“And Justice for All”: Modifying the Ninth Circuit’s <em>Feres</em> Doctrine Test to Reduce Service Member Inequity

Abstract

In 1946, the Federal Tort Claims Act (FTCA) waived what was once absolute: federal sovereign immunity for government-caused torts. Nevertheless, the Supreme Court’s Feres doctrine declines to extend the FTCA’s immunity waiver to certain tort claims of military service members. The doctrine precludes petitioners who have suffered an injury incident to their military service from bringing a negligence claim against the government. Its origins are not without controversy and modern courts often have trouble applying it in an equitable manner. In 2021, for example, the U.S. Navy negligently contaminated the drinking water supply of thousands of civilians and service members on the island of Oahu. Although recent case law applying the FTCA to drinking water-related torts indicates a willingness to allow some of these claims to proceed, that willingness has not been extended to service members due to the Feres doctrine. This Note argues that the Feres doctrine is inequitable because it excludes service members’ injuries in an overbroad manner. Further, this Note proposes a modified Feres test based on the Ninth Circuit’s interpretation of the doctrine to promote equity and applies it to the Navy’s actions on Oahu.