Amicus Curiae Brief — Ryan G. Carter, et al., Petitioners v. United States

No. 23-1281

_______________

Ryan G. Carter; et al.,

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

_______________

AMICUS BRIEF OF COALITION OF HEROES,

BIPARTISAN MEMBERS OF CONGRESS,

NATIONAL MILITARY FAMILIES ASSOCIATION,

RESERVE ORGANIZATION OF AMERICA,

MG WILLIAM K. SUTER (RET.), AND 22

OTHER LEADING ORGANIZATIONS

IN SUPPORT OF PETITIONERS

_______________

Kristina S. Baehr

James S. Baehr

Just Well Law PLLC

2606 West 8th Street

Unit 2

Austin, Texas 78703

Charles R. Flores

Counsel of Record

Flores Law PLLC

917 Franklin Street

Suite 600

Houston, Texas 77002

(713) 364-6640

cf@chadflores.law

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE................................. 1

SUMMARY OF THE ARGUMENT ............................ 9

ARGUMENT .............................................................. 11

I.

II.

The Feres doctrine is grievously wrong..........11

A.

Justice Scalia’s critique is correct. ......12

B.

The Solicitor General’s prior stare

decisis position is wrong. .....................13

The time for reconsideration is now. ..............16

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Cases

Brooks v. United States,

337 U.S. 49 (1949) ................................................ 11

Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) .................................... 9, 14, 15

Daniel v. United States,

139 S. Ct. 1713 (2019) .......................................... 13

Feres v. United States,

340 U.S. 135 (1950) .......................................... 9-18

Jones v. United States,

139 S. Ct. 2615 (2019) .......................................... 13

Lanus v. United States,

570 U.S. 932 (2013) .............................................. 13

Loper Bright Enters. v. Raimondo,

144 S.Ct. 2244 (2024) ........................................... 15

Major v. United States,

835 F.2d 641 (6th Cir. 1987) .................................. 9

Malwarebytes, Inc. v.

Enigma Software Grp. USA, LLC,

141 S. Ct. 13 (2020) .............................................. 14

Nevada v. Hall,

440 U.S. 410 (1979) ................................................ 9

Pringle v. United States,

208 F.3d 1220 (10th Cir. 2000) ............................ 10

S. Dakota v. Wayfair,

585 U.S. 162 (2018) .............................................. 17

iii

Teague v. Lane,

489 U.S. 288 (1989) ................................................ 9

United States v. Johnson,

481 U.S. 681 (1987) .............................................. 12

Statutes and Rules

28 U.S.C. § 1346(b) .................................................... 11

28 U.S.C. § 2671 ........................................................ 11

28 U.S.C. § 2674 ........................................................ 11

28 U.S.C. § 2680(k) .................................................... 11

Supreme Court Rule 37.2 ............................................ 1

Other Authorities

Brief for the United States in Opposition,

Daniel v. United States,

No. 18-460 (U.S.), 2019 WL 991077 .............. 13, 14

Brief for the United States in Opposition,

Doe v. United States,

No. 20-559 (U.S.), 2021 WL 915959 .............. 13, 14

Brief for the United States in Opposition,

Loper Bright Enters. v. Raimondo,

144 S.Ct. 2244 (2024), 2023 WL 2065102 ..... 14, 15

Judge Diarmuid F. O’Scannlain,

“We Are All Textualists Now”:

The Legacy of Justice Antonin Scalia,

91 St. John's L. Rev. 303 (2017) .......................... 11

iv

Patient Safety and Quality of Care

in the Military Health System”

Testimony of Dez Del Barba Before the House

Committee on Armed Services Subcommittee

on Military Personnel (March 30, 2022),

available at https://bit.ly/floreslawcarter2 .......... 17

Prepared Statement of Hon Ashish S. Vazirani,

Acting Under Secretary for Personnel and

Readiness, Before the United States House

Committee on Armed Services,

Military Personnel Subcommittee Recruiting

Shortfalls and Growing Mistrust: Perceptions

of the US Military (December 13, 2023),

available at https://bit.ly/floreslawcarter1 .......... 16

1

INTEREST OF AMICI CURIAE1

Amici curiae are members of Congress from both

parties, organizations, and individuals dedicated to

serving the Armed Forces with a special focus on the

national commitment to servicemember wellbeing

after service.

The leading amici is Coalition of Heroes, Inc., a

nonprofit challenging the injustice of military medical

malpractice. With projects focused on awareness,

education, and policy reform, Coalition of Heroes aims

to ensuring for every service member the justice,

respect, and support they deserve.

The leading individual amicus is William K. Suter,

a former Army Judge Advocate who retired as a Major

General after twenty-nine years of active service. He

thereafter served for twenty-two years as Clerk of the

Supreme Court of the United States.

The leading amici members of the United States

Congress are the following:

•

Congressman Kelly Armstrong is the United

States representative for the State of North

Dakota's at-large congressional district.

Besides amici and its counsel, no party or their counsel

authored this brief in any way and no other party or their counsel

made a monetary contribution intended to fund its preparation

or submission. The parties were notified of the intention to file

this brief per Rule 37.2.

1

2

•

Congressman Sanford D. Bishop, Jr. is the

United States Representative for the State of

Georgia’s 2nd congressional district

•

Congressman Josh Harder is the United States

representative for the State of California’s 9th

congressional district.

•

Congressman Richard Hudson is the United

States representative for the State of North

Carolina’s 9th congressional district

•

Congressman Darrell Issa is the United States

representative for the State of California’s 48th

congressional district.

Also submitting this amicus brief are the following

organizations and individual public servants, all of

whom are dedicated to honoring the country’s Armed

Forces with special attention to the national

commitment to servicemembers’ well-being:

•

Amicus curiae Armed Forces Retirees

Association, formerly known as the American

Military Retirees Association, is a 501(c)19

veteran service organization created by

military retirees to protect and defend the

earned benefits of all military retirees and their

surviving spouses and to protect veterans on

Capitol Hill and elsewhere.

•

Amicus curiae Children’s Health Defense –

Military Chapter was founded in 2023 and is

dedicated to advocating for service members

and their families who have been adversely

3

affected by the Department of Defense (DoD)

COVID-19 vaccination mandate. The chapter

envisions a military and veteran community

free from chronic health conditions caused by

environmental exposures, bioengineering, and

medical malpractice, and seeks to highlight

these critical issues and advocate for a military

environment where the health, rights, and wellbeing of service members are prioritized and

protected.

•

Amicus curiae Center for Law and Military

Policy is a nonprofit think tank dedicated to

strengthening the legal protections of those who

serve our nation in uniform. Led by Dr. Dwight

Stirling, a law professor and reserve JAG

officer, the CLMP seeks to change policies that

harm everyday service members and stand for

the proposition that serving in uniform should

not make a person a second-class citizen.

•

Amicus curiae Forging Forward is dedicated to

helping active duty and veteran military/first

responders and their families/Gold Star

Families

through

Organized

Retreats,

Remembrance Tags, Outdoor Outreach, The

Body Shop, Inspiration, Motivation, and more.

By joining like-minded individuals and

organizations together, the Foundation seeks to

fulfill the vision of creating everyday lives filled

with quality, friendship, motivation, flexibility,

and individual pride.

4

•

Amicus curiae Grunt Style Foundation is a

national nonprofit organization committed to

providing life changing resources and

experiences in which Veterans, Service

Members, and their Families thrive.

•

Amicus curiae The Invisible Enemy is a

nonprofit 501(c)(3) charitable organization

founded in 2023, dedicated to advocating for

military veterans, former Department of

Defense (DoD) employees and contractors who

were stationed at the Nevada Test and Training

Range (NTTR). These individuals worked in

areas known to be contaminated with chemical

toxins and radiation due to past nuclear testing,

leading to severe health issues and premature

deaths.

•

Amicus curiae Jewish War Veterans of the

United States of America was organized in 1896

by Jewish veterans of the Civil War and is the

oldest active national veterans’ service

organization in America. The JWV has long

taken an interest in advocating that all

servicepersons and veterans of all faiths receive

the benefits to which they are entitled.

•

Amicus curiae National Defense Committee is a

veterans organization dedicated to military and

veterans civil and legal rights.

•

Amicus curiae National Military Families

Association is the leading nonprofit dedicated to

serving all military families. Since 1969, NMFA

has worked with families to identify and solve

5

the unique challenges of military life through

advocacy and diverse programming. NMFA

provides scholarships for military spouses,

camps for military kids, and programs for

military teens. Its research creates a better

understanding of the experience of today’s

military families. NMFA serves the families of

the currently serving, veteran, retired,

wounded or fallen members of the Army,

Marine Corps, Navy, Air Force, Space Force,

Coast Guard, and Commissioned Corps of the

USPHS and NOAA.

•

Amicus curiae Operation Dez Strong was

established in December 2021 as an

all‑volunteer force of veterans, medical

professionals, amputees, caregivers, and others

that operates to encourage newly limb-different

young people to stay strong, even if it means

they need a little help to do so.

•

Amicus curiae Reserve Organization of America

is America’s only exclusive advocate for the

Reserve and National Guard – all ranks, all

services. With a sole focus on support of the

Reserve and Guard, ROA promotes the

interests of Reserve Component members, their

families, and veterans of Reserve service; and

conducts a legislative campaign that ensures

the readiness of our Reserve force.

•

Amicus curiae Sergeants Major Association of

California was chartered in the State of

California on 19 October 1968 as a social,

6

patriotic and networking organization, open to

all ranks E-7 thru 9 in the California National

Guard.

•

Amicus curiae Swords to Plowshares is a

nonprofit organization founded by Vietnam-era

veterans in 1974 that supports approximately

3,000 low-income and at-risk veterans in the

San Francisco Bay area. It provides a range of

services that address veterans’ basic needs and

promotes overall health and well-being,

including access to health care, counseling,

housing support, employment, and benefits

assistance.

•

Amicus curiae Uniformed Services Justice and

Advocacy Group’s mission is to ensure injured,

ill, or wounded service members are separated

with benefits, honors, and dignity intact. Its

vision entails a system with third-party

oversight of the discharge process of injured

service members, ensuring both policy and

procedure are followed.

•

Amicus curiae Veterans Assurance Network

pledges to serve veterans and their families

through advocacy, education, resources,

support, and services. It serves veterans by

advocating on behalf of veterans and their

families, supporting veterans and their families

in their journey post-service, educating about

veteran issues, concerns, and services,

providing resources to help veterans and their

loved ones connect to and access benefits and

7

services, connecting veterans and survivors to

benefits and services they are eligible to receive,

and networking and promoting organizations

providing services to veterans and their

families.

•

Amicus curiae Veterans for Peace is a global

organization of Military Veterans and allies

whose collective efforts are to build a culture of

peace by using our experiences and lifting our

voices. It informs the public of the true causes

of war and the enormous costs of wars, with an

obligation to heal the wounds of wars.

•

Amicus curiae Veterans Legal Services, Inc. is

a non-profit located in Boston, Massachusetts

devoted to meeting the civil legal needs of

military veterans. Founded in 1991, VLS’s

mission is to help Massachusetts veterans

overcome adversity by providing free civil legal

aid that honors their service, promotes

well-being, and responds to their distinctive

needs.

•

Amicus curiae Veteran Warriors is a grassroots

501c3 nonprofit serving Veterans, caregivers,

families, and survivors of all eras. Its mission

is broad; it fills in the gaps wherever needed to

ensure all who served our country and their

families get the benefits they are entitled to,

cutting through red tape and seeking

accountability when necessary.

•

Amicus curiae The Veteran’s Advocate is a

group of attorneys that came from active-duty

8

military JAG employment and then continued

in their military service in a reserve status as

they transitioned into representing service

members and Veterans in private practice. The

group specializes in medical and disability

board advocacy for current military members

who are injured in the line of duty; and in

handling Veterans’ disability claims and

appeals before the VA.

•

Amicus curiae Brigadier General Charlotte L.

Miller is Assistant Adjutant General - Army,

California National Guard

•

Amicus curiae Brigadier General Sylvia R.

Crockett is Commander, Land Component

Command, California Army National Guard.

•

Amicus curiae Command Sergeant Major

Curtis Hayes (Ret.) is a retired United States

Army officer.

9

SUMMARY OF THE ARGUMENT

Everyone knows that the so-called Feres doctrine is

grievously wrong. A reckoning should be imminent.

The question is not about whether to reconsider Feres.

It is just about which branch does so and when. This

petition answers the call correctly. It is high time for

the courts that created Feres to end it once and for all.

Decades of decisions and scholarship now share the

consensus view: Feres contradicts the FTCA’s text and

purpose, wrongly denying military members orthodox

legal remedies that Congress clearly opted to supply.

The doctrine, now fully unhinged and incoherent, has

grown to deny relief to essentially “all injuries suffered

by military personnel that are even remotely related

to the individual's status as a member of the military,

without regard to the location of the event, the status

(military or civilian) of the tortfeasor, or any nexus

between the injury-producing event and the essential

defense/combat purpose of the military activity from

which it arose. Major v. United States, 835 F.2d 641,

644–45 (6th Cir. 1987). Given that the FTCA provides

for none of this, Feres should never have essentially

overruled Congress to do its own will via judicial fiat.

The Solicitor General may once again defend Feres

with familiar stare decisis tropes. But that defense

will necessarily be half-hearted. It will be forced to use

hollow versions of stare decisis that were not enough

to save Chevron, Teague, or Nevada v. Hall, just to

name a few; and Feres is certainly not in that league.

Now that the Court’s precedent of precedent sets a

better bar for change, Feres should be revisited—if not

10

to be entirely overruled then at least to be

substantially altered.

Fixing Feres is not Congress’s job. It is this Court’s.

And even if the job once belonged to Congress, decades

of inaction have passed the buck back. Since the

original decision and all of its myriad progeny are

“judge-made law,” Pringle v. United States, 208 F.3d

1220, 1223 (10th Cir. 2000), the branch that wrongly

invented the rule should fess up and delete it.

None of this position is partisan. It is a staunchly

American, pro-military view held by evenhanded

stakeholders across every aisle. By taking care of

America’s military just as the statute dictates—free of

Feres’ atextual limiting constructs—the law both gives

the military’s servicemembers deserving solicitude

and ensures their operational effectiveness.

Reconsidering Feres is thus a win-win for all,

including the courts whose humility in acknowledging

error always rightly earns esteem.

11

ARGUMENT

I.

The Feres doctrine is grievously wrong.

Over seventy years ago, Feres v. United States, 340

U.S. 135 (1950), forced upon the Federal Tort Claims

Act an extra-statutory judicial gloss that contradicts

what Congress enacted as law. But inasmuch as “we

are all textualists,”2 Feres decided anew would again

be a unanimous decision—unanimous going the other

way.

“The statute’s terms are clear.” Brooks v. United

States, 337 U.S. 49, 51 (1949). It provides that the

United States “shall be liable...in the same manner

and to the same extent as a private individual under

like circumstances,” 28 U.S.C. § 2674, and expressly

waives sovereign immunity for injuries involving

“members of the military or naval forces.” 28 U.S.C.

§§ 1346(b), 2671.

Critically too, the statute gives

several express military-related exceptions to the

general waiver, such as the exception barring claims

about “combatant activities…during time of war.” 28

U.S.C. § 2680(k).

Is there an exception to the FTCA’s waiver of

sovereign immunity for servicemember injuries that

are merely “incident to service”? Of course not, since

none of the enumerated exceptions about that subject

say so. But with Justice Scalia still in high school, the

2 See Judge Diarmuid F. O’Scannlain, “We Are All Textualists

Now”: The Legacy of Justice Antonin Scalia, 91 St. John's L. Rev.

303 (2017)

12

Court in Feres used the era’s judicial creativity to do

just that and establish sovereign immunity for the

“incident to service” category. Feres, 340 U.S. at 146.

Under modern doctrine, Feres is clearly wrong

because it contradicts the FTCA’s text, upholding an

entire category of sovereign immunity that Congress

never did. This ruling’s critiques come from every

corner of law and politics and all are correct. Its only

defense comes from the Solicitor General and is halfhearted for good reason. At least in its current form,

the Feres doctrine is indefensible.

A. Justice Scalia’s critique is correct.

The instant petition is not the first to have sought

reconsideration of Feres. Several others have done so,

and the lessons learned show why a grant is still so

sorely needed. Each time the issue arises, criticism

loudens to further expose Feres as indefensible.

By 1987, Justice Scalia and three others correctly

deemed the Feres doctrine grievously wrong because it

“ignor[ed] what Congress wrote and imagin[ed] what

it should have written,” United States v. Johnson, 481

U.S. 681, 702-03 (1987) (Scalia, J., dissenting, joined

by Brennan, Marshall, and Stevens, JJ.). “The

problem now, as then, is that Congress not only failed

to provide such an exemption, but quite plainly

excluded it.” Id. Everything needed to reconsider

Feres is in Justice Scalia’s Johnson dissent. But since

the Court did not heed, the Feres facade continued.

13

Also correct in his critique is Justice Thomas, who

followed Justice Scalia to rightly recognize that “Feres

was wrongly decided and heartily deserves the

widespread, almost universal criticism it has

received.” Daniel v. United States, 139 S. Ct. 1713,

1713 (2019) (Mem) (Thomas, J., dissenting from denial

of certiorari); Lanus v. United States, 570 U.S. 932

(2013) (same); see also Jones v. United States, 139 S.

Ct. 2615, 2615 (2019) (same).

The doctrine’s

“unfortunate repercussions—denial of relief to

military personnel and distortions of other areas of

law to compensate—will continue to ripple through

our jurisprudence as long as the Court refuses to

reconsider Feres.” Daniel, 139 S. Ct. at 1714.

B. The Solicitor General’s prior stare decisis

position is wrong.

If the Solicitor General does not agree to reconsider

Feres, it will likely be for the same main reason that

past petitions were opposed. Knowing that the Feres

doctrine is indefensible on the merits, the government

will probably bank the opposition largely on stare

decisis. See, e.g., Brief for the United States in

Opposition, Doe v. United States, No. 20-559 (U.S.),

2021 WL 915959; Brief for the United States in

Opposition, Daniel v. United States, No. 18-460 (U.S.),

2019 WL 991077. But the SG’s past opposition has

been half-hearted and would be so here too, at least

insofar as it rests on a hollow version of stare decisis

that the Court’s modern precedent of precedent

forecloses.

14

The Solicitor General’s most recent stare decisis

position for Feres is threadbare. It rests almost solely

on the notion that Feres should not be revisited

because it has not been revisited. See Brief for the

United States in Opposition, Doe v. United States, No.

20-559 (U.S.), 2021 WL 915959, at *7. But of course

that circular notion proves too much and is

inconsistent with the modern view of stare decisis.

To defend Feres, the Solicitor General may again

argue that stare decisis has extra force whenever

“Congress can correct any mistake it sees.” Brief for

the United States in Opposition, Daniel v. United

States, No. 18-460 (U.S.), 2019 WL 991077, at *6. But

the Solicitor General made that exact same argument

in the unsuccessful bid to save Chevron, Brief for the

United States in Opposition, Loper Bright Enters. v.

Raimondo, 144 S.Ct. 2244 (2024), 2023 WL 2065102,

at * 26, and Feres is no Chevron.

Indeed, Congress’s supposed ability to fix Feres

gets the problem exactly backwards. The whole point

is that Congress already spoke to the issue. The

solution is not for Congress to supply some sort of reenactment that re-states what the statute already

states plainly enough. The solution is for this Court

to hold that the existing statute means what it says

and stop “reading extra immunity into statutes where

it does not belong.” Malwarebytes, Inc. v. Enigma

Software Grp. USA, LLC, 141 S. Ct. 13, 15 (2020)

(Thomas, J., statement respecting denial of certiorari).

15

The Solicitor General may also defend Feres by

reprising the idea that stare decisis matters more

“when the Court is asked to overturn a longstanding

precedent.” Brief for the United States in Opposition,

Daniel v. United States, No. 18-460 (U.S.), 2019 WL

991077, at * 6. But the Solicitor General made that

exact same argument in defense of Chevron too, Brief

for the United States in Opposition, Loper Bright

Enters. v. Raimondo, 144 S.Ct. 2244 (2024), 2023 WL

2065102, at * 26, and was rightly rejected.

As in Loper Bright, the Court’s need to tweak Feres

again and again shows that its stare decisis hold is

weak. Even more so than Chevron, the Feres doctrine

has now become “so indeterminate and sweeping” that

all now realize its “unworkability.” Loper Bright

Enterprises, 144 S. Ct. at 2271–72. That the “doctrine

continues to spawn difficult threshold questions that

promise to further complicate the inquiry” is a clear

sign for the need to revisit the original mistake. Id.

“Chevron was a judicial invention that required

judges to disregard their statutory duties. And the

only way to ‘ensure that the law will not merely

change erratically, but will develop in a principled and

intelligible fashion,’ [was] for us to leave Chevron

behind.” Loper Bright, 144 S. Ct. at 2272-73. So too

with Feres, which if anything has earned far less stare

decisis power than Chevron.

16

II.

The time for reconsideration is now.

The time to reconsider Feres is now—not later.

Kicking the can down the road does not just waste the

opportunity of this petition, which does indeed tee the

issue up as cleanly as ever. Turning a blind eye to

Feres aggravates an institutional crisis, as the Armed

Forces struggle more than ever to fill the ranks due to

widespread institutional “mistrust.”3 That mistrust

surely grows whenever headline-grabbing military

tragedies occur and Feres absurdly denies recovery.

Exemplifying the doctrine’s absurd consequences

are important stories like that of Amicus Curiae

Lauren Palladini. While serving in the Army, Lauren

underwent what should have been a routine c-section.

But due to the military’s medical malpractice, a

hemorrhaging artery put Lauren’s life in grave danger

through a horrific 39-day period of extraordinary blood

transfusions and other serious procedures. At just 22,

Lauren survived. But the hysterectomy resulting

from this malpractice erased her dreams of conceiving

and carrying future children.

Under the FCTA as Congress designed it, Lauren’s

claim has nothing to do with “combatant activities” or

any other enumerated exception from the waiver of

3 See, e.g., Prepared Statement of Hon Ashish S. Vazirani, Acting

Under Secretary for Personnel and Readiness, Before the United

States House Committee on Armed Services, Military Personnel

Subcommittee Recruiting Shortfalls and Growing Mistrust:

Perceptions of the US Military (December 13, 2023), available at

https://bit.ly/floreslawcarter1.

17

immunity. So according to the statute itself, she can

access the same remedial scheme that any other young

mother in America could—not a guaranteed recovery,

of course, but just a chance to make her case like any

other wronged citizen would. Yet due solely to the

extra layer of sovereign immunity created by Feres

and its misbegotten progeny, Lauren has no claim for

relief simply because she was in the Army.4

When reconsidering precedent has the potential to

change substantial bottom-line outcomes, reliance

interests are a valid stare decisis consideration. See,

e.g., S. Dakota v. Wayfair, 585 U.S. 162, 186 (2018).

But “stare decisis accommodates only ‘legitimate

reliance interest,” id. (cleaned up), and the

government has no legitimate reliance interest in

barring wholly orthodox claims like Lauren’s just

because her c-section happened to occur while in the

military.

Reconsidering Feres therefore has more than just

the virtue of being more principled in its textualism.

By granting the petition, the Court can finally have

this important area of FTCA law yield the practically

sound results that Congress surely intended.

For more compelling details about the doctrine’s absurd

consequences, see Patient Safety and Quality of Care in the

Military Health System” Testimony of Dez Del Barba Before the

House Committee on Armed Services Subcommittee on Military

Personnel

(March

30,

2022),

available

at

https://bit.ly/floreslawcarter2.

4

18

CONCLUSION

The petition should be granted. The Feres doctrine

as it now exists should reconsidered and overruled.

Kristina S. Baehr

James S. Baehr

Just Well Law PLLC

2606 West 8th Street

Unit 2

Austin, Texas 78703

Respectfully submitted,

Charles R. Flores

Counsel of Record

Flores Law PLLC

917 Franklin Street

Suite 600

Houston, Texas 77002

(713) 364-6640

cf@chadflores.law