Day on Torts
I know you remember the Feres doctrine. The Feres doctrine comes from the decision in Feres v. United States, 71 S.Ct. 153 (1950) and provides that soldiers cannot sue the government for injuries that they incur as part of their military service. Not surprisingly, the doctrine has been asserted by government contractors who do work for the military and who seek immunity for their actions.
In McMahon v. Presidential Airways, Inc., No. 06-15303 (llth Cir. Oct 5, 2007) the widows of three soldiers who died in airplane crash in Afghanistan sued the entities that owned an operated the plane. Feres was rasied as a defense, but it was not the sole defense. Here is the table of contents for the 72-page opinion:
I. Derivative Feres immunity
A. Interlocutory jurisdiction
B. Derivative Feres immunity
1. Feres doctrine
2. Derivative sovereign immunity
3. Application of Feres rationales to private contractor agents
4. Some form of immunity may be appropriate for private contractor
agents
a. Incident-to-service test
b. Feres as a basis for private contractor immunity where
sensitive military judgments may be involved
II. Political question doctrine
A. Interlocutory jurisdiction
B. Political question doctrine
1. Will the case involve a decision that has been constitutionally
committed to another branch?
2. Does the suit involve a lack of judicially discoverable and
manageable standards?
3. Other Baker factors
III.Preemption based on the combatant activities exception
IV. Conclusion
The result: The Court held the Feres doctrine inapplicable. Read the decision here.
Why am I telling you about this case? Because this decision is a fantastic place to start your research if you ever face this issue.