The Feres Doctrine, Part I: How It Took Root

Sovereign Immunity and Closed Courthouses

For most of American History, suing the federal government was nearly impossible. The old English maxim – “the King can do no wrong” – carried over into American law as sovereign immunity. If federal employees injured you, the courts generally turned you away. Congress occasionally passed private bills granting relief in individual cases, but the system was slow, political, and inconsistent. The result was a patchwork of remedies that depended less on fairness and more on legislative grace. 

Most servicemembers do not learn about the Feres Doctrine until it bars them from courts. It is the rule that prevents a soldier injured by a negligently driven military vehicle from filing a lawsuit, while a civilian injured in the same exact accident could file. Families of troops killed in preventable on-base accidents and mothers who have had newborns injured through inadequate medical care are told the death was “incident to service” and beyond judicial remedy. The doctrine has shaped military life for 75 years, yet Congress never wrote it; the Supreme Court created it in a line of cases that began with promise and ended with restriction. 

The Promise of the Federal Tort Claims Act

By the early 1900s, pressure mounted for a more coherent system. For generations, sovereign immunity – a legal doctrine protecting governments from being sued without their consent – shielded the United States from negligence suits, forcing the injured to beg Congress for ad hoc relief. The number of claims from citizens harmed by postal trucks, military accidents, or negligence by government workers was rising. Lawmakers were increasingly frustrated at spending floor time debating individual relief bills for families ruined by government mistakes. 

In 1946, after decades of debate, Congress passed the Federal Tort Claims Act (FTCA). For the first time, private citizens could bring negligence claims against the federal government in federal court, with the potential of the United States being held liable “in the same manner and to the same extent as a private individual under like circumstances.” It was a watershed moment: complete sovereign immunity was broadly waived, opening the courthouse doors to ordinary Americans. 

Brooks v. United States (1949): The First Crack

The FTCA reached uniformed personnel almost immediately. In Brooks v. United States (1949), two soldiers on leave were riding in a private vehicle and were struck by an Army truck. The Court allowed their FTCA suit, emphasizing that military status alone does not extinguish a claim where the injury is not related to service duties. The opinion expressly contemplated that injuries “arising out of or in the course of military duty” might be different, but it refused any blanket exclusion for servicemembers. 

Feres v. United States (1950)

The very next term, the Court shut the door on most on-duty claims. In Feres v. United States (1950), three cases were consolidated to test the FTCA when the alleged negligence was intertwined with service: a deadly barracks fire caused by a defective heating system, a surgical towel left inside a soldier, and fatal malpractice at a military facility. Justice Robert Jackson acknowledged the statute contained no explicit carve-out for troops, yet the Court held the FTCA does not cover injuries “incident to service.” 

The Supreme Court grounded Feres on three policy reasons, none of which appear in any text of the FTCA. First, the Court argued because the relationship between the military and servicemembers is “distinctively federal,” it would be inappropriate to apply varying state tort laws to uniformed personnel. Second, it pointed to the existence of veterans’ benefits as an alternative, exclusive form of compensation for military injuries. Third, it warned that allowing tort suits could undermine military discipline by dragging command decisions into courtrooms and subjecting them to civilian juries. Together, these concerns have been cited repeatedly to justify the doctrine, even as critics note their weakness and absence of statutory support.    

From Brooks to Feres: The Sharp Turn and Its Expansion

The contrast is stark: Brooks confirmed troops could sue when the harm was not tied to duty; Feres announced that when it was, the courts were closed. Over time, lower courts read “incident to service” broadly to bar claims from medical malpractice at base hospitals to training accidents and other on-duty harms. The Congressional Research Service has described how the doctrine grew into a sweeping immunity that regularly forecloses FTCA remedies for servicemembers while leaving civilians’ claims intact. 

The court invented, but never clearly defined, the phrase “incident to service,” so courts have interpreted it expansively to cover almost any injury connected to a servicemember’s duty status. It does not matter whether the harm was on or off base, during training, or in a hospital. It does not matter whether the injury involved housing negligence or even assault by another servicemember – if the injury is deemed to arise out of military service, it meets the criteria. This elasticity has allowed Feres to sweep in cases far removed from combat or command decisions, turning what sounded like a narrow limitation into a near-total shield against liability whenever the injured party wears a uniform. 

Criticism from the Start

Critics have long argued Feres is policy masquerading as statutory interpretation: the FTCA’s text does not say what the Court made it say. Justice Scalia urged reconsideration in United States v. Johnson (1987), and in 2019 Justice Thomas wrote Feres “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received,” in a dissent for a denial of certiorari. In another dissent in 2025, Justice Thomas wrote: “As I have said before, we should fix the mess that we have made.” Scholarly treatments have also labeled the doctrine as a judicial invention that distorts the FTCA’s structure.

What Comes Next

Understanding Feres requires seeing how a broad statutory waiver in 1946 met a Supreme Court worried about command and discipline just four years later. Brooks opened a path; Feres paved it shut with the elastic phrase “incident to service.” Part II will cover the human cost and what this rule has meant for medical malpractice victims, training and housing disasters, and families who discovered too late that the courthouse doors are closed to those who swore to defend their nation.