Trial Magazine

Tell me about your background and your work in tort law.

I’ve been teaching torts for the last four decades. During that time, it has been my honor to participate in the legislative discourse on tort “reform,” testifying on various bills more than 50 times. I opposed most of these proposals because they would have limited the accountability of defendants and curtailed consumer rights, but I was drawn to Feres for reasons beyond tort law—Feres involves the rights of servicemembers and veterans.

My exposure to the armed forces began in 1967 when I enlisted in an officer training program. I completed the first round of basic at Marine Corps Base Quantico and was on my way to becoming a ground infantry officer, but after just a year, I was invited to transition to civilian intelligence. After being honorably discharged, I served in intelligence in various capacities and later worked in the nuclear power field. Those experiences as well as my academic work inform my views on Feres.

You’ve said that the Court was engaging in extreme judicial activism in deciding Feres. Could you explain why?

Feres reads more like an amendment to the Federal Tort Claims Act (FTCA) than judicial review of a lower court decision—which is one way to define judicial activism. The FTCA, in broad strokes, allows private parties to bring civil actions against the federal government without being barred by sovereign immunity. Like many pieces of legislation, it had significant gaps. Such gaps, however, are supposed to be filled in by agencies that have been delegated that responsibility by Congress, not by the Court.

The gap in the FTCA involves noncombat injuries sustained by members of the armed forces. From the moment the FTCA became law through 1950, the United States fought case after case, claiming all such injuries were noncompensable under the FTCA because they were “incident to service”³ and that the system of administrative compensation within the armed forces was enough to cover any damages.

The implication was that enlistment meant not just being bound by the Uniform Code of Military Justice (UCMJ) but also being barred from access to Article III courts for otherwise actionable civil wrongs. In Feres, the Supreme Court formalized this gross limitation on the rights of servicemembers—an act of judicial activism since the FTCA does not mandate that limitation—a position from which the Court has not deviated for the last seven decades.

Lower courts, bound by Supreme Court precedent, have regularly issued opinions that both affirm Feres and expand the behaviors subsumed under the “incident to service” exception—with some literally apologizing or expressing regret for the limits that Feres imposes. In my view, regret is not enough. We should not accept the premise that one willing to fight and die for a system of justice should be summarily denied access to that system.

Why has this 1950 decision had such staying power?

First, the majority of the Court has been unequivocal, finding Feres to be a fair interpretation of the FTCA. Over the years, Chief Justice Earl Warren and Justices Thomas, Scalia, Brennan, and others have disagreed with this position. Second, once the Supreme Court decided Feres, lower federal courts were bound by that precedent, leaving Congress with the responsibility to right this longstanding wrong. To be clear, Feres is not constitutionally driven—the FTCA can be amended.

Over time, as the Feres debate stumbled along, thousands of servicemembers have been injured—and killed—and more often than not, without any remedy. Credible reports suggest sexual assault and rape are at epidemic levels—and while perpetrators can be punished under the UCMJ, victims have no meaningful recourse.

Those who have been sexually abused, raped, exposed to toxic substances without consent, or victimized by medical malpractice should not be denied justice simply because they are willing to serve their country. Their lives are forever changed and yet the federal government has no accountability—which may partly explain why these harms continue at unacceptable rates.

The staying power of Feres has one other explanation that bears noting. In meaningful part, Feres is founded on the fear that the potential for civil tort liability will render essential discipline in the armed forces more difficult, hamper rigorous training and basic traditions, and undermine the life and death importance of chain of command. Of course, the response to this is that accountability will enhance discipline and, importantly, deter the kinds of misconduct just discussed. One thing is certain: Continually expanding the “incident to service” exception has not been the answer. In the absence of accountability, undeterred and egregious harms have gone unchecked.

There was much discussion about Daniel v. United States being the case that would allow the Court to overturn Feres, but the Court denied cert. Why do you think it did?⁴

It’s anyone’s guess. The only clarity is in the dissent written by Justice Thomas and in Justice Ginsburg’s recorded vote in favor of granting the writ. If the Court was inclined to rethink Feres, Daniel would have been a good case to do so.

It is a heart-wrenching instance of inexcusable malpractice with devastating consequences and no recourse.

Perhaps—and this is pure speculation—the Court has decided that this is a policy question, a legislative matter, and rather than taking another shot at rewriting the FTCA, it is looking across the street to the Capitol, hoping Congress will clean up its mess.

What is the likely solution?

The key to undoing the harms wrought by Feres is amending the FTCA. Feres was an extrapolation of what the Court thought Congress meant, but the Court was wrong. That’s not what the FTCA says. When the Court gave birth to the expansive nature of the “incident to service” exception, it was rewriting the FTCA. If Congress had wanted to bar almost all civil tort claims by members of our armed forces, it would have done so. It’s ridiculous to think Congress was unaware of this possibility five years after the end of World War II.

Where do you see Congress drawing the line in defining actions that are essential or incident to military service?

I think the best approach is to isolate and define actions obviously not incident to military service. Congress is capable of saying that rape and sexual assault are not incident to military service, medical malpractice is not incident to military service, poisoning someone is not incident to military service, assault and battery are not incident to military service, and invidious discrimination on the basis of race is not incident to military service. That’s not too much to ask of our leaders.

Justice requires a level playing field, a neutral forum where victims are heard. It’s time for Congress to act.

Congress Introduces Bill to Fix Feres

In April, members of Congress introduced the “Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019” (H.R. 2422), a bipartisan bill to allow servicemembers to sue the U.S. government for medical negligence unrelated to their military duties. The bill:

• creates an exemption to the Federal Tort Claims Act and allows active duty military personnel to bring claims for injury or wrongful death caused by medical negligence at a covered military medical treatment facility under 10 U.S.C. §§1073d(b), (c), and (d), regardless of whether the facility is located inside or outside the United States.
• has a three-year statute of limitations from the date of the injury or the date the servicemember reasonably should have discovered the injury and its cause.
• applies to claims that are pending when the bill is enacted, with the statute of limitations period beginning to run on that date.

Maureen Leddy is an associate editor for Trial.

Notes

1. Andrew Popper, Rethinking Feres: Granting Access to Justice for Service Members, 60 B.C. L. Rev. 1491 (2019).
2. Feres v. United States, 340 U.S. 135 (1950).
3. This test, which is the crux of Feres, focuses on whether a plaintiff’s injuries arise out of or occur during the course of activity incident to military service.
4. During the October 2018 Term, the U.S. Supreme Court had the opportunity to overturn Feres, possibly obviating the necessity for congressional action, but the Court denied certiorari. The Court let stand the Ninth Circuit’s decision in which it “regrettably” followed United States v. Feres. (Daniel v. United States, 889 F.3d 978, 980 (9th Cir. 2018), cert. denied, 2019 WL 2166412 (May 20, 2019).)