The Feres Doctrine

Introduction

The development of the Feres doctrine, for our purposes, is for the most part a story of three FTCA cases from the early 1950s. At the core, if the specific facts indicate that a plaintiff's injury was “incident to service” then the Feres doctrine is in all likelihood applicable, and the claim will be barred. On the other hand, if the injury is not “incident to service” then a FTCA claim is valid insofar as it will not barred by Feres (U.S. GPO, pp. 78).

In the case of our veteran, as in Brooks, the injury which occurred due to inadequate treatment at a V.A. hospital was not incident to his service, in the sense of following orders or being subject to military discipline. At most, a causal connection exists in the sense that “all human events depend upon what has already transpired.” Because the Brooks decision was somewhat open-ended, the Supreme Court immediately granted certiorari to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153 (1950), which combined three independent FTCA claims into one, this time involving active duty service members. Lieutenant Feres perished by fire in the barracks at Pine Camp, New York, while the cases of Griggs and Jefferson, both involved alleged medical negligence. Noting the “vital distinction” between Brooks and Feres, Justice Jackson wrote,

"The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission… the Government contended that there could be no liability to [the sons/passengers] solely because they were in the Army. This Court rejected that contention… We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146. The “incident to service” language is at the center of the controversy and confusion with which the Feres doctrine is shot through. It is this phrase that prevents the majority of FTCA claims brought by active service members from obtaining recovery. It is irrelevant, however, to our instant case, because to the oh-so-helpful labels 'incident to service' and 'not incident to service' the Court added a third category, “post-discharge” injury. Many radiation-exposure claims meet this requirement, and our case parallels those closely, as we shall see."

In 1954, the Supreme Court heard United States v. Brown, 348 U.S. 110, 75 S.Ct. 141 (1954), which introduced an exception to the Feres doctrine: the “post-discharge"tort. Brown was on active duty and was wounded in the left knee; in 1944 he was honorably discharged as a result. In 1950, the Veterans Administration performed an operation on the knee, but it continued to dislocate frequently. So, in 1951 another operation was performed by the V.A. It was during this second operation that an allegedly defective tourniquet was used, as a result of which the nerves in Brown's leg were seriously ...