Farewell, Feres: Does the Camp Lejeune Justice Act Overturn the Feres Doctrine?

In 1950, the Supreme Court held in Feres v. United States that soldiers cannot sue the government for injuries incurred “incident to service.” This holding set a precedent for denying suits by injured soldiers and their families, and the precedent became known as the Feres Doctrine. Over time, the Feres Doctrine has been expanded and abused to universally dismiss lawsuits by soldiers for negligence, medical malpractice, sexual assault, and intentional torts including sexual assault. Because the original decision did not adequately define “incident to service,” the Feres doctrine has been applied differently in different judicial circuits, causing confusion and drawing ire from legislators, judges, and Justices alike. In 2022, the Feres Doctrine was dealt two significant legal blows. First, Congress passed the Camp Lejeune Justice Act (Lejeune Act), allowing soldiers negligently injured by toxic water at Camp Lejeune to sue the government. Second, the Ninth Circuit decided Spletstoser v. Hyten, which both allowed a survivor of military sexual trauma to sue the government and held that sexual assault is not incident to service. This Comment argues that, because soldiers are allowed to sue for negligence under the Lejeune Act and for sexual assault under Spletstoser, neither negligence and subsequent medical problems nor sexual assault are incident to service. Today, the combination of the Lejeune Act and Spletstoser results in a severely curtailed Feres Doctrine. This is because, under both the Lejeune Act and Spletstoser, the only lawsuits still barred by Feres are suits for other intentional torts, which is far narrower than the Doctrine’s original purpose of barring all Federal Tort Claims Act suits by soldiers. Thus, Feres is ripe for reconsideration and abandonment because of the confusion it brings upon courts and because a majority of Feres’s founding legal precedent has been overturned. The combination of the Lejeune Act and Spletstoser provides the ideal opportunity to fully revisit the Feres Doctrine. This reconsideration is necessary to open the courthouse doors to thousands of wrongfully injured and deceased soldiers who have been unjustly silenced and denied their day in court.