The Feres Doctrine
In Feres v. United States (1950) 340 U.S. 135, the Supreme Court held that members of the armed forces may not bring tort lawsuits under the Federal Tort Claims Act (Tort Claims Act; 28 U.S.C. 2671 et seq.) for physical injuries that "arise out of or are in the course of activity incident to service." ( Feres, supra, 340 U.S. at p. 146.)
The rationale of Feres has been used to construe a wide variety of statutory and constitutional claims, and as the Attorney General observes, it has been referred to as the "Feres doctrine." But the Attorney General equates the Feres doctrine with a wholesale grant of intramilitary immunity to the Armed Services and a corollary principle that claims by military personnel are nonjusticiable.
Feres has been expanded, distinguished, explained, rationalized, and criticized for over 50 years. (See, e.g., United States v. Johnson (1987) 481 U.S. 681, 694-698 (dis. opn. of Scalia, J.); Day v. Massachusetts Air Nat. Guard (1st Cir. 1999) 167 F.3d 678; Taber v. Maine (2d Cir. 1995) 67 F.3d 1029; Miller v. United States (5th Cir. 1995) 42 F.3d 297; Nyberg v. State Military Dept. (2003) 2003 Wyo. 43 65 P.3d 1241; Estate of Himsel v. State (Alaska 2001) 36 P.3d 35.) Despite the ongoing and acrimonious debate over the validity of the justifications proferred by the court a half century ago, Feres survives. ( Costo v. United States (9th Cir. 2001) 248 F.3d 863.)
Indeed, Feres involves statutory construction. "The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining 'incident to the service' what under other circumstances would be an actionable wrong." ( Feres, supra, 340 U.S. at p. 138.)
The court acknowledged that there were "few guiding materials for our task of statutory construction." (Ibid.)
Turning first to the language of the Tort Claims Act, the court found persuasive evidence to sustain a finding of liability. "The Act does confer district court jurisdiction generally over claims for money damages against the United States founded on negligence. 28 U.S.C. 1346 (b).
It does contemplate that the Government will sometimes respond for negligence of military personnel, for it defines 'employee of the Government' to include 'members of the military or naval forces of the United States,' and provides that ' "acting within the scope of his office or employment," in the case of a member of the military or naval forces of the United States, means acting in line of duty.' 28 U.S.C. 2671." ( Feres, supra, 340 U.S. at p. 138.)
The court also pointed out that the express exceptions to the Tort Claims Act suggest that military claims are included within the act's ambit. "28 U.S.C. 2680 (j) excepts 'any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war' (italics supplied by Feres court), from which it is said we should infer allowance of claims arising from noncombat activities in peace. Section 2680 (k) excludes 'any claim arising in a foreign country.' " ( Feres, supra, 340 U.S. at p. 138.)
The Court stated: "These considerations, it is said, should persuade us to cast upon Congress, as author of the confusion, the task of qualifying and clarifying its language if the liability here asserted should prove so depleting of the public treasury as the Government fears." ( Id. at p. 139.)
Although the language of the Tort Claims Act would suggest, both expressly and impliedly, that tort claims by members of the Armed Forces against the government would be cognizable, the court construed the language to fit "into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole." ( Feres, supra, 340 U.S. at p. 139.)
The Tort Claims Act, the court explained, marked "the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit" (ibid.) and "to extend a remedy to those who had been without ..." ( id. at p. 140).
In this context, the Tort Claims Act prescribes the test of allowable claims, which is, "The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances ... ." (28 U.S.C. 2674; Feres, supra, 340 U.S. at p. 141.)
The court concluded that there was no liability of a "private individual" even remotely analogous or any "like circumstances" in that no law had ever permitted a soldier to recover for negligence. Hence, the court rejected the notion that Congress intended to extend the remedies of the Tort Claims Act to servicemen "where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command." ( Feres, supra, 340 U.S. at p. 146.)