What Is the Feres Doctrine?

The Feres doctrine is a legal doctrine that prevents active members of the armed services from bringing a civil “tort suit” against the federal government based on injuries sustained from military service. This doctrine gets its name from the United States Supreme Court case, Feres v. United States, in which the Supreme Court held that the federal government was not liable for injuries to servicemen under the Federal Tort Claims Act. Here are a few more details to help explain what is the Feres doctrine:

What Is a Tort?

First, it’s important to understand the area of the law called “tort law.” A tort is a civil wrong caused by either an intentional act or negligence. Tort claims are brought by a private party in a civil suit (as opposed to a criminal suit, where the government brings the claim through a prosecutor) requesting a civil remedy, which is normally money damages.

Torts generally fall into three categories: intentional torts, strict liability torts, and negligent torts. Intentional torts are intentional actions that cause harm, such as assault, battery, intentional infliction of emotional distress, trespass, or false imprisonment– and strict liability torts normally involve injuries due to defective products. The vast majority of torts, however, are the result of negligence, such as medical malpractice or wrongful death.

What Is the Tort Claims Act?

The Federal Tort Claims Act (FTCA), enacted in 1946, is legislation that allows individuals to sue and recover money damages when a tort was committed by a federal government employee acting on behalf of the federal government. This means that if a government employee was working in his or her official capacity, performing official government duties, and he or she commits a tort, the government can be liable for the actions of its employee Traditionally, citizens were not able to sue their state under the doctrine of sovereign immunity. The Federal Tort Claims Act is essentially a limited waiver of sovereign immunity by the government.

There are some limitations and exceptions to the FTCA. Specifically, the Act states that the government will not be liable for any interest that accrues prior to the judgment or for punitive damages, which are damages meant to punish the at-fault party. The biggest exception to the Federal Tort Claims Act is the Feres doctrine, which was decided by the Supreme Court in the Feres v. United States case. Under this legal doctrine, active members of the military cannot sue the federal government for negligence.

What Happened in Feres v. United States?

Feres v. United States was decided by the U.S. Supreme Court in 1950. The case considered three lawsuits by servicemen or their families based on Tort Claims Act. In the Opinion written by Justice Jackson, the Court looked at three cases pending in the federal courts:

• Feres v. United States. Feres was an active duty service member who died in a fire in the barracks at Pine Camp, New York. His widow sued and claimed that the military was negligent in housing him in barracks that they knew or should have known were not safe because of a defective heating plant and the failure to keep a fire watch.
• Griggs v. United States. Griggs was also an active duty service member whose family sued for negligent treatment by army surgeons.
• Jefferson v. United States. Jefferson, also on active duty, underwent abdominal surgery, and it was discovered 8 months later that a towel had been negligently left in his stomach by an army surgeon.

These cases all shared the question of whether active service members could sue the federal government under the Federal Tort Claims Act for negligence. The Supreme Court was asked to interpret what types of claims the Federal Tort Claims Act would allow.

The Supreme Court explained that the Federal Tort Claims Act was an effort to remedy the unfairness of sovereign immunity and that the purpose of the Act was to give a remedy to those injured by the federal government who previously would have had no remedy. However, the Court interpreted the FTCA as not applying to military injuries because it believed that the FTCA was never intended to apply to service members. The Supreme Court made the following conclusions:

• The relationship between military servicemen and the Government is governed exclusively by federal law.
• When Congress drafted the FTCA, it did not create a “cause of action” (right to sue) allowing servicemen to sue for negligence or wrongful death under local laws.
• The Government is not liable under the FTCA for injuries to servicemen when the injury occurred during “activity incident to service.”

When Does the Feres Doctrine Apply?

First, the Feres doctrine does not prevent the families (spouses and dependents) of service members from suing the government.

Second, the Feres doctrine also only prevents service members from suing based on injuries or death that happened “incident to service.” This only applies to claims that the accident happened within the scope of the military member’s duty, such as an injury during training or surgery for an injury sustained during military operations. If the serviceman was injured by an employee of the federal government while at home, not on active duty, he or she would still have a claim against the federal government.

Where Does the Feres Doctrine Stand Today?

There have been challenges to the Feres doctrine since it was decided in 1950. Many cases have asked the courts to reconsider the Feres decision, but the courts have been reluctant to overturn Feres as legal precedent.

However, the Department of Defense recently released new guidelines in 2020, allowing active military to sue for medical malpractice. This created an administrative process to hear a service member’s medical malpractice claims. Previously, the only parties allowed to file medical malpractice lawsuits were >military spouses and dependents, retired military, and veterans.

This 2020 National Defense Authorization Act (NDAA) gives service members and their families two years after the incident to file their medical negligence claim, “for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a Department of Defense health care provider.” This creates a limited exception to the Feres doctrine for medical malpractice, but does not extend to personal injury or death claims that did not occur in a “covered military treatment facility” or were caused by medical malpractice of a civilian employee of the Department of Veterans Affairs.

Do You Need a Military Negligence Lawyer?

Filing a claim against the federal government is a daunting process and because of the Feres doctrine, it is even more intimidating as a service member. The Feres doctrine has prevented servicemen from filing claims for decades, but the recent NDAA has provided a potential path for injured military members to recover from their injuries. However, these guidelines are very recent and limited to only allowing claims by servicemen in certain circumstances. This makes having an experienced lawyer who understands the guidelines crucial to your success in filing a claim. The lawyers at Regan Zambri Long, PLLC will help you defend your rights and will protect your interests. Call today for a free consultation with an experienced lawyer who can work with you to recover the money you are entitled to.