holding that'the Feres doctriné extends to bar a federal service member’s state law intentional tort claim against Army supervisors
How later courts described this case
- holding that'the Feres doctriné extends to bar a federal service member’s state law intentional tort claim against Army supervisors
- noting “the rationale for precluding [FTCA] suits [against the federal government] applies equally to suits brought directly under' state law” because “[s]uits founded on state law have the same potential for undermining military discipline as federal tort claims”
- holding that Feres serves to block actions based on unauthorized activities or intentional torts
- holding that the Feres doctrine extends to intentional torts suffered incident to service
Written by the judges who cited it.
The opinion
JAMES HUNTER, III, Circuit Judge,
concurring with whom
ALDISERT, Circuit Judge, joins:
I join in the majority opinion in all respects except to the extent that it predicates its decision upon a forecast of how the Supreme Court would decide the instant case. See Majority Opinion, at 1227 — 1228.
I believe that it is neither sound policy nor sound jurisprudence for the court of appeals, in a case involving only questions of federal law, to base its own decision upon a prophecy of how the Supreme Court would decide the same case. This court’s fundamental responsibility in non-diversity cases is to arrive at an independent decision based upon a reasoned analysis of applicable legal precepts and precedents — including, of course, relevant Supreme Court decisions. Predictions of how the Supreme Court would decide the case have no place in that analysis. As one commentator has concluded, “it seems questionable whether, in any case, a court of review would find it helpful to be presented with the prediction of its own future trends, rather than with a direct statement of the lower court’s reasoned review on law and policy.” 44 Colum. L.Rev. 565, 570 (1944) (criticizing the Second Circuit’s decision in Spector Motor Service v. Walsh, 139 F.2d 809 (2d Cir.), vacated, 323 U.S. 101 , 65 S.Ct. 152 , 89 L.Ed. 101 (1944), on remand, 181 F.2d 150 (2d Cir. 1950), rev’d, 340 U.S. 602 , 71 S.Ct. 508 , 95 L.Ed. 573 (1951)).
*1241 I therefore join in the majority’s opinion, not because of any prediction of what the Supreme Court might do, but because an independent analysis of the applicable law and policy discussed in Judge Higginbotham’s opinion leads me to conclude that the result is the correct one. In sum, our responsibility is to decide the case in the way that we think is right — right because we believe it to be right — and not because we project that the Supreme Court might agree with our decision.