Archaic Supreme Court Ruling Denies Active Duty Military Access to Justice

May 24, 2019

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Did you know our active duty military have fewer rights than every other person in the United States? Even fewer rights than non-citizens and prisoners.

Established in 1950 in Feres vs. United States — a case involving the Federal Tort Claims Act that allows citizens to sue the government — the Supreme Court ruled that the federal government could not be held liable “for injuries to members of the armed forces arising from activities incident to military service.”

In the decades since that decision, Feres has been broadly applied to cases far outside the battlefield, from military sexual assault to training incidents, to allegations of command negligence, and military medical malpractice.

The standard defined by Feres means military personnel cannot bring a cause of action if they are a victim of medical malpractice, sexual assault, or catastrophic injury if the offending party is a U.S. Government entity.

This archaic precedent denies service men and women their right to trial by jury, a Seventh Amendment right enshrined in the very constitution they fight to defend. Their sacrifice should be honored by a grateful nation, not abused by denying them the fundamental right they are charged with upholding.

The Feres doctrine is an insult to our service personnel and their families. Every American deserves the right to demand accountability if egregious misconduct results in a catastrophic injury or wrongful death. Military personnel are NOT second-class citizens whose service and sacrifice entitle them to a limited menu of rights. Yet in courtrooms across the country, the Feres Doctrine is used as judicial cover to deny justice to members of the military.

The Feres Doctrine is a Supreme Court precedent, and as such, it can only be changed in two ways: through Congress, in the form of legislation amending the Federal Tort Claims Act (recently a bipartisan bill was introduced to do just that); or by overturning the initial Supreme Court decision. A recent case in the Ninth Circuit is challenging Feres vs. United States. Should the Supreme Court choose to uphold this 1950 ruling, Congress can still take action. It is time Congress united to right this wrong. Politicians who campaign on their commitment to the military have the power to put their words into action.

Our troops make a tremendous sacrifice for this country. They should be honored for their courage, not punished by depriving them of basic freedoms indoctrinated in the Bill of Rights.

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Domnick Cunningham & Whalen

Domnick Cunningham & Whalen

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