Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

1Jul/130

Questioning the Feres Doctrine

In a 1950 Supreme Court decision that interpreted the Federal Tort Claims Act ("FTCA"), the Court held that the FTCA bars any damages suit brought by servicemembers for torts that arise out of their military service.   Thus began the so0called Feres doctrine.  Justice Thomas recently wrote a dissent from denial of certiorari in Lanus ex rel. Lanus v. United States, arguing that the Supreme Court should have grant cert to revisit the Feres doctrine:

There is no support for this conclusion in the text of the statute, and it has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees. I tend to agree with Justice Scalia that “Feres was wrongly decided
and heartily deserves the widespread, almost universal criticism it has received.” Johnson, supra, at 700 (internal quotation marks omitted). At a bare minimum, it should be reconsidered.

Read it all here.  Steve Vladeck of the American Univerity Washington College of Law agrees that it is long oversue to reconsider the Feres doctrine, but thinks that application of Feres to Bivens actions is the real issue:

But it’s important to keep in mind that the mischief caused by Feres isn’t limited to FTCA suits by servicemembers. The Supreme Court has relied heavily upon analogies to Feres in holding that servicemembers may not pursue Bivens suits for damages based upon violations of their constitutional rights arising out of their military service, and as Ben noted back in November, the en banc Seventh Circuit just held that military contractors could not pursue Bivens relief even for torture at the hands of the U.S. military, with Chief Judge Easterbrook’s analysis centering on Feres and the subsequent Supreme Court decisions relying upon it. The extension of Feres(il)logic to constitutional claims by servicemembers was bad enough; extending it to constitutional claims by civilian contractors would have the effect, as the Vance dissenters pointed out, of effectively immunizing the military from almost any damages liability. And yet no one–including Justice Thomas–dissented when the Supreme Court denied certiorari to review that decision on June 10.

Read it all here.  What do you think?

Charles A. Blanchard
General Counsel
United States Air Force