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Feres v. United States: An Argument for Overturning the Long-Standing Doctrine

By: Katelyn Davis

Disclaimer: The views expressed in this blog post are those of the author and do not necessarily reflect the views of the United States Department of Justice, the United States Federal Government, or any Authorized Representative thereof.

March 9, 2014 was scheduled to be a happy, momentous occasion for the Daniel family. Lieutenant Rebekah Daniel was taken to Naval Hospital Bremerton in Washington state to give birth to her baby girl, Victoria. However, shortly after giving birth to Victoria, Lt. Daniel began to bleed profusely. Within a few hours, Lt. Daniel died after hemorrhaging approximately 1.5 liters of blood. On October 15, 2015, Lt. Daniel’s husband, Walter Daniel, filed suit in the U.S. District Court for the Western District of Washington against the United States on the basis of medical malpractice. In ruling against Daniel, the district court cited the Supreme Court case Feres v. United States, concluding: “‘[U]nless and until Congress or the Supreme Court choose to confine the unfairness and irrationality that Feres has bred,’…the doctrine applies here.” Unfortunately this regret is commonplace. Whether it be medical negligence claims, wrongful death suits, sexual assault charges, or damages stemming from other gross negligence, those with military ties have little-to-no chance of winning any tort claim with Feres intact. Even if their injuries were sustained in arguably negligent and exceptional circumstances, servicemembers are likely to lose civil suits as long as the incident can somehow be attributed “incident to their service.”

What is Feres? Why is it still in place? And why is it so difficult to overturn? Rethinking Feres, written by Andrew Popper and published by Boston College Law Review, aims to explore those questions.

As Rethinking Feres notes, Feres v. United States is a 1950 U.S. Supreme Court decision that held that the United States, under the Federal Tort Claims Act (“FTCA”), was not liable for any  injuries to servicemembers that occurred in the course of any activity incident to military service. Although countless suits have been brought forth challenging or even seeking to limit the scope of Feres, the decision remains in place. Courts have often justified these decisions as attempts to uphold the chain-of-command, discipline, and rigorous training traditions of the U.S. military, implying that these attributes would be threatened by the potential for private civil suit.  The U.S. Department of Defense fully supports the judicial system’s upholding of the Feres doctrine, claiming that overturning the ruling would “destroy the premise” of workers’ compensation, and “create an unsustainable inequity” within the military between those who could sue and those who were barred from suit. More broadly, the Department of Defense claims that overturning the Feres doctrine would “compromise…[the] effectiveness” of the military and its health systems, training programs, etc.

However, many of these claims appear to be unfounded. In analyzing the precedent both before and since the Supreme Court’s decision in Feres, Rethinking Feres notes that U.S. servicemembers have experienced epidemics of sexual assault, medical negligence, and physical abuse, but lack the remedies and deterrent effects traditionally afforded by tort law. Consequently, it is unsurprising that members of the U.S. Supreme Court, including Justice Thomas and the late Justice Scalia, have claimed that the case was wrongly decided, implying that Feres deserves additional review.

But what if Feres is overturned? Will military members finally be able to recover in civil suits? Until the FTCA is amended, likely not. As Rethinking Feres mentions, a simple overruling without any changes to the FTCA would cause an “unpredictable and discordant exposure to tort liability under the FTCA as well as a continuation of irrational limitations on liability due to the multiple exceptions in the FTCA.” Thus, the FTCA should be amended to preclude liability only if the injury alleged is attributable to or caused by an “essential component of military service.”

This amendment respects the military’s interest in maintaining current workers’ compensation boundaries and avoiding liability for reasonably foreseeable service-related mishaps while enabling servicemembers to recover in other circumstances.  For additional clarity, Congress could provide a non-exclusive list of examples of the types of occurrences that are specifically excluded from the discretionary function exception in the FTCA, such as sexual assault, rape, extreme physical violence/torture, clear and gross medical malpractice, driving under the influence, and hate-based crimes. By doing so, Congress will allow victims to pursue their claims in Article III courts, while continuously upholding the chain-of-command, discipline, and rigorous training that separates the U.S. military from all other entities. And finally, after years of denial, pain, and continued suffering, those wearing the military uniform that have experienced gross and negligent circumstances can finally have access to the justice they swore to protect and uphold.


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