Section 21.17 Military Personnel Injured While on Active Duty
Library | Tort Law 2016 |
E. (§21.17) Military Personnel Injured While on Active Duty
Four years after Congress enacted the FTCA, the Supreme Court, in Feres v. United States, 340 U.S. 135, 146 (1950), created a major exception to the FTCA when it prohibited military personnel from suing the United States for injuries that arise out of or are in the course of activity incident to military service. The Feres doctrine is grounded on three considerations:
1. The distinctly federal character of the soldier-sovereign relationship
2. The availability of alternative statutory compensation schemes
3. The adverse effects that tort liability and litigation might have on military discipline
See, e.g., United States v. Muniz, 374 U.S. 150, 162 (1963), in which the Court noted that Feres is best explained by examining:
· the peculiar and special relationship of soldiers and superior officers;
· the effect of such suits on discipline; and
· the extreme results that might occur if suits were allowed under the FTCA for orders negligently given or acts negligently committed in the course of military service.
Feres has been highly criticized over the years, and some courts have encouraged that the doctrine be reconsidered rather than applied as a bar to all claims fitting the criteria. See Estate of McAllister v. United States, 942 F.2d 1473 (9th Cir 1991), and Purcell v. United States, 656 F.3d 463 (7th Cir. 2011), for some examples of criticisms. Despite the reluctance of many courts to bar certain tort claims under Feres, the doctrine remains the rule, and courts are bound to follow precedent.
In United States v. Johnson, 481 U.S. 681 (1987), the Supreme Court addressed the issue of whether the Feres doctrine should be extended to bar FTCA actions when military personnel are injured by nonmilitary, civilian employees of the federal government.
In 1982, Johnson, a helicopter pilot for the U.S. Coast Guard, assisted in an aerial search for a lost civilian boat off the coast of Hawaii. Inclement weather caused Johnson to request radar assistance from the FAA (Federal Aviation Administration). Although the FAA air traffic controller assumed positive radar control over Johnson’s helicopter, it crashed into the side of a mountain, killing Johnson and his fellow crew members.
In accordance with the Veterans’ Benefits Act, Pub. L. No. 85-857, 72 Stat. 1105, Johnson’s widow applied for and received compensation for her husband’s death. In addition, she brought a wrongful death action...
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