How the Feres Doctrine and a Statute of Repose Kept Camp Lejeune Victims from Financial Compensation

While service members and civilians have been blocked in many instances for filing a lawsuit against the federal government, the law generally allows people to take action against the government for their negligence. Although the government is a sovereign, and should have immunity from lawsuits, the government can consent to a lawsuit when it waives this prerogative. It does so through the Federal Tort Claims Act.



The Federal Tort Claims Act Would Ordinarily Allow a Lawsuit

The Federal Tort Claims Act generally permits a lawsuit Against the federal government under certain circumstances. The FTCA was passed by Congress in 1946 In the wake of a horrific accident where 25 people were killed when a United States Air Force plane crashed into the Empire trade center. The law was intended to give accident victims and their families the right to sue the federal government because the pilot of the plane tried to land in heavy fog when he was specifically denied clearance for landing. He then became disoriented by the fog and crashed into the building.

The FTCA gives the rules for when you can sue the government for damages for its own negligence. Under the FTCA, the federal government is a self-insurer and pays for damages from its own negligence. When a federal employee, acting within the scope of their official duties, injures someone else, you may file a claim against the federal government. First, you must file an official administrative claim with the agency responsible for your injuries. You would have the opportunity to negotiate compensation with the agency. If the agency denies your claim or does not offer you enough compensation, you would have the right to file a lawsuit against the federal government in court.

The Camp Lejeune Injuries Were Not as Clear-Cut as They Should Have Been

Given the clear facts related to the Camp Lejeune water injuries, you would think that it would be an easy case to get compensation for the Federal Government. After all, over a million people were exposed to toxic contaminants in water over a 35-year period. Even after learning of the potential for contamination, the federal government kept these sources of water operating for an additional seven years. Under usual circumstances, this would not even be a close legal case. However, a long-standing legal doctrine and a North Carolina state law combined to deny justice for Camp Lejeune families for decades.

The Feres Doctrine Was Applied to Camp Lejeune Litigation

One of the reasons why the multidistrict litigation failed was the application of the Feres Doctrine. This legal theory is well ingrained in case law, and it stands for the fact that service members cannot sue the government for injuries that are connected with their military service. The Feres Doctrine acts as a constraint on the federal tort claims Act, limiting the legal rights of a certain class of people, namely service members. The Camp Lejeune multidistrict litigation brought to the fore some of the seeming unfairness of a reflexive application of the doctrine.

The Feres Doctrine has been in place for over seven decades. In the original case, The family of a service member who was killed in a fire while on active duty filed a lawsuit against the federal government under the Federal Tort Claims Act. The lawsuit was a wrongful death case seeking compensation for negligence that led to the fire. At the time, the Federal Tort Claims Act was a new law, and courts were dealing with the potential scope of the government of liability.

The Feres Doctrine Eliminates Practically All Lawsuits Brought by Service Members

In Feres, The Supreme Court was called upon to engage in statutory construction of the Federal Tort Claims Act to determine whether service members could sue the government for injuries connected to their service. At the time, there was very little legislative history connected with the Federal Tort Claims Act that would guide the court in deciding whether service members could sue the government.

The court claimed that it could not find any statute that allows service members to file a claim against the federal government. The court explained that there was a distinct relationship between service members and the federal government that would not allow for a lawsuit. Accordingly, the family was denied any compensation for the death of their loved one, even though it was clearly someone’s fault. In deciding Feres, the Supreme Court distinguished another case in which a service member was allowed to recover from the federal government, specifically noting that the reason was that the service member was on furlough at the time of their injury.

The Application of and Policy Justifications for the Feres Doctrine

As such, the Feres Doctrine can be boiled down to the following: “the government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or in the course of activity incident to service.”

The Feres Doctrine applies to the following people:

  • Active-duty service members
  • National Guardsmen
  • Reservists
  • Cadets in service Academies
  • Retired service members

There are several policy justifications for the Feres Doctrine:

  • The relationship between a soldier and their Superior could be transformed if private lawsuits are allowed
  • Military discipline could be eroded if soldiers could sue the federal government
  • There may be extreme results if the federal government can be sued for negligent orders given by superiors and commanders

The Application of the Feres Doctrine Goes Far Beyond its Intentions

The problem is that far more than just battlefield discipline or command orders have been swept up in the Feres Doctrine. Even everyday parts of the soldier’s lives can lead to injuries that are uncompensated, having nothing to do with combat. While there are many public policy justifications for the Feres Doctrine, applying it has often led to unfair results. There have been many instances (like the Camp Lejeune toxic water) where the federal government has seemingly gotten away with outrageous behavior that would have led to massive punitive damage verdicts had cases been filed against civil defendants. Congress itself has considered whether it is time to reform the Feres Doctrine.

Feres Is Often Applies Without Question By Courts

Feres has been reflexively applied over and over again in the decade since the court decided the case. A judge-made Doctrine has become black letter law. Regardless of the type of case, courts have stressed the immunity of the federal government from service member lawsuits. For example, service members who were sickened by the toxic herbicide Agent Orange in Vietnam could not receive any compensation from the federal government for their injuries. This complicated their ability to recover, although they were eventually able to settle a product liability case against the chemical companies that made the toxic substance. In the Camp Lejeune case, there are no private third-party companies that could be sued.

Feres Can Mean Some Very Unfair Results

Feres has also been used to reach other results that seemed grossly unfair to Injured service members and their families. For example, service members received their medical treatment from doctors on base through their Tricare Insurance. Up until the time when Congress changed the law, service members could not even file negligence lawsuits when they were injured by medical malpractice. While one may think that their medical care would not be considered “in connection” with their service, that is exactly what courts held. The federal government has been able to get away with shocking examples of poor care provided by its doctors because of the protection that it had under the Feres doctrine.

Here are some other examples of cases where the Feres Doctrine was used to deny injured service members financial compensation:

  • Employment discrimination case filed by a commissioned officer who was working for the Public Health Service
  • A medical malpractice case filed by a service member when the Army left a large towel in his stomach during an abdominal operation
  • A Marine whose supervisor attempted to poison him with arsenic (the Feres Doctrine even applies to deliberate actions)
  • The next service member who develop cancer as the result of exposure to radiation during nuclear testing in the Pacific
  • Negligence by Federal Aviation Administration air traffic controllers that resulted in a plane crash that killed several service members
  • A lawsuit filed by a Marine Corps reservist alleging racial discrimination for the change in his reservist status

Recently, Congress did make one change to lessen some of the Injustice associated with the Feres Doctrine. In the 2020 National Defense Authorization Act, Congress changed the law to allow service members to file claims for cases of medical malpractice. However, injured service members still do not have the same right to file a lawsuit like civilians would.

Even Some Supreme Court Justices Believe that Feres Was Wrongly Decided

There have been some Expressions on the Supreme Court itself that Feres was wrongly decided, and it is time for the doctrine to be overturned. For example, Justice Thomas has relentlessly criticized Feres. Still, Feres remains good law in spite of the Injustice of the situation. While service members assume any risks when they join the military, they should not subject themselves to harassment and shoddy medical treatment.

The Feres Doctrine Is intended to be absolute and drastic. It goes without saying that it presented a serious challenge to injured service members who were attempting to receive financial compensation for the grave injuries that they suffered from contaminated Camp Lejeune water. This is exactly how the case initially played out when injured service members filed multidistrict litigation against the federal government.

How the District Court Applies Feres in Camp Lejeune Litigation

Here, the district court immediately considered whether the Feres Doctrine applies. In this case, the court applied the three-factor test that determines whether the Feres Doctrine bars a lawsuit. The three factors are:

  • Duty status
  • Location
  • Activity, to determine whether a service member’s injuries resulting from government negligence … are incident to service

Although the service members were not on duty every minute of the time that they were at Camp Lejeune ( they were sometimes on furlough), the court did not feel the need to break things down to times that they were on duty versus the times that they were on furlough. In this case, it was not even a very close call – The District Court had very little hesitation in determining that the Feres Doctrine applied. The court punctuated its ruling with terms like “very clear” and “no doubt.”

There was only one issue in which the court had any uncertainty about the government being liable for the Camp Lejeune water injuries. In this case, the court was troubled by the government’s failure to warn service members and inform them of the possibility that they were exposed after the fact. However, the issue with the statute of repose discussed below barred any possibility of a lawsuit.

How the Statute of Repose Applied to the Camp Lejeune Lawsuit

To be clear, the Camp Lejeune plaintiffs did not have their initial lawsuit dismissed because they missed the Camp Lejuene water contamination statute of limitations. Many did file lawsuits within two years of learning of the fact that the government was to blame for their injuries. However, there was another North Carolina state law that got in the way of financial compensation. Here, it was the statute of repose that barred Camp Lejeune lawsuits.

The statute of repose exists to help shield the defendant. Its purpose is to give them some certainty as to that for which they can be sued. The statute of repose covers injuries that may not have even happened yet. In a way, it is even more favorable to a defendant than a statute of limitations. This law will completely cut off a plaintiff’s potential legal rights before they may have even existed at all.

Some states have a statute of repose on their books that is in place to protect polluters. While it does not seem like polluters should deserve legal protection from lawsuits, especially when their actions are egregious, the law does give them certain recognition in some cases. The law in North Carolina is that polluters cannot be held liable in a lawsuit more than ten years after their last Act of pollution.

North Carolina Statutes of Repose Protect Defendants in Several Cases

North Carolina has a number of statutes of repose on its books that help protect potential defendants from legal liability. These laws exist to the detriment of injured plaintiffs. Another example of a statute of repose that seems to be exceedingly unfair is the 12-year period that bars potential product liability lawsuits. Perhaps recognizing the unfairness of this law, the North Carolina legislature acted to extend the statute of repose from 6 to 12 years in 2009. The law states that plaintiffs cannot sue for a product defect or breach of warranty more than 12 years after they use or consume the product. This means that patients who are sickened by a pharmaceutical that contains a carcinogen cannot file a lawsuit if their illness took many years to materialize.

A Camp Lejeune statute of limitations would impose no such restriction on the plaintiff. Even if they were sickened many years after something occurred, they would just need to file a lawsuit within a certain time (statute of limitations) after they knew or should have known of their cause of action.

In Camp Lejeune, the last Act of pollution occurred in 1987 right before the military shut down the contaminated water wells and treatment plants for good. By the time that the injured service members and their families received notice From the federal government that they were exposed to contaminated water, the 10-year statute of repose had already passed. It does not matter that the government knew well before they informed the potential plaintiffs of the possible danger that they faced. A reflexive application of the statute of repose denied these plaintiffs the right to the compensation that they would have otherwise deserved.

How a Statute of Limitations Is Different from a Statute of Repose

The statute of limitations is a different law. A statute of limitations is a jurisdictional rule that imposes a time limit on when the plaintiff can sue after they knew or should have known of their cause of action. The statute of limitation begins to run based on the plaintiff’s knowledge, as opposed to the last time that the defendant may have committed a certain act.

The statute of limitations is a separate and distinct legal concept from the statute of repose. The Camp Lejeune plaintiffs learned that the hard way when they filed multidistrict litigation against the federal government more than a decade ago.

For the Camp Lejeune plaintiffs, the problem was that the Supreme Court gave a very narrow reading to interpreting the North Carolina statute of repose in a way that had previously stripped them of their rights. A similar case was in front of the Supreme Court In 2014, where a polluter attempted to evade liability because the lawsuit was filed more than ten years after the last Act of pollution.

The plaintiff had filed a lawsuit under the federal law of CERCLA. This law had an express provision that preempted State statutes of limitations. However, the defendant argued that a statute of repose was not preempted by CERCLA. The Supreme Court sided with the defendant, explaining that a statute of repose was completely different than a statute of limitations. The legislation for CERCLA used the term “statute of limitations,” and the Supreme Court chose to strictly read that term. Ironically, the federal government weighed in on the case in favor of the defendant’s position, perhaps realizing that it had billions of dollars of potential liability to Camp Lejeune plaintiffs. Since the facts of the two cases were very similar, the Supreme Court decision was essentially the death now for Camp Lejeune lawsuits.

Between the Feres Doctrine and the statute of repose, sickened (many of whom suffered cancer or even death) Camp Lejeune victims had no chance to receive financial compensation. For decades, the government completely got away with his conduct even if it had wanted to fairly compensate the defendants. However, the government argued against the plaintiff’s when these lawsuits were previously in court.

Because the statute of repose completely took away from the plaintiff’s the right to sue, Congress needed to create its own distinct right of action that would allow injured service members to obtain financial compensation from the federal government.

Previously, there was no way that the plaintiffs could sue because of North Carolina state law. The Camp Lejeune Justice Act created a new way for plaintiffs to get justice. Unlike the sexual abuse lawsuits against the Catholic Church, which were temporary waivers of the statute of limitations, the Camp Lejeune water contamination needed to be addressed with a completely new legal right that was created specifically for them.

Now that Congress has passed the Camp Lejeune Justice Act, you may be eligible for financial compensation for injuries that you or your family members suffered from the Camp Lejeune water contamination. Your first step should be to contact an experienced Camp Lejeune lawsuit attorney or law firm to learn more about your legal rights and how you can file a claim that could potentially lead to financial compensation.