We need to stop denying active-duty service members due justice

We need to stop denying active-duty service members due justice
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They proudly wear the uniform of the United States military. We celebrate their service on Veterans Day. But when they suffer an injury, they are denied the right to claim damages in a court of law. What’s more, they lack any recourse to present their grievances.  

How can it be that members of the U.S. military are routinely denied justice by our legal system in this way? The answer lies in three words, and not nearly enough Americans know them: the Feres Doctrine. At this point, the Supreme Court has the best opportunity to change the meaning of these words so that they no longer connote injustice.  


Congress enacted the Federal Tort Claims Act in 1946 to establish a remedy for those injured by the negligence of government employees. However, in 1950 the Supreme Court carved out an exception, now known as the Feres Doctrine, which bars claims by military personnel for injuries received “incident to military service.” Since then, courts have broadly interpreted “incident to” (that is, resulting from) service to encompass any treatment military members experience in military facilities.

In other words, the doctrine bars active-duty service members from bringing any claims of medical malpractice against the military. Various other claims have been blocked because of the Feres Doctrine, including allegations of sexual harassment, wrongful death and personal injury.  Supporters of the Feres Doctrine point out that active-duty service members have an alternate compensation system in the form of disability benefits, often adding that it would be a mistake to allow civil courts to second-guess or otherwise interfere with military command decisions.

But there is a strong counterargument. Many judges and legal scholars have heaped criticism upon the Feres Doctrine. The late Supreme Court Justice Antonin Scalia opined that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” Justice Clarence Thomas has indicated the court should reconsider Feres. United States District Court Judge John A. Mendez referred to Feres as “wrong-headed and irrational.”  

A recent case involving Navy Lt. Rebekah Daniel illustrates how “grossly unfair” the Feres Doctrine can be in application. Lt. Daniel tragically died during a routine, low-risk childbirth in a Washington State military hospital, leaving her grieving husband without the right to bring a civil claim for damages. The Ninth Circuit Court of Appeals concluded that Daniel’s medical malpractice and wrongful death claims were barred by the Feres Doctrine simply because her death involved medical treatment of an active-duty service person at a domestic military hospital.  

Daniel and his attorneys have asked for a review by the Supreme Court. Daniel is just one of a long line of victims wronged by the Feres Doctrine. In another recent case, a Marine recruit died after alleged hazing and unusually cruel treatment by a xenophobic drill instructor. The parents of the deceased recruit asked a federal court to reconsider the longstanding bar to claims based on an antiquated and overly broad definition of “incident to service.”    

It’s time for the Supreme Court to consider a more reasonable definition of “incident to service.”  Childbirth, for example, is clearly not “incident to service,” and the court should limit the definition of the term so it applies only to claims in which an injury is a direct result of the risky activities of military service.

Medical malpractice, sexual harassment and hazing are problems that exist within the military, and yet they clearly are not unique to the military. Active-duty service members should be able to exercise their rights to claims in these cases just as civilians can. When Americans put on a military uniform, we shouldn’t be asking them to shed their rights.  

Richard E. Custin is a clinical professor of business law, ethics and society at the University of San Diego School of Business. He also serves as an affiliate professor at the university’s Joan B. Kroc School of Peace Studies. He is an attorney, mediator, author and frequent commentator on legal issues concerning military medical malpractice. Lillianna Ferraro, a student at the University of San Diego School of Business, assisted with this article.