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
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
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
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.