Today, the 7th circuit sent a clear message to the United States Supreme Court--the 7th Circuit wants the Court to revisit
, 340 U.S. 135 (1950). The 7th Circuit's obligation to follow current precedent led it to affirm the dismissal of a claim by the estate of a dead serviceman under the Federal Tort Claims Act in
, ___ F.3d ___ (7th Cir. 2011), Case No. 10-3743.
less..
The FTCA states that claims against the federal government "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war" are barred by sovereign immunity. In
Feres, the United States Supreme Court further held that "the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." The 7th Circuit does not like this decision.
The
Feres doctrine, while currently viable, is certainly not without controversy. It has been interpreted increasingly broadly over time,
see Persons v. United States, 925 F.2d 292, 295 (9th Cir. 1991);
Major v. United States, 835 F.2d 641, 644-45 (6th Cir. 1987), and has also been widely criticized,
see,
e.g.,
Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir. 1997) (citing opinions and academic commentary criticizing the
Feres doctrine);
Taber v. Maine, 67 F.3d 1029, 1032, 1038 (2d Cir. 1995) (writing that "the
Feres doctrine has gone off in so many different directions that it is difficult to know precisely what the doctrine means today," and characterizing it as "an extremely confused and confusing area of law");
Estate of McAllister v. United States, 942 F.2d 1473, 1475-77 (9th Cir. 1991) (discussing and citing to critiques of the
Feres doctrine). In
United States v. Johnson, 481 U.S. 681 (1987), in a dissent signed by three other Justices, Justice Scalia wrote that "
Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."
Id. at 700 (Scalia, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.). But the majority in
Johnson reaffirmed
Feres,
id. at 692, and the Court has not squarely addressed the doctrine since then.
Feres thus remains the law until Congress or the Supreme Court decides otherwise.
See Selbe, 130 F.3d at 1266.
Thus, the Court found that it must follow
Feres and dismiss the case for a lack of subject matter jurisdiction if "the service-member stands in the type of relationship to the military at the time of his or her injury that the occurrences causing the injury arose out of activity incident to military service."
The decedent in this case killed himself while on a military base. The Court found that the facts leading to his suicide fell under the
Feres doctrine and, therefore were barred, no matter how negligent the military had been toward this serviceman. However, in another display of the panel's distaste for the
Feres doctrine, it explicitly limited its holding to the facts of this case. The Court concludes as follows:
Like many courts and commentators, we recognize the challenges presented by the Feres doctrine. In light of its enormous breadth, however, we AFFIRM the judgment of the district court.
I am unfamiliar with the
Feres doctrine and its relationship to the FTCA. Therefore, I will defer to the 7th Circuit's description of that topic. However, it is always gratifying to see lower courts faithfully apply the holding of superior courts, even if the lower court disagrees with that holding. Let's hope that Judge Flaum's call for a reconsideration of the
Feres doctrine does not go unheeded.
