The Supreme Court Fails To End Your Feres Doctrine… Now It Is Up To Congress

Below is my column in The Hill about the Supreme Court’s rejection of the case of a former West Point cadet who had been barred from suing over the handling of her alleged rape. The situation would have allowed a reconsideration of the Feres Doctrine, one of the most damaging and pernicious doctrines actually made by the Supreme Court.
Here is the pillar:

The often-divided Supreme Court reached a nearly unanimous choice on Monday. It had been the wrong choice.
The court refused to review the case of a rape victim who had been barred from having her case heard in federal courts since”Jane Doe” had been working in the military. Just one justice demanded justice for its former West Point cadet: Clarence Thomas.
The injustice of this court’s decision, but goes past”Jane Doe” and goes to every member of the military.
The courtroom missed the opportunity to overturn one of the most notorious, indefensible doctrines. Created over 70 years ago, the Feres Doctrine has victimized countless thousands of service members and their households.  The court’s failure should now put pressure on Congress to finally act to end the tragic heritage of the Feres decision.
I have been a vocal critic of Feres for decades and composed a three-part study of the military legal system 20 years ago that detailed this doctrine started in 1950 with a clearly incorrect reading of this Federal Tort Claims Act (FTCA). The doctrine is named after Army Lt. Rudolph Feres, who died in a fire allegedly brought on by an unsafe heating system in his New York barracks. It had been one of three instances combined for inspection by the court, such as a soldier who uttered after an Army doctor left with a 30-by-18-inch towel (indicated as”Medical Department U.S. Army” property) in him.
These should have been simple instances of magnificent negligence.  The FTCA only bars suits against the military for”combat-related” accidents — a logical and clear exclusion.  On the other hand, the court set out to make a sweeping new immunity for the military and announced that any lawsuit by military personnel could be regarded as”combat related.” It had been entirely nonsensical since there would be no reason to refer to fight if Congress wanted to grant total immunity for the military.
The West Point situation shows the lawful lunacy and lethality of this doctrine. Jane Doe was also a cadet who was allegedly raped by a fellow cadet and, according to court documents, came ahead to bring charges. But, West Point didn’t follow military regulation and she later dropped out of the academy.
Those lower courts could be excused for dismissing the situation. After all, this is really a controlling Supreme Court precedent. However, the Supreme Court itself has no such excuse.
The former cadet is not alone in regards to neglect in handling criminal cases.  A federal court dismissed their lawsuit under Feres.
My study found an array of these circumstances. For instance, soldier Julius Pringle was seriously injured in a pub in a military reservation in Kansas that served both civilians and military personnel; a gang had effectively taken over the pub. After Pringle exchanged words with all members of this gang who were harassing his girlfriend, bar managers had him thrown outside into the middle of waiting gang members. He had been beaten so severely that he suffered brain damage. Yet, he had been barred from suing.
I found many deaths brought on by contractors who failed the most basic obligations in keeping or using gear, along with negligent acts that were significantly addressed in civilian companies and discouraged through civil accountability. For instance, Lt. Joseph McConnell was killed while waterskiing after a ship rented in Arizona in an Air Force diversion center jumped out of control because of a mechanical failure and struck him.
In the field of medical malpractice, the study found clinics and conduct that could be considered ancient in modern torts cases.  When civilian physicians leave a patient paralyzed or crippled to get a lifetime of care, relatives frequently receive millions in compensation. In the military, households get a couple thousand dollars a month and much more military healthcare. Require Dorothy Meagher, who found herself caring for her child when he entered a Navy hospital to have a lien removed; due to an alleged overdose of anesthetics and also the failure of a Navy doctor to telephone immediately for assistance, her son had been left a quadriplegic.
Tort liability does not simply make victims whole but motivates others to consider precautions. Yet, military households are left with a small percent of the monetary aid given to civilians and also there is less incentive to deliver practices and equipment up to modern standards.
As Justice Thomas properly noted, the Feres Doctrine contributes to absurd consequences:”If two Pentagon workers — one civilian and one a service member — are struck by a bus in the Pentagon parking lot and sue, it could be that only the civilian could have a chance to litigate his claim on the merits”
Thomas stated it is the right time to finish the”judicial legislating” and”if the Feres Doctrine is so erroneous that we can’t work out how to rein it in, then the better response would be to run it farewell.” Indeed, it’s a farewell that is 70 years overdue.
There’s one other body that may do justice for military employees: Congress.  For 30 years, I have called on Congress to correct this judicial error. It needs to state expressly what should be obvious in the FTCA: Army personnel have the same accessibility to their courts except for accidents related to real wartime or fight operations. Politicians are eager to utilize military employees as stay-at-home Veteran’s Day and Memorial Day events. However, they have left them fodder for negligent military and contractor operations.
It’s time for Congress to act and to put an end to the Feres Doctrine.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You may find his upgrades online @JonathanTurley.

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