Sacrosanct no More? A Brief History of Feres and the Federal Tort Claims Act, and the Pair of Cases that Threaten to Undermine Doctrine
Feres v. United States is unique in its application, striking in its apparent consistency to subsequent opinions, permeating and salient in its understanding by military legal practitioners, and as close as possible to being sacrosanct. Since its decision in 1950, the Feres doctrine has been nearly unprecedented in how it has been treated and understood by legal professionals. While the Federal Tort Claims Act subjects the United States to liability from all persons, that liability is exempted under certain exceptions. Since it was decided, Feres has stood as precedent that is inflexible and all-consuming. “[T]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” In case after case from the Supreme Court through the circuit courts, this rule has been followed, barring otherwise permissible claims due only to the injuries arising due to service.
While Feres has stood, it has not been without criticism from academics and practitioners alike. However, until very recently, this criticism has been largely contained within newspaper articles and anecdote.
However, two cases in 2013 that rose to the Supreme Court evidenced a high-water mark of Supreme Court-recognized dissent and distinction from Feres. The first, a case that explicitly decided that a statute permitting lawsuits against the United States under the FTCA be the exclusive remedy for injuries resulting from medical malpractice, and the second, a denial of a writ of certiorari which contained a dissent, explicitly questioning Feres and stating that it should be reexamined.
While Feres has stood, it has not been without criticism from academics and practitioners alike. However, until very recently, this criticism has been largely contained within newspaper articles and anecdote.
However, two cases in 2013 that rose to the Supreme Court evidenced a high-water mark of Supreme Court-recognized dissent and distinction from Feres. The first, a case that explicitly decided that a statute permitting lawsuits against the United States under the FTCA be the exclusive remedy for injuries resulting from medical malpractice, and the second, a denial of a writ of certiorari which contained a dissent, explicitly questioning Feres and stating that it should be reexamined.
