The Federal Tort Claims Act (FTCA) - A History, Overview, and the Dreaded Feres Doctrine
The Federal Tort Claims Act (FTCA) is a United States federal law that allows private individuals to sue the federal government for torts committed by federal employees in the scope of their employment. Prior to the FTCA, individuals were generally barred from suing the government for torts committed by its employees, due to the doctrine of sovereign immunity, which held that the government could not be sued without its consent.
Yes, you read that right. One rule that the American legal system inherited from England is that the government may not be sued unless it gives individuals permission to sue. This rule is known as sovereign immunity. This rule stands as a bar to many potential claims for redress under circumstances that Americans would tend to classify as unjust.
Enter the FTCA, which partially waives the sovereign immunity of the federal government and at least partially addresses this problem. The FTCA was first enacted in 1946, in the wake of World War II, when there was a need to address the issue of government accountability for the actions of its employees. The law was designed to provide a remedy for individuals who were harmed by the negligent or wrongful acts of federal employees, and to ensure that the government was held accountable for such acts.
Initially, the FTCA applied only to claims arising from the negligence of federal employees while acting within the scope of their employment. However, the law has been amended over the years to include claims based on intentional torts and other types of claims, such as claims arising from the actions of federal law enforcement officers.
One of the most significant amendments to the FTCA came in 1988, with the passage of the Federal Employees Liability Reform and Tort Compensation Act, which placed a cap on the amount of damages that could be awarded in FTCA cases. The cap was initially set at $1 million, but has since been adjusted for inflation.
Today, the FTCA is a crucial tool for individuals seeking to hold the federal government accountable for the actions of its employees. However, the process of pursuing an FTCA claim can be complex and challenging, requiring the expertise of experienced attorneys who are familiar with the unique legal requirements and procedures involved in such cases.
While the FTCA generally waives sovereign immunity for the federal government, there are some exceptions for harms that arise out of, or occur because of military service.
Under the FTCA’s “combatant activities” exception, the government is generally immune from suit for injuries or damages arising from “combatant activities of the military or naval forces, or the Coast Guard, during time of war.” This exception is designed to protect the military and its personnel from liability for injuries that occur in the course of combat operations, where the government's interest in military readiness and national defense outweighs any interest in compensating individual victims.
The FTCA also includes a “discretionary function” exception, which applies to claims based on the exercise or performance of a discretionary function or duty by a federal agency or employee. This exception is intended to protect the government's policymaking and regulatory functions from judicial interference, and applies even where the government's actions may have caused harm to a private individual.
In practice, the “combatant activities” exception and the “discretionary function” exception can make it difficult for individuals to bring successful claims against the government for injuries sustained during military service. However, there are some situations where claims may still be viable, such as where the injuries were caused by negligent or reckless conduct that falls outside the scope of combat operations or discretionary decision-making. It is important to consult with an experienced attorney who is familiar with the nuances of the FTCA and its exceptions if you believe you may have a claim arising from military service.
In addition to the statutory exemptions of “combatant activities” and “discretionary functions,” the Supreme Court of the United States created another exemption for military members in Feres v. United States, 340 U.S. 135 (1950). Feres was actually three separate court cases combined into one for procedural reasons. The rule that emerged from Feres was, in essence, an extension of the sovereign immunity principle that went far beyond what Congress intended with the “combatant activities” exemption in the FTCA.
Feres establishes the rule that military members may not sue the federal government for anything that arose out of, or was incident to, their military service. This broad prohibition effectively meant that military members have been unable to seek redress for wrongs that occurred to them since 1950, with very limited exceptions.
The reasons to uphold the Feres have been discussed in many subsequent judicial opinions from the U.S. Supreme Court and from other courts. Many of the reasons articulated by these courts are of questionable historical accuracy from a legislative standpoint. Two of these reasons stand apart from the others for the particularly harmful outcomes they contemplate: First, veterans benefits can adequately compensate an individual for harms suffered while in military service. Second, the negative effects on good order and discipline lawsuits could have when a subordinate sues a superior.
Regarding the first reason, and as a general matter, there is no evidence that I am aware of that Congress intended for this result when it originally passed the FTCA. Moreover, by making such assertions, the U.S. Supreme Court overlooked two of the most important reasons for which we have a civil system of redress: first, to provide (actual) redress to an individual who suffered harms; second, to act as a proper deterrent to others through the regulation of behavior through private action. In a free society such the U.S., we many times rely on private litigants to produce positive social change rather than resorting to government regulation.
This is so because government regulation, while necessary in many instances, can be very difficult in striking the proper balance between individual liberty and setting proper rules for individuals to follow for the common good. A great example of the American legal system’s reliance on private action to produce positive change is the body of law known as “torts” also sometimes referred to as “personal injury.” Of course, there are those who would not agree with the idea that personal injury lawsuits produce social change, but the reality is that everyone probably knows of at least one case where someone prevailed in a lawsuit that had the effect of correcting behavior that was plainly harmful or outrageous. Sometimes, these stories are the subject of Hollywood movies.
It is therefore unsurprising that the Feres Doctrine has led to outcomes that shock the conscience. In Ritchie v. United States, No. 11-16535 (9th Circuit 2013), for example, the U.S. Court of Appeals for the Ninth Circuit held that a wrongful death lawsuit, brought by the father of a deceased infant son, was barred by the FTCA. The basic facts of the case are that, while the active duty servicemember mother was pregnant, she was repeatedly ordered by her commanding officer to perform physical labor and physical excericse against a physician’s advice and over her repeated pleas.
The mother’s physicians also classified her as a “high risk” pregnancy and informed her that she was not to perform normal work duties for the remainder of her pregnancy. However, her commanding officers continued to ignore the mother’s medical advice. The child was born prematurely and died about a half hour after birth. The Ninth Circuit held that the lawsuit was barred by the Feres Doctrine.
Ritchie is merely one example of a lawsuit being barred merely because it arose out of one individual’s military service (the mother’s service, mindful that the mother was not actually a party to the suit) . The unfortunate reality is that there are many more stories like Ritchie.
Ritchie demonstrates the problem with the first traditional policy reason to uphold Feres: that Congress intended for harms suffered during service to be redressed through benefits administered by the Department of Veterans Affairs (VA) and that this system can adequately redress wrongs.
As a general matter, the most popular form of benefit paid by the VA (disability benefits) require (1) a current medical condition, (2) something that happened while in service that points to the condition, and (3) a causal relationship between these two things. A premature birth is, of course, not a current medical condition. This leaves the veteran to applying for benefits that are merely derivative of, or secondary to, the actual harm as the only form of compensation to which he or she is entitled.
Moreover, there is no guarantee that those responsible for this situation would be subject to discipline. Even if these officers were punished for their behavior, it would have likely been done under quiet circumstances that do not produce the positive change required to prevent something like what happened in Ritchie from happening again.
It also calls into question the second traditional policy reason to uphold Feres: threatening good order and discipline by the idea of subordinates suing superiors. This policy reason has tremendous merit under particular circumstances: A system that allows, for instance, a rifleman to sue his platoon commander because of injuries related to gunshot wounds he sustained while taking Hill No. _____ would be impossible to manage, and would certainly have such a chilling effect on decisionmaking so as to undercut the efficacy of the U.S. Armed Forces as a whole. This observation should bolster our faith in the FTCA as it was originally written: To continue to bar such claims that arose out of “combatant activities” or the “discretionary function.” The exemptions that Congress originally wrote into the FTCA were of appropriate purpose and breadth.
The problem with Feres, however, is that it creates a new exemption that expands this thinking so far as to practically bar any and all claims for servicemembers. The reality is that most of our servicemembers today work in offices that are not unlike jobs in the civilian world. On base, they enjoy many if not more of the amenities enjoyed by civilians. There is not - nor was there ever - a valid policy purpose to expand this rationale to any and all servicemembers in garrison or in peacetime. It suffices to say that there is no conceivable reason to order a pregnant servicemember to exert herself unnecessarily against the explicit orders of her doctor while in garrison. It is sometimes observed in the law that ‘where the purpose of the rule ends, so does the rule.’ Unfortunately, Feres reflects a total absence of appreciation for the nuance of these particular situations.
Since the U.S. Supreme Court handed down Feres in 1950, there has been at least one positive development as it pertains to military member’s right to redress wrongs. In 2020, Congress passed an amendment that chipped away at the Feres doctrine, at least in part. In the National Defense Authorization Act of 2020, Congress passed a limited exemption to the Feres that permits individuals to sue the Federal government for reasons of medical malpractice that occurred at a military medical facility. While the chipping away of Feres is a positive development, the reality is that cases like what happened in Ritchie can still occur without any recourse for the individuals harmed.