Rethinking Feres: Granting Access to Justice for Service Members

In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to persons harmed by those acting on behalf of the federal government. From the outset, FTCA liability was limited by the expansive discretionary function exception and other express limitations on civil actions. Unresolved in the FTCA was the fate of members of our armed forces injured by actions “incident to service” but outside of armed conflict. Four years later, in Feres v. United States, the Court addressed this question placing dramatic limits on civil tort claims of service members. The limitations were rationalized on the need to maintain order, discipline, and chain-of-command. From Feres forward, most of those injured incident to military service have been denied access to the very system of justice they pledge their lives to defend. That injustice has persisted for seven decades. This Article discusses Feres, the expansion of the “incident to service” prohibition, and recommends overturning Feres, amending the FTCA to allow access to justice in Article III courts for acts neither incident to nor essential for military service. It is time for victims of sexual assault, rape, and medical malpractice to have their day in court. Holding accountable the federal government and those engaged in misconduct will enhance, not undermine, respect for order, discipline, and chain-of-command. It is time for uniformly condemned acts to be subjected to the light of day in Article III courts. In sum, neither the three original Feres reasons nor the post hoc rationalization of “military discipline” justifies our failure to apply the FTCA as written. Feres was wrongly decided and heartily deserves the “widespread, almost universal criticism” it has received. —Dissenting opinion of Justice Scalia, joined by Justices Brennan, Marshall, and Stevens You’re old enough to kill but not for votin’ . . . . This whole crazy world is just too frustratin’ . . . . —P.F. Sloan, “Eve of Destruction” © 2019, Andrew F. Popper. All rights reserved. * Andrew F. Popper is the Bronfman Distinguished Professor of Law at American University, Washington College of Law. This Article is in part premised on the author’s experience with the Marine Corps, and his subsequent service to the United States government after his honorable discharge. 1 United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting) (quoting In re “Agent Orange” Prod. Liab. Litig., 580 F. Supp. 1242, 1246 (E.D.N.Y. 1984)). 2019] Rethinking Feres: Granting Access to Justice for Service Members 1493