In a military context, the federal government still retains immunity from liability from suits by servicemen. In the seminal case Feres v. U.S., 340 U.S. 135 (1950), the Supreme Court held that the United States was not liable in tort for the death of a serviceman by fire in the barracks while on active duty, or for the injury or death of servicemen resulting from negligence in medical treatment by Army surgeons. This case established that the FTCA does not waive immunity for injuries to servicemen arising out of, or in the course of, activity incident to military service. Significantly, the Feres bar on recovery does not hinge on the military status of the tortfeasor. Rather, the Feres doctrine bars all suits on behalf of service members against the federal government based upon service- related injuries. U.S. v. Johnson, 481 U.S. 681 (1987).
The government can be liable under the FTCA when the injury does not arise out of conduct incident to military service. This “incident to service requirement” is examined on a factual, case-by-case basis and will not be reduced to a bright-line test. U.S. v. Shearer, 473 U.S. 52 (1985). Still, it is applied broadly by the courts to bar government tort liability. For example, the Feres doctrine barred an active duty serviceman's claim for an injury incurred despite that the serviceman was off duty playing basketball, some of those who treated his injury were civilians, and his alternative legal remedies may have been inadequate. Borden v. Veterans Admin., 41 F.3d 763 (1 st Cir. 1994).
Importantly, the Feres doctrine only applies to active military personnel. Therefore, claims brought by civilians or civilian dependents of service members are not barred by Feres. Mossow By Mossow v. U.S., 987 F.2d 1365 (8 th Cir. 1993).
Retired military personnel are also not barred from bringing an FTCA claim by Feres. McGowan v. Scoggins, 881 F.2d 615 (9 th Cir. 1989). This case presented an FTCA claim brought by a retired Army officer, seeking damages for harm suffered while entering an Air Force Base. The court held that the Feres doctrine is inapplicable to a claim filed by someone who is not a member of the armed forces for an injury that was not incident to current military service, or who is not subject to supervision of military personnel.
Members of state National Guard units not in the active federal service are considered employees of the individual state, not of the Federal Government. Therefore, the United States is not held liable under the FTCA for the negligence of nonactivated members of the guard. Williams v. United States, 189 F.2d 607 (10th Cir. 1951).
The issue of government contractors is addressed below in detail.