Can Members of the Armed Forces Sue the Government for their Injuries?

This past weekend, the world saw the horrible news that 9 members of the U.S. Armed Forces were killed during a training exercise off the California coast. Nine Marines and one Navy Sailor were killed when their landing craft sunk in over 300 feet of water off the coast of San Clemente Island. The Navy has located the wreckage and is in the process of raising the sunken ship.

The tragedy illustrates what most law students learn in their first year of law school: The Feres Doctrine. The case is named for the U.S. Supreme Court case of Feres v. United States, which I discussed here.

What it boils down to is this: Members of the Armed Forces cannot sue the U.S. Government for negligence or wrongful death that occurs “incident to service.” What does “incident to service” mean?

Pretty much everything. Federal courts over the past 7 decades have rejected most challenges to the Feres Doctrine. Virtually every training exercise or decision made by military advisers can mean “incident to service”, thereby closing the door to lawsuits brought by members of the Armed Services. There are a few exceptions to the Feres Doctrine, so an attorney knowledgeable about the Feres Doctrine (and the associated Federal Tort Claims Act) should be consulted for specific questions about your particular case.

On a related note, earlier this year President Trump signed the Defense Authorization Act into law. While not exactly an exception to the Feres Doctrine—it does grant Service Members the ability to bring medical malpractice (also known as medical negligence) claims against the particular branch of the Service that Veteran alleges provided the negligent medical treatment. For example, if a Service Member alleges an Army doctor provided subpar treatment—that soldier can present a claim to the Army, and the Army must evaluate and respond to the soldier’s claim. The claim is handled by the Army—but it cannot be litigated in federal court. Until this year, all medical malpractice claims were barred by the Feres Doctrine. You can learn more about the newly passed Defense Authorization Act here.

The Feres Doctrine bars wrongful death and negligence claims by members of the Armed Forces. Nevertheless, our nation can express gratitude for those members who paid the ultimate price, including the 9 brave souls who perished this past weekend in the tragic training accident off the coast of San Clemente Island.

For questions about your negligence or wrongful death case, the Rabbi Lawyer is ready to assist, 24/6.