Feres: The “Double-edged Sword”

Authors

Kaitlan PriceFollow

Abstract

In Feres v. United States, the Supreme Court barred service members from suing the Government under the Federal Tort Claims Act if the injuries occurred “incident to military service.” In establishing this doctrine, the Court discussed the necessity of protecting the military from lawsuits to ensure effective decision-making by military leaders.

Scholars have harshly criticized Feres in the modern era, arguing Feres must be overturned to provide service members with a greater opportunity for recovery. Specifically, many scholars admonish Feres because the Supreme Court failed to provide a clear definition of “incident to military service.” Lacking a clear definition of “incident to military service,” Feres has transformed into a blanket waiver of all military tort claims against the Government. This broad interpretation has led to the denial of justice to numerous soldiers throughout the country.

In May 2019, the Supreme Court denied certiorari to consider Daniel v. United States, where plaintiff asked the Court to overturn Feres. After the Supreme Court declined to hear Daniel, it became evident that the Court has no intention of ever completely overturning the doctrine. Congress passed the National Defense Authorization Act in December 2019, allowing service members to file claims with the Department of Defense for medical malpractice injuries caused by the Government. While this exception is considered a victory, Feres remains a blockade to service members attempting to recover for non-medical tort claims through a court of law. This Comment will recommend the Supreme Court establish a consistent approach to defining “incident to military service” for the lower courts to apply.

Recommended Citation

Kaitlan Price, Feres: The “Double-edged Sword”, 125 Dick. L. Rev. 745 (2021).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol125/iss3/5