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Justice Thomas and the Feres Doctrine

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Thursday, June 27, 2013 at 7:11 PM

Understandably lost in this week’s Supreme Court news was a somewhat surprising–and, in my view, welcome–dissent by Justice Thomas from the denial of certiorari in Lanus ex rel. Lanus v. United States. In his two-page dissent, Justice Thomas suggests that the Court should have granted cert. in order to revisit the “Feres” doctrine–named after a 1950 Supreme Court decision that interpreted the Federal Tort Claims Act to bar any damages suit otherwise available under the FTCA that arises out of, or is incident to, military service–despite the absence of any statutory language supporting such a categorical bar. Although the statute does have a narrower textual exception for combatant activities, that only militates more strongly against a broader atextual exception for all military claims. As Thomas explains,

There is no support for this conclusion in the text of the statute, and it has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees. I tend to agree with Justice Scalia that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” At a bare minimum, it should be reconsidered.

I have no brief for Thomas’s dissent; although Feres has its defenders, I’m not one of them, whether on its own merits or under principles of stare decisis. Indeed, on that point, I think Justice Thomas is exactly right that: “Private reliance interests on a decision that precludes tort recoveries by military personnel are nonexistent, and I see no other reason why the Court should hesitate to bring its interpretation of the FTCA in line with the plain meaning of the statute.”

But it’s important to keep in mind that the mischief caused by Feres isn’t limited to FTCA suits by servicemembers. The Supreme Court has relied heavily upon analogies to Feres in holding that servicemembers may not pursue Bivens suits for damages based upon violations of their constitutional rights arising out of their military service, and as Ben noted back in November, the en banc Seventh Circuit just held that military contractors could not pursue Bivens relief even for torture at the hands of the U.S. military, with Chief Judge Easterbrook’s analysis centering on Feres and the subsequent Supreme Court decisions relying upon it. The extension of Feres(il)logic to constitutional claims by servicemembers was bad enough; extending it to constitutional claims by civilian contractors would have the effect, as the Vance dissenters pointed out, of effectively immunizing the military from almost any damages liability. And yet no one–including Justice Thomas–dissented when the Supreme Court denied certiorari to review that decision on June 10.

As Justice Thomas’s dissent suggests, Feres is indefensible enough on its own terms. As applied to Bivens claims, whether brought by servicemembers or contractors, its demise is that much longer overdue–and the denial of cert. in Vance that much more disheartening.