Rethinking Feres

97 Pages Posted: 3 Mar 2019 Last revised: 17 Apr 2019

See all articles by Andrew F. Popper

Andrew F. Popper

American University, Washington College of Law

Date Written: January 25, 2019

Abstract

In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to those harmed by individuals acting on behalf of the federal government. Liability was limited from the outset by the vague and vexing discretionary function exception as well as limits on punitive damages, jury trials, attorney’s fees, injuries sustained abroad, and injuries sustained in combat. Unresolved by the FTCA was the fate of service members injured by actions incident to military service but outside of armed conflict.

Four years after the passage of the FTCA, the Supreme Court decided Feres v. United States, and in a few pages placed dramatic limits on the rights of millions of Americans. The Court rationalized these limitations on the need to maintain order and discipline, chain-of-command, unfair or unjust enrichment, and efficiency. The force of this decision was apparent immediately: most of those injured incident to military service would be denied access to the very system of justice they pledged to defend. Also lost was the potent deterrent effect of civil tort sanctions and the corresponding accountability those sanctions generate.

On enlistment, service members agree to be bound by a separate set of rules, a system bounded by discipline and unquestioning compliance with lawful orders. That oath does not include the concession to be without recourse should they be injured by impermissible misconduct. More than a half century ago, the late Chief Justice Warren stated that “citizens in uniform” should not be stripped of their basic rights simply because they are members of the armed forces, and yet, to date, Feres continues to be the law of the land.

In recent years, those who serve have been thanked by presidents and lauded at the start of nationally broadcast sporting events. Service members are routinely called heroes – and they are. Yet these gestures are incomplete when accompanied by a deprivation of one of the basic rights due to all citizens. Those most entitled to it, those willing to fight and die for it, cannot experienced the great promise of our legal system: fair hearings, a level playing field – in short, the blessings of simple justice.

The challenge of this article is that the same immunity that shields wrongdoers has also played a role in the evolution of our unquestionably extraordinary and exceptional armed forces. These are potent competing forces. Against this backdrop, it is time to rethink Feres.

This article discusses Feres v. United States, the FTCA, the expansion of the “incident to service” prohibition, and makes the following recommendation: Feres should be overturned and the FTCA amended to allow access to justice in Article III courts for those injured by actions that are neither incident to nor essential to military service. These actions include sexual assault, rape, vicious and unjustified physical violence, clear or gross medical malpractice, repetitive incidents of driving under the influence, nonconsenting exposure to toxins, and invidious discrimination.

When those who engage in misconduct are held accountable, when government is obligated to remedy those wrongs, respect for order, discipline, and all standards will increase. When uniformly condemned actions are subjected to public scrutiny in Article III courts, the probability of future similar misconduct will decline.

Keywords: Feres, torts, FTCA, military, rape, medical malpractice

JEL Classification: K13

Suggested Citation

Popper, Andrew F., Rethinking Feres (January 25, 2019). Boston College Law Review, Vol. 60, No. 6, 2019; American University, WCL Research Paper No. 2019-08. Available at SSRN: https://ssrn.com/abstract=3322838

Andrew F. Popper (Contact Author)

American University, Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4233 (Phone)

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