Energetic Tank, Inc., as Owner of the M/V Alnic MC v. United States, et al.

The Federal Tort Claims Act waives the immunity of the United States for money-damages claims based on the negligence or wrongdoing of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); see id. § 2674. In Feres v. United States, 340 U.S. 135 (1950), this Court interpreted the Act as implicitly excluding tort claims brought by servicemembers for injuries sustained in the course of their service. Feres has long been the subject of criticism, see, e.g., United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting), but this Court has declined to overrule it. At the same time, this Court has never extended Feres to any other statute. The courts of appeals have nevertheless reflexively extended Feres to eighteen different statutes. The result has been an unwritten, free-floating bar to governmental liability that spans the U.S. Code—at the expense of both Congress’s prerogatives and servicemembers’ interests. In this case, following a collision between a U.S. Navy destroyer and a commercial vessel, the United States filed a claim for damages against the commercial vessel. The vessel’s owner counterclaimed, pursuant to an express waiver of sovereign immunity in two admiralty statutes, seeking contribution from the United States for tort claims brought by the destroyer’s injured sailors. The Second Circuit held that the commercial vessel’s counterclaim was barred under Feres. The question presented is: Should Feres be extended to bar claims under statutes other than the Federal Tort Claims Act? (I)