Justice Thomas Criticizes Supreme Court’s Refusal to Reexamine Feres Doctrine

The enduring debate surrounding the Feres doctrine, a legal precedent that has shielded the U.S. government from lawsuits by active-duty military personnel for wrongful injury or death, was reignited on Monday as the Supreme Court declined to hear a case challenging this policy. Justice Clarence Thomas, however, issued a powerful dissent, labeling the doctrine as “indefensible” and “senseless as a matter of policy.”

Justice Thomas, advocating for a review of the Feres doctrine in the case of Ryan G. Carter v. United States, argued in his opinion that the doctrine lacks textual support in the Federal Tort Claims Act and that its policy justifications are flawed. “The Feres doctrine has no basis in the text of the Federal Tort Claims Act, and its policy-based justifications make little sense. It has been almost universally condemned by judges and scholars,” Thomas stated.

Originating in the 1950s, the Feres doctrine emerged from several lawsuits related to wrongful deaths due to negligence, such as military personnel killed by a civilian contractor or as a result of medical malpractice. This legal precedent has rendered the federal government immune from injury claims deemed “incident to military service.”

Justice Thomas, previously supported by Justice Ruth Bader Ginsburg in 2019, maintains that without reexamination, the Feres doctrine will continue to challenge the judicial system and deny justice to military personnel. His recent dissent underscores this viewpoint.

The doctrine has prevented recovery in various cases where the connection to military service was tenuous, such as negligent medical care or a towel left inside a patient post-surgery. Thomas highlighted examples, including a service member who lost a leg to flesh-eating bacteria and a cadet raped at West Point.

In the current case, Air National Guard Staff Sgt. Ryan Carter, who became a quadriplegic after a back surgery at Walter Reed National Military Medical Center, sought to challenge the doctrine. At the time of his surgery, Carter was inactive, which his lawyers argued allowed him to file a malpractice claim. However, the military retroactively changed his status to active duty, blocking any claims under Feres.

Christopher Casciano, Carter’s attorney, described the case as “yet another chilling example of the breadth and injustice of Feres,” emphasizing the disparate treatment of military personnel compared to civilians and veterans.

Despite the doctrine’s constraints, Congress has created exceptions allowing service members to file malpractice claims and lawsuits, such as those stemming from contaminated drinking water at Camp Lejeune or under the 2020 National Defense Authorization Act for malpractice in military medical treatment facilities.

The Supreme Court last addressed the Feres doctrine in 1987, upholding it in a narrow 5-4 decision. Justice Antonin Scalia, dissenting at the time, criticized the doctrine’s foundation, stating, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”