Over the next few weeks, I will walk through the original rationale of that doctrine, beginning with that the relationship between the servicemember and the military is "distinctly federal in nature." But, what does that mean? The Supreme Court in United States v. Standard Oil Co. of California, 332 U.S. 301 (1947), in discussing a United States Army Soldier who was injured by a motor truck, where the driver of that motor truck was negligent, said
"Perhaps no relation between the Government and a citizen is more distinctively federal in character than that between it and members of its armed forces. To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal governmental agencies, the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority." 332 U.S. 305-6.
What the Court said is that the nature of a service member to the U.S. Government is different than most other relationships. Everyday citizens have connections to the federal government; W2 forms and federal income taxes, to name a few, but the service member is different. The same connections that the citizen has to the federal government, the service member has, as well, but those connections go well beyond that. The service member's boss is the federal government. That same W2 that everyone receives has the Department of Defense as the employer for the service member. Beyond that, federal law controls the service member to a degree hardly imagined by individuals not affiliated with the military. Being late to work is actually a federal crime for the service member. What is a warning or a write-up anywhere else could carry a federal conviction and jail time for the service member.
It seems axiomatic that a federal military member is "distinctly federal", but there are important caveats, and especially when considering the Feres Doctrine.
Any good 1L (first-year law school student) will tell you that tort law is distinctly state in nature. A tort is a civil wrong - the law of slips and falls, the law of car accidents, and the law of medical malpractice - broadly stated, a person breaches a duty owed to an individual (for e.g., not keeping the sidewalk free of ice after a storm), the the victim suffers harm that is directly caused by that breach. More importantly for us, tort law is governed by state law. That is, Alabama can make a decision about whether to set limits on recovery in medical malpractice cases, or Wyoming can set rules that govern how long an injured party has to sue, and all the states alphabetically in between them can set their own rules regarding tort law. These laws are often times governed by the unique perspectives and culture of those states - states with divergent histories may view the same issue very differently, and states can pass laws that are responsive to those specific beliefs or cultures.
The Federal Tort Claims Act - the act that service members try to sue the Department of Defense with - requires that people who sue the federal government use the law of the state that they were injured in! That is, a military doctor who injures a military plaintiff on a military base will be subject to the law of the state that they are in. The "distinctly federal" nature of the relationship between the service member and the federal government is weakened by the fact that notwithstanding all of the above being true, federal law doesn't govern the law of the case - it is state law, meaning that on the only point that matters, on the law that governs the case and its outcome, it isn't federal law at all.
Two main concerns have come from this. First, one issue addressed in Feres was that there would be unfairness to the soldier in his/her recovery since two states may have wildly different laws that govern the amount of damages for the same negligent act. Second, and this developed a bit after Feres, was that different results would affect the military's need for uniformity in its governing standards. Put another way, if Soldier 2 hears that Soldier 1 received $50,000 for an injury and Soldier 2 received $25,000 for the same injury, Soldier 2 feels cheapened in an important way, reducing the cohesion in the ranks, and, therefore, reducing military readiness. Justice Scalia, in the dissent of United States v. Johnson, 481 U.S. 681 (1987) makes both of these points, further elaborating that presently, the civilian can recover against Doctor X, but the military member can't, for what might be the same negligent act.
In the coming weeks, I'll walk through the remaining arguments in support of the Feres Doctrine, and assess current discussions in Congress about whether to remove this bar to service member recovery.