Feres Doctrine Commands Liability for Military

Last year, the U.S. Supreme Court denied certiorari in Lemp v. United States, No. 05-701 (Jan . 17, 2006). Though a denial of certiorari is not usually newsworthy, it was surprising this case and the court’s denial drew little attention, especially when many military men and women are serving in dangerous areas, there are problems with military recruitment and enrollment, an d thousands of injured service members are returning each year from fighting (more 22,000 injured and more than 3,000 dead thus far).  See e.g., Kilpatrick, James J., Unfair to Those in Service, (Jan. 18, 2006).
James Lemp was a captain in the Army. In January 2003, he was sent to an officer’s training camp at Fort Leonard Wood in Missouri. A few months after arriving at the camp, Lemp began showing signs of a “neurological abnormality,” which included severe headaches, double vision, dizziness, and vomiting. He died a day after being admitted to the hospital.
His family filed a “failure to monitor” medical malpractice claim against the government pursuant to the Federal Tort Claims Act, which permits recovery from the wrongful act or omission of a government employee acting within the scope of his employment “if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The lawsuit was dismissed for lack of subject matter jurisdiction. Why? Apparently, Feres v. United States, 340 U.S. 135 (1950), dictated the result.
Feres involved an Army Lieutenant who died in a fire at his barracks. The supreme Court affirmed the dismissal of his family’s FTCA claim, finding 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.” In reaching this conclusion, the high court offered three rationales: (1) the need to protect the distinctively federal relationship between the government and the armed forces; (2) the existence of statutory compensatory schemes for servicemen; and (3) the desire to avoid interference with military discipline and effectiveness. See, United States v. Johnson, 481 U.S. 681, 688-91 (1987).
Since Feres, a wide variety of claims brought by service members under the FTCA have been dismissed under the doctrine, including those based upon intentional torts committed by fellow servicemen (see e.g., United States v. Shearer, 473 U.S. 52, 53-4 (1985) (claim arising out of the murder of one serviceman by another while he was off duty and away from his base was barred); Smith v. United States, 196 F.3d 774, 777-78 (7th Cir. 1999) (rejecting service woman’s claim for sexual assault by her drill sergeant)), accidents which occur during voluntarily or recreational activities (See e.g., Costo v. United States, 248 F.3d 863, 868-69 (9th Cir. 2001) (dismissing claims by estates of Navy soldiers who drowned during a Navy-led recreational raft trip)), and even acts of medical negligence (see e.g., Jones v. United States, 112 F.3d 299,302 (7th Cir.  1999) (finding a serviceman’s medical malpractice claim was barred even though the injury occurred while he was on temporary assignment participating in trials for the 1992 United States Military Olympic team)).
While the cases have varied, the Feres bar has been applied consistently to all suits on behalf of service members against the government based upon service-related injuries. Part of the reason may be because courts have interpreted the “service-related” language in Feres to encompass any “on-duty” injury caused by any employee of the government. For instance, in the medical malpractice context, “once it has been determined that a service member was on active duty during the time military medical treatment was rendered, the treatment is necessarily incident to service and the judicial inquiry ends.” Jones, 112 F.3d at 302.
Feres, has been criticized by “countless courts and commentators.” See Anderson v. United States, 976 F.2d 736, 736 (9th Cir. 1992) (unpublished opinion); see also Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9 Cir. 1991) (following “a long tradition of reluctantly acknowledging the enormous breadth of a troubled doctrine” in affirming the dismissal of a claim brought by the family of a murdered serviceman against government); Taber v. Maine, 67 F.3d 1029, 1038 (2nd Cir. 1995)(finding the Feres Courts interpretation of the FTCA was “exceedingly willful” and “flew directly in the face of a relatively recent statute’s language and legislative history”). In 1987, however, a bare majority of the court in Johnson v. United States ignored that “widespread, almost universal criticism” (Johnson, 481 U.S. at 700 (Scalia, J., dissenting)), and re-affirmed the doctrine in a case involving a Coast Guard pilot whose helicopter crashed due to the negligence of FAA air traffic controllers.
Critics, like Kilpatrick, comment on the unfairness to servicemen and woman that results from a broad application of the doctrine. Others, like Justice Antonin Scalia, one of the doctrine’s opponents, have focused on both the lack of a statutory basis for that holding and the rationales offered in support of it. See Johnson, 481 U.S. at 692-703 (Scalia, J., dissenting). For instance, the FTCA contains specific exclusions for claims by service members, barring “a[ny] claims arising out tht the combatant activities of the military or naval forces, or the Coast Guard, During time of war. “ 28 U.S.C. § 2680(j). under the doctrine of expression  unis est exclusion alterius (the expression of one thing implies the exclusion of another), because Congress specifically addressed the circumstances under which claims brought by military personnel would be barred, courts have no power to “supplement” or “revise” that “congressional disposition.” See Johnson, 481 U.S. at 693 (Scalia, J., dissenting).
The Feres Court also relied on the “existence of statutory compensatory schemes for servicemen” as a basis for its holding. That rationale, however, has been “undermined severely,” according to Scalia, because both before and after Feres, servicemen were permitted to bring suits under the FTCA even though they had received statutory benefits for injuries sustained in the line of duty; and nowhere in those statutes did Congress include “exclusive remedy” language limiting recovery for injuries sustained while on-duty to those statutory benefits. See Johnson, 481 U.S. at 697-98 (Scalia, J., dissenting).
Though his dissent focused on the legal deficiencies of the reasoning behind the Feres doctrine, Scalia also expressed his opinion on the unfairness of the result: “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.” Johnson, 481, U.S. at 703 (Scalia, J., Dissenting).
Though the court declined to hear Lemp, there is hope for critics of the Feres doctrine. Only two members of the current court took part in the 5-4 decision in Johnson: Justice Scalia and John Paul Stevens. Both dissented.