Cat McKenna
Edited by Coco Chen (Senior Editor) and Bei Jia Viggiano (Junior Editor)
Abstract:
In 1950, the Supreme Court’s decision in Feres v. United States established the Feres Doctrine, which barred active-duty service members from suing the federal government for injuries deemed “incident to military service”, a purposefully ambiguous term. As a result, many active-duty members have been unable to file claims under the Federal Tort Claims Act (1946) for issues such as medical malpractice, sexual assault, and other incidents. Besides limited legislative and judicial efforts to mitigate its effects, the doctrine continues to deny jurisdiction to service members, raising serious concerns about justice, accountability, and the balance of power. In addressing this concern, this article will examine whether the doctrine must be overruled to ensure permanent legal precedent that protects service members.
Introduction
For active-duty military personnel, reservists, and veterans, “Thank you for your service” is often repeated as a token of national gratitude. However, beneath this honor and pride lies a troubling contradiction: a lack of meaningful action and accountability from the United States Federal Government to ensure protection. In 1950, the Supreme Court’s decision in Feres v. United States barred active-duty servicemembers from suing the federal government for injuries deemed “incident to military service,” establishing the Feres Doctrine. In cases of medical malpractice and sexual assault on military bases and institutions across the country, the Feres Doctrine must be challenged to ensure that service members are guaranteed equal protection and due process under the law.
To confront the Feres Doctrine, this paper will explore the legislative history surrounding sovereign immunity, analyze the Supreme Court’s decision reinstating federal immunity for service members, and argue that this expansion causes judicial negligence that violates the 14th Amendment. Finally, it will present current remedies to the Feres Doctrine and advocate for its overturning to ensure permanent constitutional protections for service members’ cases of sexual assault and medical malpractice.
The Federal Tort Claims Act: A Complicated History
The Federal Tort Claims Act contains substantial legal loopholes. Despite legislative progress to limit federal immunity leading up, the sections about service members hinder that progress. Congress passed the FTCA in 1946, allowing private individuals to sue the United States Government for specific wrongful acts committed by federal employees. Before FTCA, sovereign immunity protected the Federal Government from being sued. However, this changed after the FTCA, as plaintiffs can sue the federal government as if it were a private party. Since the FTCA, sovereign immunity has been limited, but the act has come with a few exceptions. According to the Congressional Research Service, section 2680 lists the type of claims plaintiffs may not pursue against the federal government: Section 2680 (a) encapsulates the “discretionary function exception” that protects the United States from a liability that involves the federal employee’s personal choices. Section 2680(a) prevents plaintiffs from suing the U.S in “intentional torts.” Preceding the Feres v. United States, FCTA Section 2680(j) “shields the United States from any tort claim ‘arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war”. If a lawsuit contains any of these exceptions, the FTCA does not apply. Yet, in 1950, this provision was expanded to limit the liability for military-related cases further.
The scaled-back restraints on sovereign immunity in the FCTA Section 2680(a) and Section (j) make the legal process difficult for military members. After Feres, these protections were limited. In 1947, Lt. Rudolph Feres, along with other officers, was killed by a fire in the barracks at Pine Camp, New York. These barracks were built with significant flaws in safety and fire prevention. Feres grouped with Griggs v. United States and Jefferson v. United States, cases involving military medical malpractice, sued for damages under the FTCA. When the case was appealed to the U.S Supreme Court, all three claims were dismissed, creating the precedent known today as the Feres Doctrine, hindering proper accountability within military leadership and the federal government for the next 70 years.
The Majority Opinion: The Scope of Sovereign Immunity
The Court’s decision in Feres expands the scope of sovereign immunity. In the majority opinion, Justice Robert Jackson briefly discussed the FCTA and its crucial role in immunity. He argued that the act “marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit”. Regarding tort claims against the United States, he stated that just because the courts have jurisdiction to hear lawsuits against the federal government, it does not mean these lawsuits will succeed. Therefore, the FCTA is viewed as a potential door opener for case-by-case lawsuits.
However, despite this established jurisdiction, the philosophy surrounding military personnel changes. Justice Jackson later examined the federal government acting as a private party and drew a comparison to that of a state and a militia. He argued that even if a “private individual” could include a state government, states don’t allow their militia members to sue for injuries suffered during service. He then pointed out that in a military context, both the service member and the perpetrator of the tort are federal by nature, rendering such claims invalid against the United States. In concluding his argument, he cited that the legislature has the authority to amend the FTCA and that compensation is already established through the Veterans Affairs Program. Therefore, active-duty service members cannot sue under the FTCA for scenarios related to military service, as there are alternative avenues. Ultimately, the Court concluded that “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,” distorting the FCTA’s original intent for tort claims to be resolved on a case-by-case basis and inventing the “incident to military” principle halts claims from military personnel, establishing federal immunity against these groups.
The Overstepping of Sovereignty and the Negligence of the Court
The majority opinion’s re-establishment of sovereign immunity violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. By preventing active-duty personnel from filing a tort claim, the Doctrine creates legal tiers within federal service and prevents civilian courts from exercising jurisdiction over tort claims.
The Court’s reinstatement of sovereign immunity to service members defies the Equal Protection Clause. The majority opinion articulates, “The relationship between the Government and members of its armed forces is ‘distinctively federal in character.’” This phrase implies that the military relationship reflects the constitutional principles of the federal system, particularly the divisions between the state and federal governments. While the armed forces are a national institution, they operate within the federal framework. This complicates access to remedies under the Federal Tort Claims Act and sets them apart from civilian employees, as it distinguishes a dual authority for the military. Therefore, federal workers who are citizens can sue under the FTCA, but active-duty service members are prevented from doing so due to this claim. This distinction creates two separate classes of legal access: one with full protection under the FTCA and another, composed of military personnel, with significantly limited or no access at all. For example, a civilian could sue for sexual assault under the FTCA, while military personnel cannot. This formation of separate classes of legal access serves as a violation of the Equal Protection Clause. The military may be structurally different, but in principle, it is a federal job, and its service members are federal employees. The existence of this legal “line” raises a fundamental question: Why should service members be denied the right to sue the federal government for workplace-related harm when their civil servants retain that right? The decision in Feres’s “incident to military service” forecasts a division that contradicts the Equal Protection Clause.
In addition to the 14th Amendment’s Equal Protection Clause, federal immunity implemented by Feres violates the Due Process Clause. The first part of this violation is the Court’s reallocation of power to Congress. Justice Jackson went on to write in the opinion, “Congress, which provides systems of simple, certain, and uniform compensation for injuries or death of those in armed services.” This statement highlights the authority of the legislature to address claims arising out of military service, creating a structural constitutional conflict. Reflecting on checks and balances, while Congress creates laws and allocates federal funding, the Court is responsible for deciding whether or not legislative actions are unconstitutional. Since the Court said that military Tort claims are covered by Congressional compensation, it strips away jurisdiction for service members’ tort lawsuits. Moreover, the court distorted the FCTA’s original intent for tort claims to be resolved on a case-by-case basis, gave the ‘jurisdiction’ over to Congress, and extended the sphere of immunity.
Second, this structural constitutional conflict leads to judicial negligence and denial of due process. By barring jurisdiction from active-duty personnel, the Feres Doctrine obstructs a path to accountability for harms like medical malpractice and working conditions. This absence of accountability fosters negligence in the court, ultimately denying due process. For example, the court noted that “the few cases charging superior officers or the Government with neglect or misconduct which have been brought since the Tort Claims Act, of which the present are typical, have either been suits by widows or surviving dependents, or have been brought after the individual was discharged.” An illustration of this issue is found in Daniel v. United States, where the plaintiff alleged that his wife, a Navy lieutenant on active duty, died during childbirth due to negligent medical care at a Navy hospital. Under the Feres Doctrine, the plaintiff was denied a writ of certiorari to appeal the case. The inability to appeal the case reveals a denial of due process, as the plaintiff, a Navy dependent, was prevented from seeking proper compensation for harm inflicted by the government and judicial negligence. In cases like Daniel v. United States, the Feres Doctrine and the FTCA restrict access to legal justice, obstructing active-duty service personnel from receiving due process of law.
Legislative Remedy and Future Implications
There have been slight improvements in prosecuting and protecting service members from medical malpractice that have remedied the Feres Doctrine. In 2009, Congress passed the Carmelo Rodriguez Military Medical Accountability Act. The bill added a new section to the United States Code allowing service members to file claims when harmed by medical malpractice that directly relates to a government-employed healthcare system. This exclusion only applies to those serving in combat positions who can file for tort claims, but it expands the scope of protection under the FTCA. In 2020, under the Richard Stayskal Medical Accountability Act, current members of the military can file an administrative claim for medical malpractice if they have suffered injury or death due to the negligence of a federal employee providing healthcare. Although these acts signal legislative progress in confronting medical malpractice, there is a lack of litigative progress in protecting service members. There is no clear legal precedent, which can lead to resistance in military legal structures. Therefore, the Feres Doctrine must be overturned to ensure that military personnel have access to a civil court.
Looking forward, this lack of legal precedent is harmful regarding cases of sexual assault on military bases and institutions. In the years of post-9/11 wars and military service, independent studies suggest that reports are 2 to 4 times higher than what the Department of Defense estimates, which is 75,569 in 2021 and 73,695 in 2023. Moreover, during the American war in Afghanistan, 24% of service of female service members experienced sexual harassment or assault, and 1.9% of male service members experienced sexual harassment or assault. In these instances, the absence of permanent legal precedent prevents many survivors of sexual assault from pursuing their cases in civilian court, as the Department of Defense fails to report and hold parties causing harm accountable. Furthermore, the military chain of command often places survivors in the position of reporting their assault to a superior who may have a connection to the perpetrator, making it more difficult to come forward. In a civil servant job, this position may occur as well, but unlike military personnel, civil servants can sue the federal government under the FTCA and have due process of law. While there has been some progress in Spletstoser v. Hyten, where the court ruled that sexual assault is not considered “incident to service,” the doctrine is still precedent. Thus, the Feres Doctrine must be overturned so active-duty personnel have equal protection under the law and establish an essential precedent that holds the federal government accountable.
Conclusion
In Feres v. United States, the federal government failed to protect active-duty military members by denying them basic constitutional rights to due process and equal protection under the guise of federal immunity. Similarly, the Court’s decision broadened the scope of federal immunity and shifted authority to Congress, thereby violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment. While there has been some progress in addressing medical malpractice and cases of sexual assault within the military, service members remain vulnerable as they still do not receive the same legal protections as civilian federal employees under the Federal Tort Claims Act (FTCA). Looking ahead, the Feres Doctrine must be overturned to establish a legal precedent that guarantees equal protection and due process for all federal employees, including active-duty service members.
Bibliography
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Griggs v. United States, 178 F.2d 1 (10th Cir. 1949).
Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949).
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