Can I Sue the United States if I am Injured while on Active-Duty?
What is the Feres Doctrine?
The law about suing the United States government is complicated. It is even more complicated for people in the United States military. Active-duty service members CANNOT sue the United States Government if they are injured. But if an active-duty service member was the victim of medical malpractice, they can file a claim with the Department of Defense for compensation.
Suing the United States is difficult for everyone, not just for service members.
Until 1946, individual citizens who were injured by employees of the United States were not allowed to sue the United States. Injured people were not allowed to bring a case in court at all. Instead, a person who wanted to sue the United States had to write out a statement that had to be sent directly to the Congress in Washington, DC. Many statements were sent to Congress every year. Then, people who worked for members of the Senate and the House of Representatives would review the statements to decide if Congress should do something about the injury. This process was very difficult and very slow.
In 1946, Congress passed the Federal Tort Claims Act. The word, "tort," means injury. Injury can include injuries to property or to a person. The Federal Tort Claims Act allows people to sue the United States for injuries caused by people who work for the United States. There are many rules about the time limits for filing lawsuits and about what a person has to do before the lawsuit is filed. Even if a lawsuit is properly filed, there are many ways for the United States to protect itself against these lawsuits.
After this law was passed, civilians who were injured because of the negligence or mistakes of government employees could sue the United States Government. In addition, people who were injured because of wrongful acts such as assault or murder could also sue. However, it is very, very hard to sue the United States Government without hiring a lawyer who knows all of the rules involved in suing the government.
The law that allows people to sue the United States for injuries DOES NOT allow active duty service members to sue the United States.
For service members, there is a specific exception in the Federal Tort Claims Act that restricts claims for negligence or wrongful acts "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." What does this mean? Does it mean that service members cannot sue for injuries that they received while fighting in a war? Yes, but this phrase also means much more than that.
In the first few years after Congress passed the law allowing the United States to be sued, the courts were not sure how the law applied to service members. Then in 1950, a lieutenant in the U.S. army named Rudolph Feres was killed in a barracks fire at Pine Camp, NY. The fire was caused by a defective heating system in the barracks. Lt. Feres' widow sued the United States. The case went all the way to the United States Supreme Court. The Supreme Court decided that Mr. Feres' widow should not be allowed to sue the United States.
Over the years since the Feres decision, there have been hundreds of claims brought by service members and their families against the United States for many terrible injuries and for the death of the service members. These injuries were not the result of war, but still the service members were not allowed to sue. These cases included medical malpractice where service members became severely disabled or died. They included the case of a service member who was run over on base by another service member, and the case of a service member killed during a military-led recreational trip. None of these service members were allowed to sue the United States. The rule developed by the Supreme Court that prevents service members from suing for injuries received while on active-duty is now called the Feres Doctrine.
Why has the United States Supreme Court refused to allow service members to sue the United States for injuries caused by the negligence or wrongful acts of its employees?
The Supreme Court has relied on many different reasons in developing the law that prevents active-duty service members from suing the United States. One of the reasons relied on by the Court is that service members already have a comprehensive system of benefits that protects them when they are injured. Under federal law, disability benefits are available to service members when they are injured, and death benefits are available to their families when a service member is killed in the line of duty. This federal law is called the Veterans' Benefits Act (VBA). The VBA does not require the service member or his family to prove negligence or wrongful conduct.
The Supreme Court has also said that allowing service members to sue the United State Government might interfere with military discipline and the unique relationship between service members and their superiors. According to the Supreme Court, any type of lawsuit by a service member could challenge a military judgment or decision and disrupt military discipline.
Some of the Justices of the Supreme Court have disagreed with the Feres Doctrine. They have found that the law is unfair to service members. These Justices have pointed out that civilians injured at military hospitals or injured by the acts of service members can sue the military. In these lawsuits, civilians have won damages that are much higher than military disability or death benefits would ever be. Retired service members may also sue the United States for injuries caused by government employees. However, a majority of the Justices of the Supreme Court determine what the opinion of the Court will be. So far, there has not been a majority of Justices willing to change or limit the Feres Doctrine.
Why has the Feres Doctrine survived even though the injuries to service members have been horrible?
One of the reasons that the Feres Doctrine has survived, even though many service members have challenged the law, is that Congress has always had the power to change the law and has not done so. Since the 1980s, members of Congress made several attempts to pass a law to allow active-duty service members to sue for medical malpractice, but none had passed.
However, in 2020, Congress passed a new National Defense Authorization Act (NDAA) that included a new exception to the Feres Doctrine. The 2020 NDAA allows active-duty service members to get compensation if they were the victim of medical malpractice. They still can’t sue the United States in court, but instead they can file an administrative claim with the Secretary of Defense. The Secretary of Defense would review all of these claims and can pay the victims a settlement if he or she decides the claim is legitimate.
This exception to the Feres Doctrine still doesn’t apply to all medical malpractice cases. The 2020 NDAA says that it only applies if the medical malpractice occurred in a “covered military treatment facility” and was caused by a “Department of Defense health care provider.” This means that if the incident occurred in a civilian treatment facility, like one operated by Veterans Affairs, the Feres Doctrine would still block the claim. Also, if a civilian health care worker caused the malpractice, the Feres Doctrine would still block the claim.
So the Feres Doctrine still says that no active-duty service member can sue the United States. But the 2020 NDAA created a different path to get compensation for some active-duty service members who are victims of medical malpractice—it just happens through the Department of Defense and not the courts.
What should a service member do, if he or she is injured while on active duty?
If you are injured while on active-duty, you should talk to a private attorney who specializes in military law. You may find out that you cannot sue because of the Feres Doctrine. However, laws change and new bills are introduced in Congress all the time. Never give up on a claim without speaking to an attorney who practices military law.
Updated July 2020