The Lawletter Vol 45 No 5
On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020. Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.
The Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, bars suits against the United States and individual employees for any tort claim "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. § 2680(j). In 1950, the U.S. Supreme Court broadened this category by implying another exception in Feres v. United States, 340 U.S. 135 (1950). Feres involved a consolidation of several tort lawsuits, including (1) a servicemember who was killed in Army barracks due to a defective heating system; (2) medical malpractice of an Army surgeon who left a 30-by-18-inch towel in patient's abdomen during surgery, and (3) a servicemember's death due to "negligent and unskillful medical treatment." Id. at 137. All three claims were barred since the Court implied from the FTCA's purpose that Congress intended to not waive sovereign immunity for suits by military members for injuries sustained incident to military service. Id. at 146. The Court justified Feres on policy grounds, primarily due to the unique federal character of the relationship between the government and Armed Services personnel and already available federal remedies or compensation similar to workers' compensation relief in the civilian sector. Id. at 143; see also United States v. Johnson, 481 U.S. 681 (1987) (serviceman injured allegedly due to negligence of Federal Aviation Administration Air Traffic Controllers).
Supreme Court Justices Anthony Scalia and Clarence Thomas have been very critical of the continued use of the Feres doctrine. See Johnson, 481 U.S. at 700 (Scalia, J., dissent) (quoting In re Agent Orange Prod. Liab. Litig., 580 F. Supp. 1242, 1246 (E.D.N.Y. 1984)). In Justice Scalia's mind, the text of § 2680(j) clearly showed Congress's intent to limit the waiver exception. Id. at 693. Justice Scalia continued his disgust with this doctrine in Ritchie v. United States, 733 F.3d 871, 878 (9th Cir. 2013) ("We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long [as the Feres doctrine]."). Justice Clarence Thomas echoed similar disgust with this long-established doctrine in two recent dissents: (1) Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019) (majority affirming a suit against a manufacturer of navy equipment since suit against government was Feres-barred, where asbestos was incorporated by the Navy when the equipment was installed and two Navy sailors developed cancer); and (2) Daniel v. United States, 139 S. Ct. 1713 (2019) (majority denies writ of certiorari for husband's medical malpractice claim due to his Navy Lieutenant's wife's death during childbirth). The Ninth Circuit ridiculed the constant ad hoc application of the policy reasons and rules when determining "incident to service," so, instead, applied a more case-specific factor analysis. Daniel v. United States, 889 F.3d 978, 981 (9th Cir. 2018). It found that it regrettably had to rule that Feres barred the suit. Id.
The new 2020 NDAA provision may now provide at least administrative relief for Daniel and others, like Richard Stayskal's family (a Purple Heart recipient whose lung cancer was misdiagnosed as pneumonia months before his Stage 4 cancer was discovered) and Jordan Way's family (Navy corpsmen who died from opioid toxicity after shoulder surgery). However, some, like Senator Lindsay Graham, a former Air Force Judge Advocate, fear that these provisions will be the "opening of a Pandora's box" to numerous new frivolous lawsuits. Others worry that there is no independent arbiter to make sure that the DOD follows the FTCA standards. See Leo Shane III, Bid to Allow Troops to Sue for Military Medical Malpractice Hits Senate Snag, Military Times (Sept. 11, 2019).
It is unclear how the Supreme Court will review new cases that do not involve medical malpractice, such as sexual assault allegations, environmental contamination suits, negligent supervision claims, and military housing complaints that result in injury. Since the NDAA 2020 specifically states that it does not repeal or change the Feres doctrine, the Court will likely find that this legislation establishes that Feres is still good law and that the Court appropriately judged that congressional intent was to not allow judicial actions for these types of cases. On March 25, 2020, the Supreme Court left questions unanswered as it declined to hear the writ of certiorari filed by the Estate of Raheel Siddiqui in Siddiqui v. United States, 140 S. Ct. 2512 (2020), appealed from Siddiqui v. United States, 783 F. App'x 484 (6th Cir. 2019) (marine private fell to his death over a stairwell during basic training at Parris Island, South Carolina, in 2016). However, Congress could also act again in a future NDAA, with enough pressure from constituents.