The Federal Tort Claims Act allows citizens who have been injured by the federal government to sue the United States.  But there’s an important exception.  No suit against the government is allowed when the victim is a service member injured by the negligence of the United States military. 

The rule protecting the military is called the Feres Doctrine.  In aviation accident cases, the doctrine bars service Marine Aboard Sea Knight Helicoptermembers from suing the government regardless of whether the crash was caused by the negligence of a military mechanic, air traffic controller, dispatcher or pilot.

Not surprisingly, the Feres Doctrine is controversial.  It allows the military to avoid responsibility for not just simple negligence, but for gross negligence as well.  Because of its unfairness, Congress has repeatedly been asked to abolish the rule, or at least limit it.  (Large pdf of Congressional Hearing here.)  But the Feres Doctrine remains the law.  As long as the victim was an "active" service member, and the injury or death was "incident to service," the military is immune from suit.  

That doesn’t mean that injured soldiers or their families cannot sue others who may have contributed to a military aircraft accident.  For example, if a defect in the design of the aircraft contributed to the crash or to the injuries the crew member received, the crew member can still sue the aircraft’s manufacturer. The aircraft manufacturer may be able to assert defenses of its own, such as the "government contractor defense," but not the Feres Doctrine.

The military prepares an investigative report after every accident involving one of its aircraft.  The report focuses on the military’s role in the accident.  It seldom addresses whether a manufacturer or other civilian contractor may have been at fault. In fact, as discussed in this article concerning a military helicopter crash off the California coast, sometimes the report provides no answers at all.  Families will often need to enlist an aviation accident attorney to conduct an investigation on their behalf.  The attorney may need to file suit against the manufacturers just to obtain access to the evidence bearing on who, other than the military, may be responsible for a service member’s injury or death.    

  • Jeffrey Ziegler

    Be aware that Feres also protects the US military from lawyer malpractice as well as aviation accidents.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds. After then doing my own investigation and trying to recoup my money, I discovered the expression, “A fish rots from the head down” definitely applies to US Army lawyers.

    When I asked the top lawyer (now Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar.

    It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. Just to add insult to my financial injury, Fitzgerald got promoted to Major.

  • Ed Fremer

    My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence at the conclusion of a training exercise. The Army can not be held accountable because of the Feres Doctrine. This law needs to be changed. Why is the Army exempt from being held accountable for Negligence? Our young men and woman are risking their lives. This is how our country treats the soldiers and the families?

    The Military uses the Feres Doctrine to cover up and protect themselves against Medical Malpractice in the Cases involving Dean Witt and Carmel Rodriguez. It also protects the Military in cases involving Marines being exposed to Toxic chemicals on US Bases on US soil. The Military is exempt from being held accountable on all of these matters. The Feres Doctrine needs to be overturned so the Military is held accountable.

    Ed Fremer