Honoring Our Troops? Not This Time.

This past Monday, May 20, 2019, the United States Supreme Court issued a decision in the case of Daniel vs. United States. This case is the latest by the Supreme Court to apply the so-called “Feres Doctrine” in dismissing a tort cased filed on behalf of a member of the Armed Forces of the United States.

The facts of the case are that a husband filed suit on behalf of his deceased wife.  The wife died four (4) hours after giving birth due to medical negligence that occurred in a federal hospital. The deceased wife was a Lieutenant in the United States Navy.


The Supreme Court’s decision was founded upon the Supreme Court’s 1950 decision in Feres v. United States. That decision bars lawsuits brought by service members against the federal government for injuries that “arise out of or are in the course of activity incident to” their military service.

The Feres doctrine has been strongly criticized ever since the decision was issued in 1950.

In deciding the Feres case, the Court was construing the Federal Tort Claims Act which expressly disallowed claims by service members arising out of the military’s “combat activities” The decision in Feres vastly broadened the scope of claims by service members which are barred and it did so by conjecturing that it was the intent of Congress to do so.

In other words, the Supreme Court made the law, not Congress.

Courts are often called upon to interpret vague, ambiguous and contradictory statutes and they do this through the application of recognized legal principles which attempt to answer the question of legislative intent. There was nothing in the legislative history or the statute itself from which the Supreme Court could infer that Congress intended the result the Court reached in Feres. Feres is a prime example of judicial activism. Nevertheless, the present Supreme Court decided to follow its own precedent, i.e., apply the rule of stare decisis, and the result is a decision which makes no sense, is unduly harsh to the deceased service member and her family, and irrational. How is it possible to conclude that having a baby arises out of or is in the course of activity incident to military service? Beats me.

The Daniel decision says it relies upon the doctrine of stare decisis, i.e., the doctrine of precedent under which it is necessary for a court to follow earlier judicial decision, particularly its own prior judicial decisions. This is the first rule law students are taught and  that seems like what a court should do, but you may recall that I recently wrote about the Supreme Court’s decision in Tax Board of California vs. Hyatt, which overturned the Court’s own precedent of 40 years ago. So, we have two (2) cases in the same term which, according to the principle of stare decisis, called for the Court to follow its own precedent. In one case they did and in one case they didn’t. Those who believe that Roe vs. Wade is the “settled” law of the United States won’t be comforted by the Court’s selective use of stare decisis. There is, however, a theme common to both cases. In both cases a government was sued. Republicans, as a general rule, believe in sovereign immunity. Both decisions result in saving governments from being held liable. And, in the Daniel case, another sacred cow of Republican orthodoxy, restricting or eliminating tort liability, is also implicated. As I see it, the conservative majority on the Court was simply doing what it needed to do to reach the results it wanted. In the Hyatt case it had to overturn its own precedent, and in the Daniels case, it had to follow its own precedent. Judicial activism of the highest order.

Congress should legislate to overthrow the Feres Doctrine once and for all. Military personnel should not be treated this way. Joining the military should not be a forfeiture of the rights of citizenship. 

In Daniel vs. United States the Court showed that it doesn’t mind the fact that application of a bad prior decision leads to an unfair result. In

Tax Board of California vs. Hyatt, the Court proved that it is fully capable of ignoring its own precedent in order to achieve a result it thinks is better. What’s next?