104 Iowa L. Rev. 855 (2019)

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Abstract

Most people would be stunned if they were told that their employer could discriminate against them and they would have no form of civil recourse. However, this is the situation that exists every day for the military personnel serving their country. This is because of a little-known strand of case law, referred to as the Feres Doctrine. Shortly after World War II, Congress waived its right to sovereign immunity, with some exceptions, through the Federal Tort Claims Act (“FTCA”). In reading through the FTCA, the Supreme Court created an “incident to service” test, called the Feres Doctrine, to determine whether a service member can sue the federal government. Since Feres, lower courts have struggled to apply the new doctrine to new cases, which has led them to decry it. Despite these reservations, the courts have vastly expanded Feres. The primary reasons courts have used for barring recovery to service members are the fear of double compensation under the Veterans’ Benefits Act (“VBA”) and an unwillingness to encroach on the military decision-making process. However, these concerns ignore the fact that some service members do not receive anything under the VBA and civil actions do not unduly burden the military. In response to the ever-expanding Feres Doctrine, this Note seeks to strike a balance between respecting the need for military discipline and permitting injured service members to obtain a recovery. As such, this Note advocates that Congress should amend the FTCA to recognize intentional torts, not explicitly excluded under the FTCA, are viable actions. In addition, Congress should intervene and statutorily permit service members to sue under a Title VII regime for harassment. These tweaks will help the military while also helping victims.