Clarence Thomas Takes Aim at Supreme Court Doctrine Issue...

...

By Jenna Sundel

News Reporter

ShareNewsweek is a Trust Project member

Supreme Court Justice Clarence Thomas said in a dissent released Monday that the Court should revisit a doctrine decided 75 years ago.

The Court declined to hear a case filed by the wife of an Air Force staff sergeant who was struck and killed by a civilian government employee driving a government vehicle. Lower courts dismissed her claim based on their reading of the Feres doctrine.

Thomas said the Feres doctrine “has garnered near-universal criticism; has caused significant confusion; and has deprived servicemembers and their families of redress for serious harms they have suffered during service to this country.”

Thomas said that previously, “when lower courts report confusion and are in disarray,” the court has agreed to hear a case to resolve the disagreement between courts and address calls for clarification.

“We should have done so in this case. I respectfully dissent from the denial of certiorari,” Thomas said.

...

Why It Matters

The Feres doctrine arose from the Supreme Court's decision in the case Feres v. United States in 1950. The decision generally bars individuals from pursuing lawsuits against the U.S. for injuries arising from active-duty military service, according to the Congressional Research Service.

What To Know

Air Force Staff Sergeant Cameron Beck was riding his motorcycle home for lunch with his family while off duty at Whiteman Air Force Base in Missouri in 2021. A federal employee driving a government-issued van was distracted by her phone and turned in front of Beck, causing them to collide.

His wife, Kari Beck, sued the United States, which employed the woman, for wrongful death.

Thomas said the lawsuit “ordinarily would have been an open-and-shut wrongful-death case,” but the U.S. “generally enjoys sovereign immunity from suit.”

Thomas said the Federal Tort Claims Act (FTCA) “provides that the 'United States shall be liable' for tort claims 'in the same manner and to the same extent as a private individual under like circumstances,' including in cases where 'death was caused.’” The law does include an exception for “combatant activities” during wartime.

“It is inconceivable that driving home for lunch with one’s family while off duty can be characterized as a wartime combatant activity. So, the exception does not apply in this case,” Thomas said.

However, the lower courts found that under the Feres doctrine, the FTCA’s waiving of immunity does not apply in cases where injuries "arise out of or are in the course of activity incident to [military] service,” regardless of whether they arise out of wartime combatant activities.

Thomas said the Feres decision “did not base this doctrine on the text of the FTCA.”

Justice Sonia Sotomayor wrote a statement respecting the denial of certiorari, but said she agreed with Thomas that Feres is “a difficult decision to justify.”

“Like in this case, Feres has worked such harms even in circumstances far removed from the expected risks of military service. It has, for example, barred recovery for claims arising from medical malpractice, sexual assault, and (as here) car accidents, even when those harms occur on U. S. soil, bear little relation to the military itself, and just as easily could have befallen any American civilian,” Sotomayor said.

Sotomayor argued that Congress has the “primary authority” over statutory questions and can alter the Court’s doctrine.

Justice Neil Gorsuch indicated that he would have granted the petition for a writ of certiorari but did not provide any additional statement.

What People Are Saying

Supreme Court Justice Clarence Thomas, in a dissent: “I have long called for overruling Feres, which lacks any basis in the FTCA’s text. But we did not need to overrule Feres to get this case right because Staff Sergeant Beck was not killed incident to military service at all. He was killed in Missouri while off duty and going home to eat lunch with his family.”

Supreme Court Justice Sonia Sotomayor, in a statement respecting the denial of certiorari: “I write, however, to underscore that this important issue deserves further congressional attention, without which Feres will continue to produce deeply unfair results like the one in this case and the others discussed in Justice Thomas’s dissenting opinion."