As a career JAG officer, Dr. Dwight Stirling has had a front-row seat to “injustices” he said stemmed from the Feres doctrine.
“I saw countless service members be injured and be the victims of rape, of retaliation by the chain of command,” said Stirling, founder and chief executive officer of the Center for Law and Military Policy. “And these are all types of action that in the civilian world, the party that was harmed could go to court and sue for.”
Established in 1950, the Feres doctrine states that under the Federal Tort Claims Act (FTCA) the United States isn’t liable for injuries to service members while they’re on active duty.
Courts have also “generally concluded” that the doctrine prohibits active-duty service members from suing the government “for injuries resulting from allegedly negligent medical care rendered at military medical facilities,” according to a 2023 Congressional Research Service report.
But a retired Maryland Air National Guardsman could soon spur the Supreme Court to take up the long-debated issue.
Ryan Carter vs. the United States
In June 2024, attorney Christopher Casciano, who represents Staff Sgt. Ryan Carter, filed a petition with the Supreme Court asking for the Feres doctrine to be reconsidered.
Carter, who served as an IT airman, went to Walter Reed National Military Medical Center in 2018 for a “routine back surgery” to address chronic neck pain and was left paralyzed from the chest down.
The Coalition of Heroes, which filed an amicus brief in Carter’s case, stated that the veteran guardsman now has “limited use” of his left arm and requires 24/7 care. He was not activated for service when his injury occurred. The brief stated that Carter “left federal service” in March 2018 and his injury occurred the following month.
Carter and his wife, Kathleen Cole, have made half a dozen attempts to initiate legal action, according to the coalition, but all were denied or dismissed. Their biggest obstacle? The Feres doctrine.
The Reserve Organization of America (ROA) was among the military organizations that signed on to a separate amicus brief. Matthew Schwartzman, ROA’s director of legislation and military policy, said in a statement to Reserve + National Guard Magazine that Carter’s case “exemplifies the injustices” of the Feres doctrine.
“No service member should endure permanent disability from elective surgery at a military hospital,” Schwartzman stated. “It is unacceptable that this doctrine can shield such an egregious mishappening from due process.”
The Coalition of Heroes filing an amicus brief shows “united disapproval,” according to Kristina Baehr, founder of the personal injury firm Just Well Law.
“This is not a left issue or a right issue,” Baehr said. “This is a humanity issue. This a national security issue. And people on all sides of the issue appreciate that.”
The Feres doctrine’s ‘outdated view’
Stirling, who also co-founded Veterans Legal Institute, currently is a reserve JAG officer in the California National Guard. He has had to explain to service members time and again that the Feres doctrine prevents their cases from moving forward. It’s a conversation he said is “laced with emotion and with a sense of sorrow.”
“There is a universal experience that occurs when a service member learns that the courthouse doors are closed to them,” Stirling said. “It is a sense of bewilderment, of shock, when they think through the fact that they have no ability to hold their wrongdoer to account.
“There is this sense of betrayal at its core where they ask themselves, and they ask me as their attorney, ‘Why am I the only category of American who can’t have my day in court? And why wasn’t I ever told that I was giving up that right when I joined?’”
The Feres doctrine, according to Baehr, was created “entirely by judges.”
“That is not how the system is designed to work,” she said. “We complain about activist judges. Well, this is judicial activism at its worst because the consequences of the Feres doctrine have been enormous.”
‘Undo its mistake’
Holding the chain of command accountable in court, according to Stirling, would strengthen the military.
“If we know that we are above the law, that we cannot be sued and brought before a judge, we tend to allow our worst instincts to come out. Even those of us who are grounded in character in and values … the Feres doctrine really reduces the checks and balances that exist in the military,” Stirling said.
The renewed vigor in calling for an end to the Feres doctrine, according to Stirling, gives the Supreme Court the opportunity to “undo its mistake.”
“It gives the court another chance to remedy its most serious, judicial blunder that it has ever made,” Stirling said. “It is long overdue for the Supreme Court to recognize that service members are fundamentally Americans and should be afforded every right that every other American is given.”
Visit Coalition of Heroes for more information or to follow Carter’s case.