United States v. Brown, 348 U.S. 110 (1954). · Go Syfert
United States v. Brown, 348 U.S. 110 (1954). Cases Citing This Book View Copy Cite
Quick Summary

An action may proceed for malpractice occurring after discharge even if the underlying injury was sustained during service (permitting action when injury occurred subsequent to discharge).

A discharged veteran sued the United States under the Federal Tort Claims Act for permanent nerve damage caused by a defective tourniquet used during surgery at a Veterans Administration hospital. The central question is whether the Federal Tort Claims Act bars recovery for injuries sustained by a veteran during medical treatment after his military service has ended. Applying the distinction established in previous jurisprudence, the Court holds that the Act does not cover injuries that arise out of or are in the course of military duty. Because the injury occurred after the respondent's discharge and was not incident to active military service, the claim is recoverable.

2,017 citation events (325 in the last 25 years) across 91 distinct courts.
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At page 112 Distinguishing feres doctrine for post-discharge injuries56 citing cases“peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the tort claims act were allowed for negligent orders given or negligent acts committed in the course of military d…”18 citing courts quote it · also cited as 75 S. Ct. at 143; 99 L. Ed. at 143
  • Zayler v. United States, 442 F.3d 871 (5th Cir. 2006).published
    ([T]he effect of the Tort Claims Act is to waive immunity from recognized causes of action.)
  • United States v. Johnson, 481 U.S. 681 (1987).published 9 cites
    See 348 U. S., at 113 ("We adhere . . . to the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty").
  • Zayler v. Dep't of Agric. (In re Supreme Beef Processors, Inc.), 468 F.3d 248 (5th Cir. 2006).published 3 cites
    “the effect of the tort claims act is to waive immunity from recognized causes of action.”
  • In the Matter Of: Supreme Beef Processors, Inc., Debtor. Stephen Zayler, Tr. of the Est. of Supreme Beef Processors, Inc. v. Dep't of Agric. United States of Am., 468 F.3d 248 (5th Cir. 2006).published 3 cites
    “the effect of the tort claims act is to waive immunity from recognized causes of action.”
  • Carter v. United States, No. 23-1281 (U.S. Feb. 24, 2025). 2 cites
    And, it rejected the third rationale by holding that servicemembers not otherwise barred by Feres can sue under the FTCA despite being entitled to VBA benefits because “Congress ha[s] given no indication that it made the right to compensat…
  • Ross v. The United States of Am., No. 5:23-cv-01157 (N.D.N.Y. Sept. 23, 2024).
    United States v. Muniz, 374 U.S. 150, 162 (1963) (quoting United States v. Brown, 348 U.S. 110, 112 (1954)).
  • Kingrey v. Wormuth, 686 F. Supp. 3d 460 (S.D. W. Va. 2023).published
    This rule is “premised upon the disruptive nature of judicial second-guessing of military decisions.” , 533 F.3d 289, 296 (5th Cir. 2008) (citing , 348 U.S. 110, 112 (1954)).
  • Futrell v. United States, 859 F.3d 403 (7th Cir. 2017).published
    Had he in‐ curred those damages after his retirement, the Feres doctrine might well have not applied, see, e.g., United States v. Brown, 348 U.S. 110, 112 (1954), because the claim would have ac‐ crued when he was no longer a member of the…
  • Walch v. Adjutant Gen Dept TX, No. 07-20175 (5th Cir. June 25, 2008).published
    United States v. Brown, 348 U.S. 110, 112 (1954).
  • Walch v. Adjutant Gen Dept TX, No. 07-20175 (5th Cir. June 6, 2008).published
    United States v. Brown, 348 U.S. 110, 112 (1954).
Show 46 more citing cases
  • McConnell v. United States, No. 05-15025 (9th Cir. Mar. 7, 2007).published
    United States v. Brown, 348 U.S. 110, 112 (1954); see also Costo, 248 F.3d at 866 (“[T]he danger to discipline . . . has been identified as the best explanation for Feres.”); cf. Zaputil v. Cowgill, 335 F.3d 885, 887 (9th Cir. 2003) (“The…
  • Taylor v. John Crane, Inc., 113 Cal. App. 4th 1063 (Cal. Ct. App. 2003).published
    (Stencel, at pp. 671-672, citing Feres, supra, 340 U.S. at p. 143 and United States v. Brown (1954) 348 U.S. 110, 112 [ 99 L.Ed. 139 , 75 S.Ct. 141 ].) 7 Defendant disputes plaintiffs’ claim that the Navy was immune under either the discre…
  • Saviano ex rel. Est. of Saviano v. Commonwealth, 16 Mass. L. Rptr. 539 (Mass. Super. Ct. 2003).published
    United States v. Brown, 348 U.S. 110, 112 (1954).
  • Texas Adjutant Gen.'s Dep't v. Amos, 54 S.W.3d 74 (Tex. App.—Austin 2001).published
    The Court later explained that its holding in Feres was based on concern for the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that m…
  • Miller v. United States, 42 F.3d 297 (5th Cir. 1995).published 4 cites
    Brown, 348 U.S. at 112 , 75 S.Ct. at 143 (emphasis added).
  • Frederick A. Newth v. Adjutant Gen.'s Dep't of Texas & Exec. Dep't of the State of Texas, No. 03-93-00516-CV (Tex. App.—Austin Aug. 17, 1994).published
    The Supreme Court later explained that the holding in Feres was premised upon concern for the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme r…
  • Drew A. Markell & Kelly D. Markell v. United States of Am., Dep't of the Army, 972 F.2d 1355 (Fed. Cir. 1992).unpublished
    The Court explained that tort actions against the military would disrupt "the peculiar and special relationship of the soldier to his superiors," would undermine discipline, and would produce "extreme results." United States v. Shearer, 47…
  • Gennoe v. Sypolt, 804 P.2d 653 (Wash. Ct. App. 1991).published
    Ed. 2d 805 , 88 S. Ct. 1850 ] (1963), quoting United States v. Brown, 348 U. S. 110, 112 [ 99 L.
  • United States v. Stanley, 483 U.S. 669 (1987).published 4 cites
    Repeatedly referring to the " `peculiar and special relationship of the soldier to his superiors,' " and to the need for "immediate compliance with military procedures and orders," the Court held that "enlisted military personnel may not m…
  • Patrick Kearney v. United States, 815 F.2d 535 (9th Cir. 1987).published
    In applying the Feres doctrine to the facts in Shearer , the Court commented, at length, upon the policies behind the doctrine: Feres seems best explained by the “peculiar and special relationship of the soldier to his superiors, the effec…
  • Johnson v. United States, 779 F.2d 1492 (11th Cir. 1986).published 2 cites
    Although the Court in Feres based its decision on several grounds, "[i]n the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits…
  • United States v. Shearer, 473 U.S. 52 (1985).published 2 cites
    Although the Court in Feres based its decision on several grounds, "[i]n the last analysis, Feres seems best explained by the `peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits…
  • Phillips v. State, Dept. of Def., 486 A.2d 318 (N.J. 1985).published 2 cites
    The rationale of Feres was "best explained" by [t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under th…
  • Carl J. Mollnow v. Paul K. Carlton, 716 F.2d 627 (9th Cir. 1983).published
    Both the Supreme Court and this court have recognized that “[i]n the last analysis, Feres seems best explained by the ‘peculiar and special relationship of the soldier to his superiors, [and] the effects of the maintenance of such suits on…
  • Rosemarie Mondelli v. United States, 711 F.2d 567 (3d Cir. 1983).published
    United States v. Brown, 348 U.S. 110,112 , 75 S.Ct. 141,145 , 99 L.Ed. 139 *569 (1954). 5 As the Court reaffirmed only recently: The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the h…
  • Chappell v. Wallace, 462 U.S. 296 (1983).published
    As the Court has since recognized, “[i]n the last analysis, Feres seems best explained by the ‘peculiar and special relationship of the soldier to his superiors, [and] the effects of the maintenance of such suits on discipline ....’” Unite…
  • Shearer v. United States, 576 F. Supp. 672 (E.D. Pa. 1982).published
    According to these decisions, the immunity of the federal government from suit was “best explained” by [t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and…
  • Daniel J. Monaco & Denise E. Monaco v. United States, 661 F.2d 129 (9th Cir. 1981).published
    First, the Court has questioned the wisdom of allowing suits in the context of “the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that…
  • Wallace v. Chappell, 661 F.2d 729 (9th Cir. 1981).published 8 cites
    See, e. g., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72 , 97 S.Ct. 2054, 2057-2058 , 52 L.Ed.2d 665 (1977); Brown, 348 U.S. at 112 , 75 S.Ct. at 143 (1954); Calhoun, 475 F.Supp. at 3 .
  • Crumpler v. United States, 495 F. Supp. 266 (S.D.N.Y. 1980).published
    A third factor was explicated in United States v. Brown, 348 U.S. 110, 112 [ 75 S.Ct. 141, 143 , 99 L.Ed. 139 ] (1954), namely, “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of suc…
  • Everett v. United States, 492 F. Supp. 318 (S.D. Ohio 1980).published
    A third factor was explicated in United States v. Brown, 348 U.S. 110, 112 [ 75 S.Ct. 141, 143 , 99 L.Ed. 139 ] (1954), namely, “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of suc…
  • Jaffee v. United States, 468 F. Supp. 632 (D.N.J. 1979).published 2 cites
    The court held that Feres precluded the suit: Although Feres . . . involved the construction of the Tort Claims Act, the Court’s decision did not turn on the language of the Act itself but on “[t]he peculiar and special relationship of the…
  • The Citizens Nat'l Bank of Waukegan, as Adm'r of the Est. of Steven Stawnychy, Deceased v. United States of Am., 594 F.2d 1154 (7th Cir. 1979).published
    A third factor was explicated in United States v. Brown, 348 U.S. 110, 112 [ 75 S.Ct. 141, 143 , 99 L.Ed. 139 ] (1954), namely, “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of suc…
  • Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666 (1977).published 4 cites
    A third factor was explicated in United States v. Brown, 348 U. S. 110, 112 (1954), namely, "[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extre…
  • Hale v. United States, 334 F. Supp. 566 (M.D. Tenn. 1970).published
    Most recently in United States v. Muniz, supra, the court reviewed its reasoning in Feres: In the last analysis, Feres seems best explained by the “peculiar and special relationship of the soldier to his superiors, the effects of the maint…
  • Lee v. United States, 261 F. Supp. 252 (C.D. Cal. 1966).published
    Chief Justice Warren concluded his discussion of Feres as follows: “In the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on…
  • Steven L. Crago v. United States, 928 F.2d 1132 (6th Cir. 1991).unpublished
  • Sterling v. Bloom, 723 P.2d 755 (Idaho 1986).published
  • Schnurman v. United States, 490 F. Supp. 429 (E.D. Va. 1980).published
  • Ortiz Ex Rel. I.O. v. United States, 786 F.3d 817 (10th Cir. 2015).published
  • Gomez v. United States, 243 F. Supp. 145 (D. Colo. 1965).published
  • Clendening v. United States, No. 7:19-cv-00137, 2020 WL 3404733 (E.D.N.C. June 19, 2020).
  • William E. Hale, a Minor by Next Friend, John F. Hale v. United States of Am., John F. Hale v. United States, 416 F.2d 355 (6th Cir. 1969).published
  • L. Ann West, as Mother & Adm'r of the Est. of Lorri West v. United States, 729 F.2d 1120 (7th Cir. 1984).published
  • Johnson v. United States, 749 F.2d 1530 (11th Cir. 1985).published
  • James B. Stanley v. United States of Am., & Joseph R. Bertino, 786 F.2d 1490 (11th Cir. 1986).published
  • Est. of, 812 F.2d 872 (3d Cir. 1987).published
  • Middlebrooks v. Leavitt, 525 F.3d 341 (4th Cir. 2008).published
  • In Re Korean Air Lines Disaster of September 1, 1983, 597 F. Supp. 613 (D.D.C. 1984).published
  • Newth v. Adjutant Gen.'s Dept. of Tex., 883 S.W.2d 356 (Tex. App.—Austin 1994).published
  • Thornwell v. United States, 471 F. Supp. 344 (D.D.C. 1979).published
  • Est. of Martinelli v. United States, 812 F.2d 872 (3d Cir. 1987).published
  • Ricks v. Nickels, 295 F.3d 1124 (10th Cir. 2002).published
  • Joseph M. Collins v. United States, 642 F.2d 217 (7th Cir. 1981).published
  • Steven Robert Maw v. United States, 733 F.2d 174 (1st Cir. 1984).published
  • Cooper v. Perkiomen Airways, Ltd., 609 F. Supp. 969 (E.D. Pa. 1985).published
At page 113 Adhering to feres line on military duty injuries20 citing cases“we adhere also to the line drawn in the feres case between injuries that did and injuries that did not arise out of or in the course of military duty.”11 citing courts quote it · Neutral (citing treatments of this passage) · 17 listed here
Show 7 more citing cases
At page 114 Distinguishing soldier and veteran injury claims under tort law6 citing cases“the two soldiers would have been injured had they never worn a uniform at all”1 citing court quotes it · also cited as 75 S. Ct. at 144 · 1 cautionary
At page 110 Feres doctrine and claims for service-connected injury3 citing casesfinding Feres not to bar a serviceman’s claim for severe nerve damage resulting from the Veterans Administration’s application of a defective tourniquet during a post-service surgery for an injury received while in active-duty service1 citing court put it this way
  • Carter v. United States, No. 1:21-cv-01315 (D. Md. May 24, 2022).
    Brown, 348 U.S. at 110, 112 , concerned a “discharged veteran” who received treatment at a Veterans Administration facility, and whose injury occurred “while he enjoyed a civilian status.” Bradley, for its part, involved a service member o…
  • Carol Clendening v. United States, 19 F.4th 421 (4th Cir. 2021).published
    (finding Feres not to bar a serviceman’s claim for severe nerve damage resulting from the Veterans Administration’s application of a defective tourniquet during a post-service surgery for an injury received while in acti…)
  • Kathryn Spletstoser v. John Hyten, 44 F.4th 938 (9th Cir. 2022).published
[T]he effect of the Tort Claims Act is to waive immunity from recognized causes of action.no pin page on record · 2 citing cases listed
At page 111 receipt of disability payments under the Veterans Act does not bar recovery under the Tort Claims Act2 citing cases1 citing court put it this way
  • Rinelli v. United States, 706 F. Supp. 190 (E.D.N.Y. 1988).published 5 cites
    “the feres decision involved three cases, in each of which the injury, for which compensation was sought ... occurred while the serviceman was on active duty and not on furlough.”
  • Block v. Neal, 460 U.S. 289 (1983).published
    (receipt of disability payments under the Veterans Act does not bar recovery under the Tort Claims Act)
99 L. Ed. at 144 cited at this page1 citing case
At page 145 cited at this page1 citing case
  • Theodore L. Lombard v. United States of Am., 690 F.2d 215 (D.C. Cir. 1982).published 2 cites
    We are not dealing with two separate torts, therefore, but one continuous tort. 23 It is apparent that Lombard believes the failure to warn occurred early on since the complaint alleges that: 24 (a)t all relevant times from 1944 to the pre…
Retrieving the full opinion text from the archive…
United States
v.
Brown
38.
Supreme Court of the United States.
Dec 6, 1954.
Published opinion
348 U.S. 110
1954 U.S. LEXIS 2609
Samuel D. Slade argued the cause for the United States. Solicitor General Sobeloff, Assistant :Attorney General Burger, Paul A. Sweeney, Morton Hollander and David A. Turner were on the brief., Lee S. Kreindler argued the cause and filed a brief for respondent.
Douglas, Black, Reed, Minton.
Cited by 440 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: bottom 88%
Citer courts: Fifth Circuit (6) · E.D. New York (3)

Lead Opinion

Mr. Justice Douglas

delivered the opinion of the Court.

This is a suit under the Federal Tort Claims Act, 28 U. S. C. § 1346 (b), brought by respondent, a discharged veteran, for damages for negligence in the treatment of his left knee in a Veterans Administration hospital. The injury to the knee occurred while respondent was on active duty in the Armed Services. The injury led to his honorable discharge in 1944. In 1950, the Veterans Administration performed an operation on the knee; but the knee continued to dislocate frequently. So another operation was performed by the Veterans Administration in 1951. It was during the latter operation that an allegedly defective tourniquet was used, as a result of which the nerves[*111] in respondent’s leg were seriously and permanently injured.

The Independent Offices Appropriation Act, 1935, 48 Stat. 526, 38 U. S. C. § 501a, allows compensation both where the veteran suffers injury during hospitalization and where an existing injury is aggravated during the treatment. Each is considered as though it were “service connected.” Respondent received a compensation award for his knee injury when he was honorably discharged; and that award was increased after the 1951 operation.

The District Court agreed with the contention of petitioner that respondent’s sole relief was under the Veterans Act and dismissed his complaint under the Tort Claims Act. The Court of Appeals reversed. 209 F. 2d 463. The case is here on a petition for certiorari which we granted, 347 U. S. 951, because of doubts as to whether Brooks v. United States, 337 U. S. 49, or Feres v. United States, 340 U. S. 135, controlled this case.

The Brooks case held that servicemen were covered by the Tort Claims Act where the injury was not incident to or caused by their military service. 337 U. S. 49, 52. In that case, servicemen on leave were negligently injured on a public highway by a government employee driving a truck of the United States. The fact that compensation was sought and paid under the Veterans Act* was held not to bar recovery under the Tort Claims Act. We refused to “pronounce a doctrine of election of remedies, when Congress has not done so.” Id., at 53.

The Feres decision involved three cases, in each of which the injury, for which compensation was sought under the Tort Claims Act, occurred while the serviceman was on active duty and not on furlough; and the[*112] negligence alleged in each case was on the part of other members of the Armed Forces. The Feres decision did not disapprove of the Brooks case. It merely distinguished it, holding that the Tort Claims Act does not cover “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U. S. 135, 146. The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character. Id., at 141-143.

The present case is, in our view, governed by Brooks, not by Feres. The injury for which suit was brought was not incurred while respondent was on active duty or subject to military discipline. The injury occurred after his discharge, while he enjoyed a civilian status. The damages resulted from a defective tourniquet applied in a veterans’ hospital. Respondent was there, of course, because he had been in the service and because he had received an injury in the service. And the causal relation of the injury to the service was sufficient to bring the claim under the Veterans Act. But, unlike the claims in the Feres case, this one is not foreign to the broad pattern of liability which the United States undertook by the Tort Claims Act.

That Act provides that, “The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances . . . .” 28 U. S. C. § 2674. The Feres case emphasized how sharp would be the break in tradition if the claims there asserted were allowed against the United States, the Court noting that the effect of the Tort Claims Act is “to waive immunity from recognized causes of action,” “not to visit[*113] the Government with novel and unprecedented liabilities.” 340 U. S. 135, 142. But that cannot be said here. Certainly this claim is one which might be cognizable under local law, if the defendant were a private party. Responsibility of hospitals to patients for negligence may not be as notorious as the liability of the owners of automobiles. But the doctrine is not novel or without support. See, for example, Sheehan v. North Country Community Hosp., 273 N. Y. 163, 7 N. E. 2d 28, and the cases collected in 25 A. L. R. 2d 29.

Congress could, of course, make the compensation system the exclusive remedy. The Court held in Johansen v. United States, 343 U. S. 427, that Congress had done so in the case of the Federal Employees Compensation Act, with the result that a civilian employee could not sue the United States under the Public Vessels Act. We noted in the Brooks case, 337 U. S. 49, 53, that the usual workmen’s compensation statute was in this respect different from those governing veterans, that Congress had given no indication that it made the right to compensation the veteran’s exclusive remedy, that the receipt of disability payments under the Veterans Act was not an election of remedies and did not preclude recovery under the Tort Claims Act but only reduced the amount of any judgment under the latter Act. We adhere to that result. We adhere also to the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty. Since the negligent act giving rise to the injury in the present case was not incident to the military service, the Brooks case governs and the judgment must be

Affirmed

We indicated that recovery under the Tort Claims Act should be reduced by the amounts paid by the United States as disability payments under the Veterans Act. 337 U. S. 52, 53-54. See the case on remand, United States v. Brooks, 176 F. 2d 482, 484.

Dissent

Mr. Justice Black, with whom Mr. Justice Reed and Mr. Justice Minton join,

dissenting.

In Brooks v. United States, 337 U. S. 49, we held that actions for damages could be brought against the Govern[*114]ment for injuries to one soldier and the death of another due to negligent operation of an army truck. But we pointed out that the accident there had nothing to do with the “army careers” of the soldiers and was neither caused by nor incident to their military service. When injured the two soldiers were off duty and were riding along a state highway in their own car on their own business which bore no relationship of any kind to any past, present or future connection with the army. Thus, the two soldiers would have been injured had they never worn a uniform at all. In this case, however, the injury is inseparably related to military service and the Brooks case should not be held controlling. But for his army service this veteran could not have been injured in the veterans hospital as he was eligible and admitted for treatment there solely because of war service which gave him veteran status. Moreover, he was actually being treated for an army service injury.

For a hospital injury a veteran is entitled to precisely the same disability benefits as if the injury had been inflicted while he was a soldier.* We have previously held, I think correctly, that a soldier injured in a hospital cannot also sue for damages under the Tort Claims Act. Feres v. United States, 340 U. S. 135. But the Court now holds that a veteran can. To permit a veteran to recover damages from the Government in circumstances under which a soldier on active duty cannot recover seems like an unjustifiable discrimination which the Act does not require.

“Where any veteran suffers ... an injury, or an aggravation of any existing injury, as the result of hospitalization or medical or surgical treatment . . . benefits . . . shall be awarded in the same manner as if such disability, aggravation, or death were service connected . . . .” 48 Stat. 526, 38 U. S. C. § 501a.