Alternatives to the Judicially Promulgated Feres Doctrine

• Author: Major Deirdre G. Brou
• Pages: 04

MILITARY LAW REVIEW

Volume 192 Summer 2007

ALTERNATIVES TO THE JUDICIALLY PROMULGATED FERES DOCTRINE

MAJOR DEIRDRE G. BROU*

Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be legislator.1

1. Introduction

   Army Specialist Sean Baker was a military police officer stationed at Guantanamo Bay, Cuba who "volunteered to play the part of an

   uncooperative detainee"2 during a forced cell extraction training exercise on 24 January 2003 at Camp Delta, Guantanamo Bay.3 Before the exercise began, First Lieutenant Shaw Locke, the officer in charge of Camp Delta's internal reaction force, instructed Specialist Baker to wear an orange jumpsuit, make noise in a cell, hide under a bed, and resist all verbal orders of the camp's internal reaction force team.4 Lieutenant Locke further instructed Specialist Baker to comply with the team's orders once the team entered the cell and to say the codeword "red" if he felt threatened.5

   After receiving his instructions from Lieutenant Locke, Specialist Baker donned an orange jumpsuit and squeezed under a bunk in a cell at the camp.6 Once Specialist Baker heard the internal reaction force team approaching his cell, he began to yell.7 As the internal reaction force team approached the cell door, the team's members began shouting verbal commands to Specialist Baker.8 Specialist Baker ignored the commands.9 The team entered the cell, grabbed Specialist Baker, and tried to physically restrain him.10 Specialist Baker resisted and then muttered the codeword "red," signaling that the team was applying too much force.11 The team ignored the code word, continued to physically restrain Specialist Baker, and beat him as he shouted "red" and "I am a U.S. [S]oldier!"12 As a team member slammed Specialist Baker's head

   against the steel floor, one member of the team finally realized the "detainee" was a U.S. Soldier and the exercise ended.13

   Shortly after the end of the exercise, Specialist Baker went to the Guantanamo Bay Naval Hospital and remained there for three days.14

   The military then medically evacuated Specialist Baker from Guantanamo Bay to the Portsmouth Naval Hospital for treatment of a traumatic brain injury he suffered during the cell extraction exercise.15

   Both the Walter Reed Army Medical Center and the Lexington, Kentucky Veterans Affairs Medical Center have also treated Specialist Baker.16 The Army medically retired and honorably discharged him on 4 April 2004.17 Because of the severity of his injuries, the Army awarded Specialist Baker one hundred percent service-connected disability pay.18

   The U.S. Supreme Court, in Feres v. United States,19 established the Feres doctrine to protect the Government from tort liability derived from military decisions, such as Lieutenant Locke's decisions related to the cell extraction exercise or the individual acts of the Soldiers involved in the exercise. The Court has often concluded that this function of the Feres doctrine-preserving military decision-making and discipline-is necessary for the effective and efficient functioning of the U.S. military.20 Military decision-making entails balancing, among other things, the demands of the mission with the safety of the individual

   service member and the safety of the unit.21 Arguably, military leaders at all levels cannot afford to cloud their decisions with issues of potential governmental or personal tort liability. The Court averred that military leaders must be free to make policies and decisions without the fear that they will face judicial scrutiny in civil court.22

   The Feres doctrine, however, is too broad in scope and goes beyond protecting military decision making and discipline. The Feres doctrine extends protection to all government personnel who, while acting within the scope of their employment, negligently harm or kill a service member. It goes beyond protecting the leader who decides to put a Soldier on point during a combat patrol or who plans a training exercise that harms a service member. It also protects the military surgeon who negligently leaves a towel in a service member's abdomen after surgery;23 the civilian government employee who negligently operates a military morale, recreation, and welfare program;24 the civilian mechanic at the Post Exchange garage who negligently repairs a service member's

   car;25 and the government driver who, while negligently operating a government vehicle, kills a service member.26

   When it promulgated the "incident to service" test in 1949, the U.S. Supreme Court had several tools at hand, in the form of the Federal Tort Claims Act's enumerated exceptions,27 to prevent courts from intruding

   upon military decision making and discipline. Rather than creating the "incident to service" exception, the Court should have applied the Act's existing enumerated exceptions to ensure that it protected military discipline and decision making and also preserved service members' rights under the Federal Tort Claims Act. This article analyzes the nature of the Court's decisions in Brooks v. United States28 and Feres v. United States29 and concludes that the promulgation of the Feres doctrine was an act of judicial legislation that violated the principles of separation of powers. This article also addresses the need to critically look at the Feres doctrine and determine whether the Federal Tort Claims Act itself and its thirteen enumerated exceptions shield the Government from liability for most military leaders' decisions.

   Section II of this article describes the history of the gradual abrogation of the United States' sovereign immunity, and Section III

   discusses the Federal Tort Claims Act. Section IV outlines the development of the Feres doctrine. Sections V and VI critique the rationales for and against the Feres doctrine. Section VII proposes applying the Federal Tort Claims Act's enumerated exceptions as an alternative to the Feres doctrine. Section VII then returns to Specialist Baker's case and other cases to demonstrate how applying the Act's enumerated exceptions can protect military discipline and decision making while also ensuring service members enjoy rights more commensurate with those of civilians under the Act. Finally, Section VIII addresses the possible future of the Feres doctrine, given the recent changes in the composition of the Supreme Court.

2. The Gradual Abrogation of the United States' Sovereign Immunity

   The American doctrine of sovereign immunity has its roots in English law.30 The English doctrine of sovereign immunity prohibited suit against the King, absent his consent.31 During the U.S. Supreme Court's early jurisprudence, the Court rejected this English doctrine of sovereign immunity in Chisholm v. Georgia.32 In response to the Supreme Court's decision in Chisholm, Congress "unanimously proposed"33 and adopted the Eleventh Amendment to the Constitution prohibiting suits against a state by "citizens of another State."34

   Although the Eleventh Amendment precludes suits against a state, the Constitution is silent as to the United States' immunity from suit.

   In Cohens v. Virginia,35 the U.S. Supreme Court remedied this issue by assuming that the doctrine of sovereign immunity applied to suits against the United States.36 Thus, the Court set forth the rule that the United States was immune from suit unless Congress consented to suit. When interpreting statutes that waive sovereign immunity, the Supreme Court has held that Congress decides the breadth of the waiver and courts

   must strictly interpret Congress's waiver of sovereign immunity;37

   therefore, courts cannot broaden a congressional grant of sovereign immunity.38

   As a result of the United States' immunity from suit, "[i]ndividuals seeking redress for a wrongful act of the Federal Government, whether through contract or tort, could petition Congress to pass a private bill providing a special grant of relief."39 "As the nation grew and the activities of the Government spread, inevitably the volume of claims against the Government rose sharply."40 Therefore, the private relief bill burdened Congress. On 24 February 1855, Congress enacted the Court of Claims Act in an attempt to decrease this burden.41 This Act initially granted the Court of Claims the power to prepare and submit bills to Congress42 and the jurisdiction to hear "claims based on contract or federal law or regulation."43

   Despite the Court of Claims Act, the number of private relief bills continued to burden Congress; this burden only increased with the

   outbreak of the Civil War.44 This increase prompted Congress in 1863 to empower the Court of Claims to enter final judgments and permit the U.S. Supreme Court to consider Court of Claims appeals.45 The jurisdiction of the Court of Claims, however, remained limited to contractual issues because Congress had declined to broaden the court's jurisdiction.46 During the 1880s, private relief bills continued to plague Congress.47 In response, Congress passed the Tucker Act in 1887,48 enlarging the court's jurisdiction "to include all cases for damages not sounding in tort."49

   From the enactment of the Court of Claims Act until the passage of the Federal Tort Claims Act in 1946, Congress passed a series of statutes that provided limited tort relief and, thereby, gradually repudiated the United States' sovereign immunity in this respect.50 Despite these statutes, the private relief bill continued to burden Congress, prompting Congress to try to enact a broader tort claims act.51 Although the private relief bill burden remained steady between 1929 and 1942, Congress attempted but failed to enact a general tort claims act in an effort to relieve the private relief bill burden.52

   The crash of a military aircraft into the Empire State Building on 28 July 1945 provided Congress with the impetus it needed to pass a broad tort claims act.53 The crash killed fourteen people...