Feres v. United States
Based on Wikipedia: Feres v. United States
The Doctrine That Leaves Soldiers Without Recourse
Imagine waking up from routine surgery to discover that an Army surgeon left a towel inside your abdomen—a towel thirty inches long and eighteen inches wide, stamped "Medical Department U.S. Army." Now imagine being told you cannot sue the government for this obvious negligence.
This is not a hypothetical. It happened to a man named Jefferson in the late 1940s, and his case helped establish one of the most controversial legal doctrines in American jurisprudence: the Feres doctrine.
The rule is simple and sweeping: members of the United States armed forces cannot sue the federal government for injuries sustained while on active duty, even when those injuries result from clear negligence. A civilian who experiences the exact same medical malpractice at a government hospital can sue. A soldier cannot.
Three Cases, One Fateful Decision
In 1950, the Supreme Court consolidated three cases that would reshape the legal landscape for military personnel. Each case told its own story of tragedy and alleged negligence.
Lieutenant Feres died in a fire at Pine Camp, New York. His executrix argued that the military negligently quartered him in barracks with a defective heating plant and failed to maintain an adequate fire watch. The government knew—or should have known—that those barracks were unsafe.
Then there was Jefferson, the man with the towel. Eight months after his Army surgery, doctors performing a follow-up operation discovered the massive cloth that Army surgeons had forgotten inside him. The lower court found negligence as a fact, but still ruled that Jefferson had no legal remedy.
The Griggs case involved a service member who died from what his family alleged was negligent and unskillful medical treatment by Army surgeons. Unlike the other two cases, an appeals court had actually ruled in favor of the family—setting up a conflict between circuits that the Supreme Court needed to resolve.
The Court resolved it by siding with the government in all three cases.
The Logic Behind the Doctrine
Justice Robert Jackson, writing for the Court, offered several justifications for this seemingly harsh rule. Understanding these rationales helps explain why the doctrine has proven so durable—and so controversial.
First, Jackson argued that the Federal Tort Claims Act, which generally allows citizens to sue the government for negligence, was never intended to apply to military personnel. Congress, he noted, was not burdened with private bills on behalf of military personnel because a comprehensive system of relief—what we now call Veterans Affairs benefits—already existed for them.
Second, he pointed to the peculiar nature of the military relationship. When the law says the government can be sued under circumstances that would create "private liability," what private analogy exists for the relationship between a soldier and the military? There is no private employer who quarters workers in barracks, controls their medical care entirely, and can order them into life-threatening situations.
Third, Jackson worried about the chaos of applying fifty different state tort laws to a distinctively federal institution. If a soldier injured at a base in Texas had different legal rights than one injured at a base in California, military operations would become tangled in a web of inconsistent state rules.
These arguments had a certain logic. But critics would spend the next seven decades pointing out their flaws.
What the Doctrine Actually Does
The practical effects of Feres extend far beyond the three original cases.
If a service member dies due to military negligence, their spouse and children cannot file a wrongful death lawsuit. They cannot sue for loss of consortium—the legal term for the loss of companionship, affection, and support that comes with losing a family member. The bar is nearly absolute.
However, the doctrine does have boundaries. If a military family member—not the service member, but their spouse or child—is injured by government negligence, they can sue. A soldier cannot sue if military doctors botch her surgery, but her civilian husband could sue if the same doctors injured him.
This creates peculiar scenarios. Consider a military vehicle that crashes due to negligent maintenance, injuring both the soldier driving it and a civilian passenger. The civilian can recover damages. The soldier cannot.
Courts have also carved out narrow exceptions. When a court finds that civilians could have been harmed "in the same manner under the same circumstances," service members have sometimes been allowed to proceed with their claims. But these exceptions are rare, and the doctrine remains formidable.
The Midshipman Who Couldn't Sue
The human cost of Feres becomes vivid in individual cases.
Leonce J. Miller III was a fourth-class midshipman at the United States Naval Academy—essentially a freshman learning to become a naval officer. During a sailing exercise, the boom of his boat struck him, knocking him overboard and unconscious. The accident happened, he alleged, because of improper training and the Navy's decision to send trainees out in inclement weather.
What happened next made everything worse. The Navy boat assigned to oversee the exercise was inoperable. The personnel who should have been watching the trainees were instead working on their broken vessel. Miller floated in the water, unconscious, while help was delayed.
When he finally reached the National Naval Medical Center in Bethesda, Maryland, doctors told him he had no physiological injuries. They were wrong. Miller had actually suffered a fractured neck and vestibular nerve damage. For nearly four years afterward, he could not walk without assistance.
He sued. He lost.
The Fifth Circuit Court of Appeals acknowledged the seeming unfairness but felt bound by precedent. In a remarkable passage, the court addressed Miller directly:
The law is often unfair when viewed from the perspective of any one individual. Unfairness, however, must often be tolerated if we are to devise, implement, and maintain a system of laws whose application is certain and just in the grand scheme of things. Whether the Feres doctrine can be described as such is, we feel, open to question in certain cases. However, any final determination of its justness must be left to a higher authority than this Court.
The court was essentially saying: we think this might be wrong, but we cannot fix it ourselves. Only the Supreme Court or Congress can change the rule.
The Airman and the Wrong Tube
Dean Witt's case reads like a medical nightmare made worse by legal helplessness.
In October 2003, Staff Sergeant Witt checked into David Grant Medical Center for an appendectomy—one of the most routine surgeries in modern medicine. He was on approved furlough, a period of authorized leave, finalizing his transfer between Air Force bases.
The surgery went fine. What came after did not.
A military nurse anesthetist needed to reinsert an endotracheal tube—the tube that delivers oxygen to a patient's lungs during and after surgery. The anesthetist inserted it into Witt's esophagus instead of his trachea. This meant that the life-saving oxygen was being pumped into his stomach rather than his lungs.
When staff realized the error, they reached for emergency equipment. But they grabbed a pediatric device—equipment sized for children, not for an adult man. The delay and confusion caused an anoxic brain injury, meaning Witt's brain was deprived of oxygen long enough to cause catastrophic damage. He entered a vegetative state and never emerged. Three months later, on January 9, 2004, he died.
His wife filed a wrongful death claim under the Federal Tort Claims Act. The district court judge, John Mendez, ruled against her—but did so reluctantly. Mendez explicitly called the Feres doctrine "unfair" and "irrational," urging the Supreme Court to revisit it.
The Ninth Circuit upheld the dismissal. Witt's widow petitioned the Supreme Court for a writ of certiorari, the formal request asking the Court to hear a case. Supporting briefs poured in from various organizations. On June 27, 2011, the Supreme Court refused to hear the case.
Dean Witt's family received no compensation for medical negligence that would have resulted in a substantial verdict in any civilian context.
A Cadet, An Alleged Rape, and Clarence Thomas's Dissent
Perhaps no case illustrates the doctrine's reach more starkly than Jane Doe v. United States, decided in 2021.
An unnamed plaintiff—identified only as Jane Doe to protect her privacy—alleged that she was raped by a fellow cadet during her second year at West Point, the United States Military Academy. After exhausting administrative proceedings within the military system, she sued the government under the Federal Tort Claims Act.
The district court dismissed her case under Feres. The appeals court affirmed. Jane Doe asked the Supreme Court to overrule the seventy-year-old doctrine entirely.
The Court declined to hear the case. But Justice Clarence Thomas wrote a dissent that captured decades of accumulated frustration with Feres.
Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell. There is precedent for that approach. We should follow it.
Thomas was making an argument about how courts should handle their own mistakes. The doctrine of stare decisis—Latin for "to stand by things decided"—generally counsels courts to follow their own precedents. But Thomas argued that when a precedent is "demonstrably wrong," courts should be willing to overturn it rather than perpetuate injustice.
His dissent did not carry the day. Feres remains the law.
Congress Steps In—Partially
Faced with the Supreme Court's unwillingness to revisit Feres, reform efforts have shifted to Congress.
In 2009, Representative Maurice Hinchey of New York introduced the Carmelo Rodriguez Military Medical Accountability Act. The bill would have amended the Federal Tort Claims Act to allow claims by military members injured or killed due to negligent healthcare, with an exception for injuries during military conflict. The logic was straightforward: whatever justifications exist for barring lawsuits related to combat decisions, they do not apply to routine medical care.
The bill did not pass. Hinchey reintroduced it in 2010. It failed again.
Then came Richard Stayskal.
Sergeant First Class Stayskal was diagnosed with terminal lung cancer. But the cancer was not a surprise that emerged from nowhere. Military doctors had noticed a growth in his lung on two separate occasions and failed to investigate it. By the time anyone took action, the cancer was inoperable.
In 2019, Stayskal testified before Congress about his ordeal. His story galvanized support for reform in ways that previous efforts had not.
The result was the SFC Richard Stayskal Military Medical Accountability Act of 2019, signed into law by President Donald Trump on December 20 of that year. The law did not overturn Feres, but it created something new: an administrative process through which service members can file and resolve medical malpractice claims.
This is not the same as having access to courts. Administrative processes are typically faster but offer less compensation. There is no jury to assess damages, no public trial to expose negligence, no precedent-setting opinion to guide future cases. But for the first time in seventy years, service members injured by military medical malpractice have some avenue for redress beyond Veterans Affairs disability benefits.
The Broader Questions
Feres raises questions that extend beyond military law.
How should courts treat precedents they believe are wrong? Thomas's dissent in Jane Doe articulates one view: if a rule is "demonstrably wrong," courts should overturn it. Others argue that stability in law has its own value, and that changing course should require more than a new court's disagreement with an old court's reasoning.
What is the proper relationship between military discipline and individual rights? Some defenders of Feres argue that allowing soldiers to sue their commanding officers—or the institutions those officers represent—would undermine the chain of command. Others counter that holding the military accountable for genuine negligence would actually improve military effectiveness by incentivizing safer practices.
How should we balance administrative efficiency against access to justice? The original Feres opinion emphasized that Congress had created an alternative system—Veterans Affairs benefits—to compensate injured service members. But VA benefits are not equivalent to tort damages. They are standardized payments based on disability ratings, not individualized assessments of what a particular person lost due to someone else's negligence.
And perhaps most fundamentally: should those who volunteer to serve their country accept, as part of that bargain, the surrender of legal rights that every civilian takes for granted?
Where Things Stand
Seventy-four years after the Supreme Court decided Feres v. United States, the doctrine remains mostly intact.
Military personnel injured by negligence while on active duty still cannot sue the government in court. Families of service members killed by negligence still cannot file wrongful death claims. The rule that seemed harsh in 1950—when it denied recovery to a man who had a towel left in his abdomen—continues to deny recovery to service members and their families today.
The 2019 law creating an administrative process for medical malpractice claims represents the most significant change in the doctrine's history. But it is a workaround, not a repeal. It applies only to medical malpractice, not to other forms of negligence. It routes claims through an administrative system rather than the courts. And it does not disturb the underlying rule that the Federal Tort Claims Act does not apply to injuries sustained by service members on active duty.
Critics continue to call for the doctrine's abolition. Supporters argue that military discipline requires limiting service members' ability to sue their own institution. The Supreme Court continues to deny certiorari in cases that would give it an opportunity to reconsider.
The debate, like the doctrine itself, endures.