-mifssion of] postal matter, 28 U.S.C. § 2680 (b), collection of] taxes or custom duties, § 2680(c), imposition of] quarantines, § 2680(f), [and regulation of] the monetary system, § 2680(f).” Johnson, 481 U.S. at 694 , 107 S.Ct. 2063 (Scalia, J., dissenting). This rationale was also rejected by the Court in subsequent FTCA cases. Rayonier Inc. v. United States, 352 U.S. 315, 319 , 77 S.Ct. 374 , 1 L.Ed.2d 354 (1957); Indian Towing, 350 U.S. at 66-69 , 76 S.Ct. 122 .

The second justification was the “distinctively federal” relationship between the Government and the military that risked being supplanted by local tort law. Putting aside the Court’s preference for “uniform nonrecovery” over “nonuniform recovery,” Johnson, 481 U.S. at 695-96 , 107 S.Ct. 2063 , Justice Scalia observed that “we have effectively disavowed this ‘uniformity’ justification ... by permitting servicemen to recover under the FTCA for injuries suffered not incident to service, and permitting civilians to recover for injuries caused by military negligence.” Id. at 696 , 107 S.Ct. 2063 (emphasis in original). See also Hunt v. United States, 636 F.2d 580, 598 (D.C.Cir.1980) (“[G]iven the Supreme Court’s inconsistent treatment of this factor, it cannot be said that the presence of an alternative compensation system either explains or justifies the Feres doctrine; it only makes the effect of the doctrine more palatable.”). Cf. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 449-50 , 105 S.Ct. 3249 , 87 *875 L.Ed.2d 313 (1985) (finding that an ordinance did not pass rational basis scrutiny where the proffered justification was too attenuated from the classification). The Court stated that this rationale of the distinctively federal relationship was “no longer controlling” in Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. 3039 , before reviving it in Johnson, 481 U.S. at 688-90 , 107 S.Ct. 2063 .

The Court gave the third Feres rationale the same treatment. See Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. 3039 ; Johnson, 481 U.S. at 688-90 , 107 S.Ct. 2063 . This rationale reasoned that, despite the plain language of the FTCA, Congress did not intend to allow military personnel to recover under the FTCA when they were guaranteed recovery under the Veterans Benefit Act (“VBA”), 38 U.S.C. § 301 . Feres, 340 U.S. at 144 . In fact, however, “both before and after Feres [the Court] permitted injured servicemen to bring FTCA suits, even though they had been compensated under the VBA.” Johnson, 481 U.S. at 697 , 107 S.Ct. 2063 (citing Brooks v. United States, 337 U.S. 49, 53 , 69 S.Ct. 918 , 93 L.Ed. 1200 (1949) and United States v. Brown, 348 U.S. 110, 111 , 75 S.Ct. 141 , 99 L.Ed. 139 (1954)). See also Sidley v. United States Dep’t of Navy, 861 F.2d 988 (6th Cir.1988) (holding that Feres barred claim even though serviceman had been denied veteran’s benefits), Cf. Cleburne, 473 U.S. at 449-50 , 105 S.Ct. 3249 (holding that an ordinance failed the rational basis test where the stated policy objectives were not met by the challenged classification).

It was only in cases after Feres that the Court articulated its dominant explanation for the Feres doctrine — the possibly negative effect on military discipline and decision-making. Brown, 348 U.S. at 112 , 75 S.Ct. 141 ; Shearer, 473 U.S. at 57 , 105 S.Ct. 3039 . The Court’s holding in Johnson — barring a military widow from suing a civilian tortfeasor — calls this rationale into doubt. Furthermore, the text of the FTCA already accommodates the Court’s concerns about interfering in “military judgments and decision that are inextricably intertwined with the conduct of the military mission.” Johnson, 481 U.S. at 691 , 107 S.Ct. 2063 (majority opinion). The Act itself prohibits everyone, military and civilian, from suing for discretionary actions that implicate policy judgments, 28 U.S.C. § 2680 (a), or for “claims arising in foreign countries, § 2680(k), intentional torts, § 2680(h), and claims based on the execution of a statute or regulation, § 2680(a).” Id. at 699-700, 107 S.Ct. 2063 (Scalia, J., dissenting). The Feres decision was not necessary to preserve our tradition of judicial deference to the “complex subtle, and professional decisions as to the compositing, training, equipping, and control of a military force,” Gilligan v. Morgan, 413 U.S. 1, 10 , 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973). Perhaps this is why Feres did not seek to rely on this rationale. I am left to conclude that the only conceivable reason for the Court to engage in rewriting of such a momentous statute was that it believed that Congress had not given enough protection to the government against the men and women in the armed forces. It is curious that the Court thought that it had to protect the government against those persons whose sole duty was to protect the government.

The articulated “rational bases” for the Feres doctrine lead in this case, as in many cases, to inconsistent results that have no relation to the original purpose of Feres . Less than half of the persons on the rafting trip that claimed the lives of Costo and Graham were identified as members of the armed services. The holding today would have allowed any of the civilians injured or killed on the trip to sue, but barred such recourse to the military personnel, despite *876 the fact that the two suits would have implicated virtually identical policy concerns regarding the law of the situs and military decision-making. On the other hand, had Costo and Graham participated in a similar rafting trip run entirely by civilians, they may have been able to sue, yet still collect veteran’s benefits. I cannot find a rational basis for the court to engage in such line-drawing on the basis of an “incident to service” test. Under the exceptions Congress has already placed in the FTCA, if the negligence leading to Costo and Graham’s death implicated protected policy judgments, their executors would not be able to sue the government regardless of Feres . 28 U.S.C. 2680(a).

Although the Court’s efforts to provide a “rational basis” for the classifications created by Feres have not been successful, the actions of this Circuit have been even worse. We have recognized the impossibility of applying the Feres rationales and instead retreated to the four-prong factual inquiry described by the majority in this case. Majority op. at 866-67. See also Dreier v. United States, 106 F.3d 844, 848-49 (9th Cir.1996); Bon v. United States, 802 F.2d 1092, 1094 (9th Cir.1986). We have, in short, abandoned any pretense that there is a rational basis for the classifications drawn in the original Feres opinion, and yet we have continued to apply the “incident to service” test with little thought to the constitutional principles at stake. 4 Nor have we been the only circuit to take this approach. See Pringle v. U.S., 208 F.3d 1220, 1224 (10th Cir.2000); Schoemer v. U.S., 59 F.3d 26, 28-29 (5th Cir.1995). See also Maas v. U.S., 94 F.3d 291, 295 (7th Cir.1996) (“Application of the Feres doctrine does not depend on the extent to which its rationales are present in a particular ease. Rather, the test is whether the injuries are based on ‘service-related activities’ ”) (citation omitted). This blind adherence has proved virtually unworkable, a result that only underscores the wisdom of our founding fathers and the fragile complexities of our system of government. 5 See THE FEDERALIST NO. 78 (Alexander Hamilton) (“[L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments”).

It is time for the Supreme Court to revisit the Feres doctrine. If it is to be applied, the equal protection issues it raises must be reconciled with the constitutional principles that courts have so often articulated.

. This inequity has been felt as courts have applied Feres to bar claims arising from noncombatant activities engaged in during limes of peace. See, e.g., United States v. Johnson, 481 U.S. 681 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987) (Feres barred claims arising from crash of Coast Guard helicopter during civilian rescue mission against civilian tortfeasor); Bon v. United States, 802 F.2d 1092 (9th Cir.1986) (Feres barred claims arising from crash of two recreational water vehicles operated by military personnel); Borden v. Veterans Admin. 41 F.3d 763 (1st Cir.1994) (Feres barred claims for medical malpractice by civilian employees arising from basketball knee injury sustained by off-duty soldier); Bozeman v. United States 780 F.2d 198 (2d Cir.1985) (Feres barred action by widow of military policeman killed off-duty and off-base in a crash where the driver had been drinking at non-commissioned officers’ club); Sanchez v. United States, 878 F.2d 633 (2d Cir.1989) (Feres barred action for negligent repair of brakes by military service station that used civilian employees); Woodside v. United States 606 F.2d 134 (6th Cir.1979) (Feres barred action arising from death of off-duty serviceman while training to receive commercial pilot's license), Jones v. United States, 112 F.3d 299 (7th Cir.1997) (Feres barred claim arising from negligent surgery while soldier assigned to try out for United States Military Olympics team); Del Rio v. United States, 833 F.2d 282 (11th Cir.1987) (Feres barred claim for negligent prenatal care); Davis v. U.S. Dep’t of Army, 602 F.Supp. 355 (D.Md.1985) (Feres barred claim for negligent disposal of corpse of fetus born at Army hospital). In these and other Feres cases, the "incident to service” test appears to have given way to an "incidental to service” inquiry, further distorting Congress’ original language in the FTCA.

. The Supreme Court has suggested that Feres presented a situation where “the literal words [of the FTCA] would bring about an end completely at variance with the purpose of the statute." United States v. Pub. Util. Comm'n of Cal., 345 U.S. 295, 315 , 73 S.Ct. 706 , 97 *872 L.Ed. 1020 (1953). This is a puzzling statement. As the Feres court itself noted, the "Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit.” Feres, 340 U.S. at 139 , 71 S.Ct. 153 . Denying all suits by members of the military incurred "incident to service” has certainly not furthered this purpose. The Feres court justified this seeming contradiction by finding that the FTCA only imposed liability where a parallel private right of action otherwise would have existed. However, as Justice Scalia noted in his dissenL in United States v. Johnson, 481 U.S. at 694-95 , 107 S.Ct. 2063 , this interpretation was not supported by a reading of the text of the FTCA (which imposed liability for the tortious performance of other traditional government functions) and was explicitly rejected by the Supreme Court in later cases. See Rayonier, Inc. v. United States, 352 U.S. 315, 319 , 77 S.Ct. 374 , 1 L.Ed.2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 66-69 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955). Simply put, there is no apparent contradiction between the exception crafted by Congress and the purpose of the FTCA that would justify a judicial re-writing of the plain meaning of the statute.

. These rationales, discussed further below, were:

1. There was no "parallel liability” in the private sector for injuries to soldiers. Feres, 340 U.S. at 141-142 , 71 S.Ct. 153 .

2. Given the "distinctively federal” relationship between the U.S. and its military forces, Congress did not intend it to be subject to local tort law. Id. at 142-44 , 71 S.Ct. 153 .

3. Soldiers already receive veterans’ benefits, and Congress could not have intended for them to be able to receive double compensation for their injuries. Id. at 144-45 .

. The majority cites the doctrine of stare decisis as the grounds for its decision today. Stare decisis, however, is a “principle of policy,” not "an inexorable command," Payne v. Tennessee, 501 U.S. 808, 828 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991) (citations and quotations omitted), and it must yield where constitutional values are at stake.

. It may be argued that the Feres doctrine has been on the books for fifty years, and that Congress could have amended it during this time should it have chosen to do so. See Johnson, 481 U.S. at 686 , 107 S.Ct. 2063 . Even the Supreme Court, however, warns against reading too much into legislative silence. James v. U.S., 366 U.S. 213, 220 , 81 S.Ct. 1052 , 6 L.Ed.2d 246 (1961) ("the fact that Congress has remained silent or has reenacted a statute which we have construed, or that congressional attempts to amend a rule announced by this Court have failed, does not necessarily debar us from re-examining and correcting the Court's own errors”) (citing Girouard v. United States, 328 U.S. 61, 69 , 66 S.Ct. 826 , 90 L.Ed. 1084 (1946); Helvering v. Hallock, 309 U.S. 106, 119-22 , 60 S.Ct. 444 , 84 L.Ed. 604 (1940)). Furthermore, Congress could not have written anything that is not already plain and direct in the statute except to say that Feres is wrong, and that would not change anything.