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Abolish the Feres Doctrine
Michael Ramsey

In the New York Times, Stephen Vladeck (Texas): Congress Should End a ‘Harsh and Unfair’ Rule That Blocks Troops From Court.  From the introduction:

The Supreme Court justices Clarence Thomas and Ruth Bader Ginsburg don’t agree on much. On Monday, however, they both dissented from their colleagues’ decision to deny review of Daniel v. United States, in which Walter Daniel, whose wife, Rebekah Daniel, died four hours after giving birth to their daughter, had brought a suit for medical malpractice and wrongful death. He claimed that his wife’s death resulted from the negligence of the medical staff.

In any other context, this case would hardly attract the Supreme Court’s attention. But Mr. Daniel’s wife was a lieutenant in the United States Navy and was treated at a military hospital, and so his suit on her behalf was foreclosed by the Supreme Court’s 1950 decision in Feres v. United States. That unanimous decision bars any and all lawsuits brought by service members against the federal government for injuries that “arise out of or are in the course of activity incident to” their military service.

And from later on:

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

Here's Justice Thomas, dissenting from denial of certiorari in Lanus v. United States (2013):

The [Federal Tort Claims Act (FTCA)] is a sweeping waiver of sovereign immunity that, under specified circumstances, renders the Government liable for money damages for a variety of injuries caused by the negligence of Government employees. 28 U. S. C. §1346(b)(1). As written, the FTCA “renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.” United States v. Johnson, 481 U. S. 681, 693 (1987)
(SCALIA, J., dissenting). While the Act contains a number of exceptions to this broad waiver of immunity, “none
generally precludes FTCA suits brought by servicemen.” Ibid. Congress contemplated such an exception, Feres, supra, at 139, but codified language that is far more limited. See §2680(j) (excluding from waiver “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war” (emphasis added)).

Nevertheless, in Feres, the Court held that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U. S., at 146.  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.

And Justice Scalia, joined by Justices Brennan, Marshall and Stevens, dissenting in Johnson v. United States (1987):

[T]he Feres rule is now sustained only by three disembodied estimations of what Congress must (despite what it enacted) have intended. They are bad estimations at that.


Had Lieutenant Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country's Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received. If our imposition of that sacrifice bore the legitimacy of having been prescribed by the people's elected representatives, it would (insofar as we are permitted to inquire into such things) be just. But it has not been, and it is not. I respectfully dissent.

Agreed on all counts.  But note that Feres is fundamentally a nonorignalist opinion.  It purports to find what the enacting Congress intended, but it does so not on the basis of text or historical evidence; rather it speculates about what Congress intended based upon the Court's assessment of what the best contemporary policy would be.  And somehow people keep supposing that turning the Court loose to decide cases on such grounds will more often lead to just results.