Policymaking from the bench has harmed servicemembers for more than 75 years
If you’re injured by the negligence of a federal employee—through medical malpractice, a car accident, or some other careless mistake—you generally have the right to sue the United States for compensation. But if you’re a member of the Armed Forces, that right disappears. This is all thanks to the Feres doctrine.
In 1946, Congress enacted the Federal Tort Claims Act (FTCA), which waived the federal government’s sovereign immunity, allowing individuals to sue the United States for negligence on the part of government employees. But in 1950, in a case called Feres v. United States, the Supreme Court created an exception to this waiver for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”
This became known as the Feres doctrine.
The “incident to service” exception wasn’t the product of congressional deliberation among the elected representatives entrusted with making law. To the contrary, Congress considered how the law might apply to servicemembers and excluded only combat-related injuries. But the Supreme Court decided that Congress had not gone far enough and substituted its own judgment, adding an exception that appears nowhere in the FTCA’s text.
For 75 years following the decision, this judicially created “incident to service” exception has created a near-complete bar on U.S. servicemembers’ recovery. And the “incident to service” umbrella continues to grow every day, covering a wide range of activities that have little, if anything, to do with someone’s actual service in the military, which PLF’s research details.
In fiscal year 2024 alone, the Department of Defense received more than 8,000 reports of sexual assault. If the U.S. government was negligent in handling any of those reports, the victims would be unable to seek damages from their employer under the Feres doctrine. This is exactly what happened to Jane Doe, a rape victim at West Point whose petition to the Supreme Court was denied under Feres after West Point failed to follow mandatory Department of Defense regulations for responding to sexual violence claims.
From 2020 to 2024, the military branches received nearly 600 claims of medical malpractice. They approved just 3% of them. Because of the Feres doctrine, none of those claims could’ve succeeded as lawsuits in federal court. This impacts servicemembers like Staff Sergeant Ryan Carter, who had elective surgery at Walter Reed that left him paralyzed in his arms and legs, and Lieutenant Rebekah Daniel, who died after giving birth at a Naval Hospital when her postpartum bleeding was left uncontrolled after her providers failed to follow well-known standards of care. Both Carter and Daniel’s families were barred from seeking recovery because of Feres.
Between fiscal years 2010 and 2019, the Army and Marine Corps reported more than 3,700 military vehicle accidents outside of combat, killing 123 servicemembers. If these very same accidents had killed civilians, and there was negligence, they could’ve sued the United States. But servicemember victims—like Staff Sergeant Cameron Beck, killed while driving home for lunch by a government-issued van driven by a government employee who was distracted by her cell phone—cannot.
For a generation of servicemembers, the courthouse doors have been wrongfully closed. The Supreme Court’s decision has shielded the federal government from liability despite Congress’s express intentions.
Courts are supposed to exercise “neither FORCE nor WILL, but merely judgment.” Yet, as Justice Clarence Thomas explained, Feres is an “act of judicial legislation.” By supplanting Congress’ lawmaking role in Feres, the Supreme Court violated the Constitution’s separation of powers at the expense of those who serve. Overturning Feres would do right by the Constitution and the men and women who swore to defend it. Until then, servicemembers injured by government negligence are asked to accept an injustice no other American would tolerate.