The Supreme Court rejected a case Monday that challenged the Feres doctrine, a 1950s judicial ruling that prevents active-duty service members from suing the government for wrongful injury or death.
With the court’s announcement that it would not hear the case, however, Justice Clarence Thomas issued a strong 14-page dissent, calling the 75-year-old rule of law “indefensible … and senseless as a matter of policy.”
“This court should overrule Feres,” Thomas argued in an opinion in support of hearing the case, Ryan G. Carter v. United States. “The Feres doctrine has no basis in the text of the Federal Tort Claims Act, and its policy-based justifications make little sense. It has been almost universally condemned by judges and scholars.”
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Thomas has previously argued that the Supreme Court should reexamine Feres, established by the court in the 1950s following several wrongful death suits brought by the families of service members who died as the result of negligence or accident, including two troops who were killed by a civilian contractor driving an Army truck; two who died as a result of medical malpractice by military doctors; and Lt. Rudolph Feres, who was killed in a barracks fire caused by a defective heater.
In the Feres case, the court ruled that the federal government had immunity from claims for injuries considered “incident to military service.” The decision effectively barred active-duty personnel from suing the U.S. government for anything.
In 2019, the last time the court considered a Feres-related case, Justice Ruth Bader Ginsburg voted in favor of hearing the case, and Thomas, in agreement with Ginsburg, argued that Feres would continue to dog the judiciary and deny relief to military personnel until it was reviewed.
He made his case again Monday.
“The Feres doctrine significantly impacts injured service members and their families by preventing suits over claims with a tenuous connection to military life — like negligent care for a vacation-related stingray injury. The doctrine barred recovery in cases where negligent conduct led to a towel that read ‘Medical Department U.S. Army’ being left in a man’s stomach, a service member losing a leg due to flesh-eating bacteria, the rape of a young cadet at West Point,” Thomas wrote.
In the most recent case, Air National Guard Staff Sgt. Ryan Carter was admitted to Walter Reed National Military Medical Center in Bethesda, Maryland, in April 2018 for back surgery to address chronic neck pain. But the procedure left him a quadriplegic, unable to take care of himself.
At the time of the surgery, Carter was not on active-duty orders or medical orders — an inactive status his attorneys said allowed him to file a malpractice claim against the government under the Federal Tort Claims Act.
Nearly three months after the surgery, however, the military changed his status to active duty and backdated it to March 14, 2018 — a move officials argued was necessary to ensure that Carter’s care was covered by the military but also disallowed any claims under Feres.
His attorney had hoped that, given previous statements by Thomas and former members of the court, including the late Justice Antonin Scalia, the court would accept the case.
In filing Carter’s petition to the court, attorney Christopher Casciano said the case represented “yet another chilling example of the breadth and injustice of Feres.”
“Under Feres, military service members and their families receive arbitrarily disparate treatment under the law, as compared to both civilians and their ex-military, veteran counterparts,” Casciano wrote.
Casciano did not respond to a request for comment on Monday regarding the court’s denial of the petition.
Congress has instituted at least two exceptions to the prohibition on service members filing claims or lawsuits for malpractice: The 2020 National Defense Authorization Act allowed troops to file compensation claims with the Defense Department for malpractice at U.S. military medical treatment facilities, and service members assigned to Camp Lejeune, North Carolina, were allowed to file tort claims, followed by civil lawsuits against the government for injury or illness caused by exposure to contaminated drinking water from the 1950s through 1987.
The Supreme Court last accepted a challenge to Feres in 1987, deciding in a 5-4 decision to uphold the ruling in U.S. v. Johnson, a case brought against the Coast Guard by the widow of a helicopter pilot who died in a crash during a rescue mission but was under the direction of a civilian air traffic controller.
The majority ruled that the death was directly related to military service. But at the time, writing in dissent, Scalia said, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”