“It bothers me,” he said. “All he went through — what we all went through — and to use the family name to deny other soldiers.”
The Feres doctrine blocks all lawsuits for injuries or deaths that occur “incident to service,” a ban the courts have applied in strikingly broad ways. Being deliberately exposed to the radiation of nuclear tests, or being secretly dosed with LSD by researchers, or drowning in an off-duty rafting trip because of a negligent guide have all been deemed injuries incident to service. So has being raped by a drill sergeant.
In one case, the Supreme Court ruled that it was incident to service when surgeons opened up a soldier’s abdomen for follow-up surgery and found a 30-inch-by-18-inch towel inside him marked “Medical Department U.S. Army,” left there from a previous operation.
The doctrine has created glaring double standards. After the midair explosion of the space shuttle Challenger, families of civilian crew members were able to file lawsuits against the government, but the family of the pilot, a Navy captain on active duty, could not. Even so, the doctrine has proved durable, surviving five Supreme Court challenges and two previous attempts in Congress to modify it.
“It’s about time” the Feres doctrine was loosened, said Dwight Stirling, a longtime senior prosecutor for the California National Guard who now heads the Center for Law and Military Policy at the University of Southern California. “For too long our troops have been treated like second-class citizens, who serve their country but are denied the rights that everyone else enjoys.”
As a prosecutor, Mr. Stirling said, he saw several victims of sexual assault attempt to seek redress in court, only to have their cases quickly dismissed because both victim and perpetrator were in the military.
“That’s when I started to realize what an injustice the Feres doctrine was,” he said. “It was being used to protect rapists.”
Paradoxically, the Feres doctrine has its legal roots in an effort by Congress to make it easier, not harder, to sue the government. The story started on a foggy morning in 1945, when an Army bomber crashed into the Empire State Building. The accident killed 14 people and injured dozens more, but the victims and their families were unable to sue because of a longstanding legal principle called sovereign immunity, which barred citizens from suing the federal government unless Congress passed a law specifically consenting to the suit.
In the public outcry that followed the crash, Congress passed the 1946 Federal Tort Claims Act, allowing a broad range of civil lawsuits against the government. But it included some exceptions, and one of them was for injuries to troops “arising out of the combatant activities.”
The following winter, Lieutenant Feres, then serving as a parachute instructor with more than 300 jumps under his belt and an infant son at home, was taking part in airborne exercises in northern New York when the boiler in his wood barracks exploded in the middle of the night, starting a fire that killed him and three other officers.
His wife, Bernice Feres, sued the Army for $100,000, claiming that the camp had failed to have a fire guard on watch that night and that the boiler was known to be faulty. Her case, and two others that followed close behind, obliged the Supreme Court to decide for the first time whether the new law allowed suits over troops’ injuries away from the battlefield, caused by negligence.
The justices ruled against Ms. Feres and the other two plaintiffs, who brought medical malpractice claims (one was the towel case).
The doctrine has survived because the Supreme Court does not want to inadvertently hamstring the military, according to Paul Figley, a former Justice Department lawyer who now teaches law at American University.
“The military has different obligations and needs than civilian society,” Mr. Figley said. “When you start bringing the adversarial process in, you are at risk of undermining the overall success of the military.”
Mr. Figley noted that the military has a system for compensating injured troops, which includes veterans’ benefits, and said he saw problems with lifting the Feres ban for medical cases.
“Lots of people complain about Feres, but at least it is fair,” he said. “If suddenly you allow members of the military injured by malpractice to have more rights than members wounded in war, that is not a good solution.”