author: Mr. Chief Justice Burger

text:
    ABNEY et al. v. UNITED STATES
    No. 75-6521.
    Argued January 17, 1977
    Decided June 9, 1977

      Ralph David Samuel argued the cause for petitioners. With him on the briefs were Thomas C. Carroll, Mark D. Schaffer, and Joel Harvey Slomsky.

      Assistant Attorney General Thornburgh argued the cause for the United States. With him on the brief were Solicitor General Bork, Shirley Baccus-Lobel, and Marc Philip Richman.

        Veryl L. Riddle, Thomas C. Walsh, and Robert F. Scoular filed a brief for Alexander J. Barket as amicus curiae.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to determine whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U. S. C. § 1291 and thus immediately appealable. If it is a final decision, we must also decide: (a) whether the Double Jeopardy Clause bars the instant prosecution; (b) whether the courts of appeals have jurisdiction to consider non-double-jeopardy claims presented pendent to such appeals; and, if so, (c) whether the Court of Appeals erred in refusing to dismiss the indictment on the alternative grounds asserted by the petitioners.

(1)

In March 1974, a single-count indictment was returned in the United States District Court for the Eastern District of Pennsylvania charging petitioners, Donald Abney, Larry Starks, and Alonzo Robinson, and two others, with conspiracy and an attempt to obstruct interstate commerce by means of extortion, in violation of the Hobbs Act, 18 U. S. C. § 1951. The Government’s case was based upon the testimony of one Ulysses Rice, the alleged victim of the conspiracy. Rice was the owner and operator of a Philadelphia, Pa., tavern selling liquor that was distilled and bottled outside of the State. According to Rice, petitioners had engaged in a pattern of extortionate practices against him. Initially, such activities had been thinly veiled under the pretense of solicitations for subscriptions to Black Muslim newspapers, sales of various food items, and appeals for contributions for a Black Muslim holiday. Eventually, however, demands for larger sums of money, including $200 in weekly “taxes” accompanied by threats, were made upon Rice at his place of business. These threats led Rice to contact the Federal Bureau of Investigation which provided him with “marked money” and a body tape recorder in anticipation of future demands by the petitioners. When such a demand was made, Rice paid it with the marked currency and recorded the transaction on the body recorder. Petitioners were arrested despite their claims that all of the contributions by Rice had been bona fide gifts for Muslim religious causes. The tape recording of the last transaction was later introduced at petitioners’ trial and, not surprisingly, it proved useful in refuting this claim of innocent purpose.

Both prior to, and during, the ensuing trial, the petitioners challenged the indictment on grounds of duplicity of offenses, claiming that its single count improperly charged both a conspiracy and an attempt to violate the Hobbs Act. Although the District Court apparently agreed with this contention, it refused either to dismiss the indictment or require the prosecutor to elect between theories. Rather, it required the Government to establish both offenses, as the prosecutor represented that he would do, and instructed the jury to that effect:

“I would also point out that in the indictment it is charged that the defendants were guilty of both conspiracy and attempt and the essential elements of both of these offenses, must be proved before any defendant could be found guilty.” Tr. 10-60 (emphasis added).

The jury returned a guilty verdict against each petitioner, but acquitted two others charged in the indictment.

On appeal, the United States Court of Appeals for the Third Circuit reversed petitioners’ convictions and ordered a new trial on the ground that the key tape recording had been admitted into evidence without proper authentication. United States v. Starks, 515 F. 2d 112 (1975). The Court of Appeals also agreed with the petitioners’ claim that the indictment was duplicitous. Id., at 115-118. However, since the admission of the unauthenticated tape recording necessitated a new trial in any event, the court found it unnecessary to pass on the Government’s argument that the indictment’s duplicitous nature had been corrected by the trial court’s instructions to the jury and was thus harmless. Id., at 118. Nonetheless, it directed the Government to elect between the conspiracy and attempt charges on remand in order to avoid any similar problems at the next trial. Id., at 118, 125.

On remand, the Government elected to proceed on the conspiracy charge. Petitioners then moved to dismiss the indictment, arguing: (a) that retrial would expose them to double jeopardy; and (b) that the indictment, as modified by the election, failed to charge an offense. The District Court denied the motion, and the petitioners immediately appealed to the Court of Appeals.

Before addressing the merits of petitioners’ claims, the Government challenged the Court of Appeals’ jurisdiction to hear the interlocutory appeal and asked that its prior decision in United States v. DiSilvio, 520 F. 2d 247 (1975), be overruled; there the court had held that the denial of a pretrial motion to dismiss an indictment on double jeopardy grounds constituted a final decision within the meaning of 28 U. S. C. § 1291, and, as such, was immediately appealable. 520 F. 2d, at 248 n. 2a. The Court of Appeals failed to address the Government’s argument. Rather, after ordering the case to be submitted on the briefs without oral argument, it affirmed the District Court by a judgment order which explicitly rejected both of the petitioners’ attacks on the indictment. We granted certiorari to review the decision of the Court of Appeals.

(2)

We approach the threshold appealability question with two principles in mind. First, it is well settled that there is no constitutional right to an appeal. McKane v. Durston, 153 U. S. 684 (1894). Indeed, for a century aftei this Court was established, no appeal as of right existed in criminal cases, and, as a result, appellate review of criminal convictions was rarely allowed. As the Court described this period in Reetz v. Michigan, 188 U. S. 505 (1903):

“[T] rials under the Federal practice for even the gravest offences ended in the trial court, except in cases where two judges were present and certified a question of law to this court.” Id., at 508.

The right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute — in this case, 28 U. S. C. § 1291.

Second, since appeals of right have been authorized by Congress in criminal cases, as in civil cases, there has been a firm congressional policy against interlocutory or “piecemeal” appeals and courts have consistently given effect to that policy. Finality of judgment has been required as a predicate for federal appellate jurisdiction.

“The general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius proceedings await.their termination by final judgment.” DiBella v. United States, 369 U. S. 121, 124 (1962).

Accord, Cobbledick v. United States, 309 U. S. 323, 324-326 (1940). This principle is currently embodied in 28 U. S. C. § 1291 which grants the federal courts of appeals jurisdiction to review “all final decisions of the district courts,” both civil and criminal. Adherence to this rule of finality has been particularly stringent in criminal prosecutions because “the delays arid disruptions attendant upon intermediate appeal,” which the rule is designed to avoid, “are especially inimical to the effective and fair administration of the criminal law.” DiBella, supra, at 126. Accord, Cobbledick, supra, at 324-326.

The pretrial denial of a motion to dismiss an indictment on double jeopardy grounds is obviously not “final” in the sense that it terminates the criminal proceedings in the district court. Nonetheless, a number of the Courts of Appeals have held that § 1291 does not bar an immediate appeal from such a ■ pretrial order. United States v. Barket, 530 F. 2d 181 (CA8 1975), cert. denied, 429 U. S. 917 (1976); United States v. Beckerman, 516 F. 2d 905 (CA2 1975); United States v. Lansdown, 460 F. 2d 164 (CA4 1972). Contra, United States v. Young, 544 F. 2d 415 (CA9 1976); United States v. Bailey, 512 F. 2d 833 (CA5 1975). In reaching this conclusion, those courts have taken the position that such pretrial orders fall within the so-called “collateral order” exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), and are thus “final decisions” within the meaning of § 1291.

Cohen was a shareholder’s derivative civil action in which federal jurisdiction rested on the diverse citizenship of the parties. Prior to trial, a question arose over whether a state statute requiring the plaintiff shareholder to post security for the costs of litigation applied in the federal court. After the District Court denied its motion to require such security, the corporate defendant sought immediate appellate review of the ruling in the Court of Appeals. That court reversed and ordered that security be posted. Thereafter, this Court held that the Court of Appeals had jurisdiction under § 1291 to entertain an appeal from the District Court’s pretrial order.

In holding that the pretrial order was a “final decision” for purposes of § 1291, the Court recognized that § 1291 did not uniformly limit appellate jurisdiction to “those final judgments which terminate an action.” 337 U. S., at 545; Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 171 (1974). Rather as Mr. Justice Jackson, the author of Cohen, later pointed out:

“[I]t is a final decision that Congress has made reviewable. . . . While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment.” Stack v. Boyle, 342 U. S. 1, 12 (1951) (separate opinion).

That term, the Court held, was to be given a “practical rather than a technical construction.” Cohen, supra, at 546. In giving it such a construction, the Court identified several factors which, in its view, rendered the District Court’s order a “final decision” within the statute’s meaning. First, the District Court’s order had fully disposed of the question of the state security statute’s applicability in federal court; in no sense, did it leave the matter “open, unfinished or inconclusive.” Ibid. Second, the decision was not simply a “step toward final disposition of the merits of the case [which would] be merged in final judgment”; rather, it resolved an issue completely collateral to the cause of action asserted. Ibid. Finally, the decision had involved an important right which would be “lost, probably irreparably,” if review had to await final judgment; hence, to be effective, appellate review in that special, limited setting had to be immediate. Ibid. The Court concluded:

“This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id., at 546.

Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the “small class of cases” that Cohen has placed beyond the confines of the final-judgment rule. In the first place there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant’s double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment’s guarantee. Hence, Cohen’s threshold requirement of a fully consummated decision is satisfied.

Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. See DiBella v. United States, supra; Cogen v. United States, 278 U. S. 221 (1929). Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. Menna v. New York, 423 U. S. 61 (1975); Blackledge v. Perry, 417 U. S. 21, 30 (1974); Robinson v. Neil, 409 U. S. 505, 509 (1973). The elements of that claim are completely independent of his guilt or innocence. Indeed, we explicitly recognized that fact in Harris v. Washington, 404 U. S. 55 (1971), where we held that a State Supreme Court's rejection of an accused's pretrial plea of former jeopardy constituted a “final” order for purposes of our appellate jurisdiction under 28 U. S. C. § 1257.

“Since the state courts have finally rejected a claim that the Constitution forbids a second trial of the petitioner, a claim separate and apart from the question whether the petitioner may constitutionally be convicted of the crimes with which he is charged, our jurisdiction is properly invoked under 28 U. S. C. § 1257.” 404 U. S., at 56.

Accord, Turner v. Arkansas, 407 U. S. 366 (1972); Colombo v. New York, 405 U. S. 9 (1972). Thus, the matters embraced in the trial court's pretrial order here are truly collateral to the criminal prosecution itself in the sense that they will not “affect, or ... be affected by, decision of the merits of this case.” Cohen, 337 U. S., at 546.

Finally, the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.

“ 'The Constitution of the United States, in the Fifth Amendment, declares, “nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb.” The prohibition is not against being twice punished, but against being twice put in jeopardy . . . .’ ... The 'twice put in jeopardy’ language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the 'same offense’ for which he was initially tried.” Price v. Georgia, 398 U. S. 323, 326 (1970).

See also United States v. Jorn, 400 U. S. 470, 479 (1971); Green v. United States, 355 U. S. 184, 187-188 (1957); United States v. Ball, 163 U. S. 662, 669 (1896). Because of this focus on the “risk” of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not .be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green, supra, at 187-188.

Accord, Breed v. Jones, 421 U. S. 519, 529-530 (1975); Serfass v. United States, 420 U. S. 377, 387-388 (1975); Jorn, supra, at 479. Obviously, these aspects of the guarantee’s protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to enduré a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

We therefore hold that pretrial orders rejecting claims of former jeopardy, such as that presently before us, constitute “final decisions” and thus satisfy the jurisdictional prerequisites of § 1291.

(S)

In determining that the courts of appeals may exercise jurisdiction over an appeal' from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds, we, of course, do not hold that other claims contained in the motion to dismiss are immediately appealable as well. United States v. Barket, 530 F. 2d 181 (CA8 1975), cert. denied, 429 U. S. 917 (1976). Our conclusion that a defendant may seek immediate appellate review of a district court’s rejection of his double jeopardy claim is based on the special considerations permeating claims of that nature which justify a departure from the normal rule of finality. Quite obviously, such considerations do not extend beyond the claim of former jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused’s motion to dismiss. Rather, such claims are appealable if, and only if, they too fall within Cohen’s collateral-order exception to the final-judgment rule. Any other rule would encourage criminal defendants to seek review of, or assert, frivolous double jeopardy claims in order to bring- more serious, but otherwise nonappealable questions to the attention of the courts of appeals prior to conviction and sentence.

Here, we think it clear that the District Court’s rej ection of petitioners’ challenge to the sufficiency of the indictment does not come within the Cohen exception. First, an order denying a motion to dismiss an indictment for failure to state an offense is plainly not “collateral” in any sense of that term; rather it goes to the very heart of the issues to be resolved at the upcoming trial. Secondly, the issue resolved adversely to petitioners is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results. We therefore conclude that the Court of Appeals had no jurisdiction under § 1291 to pass on the merits of petitioners’ challenge to the sufficiency of the indictment at this juncture in the proceedings.

(4)

We turn finally to the merits of petitioners’ claim that their retrial, following the prosecutor’s election to proceed on the single conspiracy charge, is barred by the Double Jeopardy Clause. Their argument focuses on both the duplicitous indictment under which they were charged and the general verdict of guilty returned by the jury at their first trial. They maintain that because the indictment’s single count charged them with both a conspiracy and an attempt to violate the Hobbs Act, it is impossible to determine the basis of the general verdict of guilt returned against them. Hence, they suggest that the jury might have convicted them on the attempt charge, but acquitted them of the charged conspiracy. This possibility, they conclude, prohibits their retrial on the conspiracy charge.

Whatever the merits of such an argument in another setting, we find no factual predicate for it here. As we noted in our description of the petitioners’ initial trial, the prosecutor, rather than electing between the attempt and conspiracy charges, represented to the court that he would establish both offenses. The court held him to his word and instructed the jury that it would have to find that the Government had established all of the elements of both crimes before it could return a verdict of guilty against the petitioners. Indeed, it emphasized this fact to the jury immediately before it retired. Supra, at 654. We cannot assume that the jury disregarded these clear and unambiguous instructions and returned a guilty verdict without first finding that the Government had proved both crimes charged in the indictment beyond a reasonable doubt. E. g., Shotwell Mfg. Co. v. United States, 371 U. S. 341, 367 (1963). "We are therefore satisfied that the jury did not acquit petitioners of the conspiracy charge; consequently, the Double Jeopardy Clause does not preclude their retrial for that crime. E. g., North Carolina v. Pearce, 395 U. S. 711, 719-720 (1969); United States v. Tateo, 377 U. S. 463 (1964).

Accordingly, the judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded.

It is so ordered.

Mr. Justice White concurs in the judgment.

       Section 1291 provides as follows:
      “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may bé had in the Supreme Court.”

       Section 1951 provides in pertinent part:
      “Whoever . . . obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty, years, or both.”

       Appeals as of right in criminal cases were first permitted in 1889 when Congress enacted a statute allowing such appeals “in all cases of conviction of crime the punishment of which provided by law is death.” Act of Feb. 6, 1889, 25 Stat. 656. A general right of appeal in criminal cases was not created until 1911. Act of Mar. 3, 1911, 36 Stat. 1133.

         Of course, Cohen’s collateral-order exception is equally applicable in both civil and criminal proceedings. While Cohen itself was a civil case, the Court’s decision was based on its construction of 28 U. S. C. § 1291. As previously noted, that provision gives the courts of appeals jurisdiction to review “final decisions” of the district courts in both civil and criminal cases. See Stack v. Boyle, 342 U. S. 1 (1951).

       Section 1257 provides in pertinent part:
      “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . .

       See also Ex parte Lange, 18 Wall. 163, 169 (1874):
      “The common law not only prohibited a second punishment for the same offence, but it went further and [forbade] a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.” (Emphasis added.)

       A cogent analogy can bp drawn to the Cohen decision. There, the corporate defendant claimed that the state security statute, if applicable, conferred on it a right not to face trial at all unless the dissatisfied shareholder first posted security for the costs of the litigation. By permitting an immediate appeal under those circumstances, this Court made sure that the benefits of the statute were not “canceled out.”

       Admittedly, our holding may encourage some defendants to engage in dilatory appeals as the Solicitor General fears. However, we believe that such problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.

       In view of our determination that no factual predicate exists for petitioners’ claim that the jury rendered an ambiguous verdict at their original trial, we find it unnecessary to reach the question of whether, assuming such ambiguity, their retrial would have been nonetheless permissible. See United States v. Tateo, 377 U. S. 463 (1964).

       In addition to the portion of the charge set out supra, at 654, the trial court gave the following instructions to the jury:
      “[T]he defendants are charged not with the so-called substantive offense itself but rather with a conspiracy and attempt to obstruct, delay and affect interstate commerce by extortion. If the jury should find beyond a reasonable doubt that there was a conspiracy and an attempt to extort money from Mr. Rice, the natural and probable consequences of which conspiracy and attempt, if successfully carried out, would be to obstruct, delay and adversely affect interstate commerce in any way or degree, the offense charged in the indictment of conspiracy 'and attempt would be complete, and the jury could properly convict all defendants found beyond a reasonable doubt to be members of the conspiracy and attempt.” Tr. 10-25.
      “[I]t becomes necessary for me to define both ‘conspiracy’ and ‘attempt,’ since the defendants are charged not with the substantive offense itself of obstructing, delaying or adversely affecting interstate commerce by extortion but rather a conspiracy and attempt so to do.
      “Therefore, I shall define to you all of the requisites of both a conspiracy and an attempt, because all of these requisites must be found before the jury could find any defendant guilty.” Id., at 10-25 — 10-26.
      “In this case the defendants are charged with a conspiracy and attempt, both as integral and essential parts of the single charge.” Id., at 10-35.
      “[T]his charge being a single conspiracy and attempt to obstruct, delay and adversely or harmfully affect interstate commerce by extortion does not require proof that the conspiracy was successful, or that its unlawful objectives were obtained. The offense charged may be proved even though the conspiracy and attempt failed because the extortion was not successfully carried out.” Id., at 10-39.


source: Caselaw Access Project

author: Mr. Chief Justice Burger Mr. Justice Marshall,

license: Public Domain

text:
    STENCEL AERO ENGINEERING CORP. v. UNITED STATES
    No. 76-321.
    Argued March 22, 1977
    Decided June 9, 1977

      Thomas J. Whalen argued the cause and filed briefs for petitioner.

      Thomas S. Martin argued the cause for the United States. With him on the brief were Acting Solicitor General Friedman and Acting Assistant Attorney General Jaffe.

   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.

(1)

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. 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. Pursuant to the Veterans’ Benefits Act, 38 U. S. C. § 321 et seg., 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.

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, 340 U. S. 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 States.

The District Court granted the Government’s motions, holding that Feres protected the United States both from the claim of the serviceman and that of the third party. Both claims were therefore dismissed for lack of subject-matter jurisdiction. Stencel appealed this ruling to the Court of Appeals for the Eighth Circuit and that court affirmed. 536 F. 2d 765. We granted certiorari. 429 U. S. 958.

(2)

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 States was wholly or partially responsible for the plaintiff’s injury. United States v. Yellow Cab Co., 340 U. S. 543 (1951). In this case we must resolve the tension between Feres 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 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 States. It is necessary, therefore, to examine the rationale of Feres 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.

Feres 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. 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 141-142. There 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 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 congressional command.” Id., at 146.

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 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, 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 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 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 operates 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 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 is somewhat 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, at 667-668) 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.

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, 115 (1974). Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, see Feres, 340 U. S., at 142-143, 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, 802 (1972).

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. 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.

Accordingly, the judgment of the Court of Appeals is

Affirmed.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

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. S. 135 (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 (1951).

The first factor relied upon by the Court is the “distinctively federal” relationship between the Government' and “its suppliers of ordnance.” Ante, at 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 equipment.

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 civilian compensation scheme does not affect “the rights of unrelated third parties,” Weyerhaeuser S. S. Co. v. United States, 372 U. S. 597, 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 agencies.

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. S. 110, 112 (1954). That problem does not arise when a nonmilitary third party brings suit.

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 would “invblve second-guessing military orders, and would ... require members of the Armed Services to testify in court as to each other’s decisions and actions.” Ante, at 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.

       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 system.

       Stencel’s indemnity claim is based upon the law of Missouri. See, e. g., Feinstein v. Edward Livington & Sons, Inc., 457 S. W. 2d 789, 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. § 1346 (b).

         Still pending in the District Court is Donham’s action against Stencel and against Mills Manufacturing Corp., another alleged tortfeasor.

       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. Wiener, 335 F. 2d 379, 404, cert. dismissed, 379 U. S. 951 (1964), and has been recently reaffirmed in Adams v. General Dynamics Corp., 535 F. 2d 489, 491 (1976), cert. pending, 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), cert. denied, 409 U. S. 1125 (1973), and by the Fifth Circuit in Certain Underwriters at Lloyd’s v. United States, 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, O. T. 1950, No. 31. It is unnecessary, for present purposes, to detail the fact situations involved in these two cases.

       Since the first Circuit case to bold sucb actions barred by Feres was decided in 1964, see n. 6, supra, petitioner no doubt bad sufficient notice so as to take this risk into account in negotiating its contract for the emergency eject system at issue here.

      “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. . . .”