Feres v. U.S. - the Supreme Court's unjustified bar to redress for injuries 'incident to service'

In 1946, Congress enacted the Federal Tort Claims Act, radically changing the sovereign immunity of the federal government. In general, "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. Liability shall be determined by the law of the place of injury. 28 U.S.C. § 2672. But when Rudolph Feres, an Army lieutenant, perished in a negligently-caused barracks fire, the Supreme Court said, "not so fast," and carved an exception to the plain statutory language. "The 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." Feres v. U.S., 340 U.S. 135, 146 (1950).

Under this now-infamous Feres doctrine, generations of service members have been denied recovery for injuries caused by their fellows or the government so long as the injuries occurred "incident to service." The doctrine has been applied to the gamut of tort claims from landowner liability to medical malpractice.

The Supreme Court has articulated three rationales for the doctrine. Because the relationship of military personnel to the government is distinctly federal, "it would make little sense" to have liability turn on "the fortuity of where the soldier happened to be stationed at the time of the injury." Stencel Aero Eng'g Corp. v. U.S., 431 U.S. 666, 671 (1977). Second, the "the Veterans' Benefits Act establishes ... a statutory 'no fault' compensation scheme which provides generous pensions to injured servicemen." Id. Third, allowing recovery would have possible negative "effects of the maintenance of such suits on [military] discipline." Id.

The federal appellate courts have developed four factors for determining whether the claim is "incident to service." Johnson v. U.S., 704 F.2d 1431, 1436 (9th Cir. 1983). Where did the negligence occur? What was the duty status of the plaintiff? What benefits accrued to the plaintiff due to her military status? Were the "service member's activities at the time of injury of the sort that could harm the disciplinary system if litigated in a civil action." Id. at 1439.

Service-connected plaintiffs have had limited success in excepting themselves from the doctrine. The Supreme Court has so far refused to reconsider it. "[T]he Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based upon service-related injuries. We decline to modify the doctrine at this late date." U.S. v. Johnson, 481 U.S. 681, 687-88 (1987). Yet, as Justice Scalia pointed out in dissent, "Congress might have been wise to exempt from the FTCA certain claims brought by servicemen. The problem now, as then, is that Congress not only failed to provide such an exemption, but quite plainly excluded it." Id. at 692.

"To be sure, criticism of the Feres doctrine abounds. Justices, judges, and scholars have routinely noted the harsh results brought about by the doctrine, and many have suggested Feres itself was wrongly decided." Clendening v. U.S, 19 F.4th 421, 431 (4th Cir. 2021). Joining Justice Scalia, Justice Thomas has long spoken out against Feres, dissenting from the court's refusal to grant certiorari in cases that would have provided a vehicle for its reconsideration. "As I have explained several times, Feres should be overruled." Clendening v. U.S, 143 S. Ct. 11, 12 mem. (2022).

Feres is before the court again this term. Carter v. U.S., No. 23-1281. Ryan Carter, an Air National Guard reservist, sued for alleged medical malpractice during surgery at Walter Reed National Military Center. He ultimately received a 100% VA disability rating. Although there was some question as to whether Carter was on active-duty status at the time, the district court dismissed the case because it found all three Supreme Court's rationales to be satisfied. Carter v. U.S., No. ELH 21-1314 (D.Md. 2022) The Fourth Circuit affirmed in a memorandum decision. Carter v. U.S. No. 22-1703 (4th Cir. 2024). The high court has called for a response to Carter's petition from the Government. Meanwhile, he has received amicus support from veteran's organizations and members of Congress.

The arguments are similar to those made attacking Feres over the years. Changes in the structure of our military since 1950 to a small, all-volunteer force, the lack of a threat to military discipline should claims be recognized, and the lack of support in the text of the Act itself augur for the doctrine to be overruled. The existence of military benefits to injured service members does not trump the plain language of the statute.

The textual argument makes much sense. Congress enacted several exceptions to the Act including a "combatant activities" exception. 28 U.S.C. §2680(b). How can the court justify an additional judicially-created exception to the plain language of the statute? "Under this Court's precedents, if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis." Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93 (2007). So far, the court has failed to apply that principle to the Act.

Countering the argument is Congress' failure to address Feres beyond the exception of the Camp Lejeune Justice Act, passed in 2022. From 1953 to 1987, water contamination on the Camp Lejeune military base compromised the health and well-being of countless people living and working on the grounds. In 2022, Congress provided victims and their families a two-year window, now closed, to bring claims. PL 117-168 § 804. Given Congress' failure provide further relief from Feres, the court may not be inclined to "deliver the final push." McGirt v. Okla., 591 U.S. 894, 903 (2020).

We will soon know. No justification for Feres exists anymore, if it ever did. The Feres doctrine is solely a judicial creation. Given the lack of textual support in the Act and the lack of factual support for the court's original rationale, the court should abolish the doctrine.