Why Congress Should Not Legislatively Repeal the Feres Doctrine – A Struggle in Equity

Under current law, almost any person injured because of a federal employee's negligence may sue the United States under the Federal Tort Claims Act (FTCA). The FTCA authorizes suit by civilians, retired military personnel, and even federal prisoners-but not active duty servicemen. In Feres v. United States, the Supreme Court held that the federal government may not be sued under the FTCA for injuries to servicemen when the injuries arise out of or are sustained in the course of activity incident to service. This holding has become known as the Feres doctrine and has saved the United States millions of dollars in barred claims. The purpose of this comment is threefold. First, it will examine the reasoning behind Feres and the legislative reforms which sought to overrule it. Second, it will explore the practical and theoretical ramifications of the repeal of Feres as to medical malpractice claims. Finally, an alternative approach to guaranteeing servicemen adequate compensation for their injuries will be suggested which would preserve the certainty of Feres yet still satisfy the ends of equity.