Legal Sidebari

The Feres Doctrine: Congress, the Courts, and
Military Servicemember Lawsuits Against the
United States
June 5, 2019
The Supreme Court’s 1950 decision in Feres v. United States generally bars active-duty servicemembers
from pursuing tort lawsuits against the United States for injuries that arise out of military service.
Although some Members of Congress, judges, and scholars have criticized Feres, the Supreme Court has
on multiple occasions declined requests to abrogate or modify the doctrine. Most recently, on May 20,
2019, the Supreme Court declined to take up the case of Daniel v. United States, in which the petitioner
asked the Court to partially overrule Feres and thereby allow him to pursue a medical malpractice lawsuit
against the federal government. This Sidebar analyzes Feres, the legal issues surrounding the doctrine,
and what the Court’s most recent decision not to revisit the doctrine may mean for Congress.
The Federal Tort Claims Act and the Feres Doctrine
Under ordinary circumstances, a plaintiff injured by a defendant’s wrongful conduct may file a tort
lawsuit to attempt to recover money from that defendant. For instance, if a driver causes a car accident by
negligently operating his vehicle, that driver may owe compensatory damages to other persons injured in
the crash. However, ordinary tort law principles do not necessarily apply when the person who commits
the tort is a federal officer or employee, as the legal principle of sovereign immunity ordinarily bars
private citizens from suing the United States without its consent. That said, Congress may waive the
United States’s sovereign immunity in circumstances it deems appropriate. In this vein, Congress has
enacted the Federal Tort Claims Act (FTCA), which allows private parties to pursue tort lawsuits against
the United States under certain conditions. (For more on the FTCA, see this CRS report.)
Although the FTCA waives the federal government’s immunity from a variety of tort lawsuits, the
Congress that enacted the FTCA opted to preserve the United States’s immunity from certain types of
lawsuits. Section 2680 of the FTCA accordingly lists various types of claims that plaintiffs may not
pursue against the federal government notwithstanding the FTCA’s general waiver of sovereign
immunity. For example, the “discretionary function exception,” codified at Section 2680(a), insulates the
United States from liability for injuries resulting from a federal employee’s policy judgments or choices.
Another provision, Section 2680(h), prevents plaintiffs from suing the United States for certain categories
Congressional Research Service
https://crsreports.congress.gov
LSB10305
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
of intentional torts committed by federal employees. Additionally—and of particular relevance here—
Section 2680(j) shields the United States from any tort claim “arising out of the combatant activities of
the military or naval forces, or the Coast Guard, during time of war.” Generally speaking, if a lawsuit falls
within any of the FTCA’s exceptions, the plaintiff may neither recover compensation from the United
States nor recover from the employee who committed the tort in question.
In addition to the exceptions explicitly set forth in Section 2680, the Supreme Court recognized an
additional implicit exception to the FTCA’s waiver of sovereign immunity in the 1950 case of Feres v.
United States. In that case, which consolidated a number of lawsuits, several active-duty servicemembers
(or their executors) attempted to assert tort claims against the United States. In one suit, the executor of a
servicemember who died in a fire at a military facility claimed that the United States had negligently
caused the servicemember’s death by “quartering him in barracks known or which should have been
known to be unsafe because of a defective heating plant” and by “failing to maintain an adequate fire
watch.” A second plaintiff claimed that an Army surgeon negligently left a 30-by-18-inch towel in his
stomach during an abdominal operation. A third servicemember’s executor alleged that army surgeons
administered “negligent and unskillful medical treatment” that resulted in the servicemember’s death. The
Court ultimately dismissed all three claims, announcing “that the Government is not liable” under the
FTCA for injuries to active-duty servicemembers “where the injuries arise out of or are in the course of
activity incident to service.”
The Feres Court based its ruling on inferences from legislative purpose, reasoning that if the Congress
that enacted the FTCA intended to waive sovereign immunity for injuries sustained in the course of
military service, it would have said so expressly. The Court cited several justifications for the Feres
doctrine. For one, requiring federal courts to adjudicate “suits brought by service members against the
Government for injuries incurred incident to service” would, in the Court’s view, undesirably embroil
“the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.”
According to the Court, it would also be unnecessary to empower active-duty servicemembers to seek
monetary damages awards from the United States, as injured servicemembers are already potentially
entitled to medical, disability, and death benefits under federal law.
The Court’s holding in Feres thus ordinarily bars military personnel from asserting tort claims against the
United States so long as those claims arise out of active-duty military service. Notably, the Feres doctrine
is significantly more expansive than Section 2680(j)—which, as noted above, shields the federal
government from liability “arising out of the combatant activities of the military or naval forces, or the
Coast Guard, during time of war.” As compared to Section 2680(j), Feres “applies broadly” to shield the
United States from virtually “all injuries suffered by military personnel that are even remotely related to
the individual’s status as a member of the military.” For instance, courts have generally concluded that
Feres bars active-duty servicemembers from suing the government for injuries resulting from allegedly
negligent medical care rendered at military medical facilities, even though such injuries do not arise out
of wartime combatant activities.
Legal Considerations for Congress
Commentators have long debated Feres’s desirability and defensibility. Apart from the policy questions of
whether active-duty servicemembers should enjoy the right to sue the United States under the FTCA,
Feres also implicates several significant legal questions. For one, Feres reflects a broader judicial debate
over how judges should interpret statutes: should the court attempt to divine Congress’s purpose in
enacting the statute in question, or should the court instead restrict itself to interpreting the statutory text
that Congress enacted? The Court’s opinion in Feres exemplifies the former, purposivist approach: even
though the FTCA contains no explicit text barring suits by active-duty servicemembers, the Court inferred
that Congress would not have wanted to subject the United States to potentially wide-ranging liability for
torts arising from military activities “in the absence of [an] express congressional command.” By contrast,

---

Congressional Research Service
3
Justice Scalia’s dissent in United States v. Johnson—a case in which a majority of the Supreme Court
reaffirmed its prior decision in Feres—illustrates the competing (and increasingly influential) textualist
approach to statutory interpretation. In Justice Scalia’s view, the Feres Court should not have recognized
an exception barring servicemembers from bringing FTCA suits because Congress did not expressly enact
one. According to Justice Scalia, the Feres Court had “no justification . . . to read exemptions into the
[FTCA] beyond those provided by Congress. If the [FTCA] is to be altered, that is a function for the same
body that adopted it.” Pointing to Section 2680(j)’s combatant activities exception described above,
Justice Scalia reasoned “that Congress specifically considered, and provided what it thought needful for,
the special requirements of the military,” such that “[t]here was no proper basis for” the Feres Court “to
supplement—i.e., revise—that congressional disposition.”
Separate from the question of whether the Feres decision is sound as a matter of statutory interpretation is
the question of whether, and under what circumstances, the Supreme Court could overrule it. Generally
speaking, the Court follows the rule of stare decisis—that is, the Supreme Court will typically follow its
prior precedents unless strong grounds to overturn them exist. The Court has repeatedly stated that
“considerations of stare decisis have added force” in cases interpreting federal statutes because, if the
Court’s interpretation is incorrect, Congress may override the Court’s decision “by amending the statute.”
Perhaps for that reason, the Court has repeatedly declined to reconsider the Feres Court’s interpretation of
the FTCA. Most recently, the Court declined to grant certiorari in the case of Daniel v. United States, in
which the plaintiff alleged that his wife—a Navy Lieutenant on active duty status—died during childbirth
as a result of negligent medical care rendered at a Navy hospital. The plaintiff thus attempted to pursue
medical malpractice and wrongful death claims against the United States under the FTCA. The U.S. Court
of Appeals for the Ninth Circuit (Ninth Circuit) concluded that the Feres doctrine barred the plaintiff’s
tort claims because they arose out of his wife’s military service. The Ninth Circuit expressed that it
reached this decision “regretfully,” opining that “[i]f ever there were a case to carve out an exception to
the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.” Accordingly, the plaintiff
asked the Supreme Court to overrule Feres “for medical malpractice claims brought under the [FTCA],”
at least with respect to cases that do “not involve any military exigencies, decisions, or considerations,
and where the service member was not engaged in military duty or a military mission at the time of injury
or death.” The Supreme Court denied the plaintiff’s petition on May 20, 2019 without comment. Justice
Thomas, relying on Justice Scalia’s aforementioned dissent in Johnson, dissented from the denial of
certiorari, opining that “Feres was wrongly decided and heartily deserves the widespread, almost
universal criticism it has received.” Justice Ginsburg also voted in favor of granting certiorari, but did not
join Justice Thomas’s dissent or otherwise explain the reasoning underlying her vote.
The Supreme Court’s continued unwillingness to reconsider Feres signals that if Congress wants
to allow active-duty servicemembers to pursue tort lawsuits against the United States for service-
related injuries, it would likely need to take legislative action. To that end, some Members of the
116th Congress have introduced legislation to allow active-duty servicemembers to bring certain
lawsuits that Feres might otherwise prohibit. For instance, subject to certain conditions and
limitations, the SFC Richard Stayskal Military Medical Accountability Act of 2019 (H.R. 2422)
would authorize “member[s] of the Armed Forces of the United States” to pursue claims “against
the United States . . . for damages . . . arising out of a negligent or wrongful act or omission in
the performance of medical, dental, or related health care functions” rendered at specified types
of military medical treatment facilities. Legislation proposing to narrow the scope of the Feres
doctrine may implicate various public policy considerations discussed in other CRS products.

---

Congressional Research Service
4

Author Information

Kevin M. Lewis

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10305 · VERSION 1 · NEW

---