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The "Feres Doctrine"

The Feres Doctrine is a body of law which is comprised by three cases:

Case Number One...

Feres v. United States: Lt. Feres was an Army officer stationed at Pine Camp, New York in the late 1940's. As the story goes, Lt. Feres told his wife on several occasions that the heating plant in the barracks was poorly maintained. Lt. Feres feared that someone might be hurt should the poorly maintained heating plant malfunction. In about 1949ish, Lt. Feres completed his assigned duties and retired to the barracks as on this particular day he was the duty officer. This meant he was to sleep in the barracks. Well, you know the rest of the story. While Lt. Feres slept, the heating plant caught fire and burned him to death. Mrs. Feres, as you can imagine, was more than a little upset. She filed suit alleging negligence on the part of the military for not properly maintaining the heating plant and negligence on the part of a fire guard assigned to the area. At the time of his death, Lt. Feres was on active duty and occupying regularly assigned quarters located on his post. Mrs. Feres lost her fight when her complaint was dismissed by the trial court and the Second Circuit affirmed.

Case Number Two...

Jefferson v. United States: The Jefferson case was a suit for damages for injuries suffered by a serviceman as a result of an abdominal operation performed by an army surgeon at Fort Belvoir, Virginia. Eight months after this surgery, in the course of another operation, a towel, 30 inches long and 18 inches wide, marked "Medical Department U.S. Army," was discovered and removed from the man's stomach. This, the complaint charged, had been negligently left there by the army surgeon. Unbelievably, in 1959 the complaint was dismissed and the Fourth Circuit affirmed.

Case Number Three...

Griggs v. United States: The Griggs case came from the 10th Circuit Court in 1950. It also was a medical malpractice case. Lt. Col. Griggs, while on active duty, entered an Army hospital at Scott Field Air Base, Illinois for surgery and treatment. The complaint stated that he met his death because of negligent and unskillful medical treatment by army surgeons. The trial court dismissed but the 10th Circuit reversed.

These three cases became known as the "Feres Doctrine" which prevented military members from suing the government for negligence; be it simple or wanton negligence. In Feres, the Court held that servicemen may not recover under the Federal Tort Claims Act on claims which arise out of or in the course of activity incident to their service. Thus, whether a claim will be excluded or not depends initially on whether they arose as an "incident to their service." And there's the term you need to understand because it will determine if a lawyer will even take your case. "incident to service"  When is a serviceperson's death, injury, or loss "incident to service"? Well, in short, there is no clear cut answer. The phrase does not appear in the language of the Federal Tort Claims Act. It did however appear in another statute; the Military Personnel Claims Act relating to the claims of military personnel for compensation for property damage incident to service. The Supreme Court took a passing note in the Feres Opinion. Other courts have therefore turned to the Military Personnel Claims Act as the key to the proper application of the phrase "incident to service." But the cases under the Act are meager and reveal that such an approach provides only limited assistance. The answer lies, instead, in a facts-plus-result study of the Tort Claims Act cases. 

Tort Claims Act cases seem to indicate that if the serviceperson's injury or loss, when viewed in all the surrounding circumstances, has real and substantial relationship to his military service, it will be regarded as incident to service and consequently barred under the Feres Doctrine of the reasonable-man test for negligence. It is essentially an ad hoc determination to be made in the light of the facts of each case. As the Supreme Court said in the Shearer case, "The Feres Doctrine cannot be reduced to a few bright-line rules; each case must be examined in the light of the statute as it has been construed in Feres and subsequent cases." And the Court noted that in applying Feres, the primary considerations are whether the serviceperson's suit "requires the civilian court to second-guess military decisions, ***and whether the suite might impair essential military discipline."

However, as we shall see from the cases themselves, there are significant factual guideposts. Thus, if the serviceperson's injury or loss occurs while he/she is off duty, while not in the physical confines of his/her military base and while not engaged in any military mission and not directly under military discipline, it is likely that the Brooks Doctrine allowing Tort Claims Recovery will apply; in other words, that the injury or loss will be regarded as not incident to service.

What the hell is the Brooks Doctrine you ask? It is a lesser known case which does allow military members to sue. About a year before Feres was burned to death, Mr. Brooks left home headed to pick up his sons who were both on leave to come home for Thanksgiving. While Mrs. Brooks was stuffing the turkey, an Army truck driven by a drunken civilian employee crossed the centerline on a North Carolina highway and hit Mr. Brooks and the boys. One brother was killed and his brother and father were seriously injured. The accident happened far from their base and they were not on any business even indirectly connected with their military service. The Court of Appeals concluded that Congress intended to exclude from the coverage of the Act claims for death and injury of all servicepersons. 

The Court noted that the legislative history of the Tort Claims Act revealed that Congress had fro years been plagued by private bills for the relief of civilians, but only rarely had occasion to pass on a bill for the relief of a member of the armed forces; that soldiers and sailors, upon entry into the armed forces, acquire a special and unique status quite different from an relation between the Federal Government and civilians, and that this status is characterized by military discipline to which they are subject even when at play; that Congress had already established a complete and comprehensive system of compensation and benefits to take care of the death of, or injuries to, servicepersons including disability pensions, medical care, hospitalization, and payments to the widows, children, and dependent next-of-kin of servicepersons; and, further, that such compensation and benefits were payable without distinction between injuries received while a sailor or soldier was on leave, and injuries receive while on active duty -- if the injuries were incurred during the period of military service, they are regarded as service connected and are compensable even though not service caused. And, finally, the Court of Appeals noted that the Government had in fact made such compensation payments on account of the death and injuries of the Brooks brothers arising from their accident.

But the Supreme Court said bullshit and reversed the decision reinstating the judgments which the claimants had won at trial court. The Supreme Court reasoned that the statute speaks in terms of permitting any claim founded on negligence to be brought against the United States; that "any claim" does not mean "any claim but that of servicepersons"; that although the statute has twelve exceptions, the claims of servicepersons were not among the excepted claims; that it "would be absurd to believe that Congress did not have servicepersons in mind in 1946, when the statute was passed," not only because Congress expressly excluded both claims arising overseas, where many servicepersons were stationed, and claims arising out of combatant activities of the military forces in time of war, but also because a great many of the tort claims bills introduced in Congress from 1925 on contained exceptions denying recovery to members of the armed forces or to those whose claims were covered by the World War Veterans' Act of 1924, yet these exceptions were dropped out of the tort claims bill ultimately enacted. 

Turning to the Government's arguments about he harmful effects on military discipline which would flow from permitting servicepersons to sue the United States, the Court said:

    The Government envisages dire consequences should we reverse the judgment. A battle commander's poor judgment, an army surgeon's slip of the hand, a defective Jeep which causes injury, all would ground tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks' service, a wholly different case would be presented. We express no opinion as to it. *** The Government's fears may have point in reflecting congressional purpose to leave injuries incident to service what they were, despite literal language and other considerations to the contrary. The result may not be so outlandish that even the factors we have mentioned would permit recovery. But that is not the case before us.

Having thus disposed of the principal issue, holding that servicepersons could recover under the Tort Claims Act on claims not incident to their service in the armed forces, the Court went on to say that "this does not mean that the amount payable under serviceperson's benefit laws should not be deducted or taken into considerations, when the serviceperson obtains judgment under the Tort Claims Act."

Claims Incident to Service: The Feres Decision

The "wholly different case" which the Supreme Court had reserved for future determination in the Brooks opinion was presented about a year later in the Feres case. The Court concluded that the "different case" required a different result, and ruled that there could be no recovery under the Tort Claims Act for a serviceperson's injuries or death incurred as an incident to his/her service. Thus by implication, an additional and important exception was appended to the list of express exceptions which Congress had written into the Act. 

The Feres opinion covered the above mentioned three cases presenting the same basic question, viz., whether a serviceperson who, while on active duty and not on leave, sustained injury due to negligence of others in the armed forces, could maintain suit under the Tort Claims Act. In holding that such a suit could not be maintained, the Court had to review and depart from the reasons it had given in the Brooks case for holding that, in the circumstances there presented, an action by servicemen and women would lie. It turned, instead, to much of the basic rationale which the Court of Appeals for the Fourth Circuit had expressed whe4n it had dismissed the complaint in the Brooks case, but which the Supreme Court itself had later rejected when that case came before it. 

What this means to men and women on active duty...

In an effort to reduce and/or eliminate claims for negligence against the government, the Supreme Court of the United States threw accountability right out the window. Whenever servicepersons like Michael Tufariello can be maliciously attacked by their chain of supervision in an effort to hide their own criminal or unethical misconduct; and Tufariello is barred from holding them accountable in a court of competent jurisdiction -- there is something terribly wrong. Accountability is cast aside to protect the good old boy network; it's cast aside to protect the criminal. The Feres doctrine had done a wonderful thing to protect the Treasury of the United States but, it has also done a great deal to weaken our military by allowing individuals who consistently subvert the integrity of the service and rise smoothly to power by doing so. They are being rewarded when they should be doing jail time. Unless you are personally affected by it, it may not have much meaning. Unless you are Mrs. Tufariello who fixed dinner, waiting for her husband to return from work, you may not understand the pain and betrayal by those in power.

Unless men and women of the armed forces have the ability to hold commanders accountable for malicious acts or wanton negligence, our military will never be as strong or as efficient as it could be. Allowing the criminal to get away is one thing; allowing him or her to be promoted for their misdeeds undermines the cornerstones or our Constitution. It is wrong and it must change.

If you would like to cast you opinion on the "Feres Doctrine," please go to this site and let your opinion be known.