Feres Doctrine

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AMERICA’S  HEROES GROUP Advisory Board member Attorney Steve Seidman and Vietnam veteran and radio talk show host Cliff Kelley listen to a caller’s comment about Saturday’s show.

A two-and-a-half-foot-long towel left inside a man for eight months; a soldier burned alive in his barracks due to a defective heating plant; a serviceman killed by negligent surgeons. What do these cases have in common?

The answer: they were cases before the Supreme Court in 1950 when it ruled that the US government cannot be sued by members of the armed forces for injuries they suffer incidental to their service, even when they happen outside of combat.

Now known as the Feres Doctrine, this principle has prevented tens of thousands of active-duty service members killed or injured by others from recovering in court, whether they were injured through malice or mere carelessness. Under Feres, these soldiers are barred from suit even where a civilian under the exact same circumstances could sue for damages without a problem.

Over the decades, the Feres Doctrine has been applied to bar recovery in cases involving training mishaps, on-base car accidents, and even in cases involving sexual assault.

On September 7, 2016, army nurse First Lieutenant Katie Blanchard was doused in gasoline and lit on fire by a deranged civilian contractor who worked under her supervision. The contractor then attempted to stab her with scissors and a straight-edge razor, but was wrestled to the ground by a co-worker. For months prior to the attack, Blanchard had repeatedly warned her supervisors that the contractor was dangerous, but they declined to fire him. Blanchard has since undergone more than 100 surgeries, and has burn scars over her face and over the top half of her body. Based on past cases, the Feres Doctrine would almost certainly prevent Blanchard from suing the government for negligently keeping the contractor on payroll.

The doctrine’s effect is perhaps most widely felt in the area of medical malpractice, where it bars service members from recovering against the government for injuries caused by negligent military health providers. The stories are seemingly endless. Air Force Staff Sergeant Dean Witt, for instance, was hospitalized for appendicitis. After a routine surgery, he was mistakenly transferred to a children’s unit, administered a lethal dose of fentanyl, then left with an improperly inserted breathing tube; he suffered severe brain damage, then eventually died after months on life support. The Feres Doctrine barred his widow from suing the U.S. government.

On May 20, nearly 70 years after the doctrine was established, the Supreme Court declined to take up a case challenging the Feres Doctrine, Daniel v. United States. Writing in dissent from the court’s denial of certiorari, Justice Clarence Thomas wrote:

“’Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received’…. Such 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.”

With the Supreme Court unwilling to act, service members are pushing for Congress to overrule the Feres Doctrine by amending The Federal Tort Claims Act directly; a reform that’s long overdue.

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1 COMMENT

  1. Every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. Be aware that Feres also protects the US military from legal malpractice by its own incompetent – and many times unethical – military lawyers.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully “protecting” Fitzgerald and if they were not, the state bar would take action.

    I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of “protection.” Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.

    Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don’t believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.

    Go to the link https://www.facebook.com/people/Feres-Doctrine/100011369043077 and you will see it all.

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