Veterans Deserve Enforceable Rights, Not the Feres Doctrine

Veterans Deserve Enforceable Rights, Not the Feres Doctrine

To honor veterans, Americans should demand that courts and lawmakers protect servicemembers from discrimination and retaliation.  Instead, following the Supreme Court in Feres v. United States 340 U.S. 135 (1950), federal courts have found that servicemembers may not sue for a host of employment actions unrelated to military combat based on a doctrine of “intra-military immunity.”  The Feres doctrine prevents more than 2 million Americans from suing for injuries “incident to service,” including medical malpractice, sexual violence, and discrimination. Courts contravened Congressional intent in the development of the Feres doctrine.  The doctrine shields America’s largest employers from liability to its most committed employees.

In 1946, Congress enacted the Federal Tort Claims Act (FTCA), allowing individuals injured by the federal government to sue in federal district court.  Sovereign immunity bars suit against a government without its consent, and the FTCA is a waiver of sovereign immunity.  However, the FTCA does not waive sovereign immunity in every instance.  Congress directly addressed the dangers of military service in an exemption to the FTCA.  No one may sue for an injury “arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”  (28 U.S.C. § 2680(j).)  The exemption for military activities has been read far more broadly than the language of § 2680(j) allows.

Rudolph Feres was killed by an injury that did not arise out of combatant activities during war.  A barracks fire in Pine Camp, New York, killed him while he was on active duty.  (Feres, 340 U.S. at 136-137.)  And an army surgeon performed an abdominal operation on Arthur Jefferson, and eight months later, a 30” x 18” wide towel marked “Medical Department U.S. Army” was discovered in his stomach.  (Id. at 137.)  Dudley Griggs died after an operation by army surgeons.  (Id.)  The Supreme Court consolidated cases brought on behalf of Feres, Jefferson, and Griggs and their estates because

[t]he common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces. . . . [t]he only issue of law raised is whether the [FTCA] extends its remedy to one sustaining “incident to service” what under other circumstances would be an actionable wrong.

(Id.)  The Feres court acknowledged that the FTCA provides that the “United States shall be liable in the same manner and to the same extent as a private individual under like circumstances.”  (Id. at 141.)  But the court held that a servicemember is not situated like a private individual in part because a servicemember can be ordered to any jurisdiction and is not situated like someone who is “free to choose his own habitat and thereby limit the jurisdiction in which it will be possible for federal activities to cause him injury.”  (Id. at 142-143.)  That is, the court found that it would be unfair to subject servicemembers to the law of a jurisdiction where they find themselves, even though it would be “fair enough”—in the Court’s words—if such servicemembers are “not on duty.”  (Id.)

Following the Court’s expansive interpretation of the military’s protection from suit in 1950, the Feres doctrine has expanded to include not only claims under the FTCA, but under federal anti-discrimination law.

At Bryan Schwartz Law, P.C., we fight to ensure that employers are held accountable for the wrongs perpetrated against employees, including discrimination under Title VII, whose protections extend to federal employees, including employees—other than servicemembers—who serve in military departments.  (42 U.S.C. § 2000e-16(a).)

In the Ninth Circuit, it is impossible to enforce Title VII on behalf of servicemembers because of Feres, according to the reasoning of Hodge v. Dalton 107 F.3d 705, 710 (9th Cir. 1997).  A Marine stationed in Hawaii worked as a duty manager during his off-duty hours at a recreational club for enlisted members.  After he complained of racial discrimination at the club to the Equal Employment Opportunity officer for the Marines, his complaint was rejected on the grounds that Title VII does not apply to uniformed servicemembers.  (Id. at 706.)  The plaintiff Marine filed suit in district court, and the district court dismissed for failure to state a claim.  (Id. at 707.)  On appeal, the Ninth Circuit held that Feres applied to the action, because “[a]lthough the doctrine of intramilitary immunity is generally applied in connection with the FTCA, its applicability is not limited to FTCA cases.  The doctrine is instead applicable whenever a legal action would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces of the United States.”  (Id. at 710.)

This expansion of the Feres doctrine shields discriminatory decisions of military personnel from civilian review, despite consistent criticism.  Unlikely bedfellows agree that the Feres doctrine is error—when Justice Antonin Scalia dissented from the Court’s opinion applying the Feres doctrine in United States v. Johnson, 481 U.S. 681, 692 (1987) to observe that Congress expressly contemplated servicemembers’ claims, he was joined by Justices William Brennan, Thurgood Marshall, and John Paul Stevens.

The Feres doctrine has disserved men and women who honorably serve their country long enough.  It is time for courts and Congress to fix the problem.  Our veterans deserve accountability.

If you have questions about how federal anti-discrimination law may apply to your employer’s wrongful actions, please contact Bryan Schwartz Law, P.C.