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Opinion

How the Feres Doctrine Hurts Soldiers and Veterans

November 11, 2014
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4min read

In 1950 – many Veterans’ Days ago –  the US Supreme Court heard the case Feres v. United States, itself a union of three suits concerning servicemen injured while on active duty. The titular plaintiff, Rudolph Feres, was killed in 1947 by a fire in his barracks; his wife sued the Army, alleging negligent fire-safety protocol and defective heating mechanisms. The other two plaintiffs were victims of bungled surgeries.

You probably know how this story ends: the Court held that service-members cannot file suit against the US government for injuries that “arise out of or are in the course of activity incident to service.” Sixty years later, the Feres Doctrine has borne a controversial body of judicial theory barring soldiers and veterans from seeking damages for often-shocking acts of negligence.

In 2011, for instance, the Court refused to hear the case of Witt v. United States. Dean Witt was a staff sergeant who fell into a persistent vegetative state after a standard appendectomy at an Air Force hospital. According to medical records, doctors pushed a breathing tube into his stomach and used resuscitation equipment designed for children. Witt died three months after the surgery when his family pulled life support; they later sued the Air Force for medical and funeral expenses, as well as damages for suffering and lost salary. The Court declined the case without comment, though the specter ofFeres hung quite obviously over its decision.

The Doctrine has detractors in uniform, out of uniform, and even on the bench. In 2013 the Supreme Court refused to hear Lanus v. United States, another case seeking revisitation of Feres. Justice Clarence Thomas wrote a two-page dissent arguing that SCOTUS should have accepted the case:

There is no support for this conclusion in the text of the statute, and it has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees. I tend to agree with Justice Scalia that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” At a bare minimum, it should be reconsidered.

Feres’s persistence in the face of such high-profile disdain is not only perplexing, but patently destructive. That same year, the Court denied certiorari to Read v. United States, a case whose plaintiff – Colton Read, an Air Force pilot – lost both of his legs in a botched surgery. Read’s attorneys argued that because military doctors are protected from liability, medical malpractice is “rampant” in the armed forces.

Among the more alarming consequences of the Feres Doctrine are a series of decisions barring military personnel from filing discrimination claims under the Civil Rights Act. Uniformed victims of sexual harassment and assault, who already face a litany of barriers to justice, are effectively locked out of the civil courts.

Feres is purely a judicial construct with no legislative siblings. It rests on the curious logic that civil suits upend military discipline – curious given the doctrine’s eventual expansion to bar servicemen’s claims against civilian contractors. As a creation of the judiciary,Feres appears determined only to perpetuate itself; if there is a solution, activists suggest, it must come from Congress.

Civilians injured as a result of wrongdoing or negligence by federal agencies have a powerful ally in the Federal Tort Claims Act. This 1946 statute rejected centuries of common-law doctrines that held governments immune from prosecution. Today the FTCA is a bastion of our legal system, affording justice to thousands of plaintiffs each year. That it means nothing to our soldiers and our veterans is – at a bare minimum – a shameful failure.

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