A Doctrine Some Courts Do Not Defend
From the start, Feres has been an uneasy fit with the Federal Tort Claims Act (FTCA). The Court acknowledged nothing in the FTCA excluded servicemembers entirely, yet still read such an exception into it. Over time, even the justices themselves have admitted discomfort. In United States v. Johnson (1987), Justice Scalia dissented, writing, “[t]here is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered, that is a function for the same body that adopted it.” Justices Brennan, Marshall, and Stevens joined Scalia in this dissent. More recently, Justice Clarence Thomas has dissented on multiple occasions, once writing: “denial of relief to military personnel and distortions of other areas of law to compensate – will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres.” The late Justice Ginsburg also indicated she would have granted certiorari to reconsider the doctrine. These signals show resistance even crosses ideological lines: “liberal” judges such as Ginsburg and Brennan, “conservatives” like Scalia and Thomas, all at different times, questioned its reach or legitimacy. Few doctrines survive such consistent disapproval.
Congressional Carveouts
Despite judicial criticism, the Court has refused to abandon Feres, leaving Congress to remedy the situation created by the Court itself. The most significant reform came in the 2020 National Defense Authorization Act, which created a limited administrative claims process for active-duty medical malpractice. Known as the “Stayskal Act,” it was named after Green Beret Sgt. First Class Richard Stayskal, who went to Womack Army Medical Center at Fort Bragg, N.C., in 2017 after feeling suffocated and coughing up blood. The hospital misdiagnosed him with pneumonia during two visits, and by the time he saw a civilian doctor six months later, the lung tumor causing problems had doubled in size. The tumor had previously appeared in X-rays taken before he even went to dive training, but no one at the military hospital told him or made the correct diagnosis. After learning he had terminal cancer, Stayskal fought for a change in the law, and Congress responded by allowing malpractice victims to file claims with the DoD rather than be automatically barred.
Yet the promise of reform has not matched its reality. The Pentagon has denied the overwhelming majority of malpractice claims filed under the new system – including Stayskal’s own. The soldier whose name is on the law, and who lobbied Congress to pass it while fighting stage IV cancer, was told he would receive nothing. For critics, that outcome underscores how hollow the remedy has been: Congress acted, but the DoD controls the process, sets the standards of review, and ultimately rejects claims at will. Families celebrated the breakthrough in 2020, but five years later, many see the carve-out as a symbol of Feres’ resilience rather than its decline.
Legislative Frustration
Bills have been introduced to narrow or overturn Feres, but none have passed beyond the malpractice carve-out. Proposals have ranged from allowing servicemembers to sue in cases of sexual assault to broadening the medical malpractice exception. Advocates have also urged Congress to extend reforms to other non-combat harms, such as training accidents or unsafe base housing, though those ideas have so far surfaced mainly in hearings and advocacy papers. Supporters argue accountability would improve readiness and safety, while opponents warn litigation could interfere with discipline and second-guess battlefield decisions, even though the FTCA already has a combat exception. The tension has stalled broader reform, leaving Congress divided even as individual lawmakers from both parties have condemned the doctrine as unfair.
The Originalist Problem
From an originalist perspective, Feres is particularly vulnerable. The FTCA was passed in 1946 to end the patchwork system of private bills and to (somewhat) waive sovereign immunity. Crucially, the Act already contained carefully drafted exceptions – including one for “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” This language shows Congress plainly contemplated the armed forces when writing the FTCA. If the legislative intent had been to bar servicemembers altogether, it would have been written directly into the statute, just as the combatant-activities exception was. The absence of such a clause is telling: the Court did what Congress chose not to.
Policy Arguments
Defenders of Feres insist that without it, courts would intrude into military command, discipline, and combat readiness. Yet many of the cases barred by the doctrine – like most medical malpractice, housing fires, and on-base vehicle accidents – have nothing to do with battlefield decision-making. Civilian courts routinely handle sensitive claims against servicemembers, law enforcement, intelligence agencies, and other federal actors without paralyzing operations. The military’s internal benefits system provides compensation, but it is not a substitute for the accountability and deterrence that tort law was designed to provide.
Beck v. United States: A Pending Test
The next chapter may already be unfolding. In 2025, Beck v. United States reached the Supreme Court after the widow of Staff Sgt. Cameron Beck challenged the dismissal of her suit. Beck was killed at Whiteman AFB when his vehicle collided with a government-owned truck driven by a civilian employee. The Eighth Circuit applied Feres and barred the case, reasoning his death was “incident to service” simply because it occurred on base while he was on active duty. Beck’s widow argues this stretches the doctrine beyond recognition, sweeping in negligence that had nothing to do with combat, command, or discipline. The petition now before the Court asks directly whether Feres should be limited or overruled. If SCOTUS takes the case, Beck could become the vehicle for a long-awaited reconsideration.
A Future Beyond Feres
The doctrine’s survival rests less on principle than on inertia. Congress has shown it can craft narrow reforms, as in the Stayskal Act. The courts, while critical, have hesitated to overturn a precedent now woven into decades of cases. Pressure is building. Lawmakers continue to introduce bills, justices continue to dissent, and families continue to press their claims. If the FTCA is ever read again as it was written, servicemembers will stand on the same footing as civilians when harmed by government negligence. Until then, Feres remains a rule without a statute.
