The Unfairness of the Feres Doctrine

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Army photo

The female members of the Ball State University ROTC team works together during a Humvee pull in 2008.

If the Academy Awards can be said to register the cultural pulse of the nation, America clearly retains its uneasy fascination with the politics and psychology of war.

From the Paris Uprising and the U.S. Civil War, to the Iranian Revolution and the Global War on Terrorism, the ravages of armed conflict were well-represented throughout the ceremony Sunday. But for Ariana Klay, and other subjects of the Oscar-nominated documentary The Invisible War, however, the wounds of battle are unlikely to fade with the closing credits.

In dismissing Klay v Panetta, a civil lawsuit that Klay brought against the Pentagon for failing to protect her and other service members from sexual violence, U.S. District Judge Amy Berman Jackson has perpetuated a baffling tradition of depriving military personnel of basic civil rights.

Like countless others injured due to the negligence or misconduct of their brothers-in-arms, Klay and her co-plaintiffs have been denied a remedy for the wrongs they suffered, simply because they were harmed during their time in uniform.

While Judge Jackson, like other federal judges before her, based her decision on the premise that “the constitution vests the ultimate power to decide how the military should run itself in Congress,” it was in fact the judiciary that first devised the theory responsible for barring service members from recovering for non-combatant injuries, making it all the more important for Congress to restore its authority by correcting the incursion.

In 1950, the U.S. Supreme Court agreed to review Feres v. United States, a collection of three cases, all of which sought to hold the military accountable for acts of negligence under the Federal Tort Claims Act.

While the plaintiffs were service members, the circumstances giving rise to their claims—a building fire caused by a defective heater, and two instances of botched surgical procedures—bore no relationship to actual military duties, and were effectively interchangeable with those yielding recovery for countless civilians. As such, they stood in stark contrast to the claims expressly barred by the Act: those “arising out of the combatant activities of the military…during time of war.”

Despite these clearly circumscribed statutory terms, the Feres Court translated the Act far more broadly, to bar all injuries that “arise out of or are in the course of activity incident to service.” As strained and improbable as this analysis may be, its true danger has rested less in its immediate application to tort cases than in the foundation it has laid for a widely-metastasizing theory of intra-military immunity from any civil claim at all.

Over half a century later, Feres is not only a judicial invention, but, more alarmingly, the seed of an ever-increasing body of flawed doctrinal offspring.

The Feres ruling, for example, later shaped a series of federal appeals courts barring uniformed personnel from bringing discrimination claims under Title VII of the Civil Rights Act, ordinarily a vehicle for holding employers liable for sexual harassment and assault. While these courts explicitly reserved the availability of constitutional claims, specifying that Congress never intended to deprive service members altogether of a remedy for discrimination, the Supreme Court ultimately did just that in Chappell v Wallace. Asserting that “the Court’s analysis in Feres guides our analysis in this case,” Chappell further enshrined a principle born not of the will of Congress, but of judicial interpretation.

Ironically, by the time Chappell was decided, the Supreme Court had already rejected the original rationales behind Feres—the absence of equivalent non-government liability, the inapplicability of state tort law to a uniquely federal matter, and the availability of disability compensation through the VA — in favor of a general determination that civil suits would undermine military discipline.

A few years later, the Court’s expansion of Feres to bar service member claims against civilian employees prompted a group of dissenting justices to question even the latter rationale, given the FTCA’s utter silence on the issue of military discipline:

“Perhaps Congress recognized that the likely effect of Feres suits upon military discipline is not as clear as we have assumed, but in fact has long been disputed…Or perhaps Congress assumed that the FTCA’s explicit exclusions would bar those suits most threatening to military discipline…Or perhaps Congress assumed that, since liability under the FTCA is imposed upon the Government, and not upon individual employees, military decision-making was unlikely to be affected greatly…Or perhaps—most fascinating of all to contemplate—Congress thought that barring recovery by servicemen might adversely affect military discipline.”

The result, decades later, is that a doctrine both created and expanded by the judiciary continues to serve as the basis for federal courts to abstain, more than a little disingenuously, from interfering in matters concerning military personnel.

Meanwhile, the “incident to service” provision routinely cited as an impediment best fixed by Congress is nowhere to be found in federal statute, making legislative reform something of an existential puzzle.

Caught in an endless game of hot potato, the Feres doctrine has eluded ownership for over half a century—if the courts won’t accept responsibility for their creation, then it’s time for Congress to rescue it from their hands.

Rachel Natelson is Legal Director at Service Women’s Action Network (