Supreme Court holds that U.S. Postal Service can’t be sued over intentionally misdelivered mail

On February 24, the Supreme Court decided that the exception to the Federal Torts Claims Act that protects the U.S. Postal Service from lawsuits over lost or miscarried mail also bars lawsuits in cases where a postal worker intentionally failed to deliver an individual’s mail.  The vote on the decision was 5 to 4, with a dissenting opinion by Justice Sonia Sotomayor, joined by Justices Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson, in which she argued that the majority opinion provided the U.S. Postal Service far more protection from lawsuits than Congress had intended to give it. The case is called U.S. Postal Service v. Konan, and you can read the opinion here.  

As you probably know, the Federal Torts Claims Act was enacted to remove the sovereign immunity of the United States from suits in tort.  However, the Act retained a long list of exceptions for cases in which the Federal Government retains immunity.  Among those is an exception which covers “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”  

In previous cases, the Court has decided that the exception does not apply to claims arising from car accidents caused by postal employees delivering mail or to claims for slip and falls caused by negligent placement a package on a porch step.  The issue in Konan was whether the exception should cover claims concerning intentional misconduct committed by postal employees, including the conduct of withholding a person’s mail for malicious reasons. 

The majority opinion rules that the statute bars these claims, even in cases where a postal worker intentionally fails to deliver an individual’s mail.  The dissenting opinion, in contrast, argues that  the majority opinion provides the U.S. Postal Service far more protection from lawsuits than Congress had intended to give it.

You can read more about the case in Courthouse News Service, SCOTUS Blog and The Hill.

US Supreme Court opens term considering case under the Federal Torts Claims Act

 This week, the US Supreme Court heard oral arguments in a case involving the Federal Torts Claims Act.

In this case the plaintiff sued the federal government and the US Postal Service alleging damages because postal workers refused to deliver mail to the plaintiff’s property.  The lower court dismissed the claim, the Torts Claims Act recognizes immunity for the federal government in matters involving the handling of postal matters, which includes lost and delayed mail.  But the 5th Circuit Court of Appeals reversed, holding that intentional non-delivery is not a “loss,” “miscarriage,” or “negligent transmission” of mail, because those terms don’t cover intentional acts.

Here an article on the background of the case:  "How a mail delivery dispute made it to the Supreme Court."

Here is an article reviewing the oral argument: "Court debates lost catalogs and delayed Christmas cards while hearing case on intentionally undelivered mail."  

Court of Appeals for the Fourth Circuit finds that TSA screeners are subject to liability under the Federal Torts Claims Act

 As reported in the TortsProf blog:  The Fourth Circuit has now joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act.  Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).

Illinois considers eliminating ban on punitive damages in death cases

I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party.  This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act.  I first wrote about this anomaly back in 2011.  See here.

I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.  

I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.   

Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.  

The Illinois General Assembly is currently considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  You can read the bill here.

Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases.  This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.  

This should change too.  But we are moving in the right direction, even if we are doing it one slow step at a time.  (The bill also recognizes an exception for claims against the state, but that is not unusual.  The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)

Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development.  Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.”  See this post by the American Tort Reform Foundation, for example.  

I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it.  After all, punitive damages are awarded in a very small minority of cases anyway.

UPDATE August 15, 2023:

Illinois statute eliminates ban on punitive damages in death cases

Finally, some changes to the Feres Doctrine!

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change.  But all attempts had failed, Until now.  

Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice.  This new rule states that (subject to some exceptions)

"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."

However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."

So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.  

For more information, you can go to Military.com, Stars and Stripes and the NY Personal Injury Law Blog.

Justice Clarence Thomas again affirms the Court should get rid of the Feres doctrine

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

Recently, Justice Thomas has repeatedly argued that Feres should be overruled.  He did so in 2019 in a dissent from a cert petition (see here); and he did so again earlier this month.  

In yet another dissent from a cert petition Justice Thomas argued should have agreed to hear the appeal of a West Point cadet who sued claiming she was raped by another cadet.  

Justice Thomas opined that Feres v. United States was wrongly decided because the decision was not based on the wording of the Federal Tort Claims Act.  The exception in the Act was meant to protect the government from suits “arising out of … combatant activities … during time of war” but Feres extended that notion by recognizing immunity from suits in any way incident to military service.

The case is called Doe v. United States and you can read Justice Thomas' opinion here.

Recent news about the debate on qualified immunity: the Institute for Justice joins the fight

As you know, the doctrine of qualified immunity recognizes a defense for certain government officials from liability for injuries caused by their conduct.  It applies, for example, to prosecutors when they engage in investigative or administrative tasks, which is often limited to conduct before an indictment.  And, of course, it applies to many other government officials when engaging in their official capacities.

The doctrine exists to provide protection to those officials so they can perform their duties without fear that their decisions will be later questioned or second-guessed by courts, a position that is justified by the principle of separation of powers.

The doctrine, however, is not particularly old and it is not universally accepted.  The Cato Institute has referred to it as "an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s" and as "a court‐​confected doctrine that provides rights‐​violating police and other government officials with an unlawful shield against accountability for their misconduct."

To do something about this, the Cato institute launched a strategic campaign to challenge the doctrine on March 1, 2018, the centerpiece of which has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. In addition, the Institute has organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity.  This "alliance" includes the ACLU, the NAACP Legal Defense Fund, the Alliance Defending Freedom and the Second Amendment Foundation.

I am writing about this today because yet another group has officially announced it will join the campaign.  About two weeks ago (on Feb 15), The Wall Street Journal published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the battle against qualified immunity.  You can read it here if you have a subscription.

For more on the CATO Institute's position on this issue go here.

Senate approves Defense Authorization Bill which includes provision to provide compensation to military personnel injured by negligence of military doctors

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury under any circumstances while the plaintiff was in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

The debate over whether the Feres Doctrine should be abandoned has raged ever since.  In fact, last May, two Justices of the Supreme Court suggested it was time to get rid of it.  See here.  Soon after that, the New York Times published an Op-Ed piece urging Congress to eliminate the doctrine.  See here.

Maybe in response to these events, later in the year Congress debated inserting a provision into the annual defense authorization bill to offer payouts to victims of military medical malpractice.  The provision did not alter the Feres doctrine, but it creates a system to provide limited recovery to some victims of military medical malpractice.

Last week, the Senate voted, 86-8, to pass the National Defense Authorization Act including $400 Million for the Defense Department to investigate and pay out military medical malpractice claims internally, bypassing the Feres Doctrine. 

This sounds great, but the details of the provision severely limit its possible benefits.  Most importantly, claims would be limited to under $100,000, and legal fees are capped at 20%.  Unfortunately for the victims, these limits will make it difficult for them to find lawyers to on the representation.  Medical malpractice cases are typically very expensive to litigate and being able to recover only $20,000 will make the cases not viable financially.

According to the bill, the Secretary of Defense can create regulations that allow them to pay more, but those regulations haven’t been written.

The New York Personal Injury Law Blog has a good short comment on the bill here.

NYT Op Ed on the Feres Doctrine

Yesterday I commented on the news that two Justices voted to take on a case that could have resulted in a change to the Feres Doctrine.  Today there's more.  Stephen I. Vladeck, a professor at the University of Texas School of Law, just published an Op Ed piece in the New York Times calling on Congress to undue the doctrine.  You can read the article here.  In part, it states:

For almost as long as it has been on the books, the Feres decision has been controversial. The case reached the Supreme Court in 1950, four years after Congress broadly expanded the tort liability of the federal government in the Federal Tort Claims Act and shortly after the United States had entered the Korean War. Although Congress had expressly disallowed claims from anyone arising out of the military’s “combatant activities,” the Supreme Court in Feres went further. It held that Congress could not have intended that service members could bring ordinary tort suits for any other claims arising out of their military service, even though nothing in the law directly supported that result.

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

. . . . Why has the court held firm on a decision so widely criticized? In that same 1987 case in which Justice Scalia dissented with three other justices, the court identified three justifications. First, injuries to service members related to their military service should not be left to the vagaries of 50 different state laws but should instead be subject to a uniform federal rule. Second, Congress had already provided at least some kind of remedy to injured service members through “generous statutory disability and death benefits.” And third, tort suits arising out of military service “would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” 

Reasonable minds can disagree about the relative strengths of these policy arguments; Justice Scalia’s central point in dissenting from that analysis was that Congress had already weighed the pluses and minuses of such policy considerations when it enacted the tort claims act — and it wasn’t for the courts to second-guess its answer. “The problem now, as then,” he explained, “is that Congress not only failed to provide such an exemption, but quite plainly excluded it.”

 As Prof. Vladeck explains, the doctrine is controversial and has been hotly debated for a long time.  Several attempts to change it have failed in Congress.  For some of the arguments against his position you only need to read some of the comments already posted to his argument.  Here is one:

It may be hard to understand the justification for Feres in a medical malpractice case like this, but there are many situations in which the nature of military service is hard to reconcile with normal tort concepts. The Tort Claims Act already excludes liability for combat activities, but military personnel engage in non-combat activities that are dangerous and difficult to measure by negligence standards.

Is it negligent to subject military personnel to training that, by replicating some of the risks of combat, prepares trainees for combat? Is it negligent for the Coast Guard to send personnel on a search and rescue mission in a storm? Does it matter how many civilians may die if no rescue is attempted?  

Military personnel are entitled to compensation on a no-fault basis for service connected injuries. If that compensation is viewed as inadequate, the better solution may be to increase it rather than, as Professor Vladeck proposes, legislation to overturn Feres in its entirety.

 Here is part of another one:

Of course. That's the solution. We need more tort claims. I'm sure that will improve the quality of military healthcare. Why didn't I think of that?  

Geez. You sometimes witness why law struggles to meet reality. 

I happen to agree with the reasoning behind Feres. The military isn't going to function well if you open the government to personal liability claims from service members.  hat's a rabbit hole I don't want to go down. 

If you're a service member and something bad happens... well... you're a service member. Use the military hospital and hope for the best.

So, what do you think?

Justice Thomas argues in favor of overturning the Feres Doctrine!

I am not sure why but the Feres doctrine seems to be in the news a lot these days.  Yesterday I commented on a recent bill seeking to limit the Feres Doctrine and on the fact that the doctrine is currently part of the plot of a TV show.

Today, the news is that Justice Clarence Thomas dissented in a denial of cert with an opinion in which he argued the court should have taken on the case in order to overturn Feres v. United States.  The case is called Daniel v. United States.  Justice Ruth Bader Ginsburg also would have granted certiorari.

You can find all the relevant documents about the case here.

Unfortunately, the other important part of the story is that the Court refused to hear the case, which means it refused to reconsider the Feres doctrine.

Since there have been previous attempts to get rid of it in Congress and they have all failed, I am not too hopeful in the future of the recently proposed bill. If there was going to be a change, this now rejected case was the best chance.

Another attempt to eliminate (at least part of) the Feres Doctrine

As you might remember from your first semester Tort Law class, the Feres Doctine refers to the interpretation given by the Supreme Court in a case called Feres v US to an exception to the Federal Torts Claims Act.  According to the exception, members of the military can not sue the federal government for injuries suffered while in active duty.  In Feres, the Court expanded the interpretation of the exception to essentially ban any claim for any injury under any circumstances while the plaintiff was in service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

This is a controversial doctrine, and there have been many calls to eliminate it.  But all the attempts to do so have failed.

The TortsProf blog is now reporting that there is a new push afoot.

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives.  The bill would create an exemption to the Federal Tort Claims Act to allow plaintiffs to file medical malpractice lawsuits for injuries that occur after the bill's passage.  However, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations. 

For more information on the debate related to the Feres Doctrine, you can watch this old video.  And for some of my posts on it go here, here, here, and here.

Interestingly, the Feres Doctrine is also an underlying issue in the new TV Show "The Code", in which the widow of a member of the Marines sued for wrongful death.  During the episode (episode 3, which you can watch here), a few of the characters talked about it and their explanation was actually pretty accurate.  I think the producers got a good legal consultant to help with the script.

Third Circuit: US is immune from liability for intentional conduct by TSA officers because they are not "law enforcement officers" under the FTCA

As you probably know, the Federal Torts Claims Act retains immunity in a number of very specific circumstances.  Thus, according to the Act, the United States generally enjoys sovereign immunity for intentional torts committed by federal employees.  However, this rule is subject to an exception which waives immunity for a number of intentional torts if they are committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).  This means that a plaintiff does not have a right to recover from the US Government if a mail carrier commits battery; but may have a right to recover if an FBI agent does.

In a recent case decided by the Third Circuit Court of Appeals, the court decided that TSA agents do not qualify as "law enforcement officers" and, therefore, the Government is protected by immunity.

The case is Pellegrino v. The TSA (available here), and the facts are what you would expect given the topic:  a passenger alleged intentional torts related to the conduct of TSA officers during a "screening" at an airport.  The details of the event are described here.

Be careful when reading comments on the case because some of the discussion is a bit inaccurate.  For example, some of the stories state that the officers are immune.  This is not entirely accurate because the FTCA deals with the immunity of the Federal Government, not of the individuals. 

Simple Justice has a comment here.

Tech Dirt has a comment here.

Do Texas mass shooting victims have a chance to support a cause of action?

In an interesting short article, Professor John Culhane, of the Family Health Law and Policy Institute at Widener University Delaware Law School, argues that the victims of the recent mass shooting in Texas have a good chance to win a claim against the federal government.  As discussed in other posts on the subject, the gun industry is well protected by statute, but in his article Prof. Culhane focuses on the possible liability for the Air Force’s "unexplained and appalling failure to enter the shooter’s domestic-violence conviction into a national database that would have prevented him from obtaining a firearm is actionable."  He discusses the applicability of the Federal Torts Claims Act to conclude that he thinks the case against the Air Force is strong. 

In addition, he argues that Congress should pass specific legislation entitling the victims to compensation outside of the judicial process because "the government almost surely was at fault." He argues that "[t]hat’s the easiest, and the fairest, thing to do in this case. Victims shouldn’t have to multiply their pain by slogging through what would surely be a painful case, leading to no certain outcome"

You can read the full article there.

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

Parents of two Americans killed in Benghazi sue Hillary Clinton for wrongful death

NPR is reporting that the parents of two Americans killed in Benghazi, Libya, are suing Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  Even though none of the many Congressional investigations nor the FBI investigation found any proof that the attack was due to access to information in Clinton's emails, the lawsuit argues that Islamic terrorists were able to track the movements of Ambassador Chris Stevens and plot the deadly siege because of Clinton's use of a personal email server to conduct government business.

Here is a copy of the complaint. The main argument is this:

It is highly probable, given Defendant Clinton’s history of reckless handling of classified information, that Defendant Clinton, as Secretary of State, sent and received information about Ambassador Christopher Stevens and thus the U.S. Department of State activities and covert operations that the deceased were a part of in Benghazi, Libya. This information was compromised from the second that it left Defendant Clinton’s private e-mail server and easily found its way to foreign powers including, but not limited to Russia, Iran, China, and North Korea. As a direct result of Defendant Clinton’s reckless handling of this classified, sensitive information, Islamic terrorists were able to obtain the whereabouts of Ambassador Christopher Stevens and thus the U.S. State Department and covert and other government operations in Benghazi, Libya and subsequently orchestrate, plan, and execute the now infamous September 11, 2012 attack.

In the section on "facts" (presumably the factual basis for the complaint), the plaintiffs affirm that "Islamic terrorists obtained the information sent and received by Defendant Clinton about the location of Ambassador Christopher Stevens and thus the U.S. Department of State and the covert CIA and other government operation s in Benghazi and used it to plan, orchestrate, and carry out the horrific and devastating attack on the American diplomatic compound in Benghazi, Libya on September 11, 2012 (“Benghazi Attack”), resulting in the death of four Americans,..."  

Now, this is a very different type of statement.  This is an affirmative statement of fact, which, presumably, the plaintiffs will be able to prove.  Is there any evidence that what is alleged here is true?   Not according to any of the investigations I have heard of, but I guess it is possible there is information out there I am not aware of.  Are you?  Let me know.

If there is no basis in law or fact for the complaint, this is a frivolous lawsuit, and I think it will be dismissed in due time.  The only question in my mind is whether the lawyer who brought it will be sanctioned for violating the ethical duty, and procedural rules, against bringing frivolous claims.  According to Above the Law, the lawyer "has been banned from multiple judges’ courtrooms" and has orchestrated other politically motivated legal stunts, including a deportation petition against President Obama, which claimed the president was born in Kenya; alleging the Clintons murdered White House associates in the 90s; and filing lawsuits accusing the Clintons of racketeering.

For more go to NPR or Slate. 

Supreme Court hears oral argument regarding Federal Torts Claims Action

Over at the Supreme Court of the US blog (SCOTUS), Howard Wasserman, reports that a couple of days ago, "a subdued Court spent two hours hearing oral arguments in United States v. Wong and United States v. June, considering whether the limitations periods under the Federal Tort Claims Act are jurisdictional or subject to equitable tolling. The Justices asked relatively few questions, allowing all four attorneys to speak uninterrupted for long stretches and to provide lengthy answers to many questions."  Go here and here for his complete review of the case and links to the relevant documents. You can listen to the audio of the oral arguments here and here.

US Supreme Court decides Levin v. US

Yesterday, the US Supreme Court issued its opinion in Levin v. United States in which the court had been asked to decide whether a civilian may bring a battery claim against the US government for injuries allegedly caused by military medical personnel during the performance of their duties, or, more specifically, whether such claims barred by sovereign immunity. 

Interpreting the statutes involved, the Court has held the plaintiff may bring the claim.  You can read the full opinion here.  Here is the syllabus:

The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, . . .  but excepts from the waiver certain intentional torts, including battery, . . The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. . . .  Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA’s remedy against the United States exclusive for torts committed by federal employees acting within the scope of their employment . . . Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work.

Petitioner Levin suffered injuries as a result of cataract surgery performed at a U. S. Naval Hospital. He filed suit, naming the United States and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeon had acted within the scope of his employment, the District Court released him and substituted the United States as sole defendant. The Government moved to dismiss the battery claim, relying on the FTCA’s intentional tort exception. Levin countered that the Gonzalez Act. . . renders that exception inapplicable when a plaintiff alleges medical battery by a military physician. The District Court granted the Government’s motion to dismiss. 

The Court of Appeals for the Ninth Circuit affirmed but the Supreme Court reversed holding that the government is not immune and, therefore, Levin’s suit against the United States can go forward.  For all the relevant documents related to the case including briefs and opinions go here.

New articles on sexual abuse at the Air Force Academy and the Feres doctrine

In the past, I have posted several stories on the Feres Doctrine, which prevents military personnel from suing for injuries while in service and, in particular, about the on going scandals related to sexual assaults on female cadets at the Air Force Academy.  A few years ago, there were a number of high profile reports on this problem, but the Academy said it would take steps to correct the situation.  Last year, the New York Times published an article that suggested the problem is still rampant. About a week ago, the NYT published another article on the same issue here (with video).    Meanwhile, over at the PopTort there is a short comment on the issue (here) which recommends an Oscar-nominated documentary called The Invisible War.  (You can see the trailer here)

You can now listen to the oral argument in Milbrook v. US

You can now listen to the oral argument in Milbrook v US by going here.

Update on Millbrook v. United States

A few days ago, I commented on a case now before the US Supreme Court called Milbrook v. US in which the Court will consider whether a plaintiff can recover under the Federal Torts Claims Act for injuries caused by law enforcement officers other than when they are executing a search, seizing evidence or making arrests for violations of federal law.

The Court heard oral arguments yesterday and here are a few links to commentary on it.

Here is a preview of the argument.

Here is a comment on the oral argument itself.

Here is a comment published on NPR (which includes a link to a short report from the radio program Morning Edition).

 The New York Times published this short editorial on the case today.