A National Guard officer was permanently injured when the
ejection system of his fighter aircraft malfunctioned during a
midair emergency. Although he was awarded a lifetime pension under
the Veterans' Benefits Act for the injury, he brought a damages
suit against, inter alia,
the United States and
petitioner, which had manufactured the ejection system pursuant to
Government specifications and with components furnished by the
Government. The serviceman claimed that the ejection system had
malfunctioned as a result of the defendants' individual and joint
negligence. Petitioner cross-claimed against the United States,
alleging that any malfunction in the system was due to faulty
Government specifications and components. The District Court
granted the Government's motions for summary judgment against the
officer and for dismissal of petitioner's cross-claim, on the
ground that Feres v. United States, 340 U.
(wherein it was held that an on-duty serviceman
injured because of Government officials' negligence may not recover
against the United States under the Federal Tort Claims Act),
barred both the officer's claim and petitioner's claim.
Petitioner's third-party indemnity claim cannot
be maintained. Feres v. United States, supra.
The right of
a third party to recover in an indemnity action against the United
States recognized in United States v. Yellow Cab Co.,
340 U. S. 543
limited by the rationale of Feres
where the injured party
is a serviceman. Pp. 431 U. S.
(a) The relationship between the Government and its suppliers of
ordnance is as "distinctively federal in character" as the
relationship between the Government and members of its Armed
Forces, and hence, if, as in Feres,
it makes no sense to
permit the fortuity of the situs of the alleged negligence to
affect the Government's liability to a serviceman for
service-connected injuries, it makes equally little sense to permit
that situs to affect such liability to a Government contractor for
the identical injury. P. 431 U. S.
(b) The Veterans' Benefits Act provides an upper limit of
liability for the Government as to service-connected injuries, and
to permit petitioner's claim would circumvent such limitation. Pp.
431 U. S.
Page 431 U. S. 667
(c) Where the case concerns an injury to a serviceman while on
duty, the adverse effect upon military discipline is identical
whether the action is brought by the serviceman directly or by a
third party, since, in either case, the issue would be the degree
of the Government agents' fault, if any, and the effect upon the
serviceman's safety, and the trial would involve second-guessing
military orders. P. 431 U. S.
536 F.2d 765, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
STEWART, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
J., joined, post,
p. 431 U. S.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to decide whether the United
States is liable under the Federal Tort Claims Act, 28 U.S.C. §
2674, to indemnify a third party for damages paid by it to a member
of the Armed Forces injured in the course of military service.
On June 9, 1973, Captain John Donham was permanently injured
when the egress life support system of his F-100 fighter aircraft
malfunctioned during a midair emergency. [Footnote 1
] Petitioner, Stencel Aero Engineering Corp.,
manufactured the ejection system pursuant to the specifications of,
and by use of certain components provided by, the United States.
Page 431 U. S. 668
to the Veterans' Benefits Act, 38 U.S.C. § 321 et seq.,
made applicable to National Guardsmen by 32 U.S.C. § 318, Captain
Donham was awarded a lifetime pension of approximately $1,500 per
month. He nonetheless brought suit for the injury in the Eastern
District of Missouri claiming damages of $2,500,000. Named as
defendants, inter alia,
were the United States and
Stencel. Donham alleged that the emergency eject system
malfunctioned as a result of "the negligence and carelessness of
the defendants individually and jointly."
Stencel then cross-claimed against the United States for
indemnity, charging that any malfunction in the egress life support
system used by Donham was due to faulty specifications,
requirements, and components provided by the United States or other
persons under contract with the United States. The cross-claim
further charged that the malfunctioning system had been in the
exclusive custody and control of the United States since the time
of its manufacture. Stencel therefore claimed that, insofar as it
was negligent at all, its negligence was passive, while the
negligence of the United States was active. Accordingly it prayed
for indemnity as to any sums it would be required to pay to Captain
Donham. [Footnote 3
The United States moved for summary judgment against Donham,
contending that he could not recover under the Tort Claims Act
against the Government for injuries sustained incident to military
service. Feres v. United States,
Page 431 U. S. 669
135 (1950). The United States further moved for dismissal of
Stencel's cross-claim, asserting that Feres
also bars an
indemnity action by a third party for monies paid' to military
personnel who could not recover directly from the United
The District Court granted the Government's motions, holding
protected the United States both from the claim
of the serviceman and that of the third party. [Footnote 4
] Both claims were therefore dismissed
for lack of subject matter jurisdiction. Stencel appealed this
ruling to the Court of Appeals for the Eighth Circuit, [Footnote 5
] and that court affirmed.
536 F.2d 765. We granted certiorari. [Footnote 6
] 429 U.S. 958.
In Feres v. United States, supra,
the Court held that
an on-duty serviceman who is injured due to the negligence of
Government officials may not recover against the United States
under the Federal Tort Claims Act. During the same Term, in a case
involving injuries to private parties, the Court also held that the
Act permits impleading the Government as a third-party defendant,
under a theory of indemnity or contribution, if the original
defendant claims that the United
Page 431 U. S. 670
States was wholly or partially responsible for the plaintiff's
injury. United States v. Yellow Cab Co., 340 U.
(1951). In this case, we must resolve the tension
and Yellow Cab
when a member of the
Armed Services brings a tort action against a private defendant and
the latter seeks indemnity from the United States under the Tort
Claims Act, claiming that Government officials were primarily
responsible for the injuries.
Petitioner argues that "[t]he Federal Tort Claims Act waives the
Government's immunity from suit in sweeping language." United
States v. Yellow Cab Co., supra
at 340 U. S. 547
Petitioner therefore contends that, unless its claim falls within
one of the express exceptions to the Act, the Court should give
effect to the congressional policy underlying the Act, which is to
hold the United States liable under state law principles to the
same extent as a similarly situated private individual. However,
the principles of Yellow Cab
here come into conflict with
the equally well established doctrine of Feres v. United
It is necessary, therefore, to examine the rationale
to determine to what extent, if any, allowance of
petitioner's claim would circumvent the purposes of the Act as
there construed by the Court.
was an action by the executrix of a serviceman
who had been killed when the barracks in which he was sleeping
caught fire. The plaintiff claimed that the United States had been
negligent in quartering the decedent in barracks it knew to be
unsafe due to a defective heating plant. [Footnote 7
] While recognizing the broad congressional
purpose in passing the Act, the Court noted that the relationship
between a sovereign and the members of its Armed Forces is unlike
any relationship between private individuals. 340 U.S. at
340 U. S.
Page 431 U. S. 671
is thus at least a surface anomaly in applying the mandate of
the Act that "[t]he 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. Noting that the effect of
the Act was "to waive immunity from recognized causes of action,
and . . . not to visit the Government with novel and unprecedented
liabilities," 340 U.S. at 340 U. S. 142
the Court concluded:
"[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. Without
exception, the relationship of military personnel to the Government
has been governed exclusively by federal law. We do not think that
Congress, in drafting this Act, created a new cause of action
dependent on local law for service-connected injuries or death due
to negligence. We cannot impute to Congress such a radical
departure from established law in the absence of express
at 340 U. S.
In reaching this conclusion, the Court considered two factors:
First, the relationship between the Government and members of its
Armed Forces is "distinctively federal in character,'"
id. at 340 U. S. 143,
citing United States v. Standard Oil Co., 332 U.
S. 301 (1947); it would make little sense to have the
Government's liability to members of the Armed Services dependent
on the fortuity of where the soldier happened to be stationed at
the time of the injury. Second, the Veterans' Benefits Act
establishes, as a substitute for tort liability, a statutory "no
fault" compensation scheme which provides generous pensions to
injured servicemen, without regard to any negligence attributable
to the Government. A third factor was explicated in United
States v. Brown, 348 U. S. 110,
348 U. S. 112
"[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
Page 431 U. S. 672
if suits under the Tort Claims Act were allowed for negligent
orders given or negligent acts committed in the course of military
duty. . . ."
We must therefore consider the impact of these factors where, as
here, the suit against the Government is not brought by the
serviceman himself, but by a third party seeking indemnity for any
damages it may be required to pay the serviceman.
Clearly, the first factor considered in Feres
with equal force in this case. The relationship between the
Government and its suppliers of ordnance is certainly no less
"distinctively federal in character" than the relationship between
the Government and its soldiers. The Armed Services perform a
unique, nationwide function in protecting the security of the
United States. To that end, military authorities frequently move
large numbers of men, and large quantities of equipment, from one
end of the continent to the other, and beyond. Significant risk of
accidents and injuries attend such a vast undertaking. If, as the
Court held in Feres,
it makes no sense to permit the
fortuity of the situs of the alleged negligence to affect the
liability of the Government to a serviceman who sustains
service-connected injuries, 340 U.S. at 340 U. S. 143
it makes equally little sense to permit that situs to affect the
Government's liability to a Government contractor for the identical
injury. The second factor considered by Feres
more difficult to apply. Petitioner argues that the existence of a
generous military compensation scheme (from which Captain Donham
has benefited and will continue to benefit, supra
431 U. S.
-668) is of little comfort to it. It is contended
that, although it may be fair to prohibit direct recovery by
servicemen under the Act, since they are assured of compensation
regardless of fault under the Veterans' Benefits Act, petitioner,
as a third-party claimant, should not be barred from indemnity for
damages which it may be required to pay to the serviceman, and as
to which it has no alternative federal remedy.
Page 431 U. S. 673
A compensation scheme such as the Veterans' Benefits Act serves
a dual purpose: it not only provides a swift, efficient remedy for
the injured serviceman, but it also clothes the Government in the
"protective mantle of the Act's limitation-of-liability
provisions." See Cooper Stevedoring Co. v. Kopke, Inc.,
417 U. S. 106
417 U. S. 115
(1974). Given the broad exposure of the Government, and the great
variability in the potentially applicable tort law, see
340 U.S. at 340 U. S.
-143, the military compensation scheme provides an
upper limit of liability for the Government as to service-connected
injuries. To permit petitioner's claim would circumvent this
limitation, thereby frustrating one of the essential features of
the Veterans' Benefits Act. As we stated in a somewhat different
context concerning the Tort Claims Act:
"To permit [petitioner] to proceed . . . here would be to
judicially admit at the back door that which has been legislatively
turned away at the front door. We do not believe that the [Federal
Tort Claims] Act permits such a result."
Laird v. Nelms, 406 U. S. 797
406 U. S. 802
Turning to the third factor, it seems quite clear that, where
the case concerns an injury sustained by a soldier while on duty,
the effect of the action upon military discipline is identical
whether the suit is brought by the soldier directly or by a third
party. The litigation would take virtually the identical form in
either case, and at issue would be the degree of fault, if any, on
the part of the Government's agents and the effect upon the
serviceman's safety. The trial would, in either case, involve
second-guessing military orders, and would often require members of
the Armed Services to testify in court as to each other's decisions
and actions. This factor, too, weighs against permitting any
recovery by petitioner against the United States.
We conclude, therefore, that the third-party indemnity action in
this case is unavailable for essentially the same reasons that the
direct action by Donham is barred by Feres.
Page 431 U. S. 674
The factors considered by the Feres
court are largely
applicable in this type of case as well; hence, the right of a
third party to recover in an indemnity action against the United
States recognized in Yellow Cab,
must be held limited by
the rationale of Feres
where the injured party is a
serviceman. Since the relationship between the United States and
petitioner is based on a commercial contract, there is no basis for
a claim of unfairness in this result. [Footnote 8
Accordingly, the judgment of the Court of Appeals is
Captain Donham was at the time assigned for training to the
131st Tactical Fighter Group, Missouri Air National Guard.
There is no contractual relationship between the United States
and Stencel. Stencel contracted with North American Rockwell, the
prime Government contractor, to provide the F-100's pilot eject
Stencel's indemnity claim is based upon the law of Missouri.
See, e.g., Feinstein v. Edward Livington & Sons,
Inc., 457 S.W.2d
, 792-793 (Mo.1970); Kansas City Southern R. Co. v.
Payway Feed Mills, Inc., 338 S.W.2d 1
(Mo.1960). The FTCA, of course, insofar as it is applicable, fixes
the Liability of the United States with reference to "the law of
the place where the [wrongful] act or omission occurred." 28 U.S.C.
Still pending in the District Court is Donham's action against
Stencel and against Mills Manufacturing Corp., another alleged
The District Court had properly certified its judgment as final
pursuant to Fed.Rule Civ.Proc. 54(b), thereby making immediate
appeal by Stencel appropriate.
The Circuits have been far from uniform in their treatment of
this issue. The view taken by the Eighth Circuit in this case was
first adopted by the Ninth Circuit in United Air Lines, Inc. v.
335 F.2d 379, 404, cert. dismissed,
951 (1964), and has been recently reaffirmed in Adams v.
General Dynamics Corp.,
535 F.2d 489, 491 (1976), cert.
No. 76-220. Positions which appear inconsistent with
this view have been adopted by the Tenth Circuit in Barr v.
Brezina Constr. Co.,
464 F.2d 1141, 1143-1144 (1972),
409 U.S. 1125 (1973), and by the Fifth
Circuit in Certain Underwriters at Lloyd's v. United
511 F.2d 159, 163 (1975).
The Court considered two additional cases involving alleged
negligence of army officials. Jefferson v. United States,
O.T. 1950, No. 29, and United States v. Griggs,
No. 31. It is unnecessary, for present purposes, to detail the fact
situation involved in these two cases.
Since the first Circuit case to hold such actions barred by
was decided in 1964, see n
petitioner no doubt had
sufficient notice so as to take this risk into account in
negotiating its contract for the emergency eject system at issue
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
The opinion of the Court appears to be premised on the theory
that, in any case involving a member of the military on active
duty, Feres v. United States, 340 U.
(1950), displaces the plain language of the Tort
Claims Act. I cannot agree that that narrow, judicially created
exception to the waiver of sovereign immunity contained in the Act
should be extended to any category of litigation other than suits
against the Government by active duty servicemen based on injuries
incurred while on duty.
Even if Feres
is not to be strictly limited, I do not
agree that its extension to cover this case is justified. The
Court's explanation simply does not differentiate this suit by a
corporation against the Government from similar suits that the Tort
Claims Act does allow. See, e.g., United States v. Yellow Cab
Co., 340 U. S. 543
The first factor relied upon by the Court is the "distinctively
federal" relationship between the Government and "its suppliers
Page 431 U. S. 675
of ordnance." Ante
at 431 U. S. 672
It is true, of course, that the military performs "a unique,
nationwide function," ibid.,
but so do the Bureau of the
Census, the Immigration and Naturalization Service, and many other
agencies of the Federal Government. These agencies, like the
military, may have personnel and equipment in all parts of the
country. Nevertheless, Congress has made private rights against the
Government depend on "the law of the place where the act or
omission occurred," 28 U.S.C. § 1346(b), and presumably the Court
agrees that this provision governs the rights of suppliers to
nonmilitary agencies. Nothing in the Court's opinion explains why
it concludes that the relationship between the Government and those
suppliers differs from its relationship to purveyors of military
The Court also concludes that compensation payments to an
injured serviceman under the Veterans' Benefits Act, 38 U.S.C. §
321 et seq.,
place an absolute upper limit on the
Government's liability for service-connected injuries. Yet nothing
in that Act suggests that it is designed to place on third parties,
such as petitioner, the burden of fully compensating injuries to
servicemen when the Government is at fault. Indeed, the Veterans'
Benefits Act does not even contain an explicit declaration that it
is the exclusive remedy against the Government for a serviceman's
injury. The comparable compensation program for civilian employees
of the Government does contain such a limitation of liability. 5
U.S.C. § 8116(c). *
Yet we have held
that the broad language of the exclusivity provision in the
Page 431 U. S. 676
scheme does not affect "the rights of unrelated third parties,"
Weyerhaeuser S.S. Co. v. United States, 372 U.
, 372 U. S. 601
(1963), and the lower courts have allowed indemnity suits identical
to petitioner's to proceed despite that provision. See, e.g.,
Travelers Ins. Co. v. United States,
493 F.2d 881 (CA3 1974).
The Court fails to explain why the absence of an exclusivity
provision in the Veterans' Benefits Act forecloses suits by third
parties in cases involving injuries to military personnel when the
existence of such a clause does not bar similar actions when the
injured employee works for one of the Government's civilian
Finally, the Court claims to find in this action a threat to
military discipline. It is clear that the basis of Feres
was the Court's concern with the disruption of "[t]he peculiar and
special relationship of the soldier to his superiors" that might
result if the soldier were allowed to hale his superiors into
court. See United States v. Brown, 348 U.
, 348 U. S. 112
(1954). That problem does not arise when a nonmilitary third party
The majority's argument that whether petitioner or the injured
serviceman sues is of no import because the trial would take the
same form in either case proves far too much. Had the same
malfunction in the pilot eject system that caused the serviceman's
injuries here also caused that system to plunge into a civilian's
house, the injured civilian would unquestionably have a cause of
action under the Tort Claims Act against the Government. He might
also sue petitioner, which might, as it has done here, cross-claim
against the Government. In that hypothetical case, as well as in
the case before us, there would be the same chance that the trial
"involve second-guessing military orders, and would . . .
require members of the Armed Services to testify in court as to
Page 431 U. S. 677
each other's decisions and actions."
at 431 U. S. 673
Yet there would be no basis, in Feres
or in the Tort
Claims Act, for concluding that the suit is barred because of the
nature of the evidence to be produced at trial. There is no basis
for reaching that conclusion here. I respectfully dissent.
"The liability of the United States or an instrumentality
thereof under this subchapter or any extension thereof with respect
to the injury or death of an employee is exclusive and instead of
all other liability of the United States or the instrumentality to
the employee, his legal representative, spouse, dependents, next of
kin, and any other person otherwise entitled to recover damages
from the United States or the instrumentality because of the injury
or death in a direct judicial proceeding, in a civil action, or in
admiralty, or by an administrative or judicial proceeding under a
workmen's compensation statute or under a Federal tort liability
statute. . . ."