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‘Feres’ doctrine does not bar suit between service members

Virginia Lawyers Weekly//June 2, 2021

‘Feres’ doctrine does not bar suit between service members

Virginia Lawyers Weekly//June 2, 2021

Where plaintiff, an active member of the U.S. Navy, sued defendant, also an active navy member, for injuries sustained in a car accident, defendant is not immune from suit under the Feres doctrine because plaintiff’s injuries were not “incurred incident to military service.”


Both parties lived off-base and each was on their way to appointments at a naval medical center when the crash occurred. Plaintiff alleges defendant rear-ended her vehicle on a freeway exit ramp. She sued, seeking $300,000 in damages. Defendant filed a “Special Plea of Lack of Jurisdiction Based on lntramilitary Immunity Doctrine.”

Defendant argues that because both he and plaintiff are service members, the Feres doctrine bars the suit.

“Feres v. United States, 340 U.S. 135, 146 (1950) stands for the proposition that the Federal Tort Claims Act … does not waive the government’s sovereign immunity for service member suits when the injuries are incurred incident to military service.

“The Supreme Court has outlined three underlying rationales for this doctrine: First, the Court considers the ‘distinctly federal character of the relationship between the government and servicemen. … and specifically, the fact that the requirements of military duty place servicemembers at a particular disadvantage in litigation. …

“Second, the federal compensation system provides a remedy for injured servicemembers. … Third, consideration is given to the disruptive effect that lawsuits between servicemembers would have on the effectiveness of the military. …

“The Feres doctrine has two requirements: that the parties to the case were servicemembers when the injury occurred, and that the injuries arose out of activity incident to service. In analyzing whether the Feres doctrine applies to a particular case, the court looks to the Plaintiff’s circumstances only.

Suit goes forward

“[T]here is no question that both parties were in the military at the time of the accident. As such, the Court must determine whether Plaintiff was engaging in activity incident to service when she was injured. In his Plea in Bar, Defendant relies on a number of cases in which the plaintiffs were active duty and not on furlough, arguing that in the present case, Plaintiff was wearing her uniform, receiving her full military pay, and traveling to a medical appointment made possible by her military benefits. …

“Plaintiff’s military status is not proximately related to her injuries. She was driving to a personal appointment on a public highway in her private automobile, and none of these circumstances were dictated by military orders.

“While the interpretation of ‘incident to service’ is relatively broad, courts have continuously found that there must be a plausible relation to a military goal or physical proximity to a base or military transport. …

“Plaintiff was acting in her civilian capacity off base with no government mission or property involved. These facts distinguish the present case from those cited by Defendant in the Plea in Bar, all of which involved a proximal relation to service.

“Allowing Plaintiff to continue in her suit does not undermine the rationales supporting the Feres doctrine.

“First, the Feres doctrine protects the ‘distinctively federal’ relationship between the government and its soldiers. Mack v. US., 1001 WL 179888 (D.Md. Feb. 21, 2001). That relationship would be interfered with if the government’s liability to soldiers varied state to state. …

“No such concern is presented in this case. As pointed out in Mack, the fact that Defendant coincidently hit another government employee does not damage the ‘federal’ relationship between the military and its service personnel. ‘The government cannot avoid responsibility for tortious conduct merely by relying on the fact that at the time of the accident, [the plaintiff] was a member of the armed forces.’ …

“This rationale also addresses the concern that the requirements of the military put servicemembers at a particular disadvantage in litigation, but Plaintiff is no longer in the military because of her injuries. Allowing Plaintiffs suit to proceed  would  not damage, or even involve, the ‘distinctively federal’ relationship between servicemembers and the government.

“Second, the Feres doctrine rests on the comprehensive system of statutory benefits that provides support for servicemembers and their families. Those injured during the course of activity incident to service receive benefits that ‘compare extremely favorably with those provided by most workmen’s compensation statutes.’ …

“The Court in Feres found it difficult to believe that Congress would have provided such a comprehensive system of benefits while at the same time contemplating recovery for service-related injuries under the FTCA. … This rationale remains unclear as it ‘seems to depend on a conclusion reached independently of it – that is, whether activity is or is not service related.’ … Here, the Court finds that Plaintiffs activity at the time of the accident was not related to her service.

“Third, the Feres rule shields military decision making from civilian inquiry, which would otherwise negatively impact military discipline and effectiveness, and undermine the duty and loyalty required by military service. … Plaintiff’s suit will not require civilian inquiry into military decision making. …

“As Plaintiff is no longer a servicemember, the suit will not disrupt military effectiveness or discipline as it might were both parties active duty.”

Defendant’s plea in bar is denied.

McDonald v. Barnett, Case No. CL20-1285, May 6, 2021, Portsmouth Cir. Ct. (Crowe). Erik Porcaro, Brittany J. Gold, Suzanne B. Teumer for the parties. VLW 021-8-077, 3 pp.

VLW 021-8-077

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