Unfair Feres Doctrine Bars Wrongful Death Suit for Soldier's Baby

"We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long," wrote Judge Nguyen of the 9th Circuit Court of Appeals in the case, Ritchie v. United States.

The doctrine to which she is referring is known as the "Feres doctrine." Under this doctrine, the government is not liable for injuries to members of the military service arising out of, or in the course of, activity incident to service. It originates from a 1950 case, decided by the U.S. Supreme Court, which actually involved three different claims against the government:

  • The wrongful death of an active service member who died in a fire in barracks allegedly known or which should have been known to be unsafe;
  • A medical negligence claim alleging that an army surgeon left a towel 30 inches long by 18 inches wide in a soldier who underwent an abdominal operation; and
  • The wrongful death of an active service member who died due to negligent medical treatment by army surgeons.

 

The Federal Tort Claims Act waives the federal government's sovereign immunity, allowing it to be sued just as a private individual would be. The Feres court carved out a judicial exception to this rule, by holding that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."

This principle was extended to include claims brought by third parties, which derive directly or indirectly from injuries to service members incident to military duty.

The Feres court and its progeny assert three policy rationales for this rule: (1) the government should not be subject to liability based on the fortuity of the situs of the injury; (2) there are alternative compensation systems available; and (3) the fear of damaging the military disciplinary structure.

Ritchie v. US -- 9th Circuit Reluctantly Follows Feres

In Ritchie v. United States, Jonathan Ritchie alleged that U.S. Army officers caused the premature birth and immediate death of his infant son, Gregory, by ordering his pregnant wife, January, a service member on active duty, to pick up trash and perform physical training in direct contravention of her doctors' instruction.

Writing for the Court, Judge Nguyen reluctantly concluded that the Feres doctrine barred Mr. Ritchie's claims, because Gregory's death derived from January's military service. The court did not find it persuasive that January was not a named party. Regardless of whether she was a party, the court reasoned, adjudication of the claim would involve second-guessing the military's orders.

Additionally, the Court found that an "in utero" exception, recognized by other circuits, did not apply. The Court declined to adopt this analysis, and concluded that even if it did use it, the exception would not apply because the harm did not just occur to Gregory, but to January as well.

Judge Nguyen noted that 9th Circuit's case law focused primarily on the third policy rationale for the doctrine, i.e., interfering with the military disciplinary structure, but that it was doubtful that this concern was implicated in this case. "[I]t is unlikely that judicial scrutiny of the orders given to January would have a significant, deleterious effect on our military's operation.

Unfortunately, Judge Nguyen concluded that the Court was bound by precedent, and was not at liberty to make any other decision, but that the claim was barred, "unless and until Congress or the Supreme Court choose to confine the unfairness and irrationality that [Feres] has bred."

Broad Criticism for the Feres Doctrine

The Feres doctrine is no stranger to criticism, and the calls for it to be overturned or modified by Congress or the Supreme Court are many. It has gained particular attention in recent years as a roadblock to victims of sexual assault or rape in the military.

One of the most vocal critics of the doctrine was Justice Scalia's dissent in the 1987 case, United States v. Johnson. "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received." That dissent was joined by Justices Brennan, Marshall, and Stevens.

The 9th Circuit's case Costo v. United States from 2001 was also critical: "The articulated 'rational bases' for the Feres doctrine lead in this case, as in many cases, to inconsistent results that have no relation to the original purpose of Feres."

Judge Nelson authored a concurring opinion in the Ritchie case, which was joined by Judge Nguyen, in which she launched a barrage of criticism at the doctrine, not least of which was the grave injustice that inflicts upon servicewomen and their families. "In refusing to recognize Ritchie's tort claims, we are continuing the legal fiction that these alleged wrongs are part of the military's discipline structure. To hold that these kinds of tortious acts against a pregnant servicewoman are per se judicially unreviewable because they are part of the military mission is to practice willful blindness at the expense of a woman's livelihood and the life of her unborn child."

Her concurrence did not stop at criticizing the doctrine, but demanded action. "It is past time for the judiciary to reconsider its reasons for refusing compensation to servicemembers under the Federal Tort Claims Act", wrote Nelson.