It's Time to Start Over - John C. Wunsch, P.C.
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It’s Time to Start Over

Transportation accidents, maritime accidents, aviation accidents––all within our society have the right to bring civil lawsuits to recover damages except one: those who serve in the Armed Forces. Our servicemen and women are prohibited from filing civil actions against the United States in Federal Court for accidental injury or wrongful death if such occurs within the course of their military service.

On December 4, 1950, the United States Supreme Court decided Feres vs. United States, and held that those serving in the armed forces could not bring civil lawsuits against the government for injuries or death sustained while acting in the course of their military duties. Feres vs. United States, 340 U.S. 135 (1950). We are now approaching the sixty-eighth anniversary of this decision: it’s long past time for the US Supreme Court to retire the Feres doctrine.

Here’s a recent statement of the Feres rationale: “Doe’s claim thus “strikes at the core” of the concerns implicated by the incident-to-service rule: that civilian courts are ill-equipped “to second-guess military decisions” regarding “basic choices about the discipline, supervision, and control” of service members, Shearer, 473 U.S. at 57-58, 105 S.Ct. 3039, that doing so could impair “military discipline and effectiveness” in unintended and unforeseen ways, id. at 59, 105 S.Ct. 3039, and that the “explicit constitutional authorization for Congress `[t]o make Rules for the Government and Regulation of the land and naval Forces,'” counsels hesitation as to the wisdom of money damages litigation, where Congress has not authorized it, Stanley, 483 U.S. at 681-82, 107 S.Ct. 3054 (quoting U.S. Const. art. I, § 8, cl. 14).” Doe vs. Hagenbeck, 870 F.3d 36 (2nd Cir. 2017).

This rationale has runs its course. It’s obsolete, archaic; it’s also false. Federal Courts are perfectly equipped to handle injury and death cases involving servicemen. These cases are no different in kind or complexity than any other accident case. At its highest levels, military decision making will remain unrestricted and unhampered. The notion that a filing for injuries sustained by a serviceman in Federal Court has the power to “impair” “military discipline and effectiveness” assumes that basic day-to-day safety awareness and military readiness somehow are contradictory goals. They are not; they are congruent goals.

The arbitrariness of the Feres doctrine becomes apparent when it’s considered that prisoners within our federal prison system have greater rights to bring civil lawsuits against the government than do our servicemen and women. Some may hypothesize a “floodgate of cases,” but this is unlikely to occur since the Federal Tort Claims Act already has in place a statutory limit, barring “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”

The US Supreme Court decision of United States vs. Johnson, 481 U.S. 681 (1987) involved yet another Feres dismissal, this time involving a helicopter crash: “Her complaint sought damages from the United States on the ground that the FAA flight controllers negligently caused her husband’s death.” But what’s remarkable about Johnson was the author of the dissenting opinion. Surely it would be written by one of the more liberal members of the Court. In fact, the author of the dissent was Justice Antonin Scalia, who wrote:

“To the extent that reading the FTCA as it is written will require civilian courts to examine military decisionmaking and thus influence military discipline, it is outlandish to consider that result “outlandish,” Brooks v. United States, 337 U. S., at 53, since in fact it occurs frequently, even under the Feres dispensation. If Johnson’s helicopter had crashed into a civilian’s home, the homeowner could have brought an FTCA suit that would have invaded the sanctity of military decisionmaking no less than respondent’s. If a soldier is injured not “incident to service,” he can sue his Government regardless of whether the alleged negligence was military negligence. And if a soldier suffers service-connected injury because of the negligence of a civilian (such as the manufacturer of an airplane), he can sue that civilian, even if the civilian claims contributory negligence and subpoenas the serviceman’s colleagues to testify against him. In sum, neither the three original Feres reasons nor the post hoc rationalization of “military discipline” justifies our failure to apply the FTCA as written. Feres was wrongly decided and heartily deserves the “widespread, almost universal criticism” it has received. In re “Agent Orange” Product Liability Litigation, 580 F. Supp. 1242, 1246 (EDNY), appeal dism’d, 745 F. 2d 161 (CA2 1984).”

Feres has become such an outlier that some Federal Courts have now resorted to issuing formal apologies to families unjustifiably harmed by its dictates. See, e.g., Daniel vs. United States of America, 16-35203 (9th Cir. 2018)(“As we have done many times before, we regretfully reach the conclusion that his claims are barred by the Feres doctrine and, therefore, affirm.”)

Like a festering abscess, Feres remains to be surgically excised. Once reversed by the US Supreme Court, the law in this area will start from scratch, grow organically case by case, and reasonable judgments will be made to accommodate both the needs of the military and the needs of servicemen. There will be an initial spike in cases, but after a time the law in this area will settle down as it always does. It’s been a long time coming, nearly seventy years. It’s time to start over.