In Defense of Feres: An Unfairly Maligned Opinion

The Supreme Court’s 1950 Feres v. United States decision held that when it enacted the Federal Tort Claims Act Congress did not intend to waive sovereign immunity for injuries to members of the military arising out of activity incident to their service. The Court’s decision was influenced by the long history of efforts to enact a general tort claims bill that would free Congress from the burden of processing claims against the government, as well as the case law, statutes, and procedures pertaining to service-members’ injuries prior to enactment of the Federal Tort Claims Act. This Article examines those influences and the early cases that analyzed the incident to service issue under the Act, including the Court’s Brooks decision that allowed service-member suits for injuries that did not arise incident to service. The Article reviews the lower courts’ decisions in the three cases that were consolidated in Feres and the parties’ briefing in the Supreme Court. The Article addresses arguments that have been raised against Feres’ reasoning, arguments that independently attack its holding, and various characterizations of the opinion. Because of the language of the Federal Tort Claims Act, the historical backdrop to the Court’s decision, and the absence of any indication that Congress intended to waive sovereign immunity for injuries suffered incident to service, Feres correctly decided that the Federal Tort Claims Act did not encompass such injuries