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?