Amicus Curiae Brief — Ryan G. Carter, et al., Petitioners v. United States
Supreme Court briefJun 28, 2024
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No. 23-1281
IN THE
Supreme Court of the United States
_____________________________________________
RYAN G. CARTER AND KATHLEEN E. COLE,
Petitioners,
v.
UNITED STATES OF AMERICA,
_____________________________________________
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________________________________________
BRIEF OF NATIONAL VETERANS LEGAL
SERVICES PROGRAM AND SAVE OUR
SERVICEMEMBERS AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
_____________________________________________
Rochelle Bobroff
Renée A. Burbank
Zachary R.M. Outzen
Barton F. Stichman
NATIONAL VETERANS
LEGAL SERVICES
PROGRAM
1100 Wilson Boulevard
Suite 900
Arlington, VA 22209
Counsel for Amicus Curiae
National Veterans Legal
Services Program
Melanie L. Bostwick
Counsel of Record
Melanie R. Hallums
Anne W. Savin
ORRICK, HERRINGTON &
SUTCLIFFE LLP
2100 Pennsylvania
Avenue NW
Washington, DC 20037
(202) 339-8400
mbostwick@orrick.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION AND SUMMARY OF
ARGUMENT .........................................................2
ARGUMENT ...............................................................4
I.
Feres Should Be Overruled. .................................4
II. Military Changes Have Eclipsed Any
Surviving Rationale Supporting Feres. ...............9
A. Military Healthcare ......................................11
B. Military Education, Housing, and
Recreation......................................................13
C. The Military’s Structural Change ................15
III. Military Benefits Do Not Justify
Retaining Feres. ..................................................17
IV. Military Discipline Does Not Require
Feres’s Atextual Protection. ...............................20
A. Military discipline was a post hoc Feres
rationale. .......................................................21
B. Military discipline is not so fragile as
this rationale suggests. .................................22
C. Duty and obedience are bedrock
military values. .............................................24
CONCLUSION ..........................................................26
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Appelhans v. United States,
877 F.2d 309 (4th Cir. 1989)................................12
Burns v. Wilson,
346 U.S. 137 (1953) ..............................................25
In re Camp Lejeune N.C. Water
Contamination Litig.,
263 F. Supp. 3d 1318 (N.D. Ga. 2016) ................15
Clendening v. United States,
143 S. Ct. 11 (2022)............................................6, 8
Clendening v. United States,
19 F.4th 421 (4th Cir. 2021) ..................................7
Costo v. United States,
248 F.3d 863 (9th Cir. 2001)..................................8
Daniel v. United States,
139 S. Ct. 1713 (2019)............................................6
Daniel v. United States,
889 F.3d 978 (9th Cir. 2018)............................7, 12
Doe v. Hagenbeck,
870 F.3d 36 (2d Cir. 2017) ...................................13
Doe v. United States,
141 S. Ct. 1498 (2021)............................................6
iii
FDIC v. Meyer,
510 U.S. 471 (1994) ................................................5
Feres v. United States,
340 U.S. 135 (1950) ...................... 2, 5, 9, 17, 18, 21
In re Grimley,
137 U.S. 147 (1890) ..............................................23
Hass v. United States,
518 F.2d 1138 (4th Cir. 1975)..............................15
Hinkie v. United States,
715 F.2d 96 (3d Cir. 1983) .....................................7
Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps.,
585 U.S. 878 (2018) ................................................8
Kendrick v. United States,
877 F.2d 1201 (4th Cir. 1989)..............................22
Klay v. Panetta,
758 F.3d 369 (D.C. Cir. 2014) ................................8
Lanus v. United States,
133 S. Ct. 2731 (2013)............................................6
Martin v. O’Rourke,
891 F.3d 1338 (Fed. Cir. 2018) ............................19
Ortiz v. U.S. ex rel. Evans Army Cmty. Hosp.,
786 F.3d 817 (10th Cir. 2015)............................7, 8
Ortiz v. United States,
585 U.S. 427 (2018) ..............................................23
iv
Parker v. Levy,
417 U.S. 733 (1974) ........................................22, 25
Parker v. United States,
611 F.2d 1007 (5th Cir. 1980)................................7
Purcell v. United States,
656 F.3d 463 (7th Cir. 2011)..............................7, 8
Rayonier Inc. v. United States,
352 U.S. 315 (1957) ................................................6
Richards v. United States,
176 F.3d 652 (3d Cir. 1999) ...................................8
Ritchie v. United States,
733 F.3d 871 (9th Cir. 2013)..................................7
Siddiqui v. United States,
783 F. App’x 484 (6th Cir. 2019) .........................18
Stencel Aero Eng’g Corp. v. United States,
431 U.S. 666 (1977) ..........................................6, 18
Taber v. Maine,
67 F.3d 1029 (2d Cir. 1995) ...................................7
United States v. Brown,
348 U.S. 110 (1954) ..............................................21
United States v. Johnson,
481 U.S. 681 (1987) .......... 5, 6, 9, 17, 18, 21, 22, 26
United States v. Martinez,
42 M.J. 327 (C.A.A.F. 1995) ................................23
v
United States v. Muniz,
374 U.S. 150 (1963) ................................................9
United States v. Shearer,
473 U.S. 52 (1985) ................................................21
United States v. Stanley,
483 U.S. 669 (1987) ..............................................22
Statutes
10 U.S.C. § 802(a)(3)(A)(ii) ..........................................3
10 U.S.C. § 815 ..........................................................23
10 U.S.C. § 817 ..........................................................23
10 U.S.C. § 883 ..........................................................23
10 U.S.C. § 889 ..........................................................23
10 U.S.C. § 890 ..........................................................23
10 U.S.C. § 891 ..........................................................23
10 U.S.C. § 892 ..........................................................23
10 U.S.C. § 934 ..........................................................23
10 U.S.C. § 1450 ........................................................18
10 U.S.C. § 1475 ........................................................18
10 U.S.C. § 2733a(a) ..................................................19
10 U.S.C. § 2733a(d)..................................................19
vi
10 U.S.C. § 10216(a)(1) ...............................................3
28 U.S.C. § 1346(b)......................................................4
28 U.S.C. § 2671 ..........................................................4
28 U.S.C. § 2680(j)....................................... 5, 8, 11, 16
28 U.S.C. § 2680(k) ...................................................16
38 U.S.C. § 1310 ........................................................18
38 U.S.C. § 1967 ........................................................18
Camp Lejeune Justice Act of 2022, Pub.
L. No. 117-168, 136 Stat. 1759 ............................15
Women’s Armed Services Integration
Act of 1948, Pub. L. No. 80-625, 62
Stat. 356 ...............................................................10
Rules and Regulations
Army Regulation 600-20, Army
Command Policy (July 24, 2020) ........................25
Army Regulation 600-100, Army
Profession and Leadership Policy
(Apr. 5, 2017)........................................................25
Army Regulation 670-1, Wear and
Appearance of Army Uniforms and
Insignia (Jan. 26, 2021) .......................................24
S. Ct. R. 37.2 ................................................................1
vii
Other Authorities
Air National Guard Instruction 362001, Management of Training and
Operational Support Within the Air
National Guard (Apr. 30, 2019) ............................3
America’s paid boots on the ground, The
Week (Jan. 8, 2015),
https://tinyurl.com/5n7k5s3h ..............................16
Andrew F. Popper, Rethinking Feres:
Granting Access to Justice for
Service Members, 60 B.C. L. Rev.
1491 (2019) ...........................................................20
Benjamin N. Cardozo, The Growth of
the Law (1924) .....................................................17
Brian Scott Yablonski, Marching to the
Beat of a Different Drummer: The
Case of the Virginia Military
Institute, 47 U. Miami L. Rev. 1449
(1993) ....................................................................13
Bruce Keith, The Transformation of
West Point as a Liberal Arts College,
96 Liberal Educ. 6 (2010),
https://tinyurl.com/56c2hfyv................................13
Charles C. Moskos & John Sibley
Butler, All That We Can Be: Black
Leadership and Racial Integration
the Army Way (1996) ...........................................10
viii
Congressional Research Service,
Defense Primer: Military Health
System (Mar. 4, 2024),
https://tinyurl.com/3r89ybpz ...............................12
Courtney Kube, Navy to Deny All Civil
Claims Related to Camp Lejeune
Water Contamination, NBC News
(Jan. 24, 2019),
https://tinyurl.com/yarbpy3k .........................14, 15
David A. Schlueter, The Court-Martial:
An Historical Survey, 87 Mil. L. Rev.
129 (1980) .............................................................22
1 David A. Schlueter, Military Criminal
Justice: Practice and Procedure (9th
ed. 2015) ...............................................................24
David R. Segal & Mady Wechsler Segal,
America’s Military Population, 59
Population Bulletin, no. 4, Dec. 2004..............9, 10
Demographics of the U.S. Military,
Council on Foreign Relations (July 13,
2020), https://tinyurl.com/y27hn3bt ....................10
Dep’t of Defense, 2020 Demographics:
Profile of the Military Community
(2020), https://tinyurl.com/4jx2bm2z ..................10
Dep’t of Defense, A New Social Compact:
A Reciprocal Partnership Between the
Department of Defense, Service
Members and Families (2002) .............................15
ix
Dep’t of Defense, Military Health
System Review (2014),
https://tinyurl.com/y5ls3f3d ................................12
Dep’t of Defense, Modernized Social
Compact: Report of the First
Quadrennial Quality of Life Review
(2004), https://tinyurl.com/y59ofu6v ...................10
Dep’t of Veterans Affairs, Board of
Veterans’ Appeals Quarterly Reports,
https://tinyurl.com/555n7ewb ..............................18
Dep’t of Veterans Affairs, Veterans
Benefits Administration Reports,
https://tinyurl.com/vs2xm82b ..............................18
Donald H. Rumsfeld, The Annual
Defense Report: 2004 Report to the
President and to the Congress
(Cosimo ed., 2005) ................................................10
Earl Warren, The Bill of Rights and the
Military, 37 N.Y.U. L. Rev. 181 (1962) ...............22
Exec. Order No. 12633, Amending the
Code of Conduct for Members of the
Armed Forces of the United States
(Mar. 28, 1988) .....................................................25
Gregory C. Sisk, Holding the Federal
Government Accountable for Sexual
Assault, 104 Iowa L. Rev. 731 (2019) ..................19
x
Jennifer Arlen, Contracting Over
Liability: Medical Malpractice and
the Cost of Choice, 158 U. Pa. L. Rev.
957 (2010) .............................................................20
Jonathan Turley, The Military Pocket
Republic, 97 Nw. U. L. Rev. 1 (2002) ..................24
Jonathan Turley, Pax Militaris: The
Feres Doctrine And The Retention Of
Sovereign Immunity In The Military
System Of Governance, 71 Geo.
Wash. L. Rev. 1 (Feb. 2003) ..................... 11, 12, 13
Lori Lou Freshwater, What Happened
at Camp Lejeune, Pacific Standard
(Aug. 21, 2018),
https://tinyurl.com/y882jja9 ................................14
Maxwell J. Mehlman et al.,
Compensating Persons Injured by
Medical Malpractice and Other
Tortious Behavior for Future
Medical Expenses Under the
Affordable Care Act, 25 Annals
Health L. 35 (2016) ..............................................20
Myriam E. Gilles, In Defense of Making
Government Pay: The Deterrent
Effect of Constitutional Tort
Remedies, 35 Ga. L. Rev. 845 (2001) ...................19
xi
National WWII Museum, Research
Starters: US Military by the
Numbers,
https://tinyurl.com/3p4ax3uv ................................9
OED Online (Oxford Univ. Press Mar. 2024),
https://doi.org/10.1093/OED/8716146566 .............5
Shorter Oxford English Dictionary (3d
ed. 1944) .................................................................5
U.S. GAO, Military Housing: DOD Can
Further Strengthen Oversight of Its
Privatized Housing Program (Apr. 6,
2023), https://tinyurl.com/5dbtpw5x ...................14
U.S. GAO, Military Housing:
Strengthened Oversight Needed to
Make and Sustain Improvements to
Living Conditions, Testimony Before
the Quality of Life Panel, House
Committee on Armed Services (Sept.
27. 2023),
https://tinyurl.com/35cyhcbs ...............................14
The White House, National Security
Presidential Directive/NSPD-2 (Feb.
15, 2001),
https://tinyurl.com/y2kvk3cw ..............................11
1
INTEREST OF AMICI CURIAE 1
The National Veterans Legal Services Program
(NVLSP) is an independent, nonprofit organization
that has worked since 1981 to ensure that the United
States government provides our nation’s 20 million
veterans and servicemembers with the federal benefits they have earned through service to our country.
NVLSP advocates before Congress, federal agencies,
and courts to protect servicemembers and veterans.
When, as here, an Article III court’s ruling would deprive large groups of our nation’s servicemembers,
veterans, or their families of rights granted by Congress, NVLSP authors amicus curiae briefs supporting appellate review and reversal. NVLSP’s interest
is particularly acute in cases where servicemembers
are denied relief for such grievous injuries as Mr.
Carter’s.
Save Our Servicemembers (SOS) is an independent, nonprofit organization that was founded in 2020
by Gold Star and military families with a loved one
who either died or was seriously injured at the start
of their military career. SOS advocates for victims of
military medical malpractice and negligence and
seeks to provide a voice for future generations of servicemembers to ensure they are aware of their rights
while on active duty.
1 The parties were notified of the intention to file this brief
per Rule 37.2. No counsel for a party authored the brief in whole
or in part. No party, counsel for a party, or any person other than
amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the brief.
2
INTRODUCTION AND SUMMARY OF
ARGUMENT
The much-criticized Feres doctrine prevents servicemembers from suing the federal government under the Federal Tort Claims Act (FTCA) for injuries
sustained “incident to service.” Feres v. United States,
340 U.S. 135, 146 (1950). This judicially created exception to liability reflects an unjustified reluctance
by the judiciary to interfere in any military matters,
as well as an outdated view that the military’s relationship with servicemembers is fundamentally different from other societal relationships that can
create legal liabilities, such as doctor-patient, landlord-tenant, and educator-student. Whatever validity
the Feres doctrine had in 1950, it is indefensible today.
The stated rationales for the Feres doctrine no
longer withstand scrutiny. Feres was decided shortly
after World War II, when the U.S. military’s membership had grown to more than 12 million servicemembers. Limiting judicial involvement in military affairs
at that time might have seemed like prudent policy
(assuming judicial policy preferences can ever displace express statutory language).
But today’s military is a much smaller, all-volunteer force. There are currently about 2 million U.S.
servicemembers, which represents about 0.5 percent
of the U.S. population. Judicial policy concerns regarding “depleting of the public treasury,” as noted in
Feres, are far less relevant today and, in any event,
far outweighed by the injustice the doctrine has
3
wrought. Because of the Feres doctrine, servicemembers and their families often do not receive fair and
adequate compensation for their injuries, especially
as compared to their civilian counterparts.
Congress expressly allowed servicemembers and
their families to bring tort claims against the United
States for non-combat injuries, but the Feres Court
contravened explicit statutory text to preclude such
claims. As a result, the Feres doctrine has unjustly deprived servicemembers and their families of legal
remedies based on an outdated and flawed understanding of what conduct is “incident to service.”
Here, the court of appeals arguably extended
Feres even further, as Petitioner Ryan Carter was not
in any military duty status at the time of his surgery.
He was a member of the Maryland Air National
Guard. Having left federal service on March 13, 2018,
Mr. Carter was not in any authorized duty status on
April 6, 2018. See Air National Guard Instruction
(ANGI) 36-2001, Management of Training and Operational Support Within the Air National Guard, para.
1.3 (Apr. 30, 2019). As a Guardsman not in federal
service, he was not subject to the Uniform Code of Military Justice (UCMJ). 10 U.S.C. § 802(a)(3)(A)(ii).
Moreover, his military technician (dual status) position was a “Federal civilian employee” position, 10
U.S.C. § 10216(a)(1), that required Mr. Carter to “be
in an off duty or official leave status” to undertake his
military duties, ANGI 36-2001, para. 2.7. At the time
of his surgery, he was more civilian than servicemember. Yet the court of appeals deemed his injury “incident to service” under Feres and denied him access to
FTCA relief.
4
Amici agree with Petitioners that this case presents an excellent opportunity for this Court to revisit
the Feres doctrine. Medical malpractice during elective surgeries while not in any duty status certainly
should not be considered “incident to service,” and immunity for botched surgeries that render servicemembers quadriplegic is particularly unwarranted.
This Court should therefore take this opportunity
to overrule Feres and its progeny. (Part I.) The Feres
Court’s original rationales cannot survive given the
dramatic changes in American military forces since
the end of World War II. (Part II.) Not only has the
military changed dramatically, but military benefits
have failed to keep pace with civil remedies. (Part III.)
And the military’s robust discipline system does not
require the Feres doctrine’s protection. (Part IV.)
Feres no longer serves the judicial policy preferences
that birthed it.
ARGUMENT
I.
Feres Should Be Overruled.
The FTCA’s text plainly allows servicemembers
and their families to bring tort claims against the
United States “for injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b). The Act defines
“employee of the government” to include “members of
the military or naval forces of the United States.” 28
U.S.C. § 2671.
5
Congress included a list of exceptions to liability
under the FTCA, including any claim “arising out of
the combatant activities of the military or naval
forces, or the Coast Guard, during time of war.” 28
U.S.C. § 2680(j) (emphasis added). “Combatant activities” are not defined. “In the absence of such a definition, we construe a statutory term in accordance with
its ordinary or natural meaning.” FDIC v. Meyer, 510
U.S. 471, 476 (1994). The ordinary meaning of the adjective “combatant” in 1946 was: “Fighting, ready to
fight.” Combatant, Shorter Oxford English Dictionary
(3d ed. 1944). It means the same thing today:
“Fighting, contending in fight, ready to fight.” Combatant, OED Online (Oxford Univ. Press Mar. 2024),
https://doi.org/10.1093/OED/8716146566.
Despite this plain statutory language, the Feres
Court added an extra-statutory exception to government liability. It held that “the Government is not liable under the [FTCA] for injuries to servicemen
where the injuries arise out of or are in the course of
activity incident to service.” Feres, 340 U.S. at 146
(emphasis added). In other words, rather than limiting liability for “combatant activities,” the Feres Court
limited liability for all activities “incident to service.”
Compare 28 U.S.C. § 2680(j), with Feres, 340 U.S. at
146.
This atextual interpretation of the FTCA has
been resoundingly criticized by individual justices
and lower courts alike. As Justice Scalia explained,
the Feres Court had “no justification ... to read exemptions into the [FTCA] beyond those provided by Congress. If the [FTCA] is to be altered that is a function
for [Congress,] the same body that adopted it.” United
6
States v. Johnson, 481 U.S. 681, 702 (1987) (Scalia, J.,
dissenting) (quoting Rayonier Inc. v. United States,
352 U.S. 315, 320 (1957)). “Feres was wrongly decided
and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Id. at 700 (citation omitted).
Justice Thomas recently expressed similar concerns: “It would be one thing if Congress itself were
responsible for this incoherence. But Congress set out
a comprehensive scheme waiving sovereign immunity
that we have disregarded in the military context for
nearly 75 years. Because we caused this chaos, it is
our job to fix it.” Clendening v. United States, 143 S.
Ct. 11, 14 (2022) (Thomas, J., dissenting from denial
of certiorari); accord Doe v. United States, 141 S. Ct.
1498, 1499 (2021) (Thomas, J., dissenting from denial
of certiorari); Daniel v. United States, 139 S. Ct. 1713,
1713-14 (2019) (Thomas, J., dissenting from denial of
certiorari); Lanus v. United States, 133 S. Ct. 2731,
2731-32 (2013) (Thomas, J., dissenting from denial of
certiorari).
Decades earlier, Justice Marshall criticized “the
theory that in any case involving a member of the military on active duty, Feres … displaces the plain language of the [FTCA].” Stencel Aero Eng’g Corp. v.
United States, 431 U.S. 666, 674 (1977) (Marshall, J.,
dissenting). He could not “agree that that narrow, judicially created exception to the waiver of sovereign
immunity contained in the Act should be extended to
any category of litigation other than suits against the
Government by active-duty servicemen based on injuries incurred while on duty.” Id.
7
The courts of appeals likewise have recognized
the lack of textual support for the Feres doctrine and
its resulting ambiguities. See, e.g., Clendening v.
United States, 19 F.4th 421, 427-28 (4th Cir. 2021);
Ritchie v. United States, 733 F.3d 871, 878 (9th Cir.
2013); Purcell v. United States, 656 F.3d 463, 465-66
(7th Cir. 2011); Taber v. Maine, 67 F.3d 1029, 1038
(2d Cir. 1995); Parker v. United States, 611 F.2d 1007,
1009 (5th Cir. 1980). They also have expressed frustration at the doctrine’s harsh and unjust results. In
a case applying the Feres doctrine to a servicemember’s child, for example, the Tenth Circuit explained:
“In the many decades since its inception, criticism of
the so-called Feres doctrine has become endemic. That
criticism is at its zenith in a case like this one—where
a civilian third-party child is injured during childbirth, and suffers permanent disabilities.” Ortiz v.
U.S. ex rel. Evans Army Cmty. Hosp., 786 F.3d 817,
818 (10th Cir. 2015) (Tymkovich, J.). Another court
stated, “[w]e can think of no other judicially-created
doctrine which has been criticized so stridently, by so
many jurists, for so long.” Ritchie, 733 F.3d at 878; see
also Daniel v. United States, 889 F.3d 978, 982 (9th
Cir. 2018) (“If ever there were a case to carve out an
exception to the Feres doctrine, this is it. But only the
Supreme Court has the tools to do so.”); Hinkie v.
United States, 715 F.2d 96, 97 (3d Cir. 1983) (“We are
forced once again to decide a case where ‘we sense the
injustice … of [the] result’ but where nevertheless we
have no legal authority, as an intermediate appellate
court, to decide the case differently.”) (citation omitted).
8
Courts have similarly expressed concern about
“the doctrine’s ever-expanding reach” and “the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine’s
original purposes.” Costo v. United States, 248 F.3d
863, 864, 869 (9th Cir. 2001); see also Purcell, 656
F.3d at 465-66; Richards v. United States, 176 F.3d
652, 656-58 (3d Cir. 1999).
Indeed, as in Mr. Carter’s case, the Feres doctrine
bars relief in circumstances never contemplated by
Congress when it added the combat exception to the
FTCA. These include personal injuries or deaths
caused by medical malpractice, Ortiz, 786 F.3d 817,
and sexual assaults by fellow soldiers, Klay v. Panetta, 758 F.3d 369 (D.C. Cir. 2014). None of these are
“combatant activities” or even the type of activities
that Feres considered “incident to service.”
There simply is no textual defense of Feres and its
progeny. “[I]n Feres, this Court invented an atextual,
policy-based carveout that prevents servicemen from
taking advantage of the FTCA’s sweeping waiver of
sovereign immunity.” Clendening, 143 S. Ct. at 12
(Thomas, J., dissenting from denial of certiorari). This
Court should overrule Feres and prohibit only those
claims “arising out of the combatant activities … during time of war.” 28 U.S.C. § 2680(j). See Janus v. Am.
Fed’n of State, Cnty., & Mun. Emps., 585 U.S. 878,
886, 929 (2018) (overruling precedent where prior decision “was poorly reasoned,” “has led to practical
problems and abuse,” and “subsequent developments
have eroded its underpinnings”).
9
In particular, the Feres doctrine should not bar relief for Mr. Carter’s injuries. Elective surgery at a U.S.
military hospital should not leave a servicemember
permanently disabled, and a judge-made doctrine
should not immunize such extreme medical malpractice. This case exemplifies “the unfairness and irrationality [Feres] has bred.” Johnson, 481 U.S. at 703
(Scalia, J., dissenting).
II. Military Changes Have Eclipsed Any
Surviving Rationale Supporting Feres.
The Feres Court justified its decision in part based
on its belief that the relationship between servicemembers and the federal government was unique.
Feres, 340 U.S. at 143; see also United States v. Muniz, 374 U.S. 150, 162 (1963) (Feres doctrine “best explained” by special relationship between soldiers and
their superiors). But the modern military is vastly different from the military the Feres Court considered,
and the expansion of non-combat-related military services has blurred the distinction the Court described.
During World War II, “about 12 percent of the
population” served in the military, including, remarkably, “56 percent of the men eligible for military service.” David R. Segal & Mady Wechsler
Segal, America’s Military Population, 59 Population
Bulletin, no. 4, Dec. 2004 at 4. Warfare was different,
requiring more troops than contemporary warfare,
and the military relied on conscription to meet its
needs. Id. at 3. In fact, more than 60% of World War
II servicemembers were draftees. National WWII Museum, Research Starters: US Military by the Numbers,
https://tinyurl.com/3p4ax3uv. And the military
10
largely restricted women and minorities to segregated
units until 1948, just two years before Feres. Charles
C. Moskos & John Sibley Butler, All That We Can Be:
Black Leadership and Racial Integration the Army
Way 30-31 (1996); Women’s Armed Services Integration Act of 1948, Pub. L. No. 80-625, 62 Stat. 356.
But in 1973, the U.S. military became an all-volunteer force, today comprising just 0.5 percent of the
population. Demographics of the U.S. Military, Council on Foreign Relations (July 13, 2020), https://tinyurl.com/y27hn3bt. And it is different in kind. “The
all-volunteer military is more educated, more married, more female, and less white than the draft-era
military.” Segal & Segal, supra, at 3. This “new generation of military recruits has aspirations and expectations for quality of life services and access to health
care, education, and living conditions that are very
different from the conscript force of the past.” Donald
H. Rumsfeld, The Annual Defense Report: 2004 Report to the President and to the Congress 19 (Cosimo
ed., 2005). Meeting those expectations is necessary to
assure our “continued readiness to fight and win the
Nation’s wars.” Dep’t of Defense, Modernized Social
Compact: Report of the First Quadrennial Quality of
Life Review at ii (2004), https://tinyurl.com/y59ofu6v.
Today’s military focuses not just on servicemembers, but also on their families. Today, 2.1 million servicemembers come with 2.6 million family members.
Dep’t of Defense, 2020 Demographics: Profile of the
Military Community, at 97 (2020), https://tinyurl.com/4jx2bm2z. In 2001, President Bush issued
a directive creating a “new social compact” between
11
the Department of Defense (DoD) and military families, recognizing that attention to families, not just individuals, was needed to meet recruitment and
retention needs. The White House, National Security
Presidential Directive/NSPD-2 (Feb. 15, 2001),
https://tinyurl.com/y2kvk3cw. The President’s directive required DoD to reconfigure its support services, including increased pay, improved housing and
healthcare, and strengthened family support networks. Id.
This expansion of benefits and services has led to
a collateral expansion of activities considered “incident to service” under Feres, despite being wholly unrelated to “combatant activities.” 28 U.S.C. § 2680(j).
See Jonathan Turley, Pax Militaris: The Feres Doctrine And The Retention Of Sovereign Immunity In
The Military System Of Governance, 71 Geo. Wash. L.
Rev. 1, 34, 40-46 (Feb. 2003). As a result, servicemembers have been denied recovery for injuries sustained
while receiving routine care at military hospitals;
studying at service academies; living in military housing; and participating in military-sponsored recreational activities. These judge-made exceptions would
be unrecognizable to the Feres Court, let alone the legislature that drafted the FTCA’s narrow “combatant
activities” exception.
A. Military Healthcare
Among the most significant post-Feres changes to
military governance is the expansion of military
healthcare. Unlike when Feres was decided, combat
care is a fraction of military medicine today. The DoD
now operates a comprehensive healthcare system
12
with a mission of providing quality non-combat-related health care to active-duty servicemembers and
their dependents, as well as retirees and their dependents, at military healthcare facilities. Beginning
with the 1956 Dependents’ Medical Care Act, the noncombat component of the Military Health System has
grown enormously; active-duty servicemembers now
represent only 14% of eligible patients. Congressional
Research Service, Defense Primer: Military Health
System,
at
1 (Mar.
4,
2024),
https://tinyurl.com/3r89ybpz (hereinafter Defense Primer).
This system does not exist in isolation from civilian health care. “[A]s a comprehensive health system,
it is influenced by, and must be responsive to, improvements in the civilian health care sector.” Dep’t
of Defense, Military Health System Review, at 23
(2014), https://tinyurl.com/y5ls3f3d. Military studies
compare this system to large civilian healthcare systems. Id. at 1, 16. Many servicemembers are entirely
reliant on this system. Turley, supra, at 58-59; see
also Defense Primer at 1-2. Yet, because medical care
is a benefit of military service, courts have considered
malpractice occurring during treatment at military
facilities to be “incident to service” and ineligible for
FTCA recovery under Feres. See, e.g., Appelhans v.
United States, 877 F.2d 309, 311-12 (4th Cir. 1989);
Daniel, 889 F.3d at 981.
Military medical care is no different from
healthcare coverage by private employers. The military decided to introduce a comprehensive medical
system rather than maintaining a smaller combat
medical staff. By doing so, it moved entire areas of injury outside the conventional legal system and—in
13
light of Feres—potentially increased the likelihood of
negligent healthcare for servicemembers. See Turley,
supra, at 57-67 (theorizing that reduced liability has
increased medical malpractice).
B. Military
Education,
Recreation
Housing,
and
Other significant post-Feres changes to military
governance include the evolution of military education, particularly at the service academies, military
housing, and recreational activities.
Military academies have existed almost since the
nation’s inception: West Point opened in 1802, just
nineteen years after the Revolutionary War ended.
“The mission of [the service academies] is to prepare
cadets for career service in the armed forces.” Brian
Scott Yablonski, Marching to the Beat of a Different
Drummer: The Case of the Virginia Military Institute,
47 U. Miami L. Rev. 1449, 1468 (1993). That mission
has not changed, but the methods have. The service
academies are now academically comparable to civilian colleges and universities, competing with those
institutions for the best students. See Bruce Keith,
The Transformation of West Point as a Liberal Arts
College, 96 Liberal Educ. 6 (2010), https://tinyurl.com/56c2hfyv. But cadets and midshipmen, unlike their civilian counterparts, cannot pursue tort
claims based on injuries that occur on campus because those injuries are considered “incident to service” under Feres. See Doe v. Hagenbeck, 870 F.3d 36,
44-49 (2d Cir. 2017).
14
Housing is another key service offered to military
personnel. Junior enlisted servicemembers without a
spouse or child typically live in military-managed barracks. In September 2023, the Government Accountability Office reported that some barracks pose
serious health and safety risks. U.S. GAO, Military
Housing: Strengthened Oversight Needed to Make and
Sustain Improvements to Living Conditions, Testimony Before the Quality of Life Panel, House Committee on Armed Services (Sept. 27. 2023),
https://tinyurl.com/35cyhcbs. The DoD also oversees
more than 200,000 family housing units, and approximately one-third of military families live on base.
U.S. GAO, Military Housing: DOD Can Further
Strengthen Oversight of Its Privatized Housing Program,
at
1
(Apr.
6,
2023),
https://tinyurl.com/5dbtpw5x.
Choosing between on-base and off-base housing
can be consequential. From the 1950s until at least
1985, for example, the drinking water at Camp
Lejeune, North Carolina, was contaminated with
toxic chemicals at levels 240 to 3400 times beyond
what is permitted by federal safety standards. Lori
Lou Freshwater, What Happened at Camp Lejeune,
Pacific Standard (Aug. 21, 2018), https://tinyurl.com/y882jja9. An estimated 900,000 servicemembers, family members, and civilian personnel
were exposed. Courtney Kube, Navy to Deny All Civil
Claims Related to Camp Lejeune Water Contamination, NBC News (Jan. 24, 2019), https://tinyurl.com/yarbpy3k.
About 4,500 plaintiffs filed claims in federal court
seeking damages for injuries caused by Camp
15
Lejeune’s toxic water, id., but Feres barred those
claims. In re Camp Lejeune N.C. Water Contamination Litig., 263 F. Supp. 3d 1318, 1341 (N.D. Ga.
2016). The court found that, for servicemembers on
active duty during the period of contamination, “Feres
applies virtually as a matter of law. … [S]leeping
while stationed on active duty at a military base is an
activity ‘incident to service.’” Id. at 1341-42. 2
Feres also bars recovery for activities that servicemembers engage in when they are decidedly off-duty.
As part of the “new social contract,” the military began subsidizing entertainment and recreational activities. See Dep’t of Defense, A New Social Compact: A
Reciprocal Partnership Between the Department of
Defense, Service Members and Families, at 70 (2002).
And since military regulations cite “morale” as a military concern, virtually any activity on a base or supported by the military is considered “incident to
service.” Hass v. United States, 518 F.2d 1138, 1141
(4th Cir. 1975) (“Recreational activity provided by the
military can reinforce both morale and health and
thus serve the overall military purpose.”).
C. The Military’s Structural Change
Not only has the military shrunk numerically and
expanded benefits since the 1950s, but its structure
2 Congress recently enacted an exception to Feres for Camp
Lejeune toxic exposure claims, but it came decades after servicemembers were exposed, should not have been needed given the
FTCA’s plain text, and does not address other, similar problems
that may be discovered. See Camp Lejeune Justice Act of 2022,
Pub. L. No. 117-168, § 804, 136 Stat. 1759, 1802-03.
16
has also changed in ways that render Feres even more
inequitable.
America’s wars in Afghanistan and Iraq stretched
the post-Cold War military’s financial and human resources. To limit the number of “boots on the ground”
and save money, the Pentagon outsourced security
services to private defense contractors who in turn
employed civilians. America’s paid boots on the
ground, The Week (Jan. 8, 2015) https://tinyurl.com/5n7k5s3h. In Iraq, there were as many private American contract personnel as U.S.
servicemembers, and in Afghanistan, 207,000 contractors supported 175,000 servicemembers. Id.
These private contractors—who performed many
of the same duties as servicemembers in prior conflicts—are not subject to Feres. Although some of their
claims may be limited by the FTCA’s exceptions for
combatant activities and claims arising in foreign
countries, 28 U.S.C. § 2680(j), (k), they are not
broadly foreclosed from tort relief merely by their status as civilian contractors—even when their claims
implicate command decisions or military discipline.
As the pool of military-adjacent personnel who can recover tort damages against the government expands,
the inequity visited on similarly situated servicemembers seems even less justifiable.
***
Given the dramatic changes in the military since
1950, Feres should be overruled. “A rule which in its
origin was the creation of the courts themselves, and
was supposed in the making to express the mores of
17
the day, may be abrogated by courts when the mores
have so changed that perpetuation of the rule would
do violence to the social conscience.” Benjamin N.
Cardozo, The Growth of the Law 136-37 (1924).
III. Military Benefits Do Not Justify Retaining
Feres.
Another main rationale behind the Feres doctrine
was the availability of military benefits for service-related injuries or deaths. This compensation system
was considered a viable alternative—even superior—
to the remedies available under the FTCA. See Feres,
340 U.S. at 145 (explaining that military recoveries
for injuries “compare extremely favorably with those
provided by most workmen’s compensation statutes”);
see also Johnson, 481 U.S. at 689 (“[T]he existence of
these generous statutory disability and death benefits
is an independent reason why the Feres doctrine bars
suit for service-related injuries.”).
Since 1950, however, the military-benefits system
often has failed to adequately compensate servicemembers for their injuries, especially in cases of medical malpractice, and has not been an adequate
alternative to civil tort liability. Indeed, this case
highlights how Feres’s outdated military-benefits rationale harms servicemembers.
First, the military compensation system is not
comparable to civil litigation in terms of recovery
amounts or deterrent effects. In wrongful death cases,
for example, benefits provided to servicemembers and
their families pale in comparison to possible recover-
18
ies under the FTCA. Compare 38 U.S.C. § 1310 (dependency and indemnity compensation); 10 U.S.C.
§ 1475 (death gratuity); 38 U.S.C. § 1967 (servicemembers’ group life insurance); 10 U.S.C. § 1450 (survivor benefit plan) with FTCA recoveries (averaging
$1,746,075 based on a Westlaw verdict search from
2010 to 2020). “[T]he Feres doctrine’s reliance on ‘generous’ military no-fault compensation has not withstood the test of time. A $100,000 death benefit and
$400,000 in a group life insurance payout are mere
fractions of most wrongful death awards.” Siddiqui v.
United States, 783 F. App’x 484, 489 (6th Cir. 2019).
Moreover, recovery of benefits under the Veterans’ Benefits Act is neither speedy nor efficient. Central to the Court’s holding in Feres was the
assumption that compensation for servicemembers’
injuries or deaths was “simple, certain, and uniform.”
Feres, 340 U.S. at 144. In Johnson, the Court reiterated that assumption, stating that “the recovery of
benefits is ‘swift [and] efficient,’” under the Veterans
Benefits Act. 481 U.S. at 690 (quoting Stencel Aero
Eng’g, 431 U.S. at 673).
Although that may have been the case decades
ago, it is no longer so. The Department of Veterans
Affairs (VA) is currently working under a substantial
backlog, and veterans and their families face significant delays at both the initial and appeal levels. As of
June 22, 2024, nearly one million claims were pending before the agency. See Dep’t of Veterans Affairs,
Veterans Benefits Administration Reports, https://tinyurl.com/vs2xm82b; Board of Veterans’ Appeals
Quarterly Reports, https://tinyurl.com/555n7ewb.
Nor does VA’s compensation system resemble the
19
simple process noted in Feres. See Martin v. O’Rourke,
891 F.3d 1338, 1341-42 (Fed. Cir. 2018) (describing
complicated VA benefits process, including “often-significant periods of delay”).
Regarding medical malpractice cases, Congress
recently enacted a limited exception to the Feres doctrine. The National Defense Authorization Act for Fiscal Year 2020 allows servicemembers to bring
administrative claims “for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a
Department of Defense health care provider.” 10
U.S.C. § 2733a(a) (2019). Although a positive development, this legislation falls far short of the relief that
would result from allowing claims permitted under
the text of the FTCA but barred by Feres. For example, if the Secretary of Defense denies a servicemember’s claim, there is no additional avenue of relief
(such as judicial review), and the legislation limits
most claims to under $100,000. Id. at § 2733a(d).
Finally, the military compensation system does
not hold tortfeasors accountable or adequately deter
future misconduct. “The two leading rationales for
tort liability remain compensation for the injured and
deterrence of the tortfeasor.” Gregory C. Sisk, Holding the Federal Government Accountable for Sexual
Assault, 104 Iowa L. Rev. 731, 781 (2019). Although
the economic deterrent effect of tort liability against
the federal government may be blunted somewhat,
given that compensation is paid by the public treasury rather than by individual tortfeasors, litigating
medical malpractice claims in a public forum also has
a deterrent effect. See Myriam E. Gilles, In Defense of
20
Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 Ga. L. Rev. 845, 849, 880
(2001).
Tort liability often provides the only reliable tool
to expose and address medical errors. See Maxwell J.
Mehlman et al., Compensating Persons Injured by
Medical Malpractice and Other Tortious Behavior for
Future Medical Expenses Under the Affordable Care
Act, 25 Annals Health L. 35, 56 (2016). And it is an
effective tool: “Well-designed malpractice liability can
optimally deter error by giving medical providers direct financial incentives to make cost-effective investments in patient safety.” Jennifer Arlen, Contracting
Over Liability: Medical Malpractice and the Cost of
Choice, 158 U. Pa. L. Rev. 957, 959 (2010).
Because of the Feres doctrine, however, “[m]isconduct that forever changes the lives of so many of our
fellow citizen soldiers was and is undeterred by civil
tort sanction.” Andrew F. Popper, Rethinking Feres:
Granting Access to Justice for Service Members, 60
B.C. L. Rev. 1491, 1496 (2019). “A vast array of actions ordinarily addressed and resolved in Article III
courts for citizens in the private sector go unpunished
and undeterred when the victim (or in some instances
only the perpetrator) is a service member and the misconduct is, broadly defined, ‘incident to service.’” Id.
IV. Military Discipline Does Not Require Feres’s
Atextual Protection.
Although not an original justification for Feres,
over the last forty years, military discipline has be-
21
come the predominant rationale. But this belated reasoning—premised on purported judicial incompetence
to review military-related questions—ignores the robust arsenal of disciplinary tools at a commander’s
disposal. Military commanders need no more than
their existing judicial and cultural resources to preserve military discipline. Feres provides no meaningful additional protections.
A. Military discipline was a post hoc Feres
rationale.
When this Court decided Feres, it did not rely on
any purported risk to military discipline. 340 U.S. at
142-44. It first cited that potential threat four years
later in United States v. Brown, 348 U.S. 110, 112
(1954) (declining to apply Feres because the veteran
claimant was not “on active duty or subject to military
discipline”).
Over time, this after-the-fact discipline justification has displaced the original Feres reasoning. In the
mid-1980s, this Court recharacterized as the “core”
Feres concerns whether a suit implicated military decision-making and “essential military discipline.”
United States v. Shearer, 473 U.S. 52, 57-58 & n.4
(1985) (describing original Feres factors as “no longer
controlling”); see Johnson, 481 U.S. at 698 (Scalia, J.,
dissenting) (“[W]e have repeatedly cited the later-conceived-of ‘military discipline’ rationale as the ‘best’ explanation for” the Feres doctrine.). As the district
court here recognized, “in analyzing the applicability
of the Feres doctrine, courts have focused in large part
on the rationale as to military structure and discipline.” Pet. App. 32a.
22
This concern turns on the belief that lawsuits by
servicemembers will erode “obedience to orders” and
“more generally duty and loyalty to one’s service and
to one’s country.” Johnson, 481 U.S. at 691; see
Kendrick v. United States, 877 F.2d 1201, 1205 (4th
Cir. 1989). This concern was driven by fear of “erroneous judicial conclusions” that would “becloud military
decisionmaking” or, even if correct, would nonetheless
“disrupt the military regime.” United States v. Stanley, 483 U.S. 669, 682-83 (1987); see Earl Warren, The
Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181,
187 (1962) (“Many of the problems of the military society are, in a sense, alien to the problems with which
the judiciary is trained to deal.”).
B. Military discipline is not so fragile as
this rationale suggests.
This concern with preserving servicemembers’
obedience is misplaced. Contrary to the implication
that military discipline is either too fragile or too
opaque to warrant judicial intervention, Congress has
long provided the military with robust disciplinary
tools. Parker v. Levy, 417 U.S. 733, 744 (1974) (recognizing the purpose of military justice “to maintain the
discipline essential to perform its mission effectively”).
Congress enacted the UCMJ and its predecessor
Articles of War to ensure punishment of disobedient
or disruptive behavior that undermines a unit’s cohesion, effectiveness, and sense of duty. David A.
Schlueter, The Court-Martial: An Historical Survey,
87 Mil. L. Rev. 129, 145-60 (1980). Indeed, the mili-
23
tary “can try service members for a vast swath of offenses.” Ortiz v. United States, 585 U.S. 427, 438
(2018). Military-specific offenses include a servicemember’s disobedience to an order or regulation, 10
U.S.C. § 892, or willful disobedience to an officer, id.
§ 890. Beyond acts of disobedience, the UCMJ authorizes punishment for disrespectful behavior. Id. § 889
(disrespectful behavior to a superior officer); id. § 891
(insubordinate behavior to a warrant officer, noncommissioned officer, or petty officer). Particularly relevant to cases in which a servicemember may allege
physical injury, the UCMJ also authorizes commanders to punish malingerers—those who feign illness or
disability intending to avoid military duties. Id. § 883.
For other disruptive behavior, military commanders may punish “all disorders and neglects to the prejudice of good order and discipline in the armed forces”
and “all conduct of a nature to bring discredit upon
the armed forces.” Id. § 934. Moreover, conduct that
violates “military tradition, necessity, and experience” may be punished if the requisite adverse impacts are proved. United States v. Martinez, 42 M.J.
327, 330 (C.A.A.F. 1995) (affirming conviction of airman who loaned his car to a drunk driver who was
killed driving it). This legal code ensures that the military’s “law is that of obedience.” In re Grimley, 137
U.S. 147, 153 (1890).
Military commanders incorporate these punitive
articles into a variety of proceedings, from relatively
swift “non-judicial punishments” through general
courts-martial. See 10 U.S.C. § 815 (authorizing limited pay forfeitures and temporary arrest in quarters); id. § 817 (authorizing imprisonment and capital
24
punishment); 1 David A. Schlueter, Military Criminal
Justice: Practice and Procedure § 1–6(B), p. 39 (9th ed.
2015). Commanders can also avail themselves of nonpunitive sanctions—like letters of reprimand—for minor misconduct or offenses resulting in civilian prosecutions. A formal written reprimand can result in a
servicemember being passed over for promotion and
separated from service.
Commanders therefore have an arsenal of effective measures with which to preserve discipline and
punish any breaches. The much more remote effects
of the Feres doctrine do not meaningfully enhance this
military discipline.
C. Duty and obedience
military values.
are
bedrock
Apart from the punitive measures Congress has
provided through the UCMJ, the military instills duty
and obedience into every recruit. Recruiting from an
ethnically, culturally, and religiously diverse American population, the military creates a cohesive band
of brothers and sisters by supplanting members’ external identifiers with military values. Jonathan
Turley, The Military Pocket Republic, 97 Nw. U. L.
Rev. 1, 112-30 (2002) (describing the “[h]abituation of
[c]ultural [n]orms” within the military). Recruits
adopt a uniform that minimizes differences, enhances
morale, and creates the appearance of homogeneity.
See, e.g., Army Regulation (AR) 670-1, para. 1-1 (Jan.
26, 2021) (“Proper wear of the Army uniform … is indicative of esprit de corps and morale within a unit.”).
This indoctrination creates “a specialized society separate from civilian society,” one that conditions its
25
members to meet the “‘overriding demands of discipline and duty.’” Parker, 417 U.S. at 743-44 (quoting
Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality
opinion)).
As a result of this assimilation, recruits embrace
core values of loyalty, duty, honor, and integrity, all
harnessed to the collective pursuit of national defense. See, e.g., AR 600-20, Army Command Policy,
ch. 4 (July 24, 2020); AR 600-100, Army Profession
and Leadership Policy, paras. 1-5–1-7 (Apr. 5, 2017);
Exec. Order No. 12633, Amending the Code of Conduct for Members of the Armed Forces of the United
States (Mar. 28, 1988). Along with the military’s robust justice system, this unique military culture reinforces the discipline expected from every
servicemember.
In the event a servicemember’s disgruntlement
over civil litigation leads to unprofessional conduct,
the military can take care of its own. Servicemembers
routinely continue their duties after personal or professional loss or disappointment. Furthermore,
where, as here, a grievous injury renders a servicemember’s return to duty impossible, there can be no
reasonable prospect that the servicemember will
break faith with and put at risk his or her fellow servicemembers. The Feres doctrine does not meaningfully improve military discipline but works a
substantial injustice to injured servicemembers. As
Justice Scalia observed, “I do not think the effect upon
military discipline is so certain, or so certainly substantial, that we are justified in holding (if we can
ever be justified in holding) that Congress did not
26
mean what it plainly said in the statute before us.”
Johnson, 481 U.S. at 699 (Scalia, J., dissenting).
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for a writ of certiorari.
Respectfully submitted,
Rochelle Bobroff
Melanie L. Bostwick
Renée A. Burbank
Counsel of Record
Zachary R.M. Outzen
Melanie R. Hallums
Barton F. Stichman
Anne W. Savin
NATIONAL VETERANS
ORRICK, HERRINGTON &
LEGAL SERVICES
SUTCLIFFE LLP
PROGRAM
2100 Pennsylvania
1100 Wilson Boulevard
Avenue NW
Suite 900
Washington, DC 20037
Arlington, VA 22209
(202) 339-8400
mbostwick@orrick.com
Counsel for Amicus
Curiae National
Counsel for Amici Curiae
Veterans Legal
Services Program
June 28, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.