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The Feres Doctrine – Active Duty Military Have Less Rights Than Civilians!

Although the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671-2680) prescribes when the United States Government can be sued for wrongful acts committed by members of the Government, the Feres Doctrine is a judicially-created doctrine that bars members of the United States Armed Forces, while harmed on active duty and not on furlough, from suing the Government for wrongful acts that “arise out of or are in the course of activity incident to service.”

How It Began

The Feres Doctrine stems from the 1950 case of Feres v. U.S., where three lawsuits were joined for hearing by the Supreme Court of the United States. One lawsuit involved the death of a soldier due to a fire in a barracks that was allegedly unsafe. The other two lawsuits, one of which also involved the death of a soldier, were claims of medical malpractice upon soldiers by military surgeons.

The Feres Court ruled the Government was not liable under the Federal Tort Claims Act and created the legal doctrine which has continued for decades to deny soldiers their right to sue the United States for their injuries, or in the event of their death, deny their families the right to sue the United States for their wrongful death.

An Injustice to Our Military

Although the Feres Doctrine has been criticized for many years and personal injury lawyers continue to argue against its application, the courts continue to apply the Feres Doctrine and broadly interpret what it means to “arise out of or are in the course of activity incident to service.” As Justice Scalia noted in his dissent in United States v. Johnson, 481 U.S. 681 (1987), which was joined by Justices Brennan, Marshall, and Stevens, a literal reading of the Federal Tort Claims Act does not generally bar the claims of any person, including soldiers, although the Federal Tort Claims Act contains a number of exceptions. One exception is contained at § 2680(j) which precludes “[a]ny claim arising out of the combatant activities of the military or the naval forces, or the Coast Guard, during time of war.”

As such, while Congress intended the United States Government would receive a limited grant of sovereign immunity for injuries to soldiers during combatant activities during time of war, the Feres Doctrine, a doctrine created by the Supreme Court of the United States, has been applied by the judiciary for decades to give the United States Government vast immunity from lawsuits brought by soldiers, or their families, for injuries that are caused by members of the Government and totally unrelated to combatant activities during time of war.

Get Help From A Veteran

As many of you know, prior to being a personal injury attorney, I was a Captain in the U.S. Army serving with the 82nd Airborne Division, Third Special Forces Group, and the First Special Operations Command. If you are a member of the military and have been injured by another member of the military, or if your loved one died while serving in the military and the death was caused by another member of the military, please do not hesitate to contact me to discuss the matter. I can render an opinion whether the Feres Doctrine applies to the facts and explain your legal options at no cost.

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