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Supreme Court refuses to hear yet another challenge to the controversial Feres Doctrine on military medical malpractice
The Supreme Court on Monday denied a petition to hear a wrongful death case involving the controversial Feres Doctrine — a major blow to advocates seeking to undo the 69-year-old legal rule that bars U.S. service members and their families from suing the government for injury or death deemed to have been brought on by military service.
The petition was brought by Walter Daniel, the widower of Navy Lt. Rebekah "Moani" Daniel, who died during labor on March 9, 2014. A Navy nurse stationed at Naval Hospital Bremerton in Washington, Rebekah gave birth to her daughter Victoria at the facility where she worked before dying from blood loss less than four hours later, as Task & Purpose previously reported.
In court documents, Daniel and his attorneys alleged that the care team failed to prevent postpartum hemorrhaging, which caused Rebekah to lose "more than 1,500 ml of blood — nearly one-third of the amount of blood in the average human body," according to an Oct. 11, 2018 statement put out by the Luvera Law Firm representing Daniel.
"Sadly, the justice system remains closed to our family, our colleagues and the families who commit their lives to military service," Daniel said in an email statement to Task & Purpose.
Established in 1950 in Feres vs. United States — a case involving the Federal Tort Claims Act that allows citizens to sue the government — the Supreme Court ruled that the federal government could not be held liable "for injuries to members of the armed forces arising from activities incident to military service."
In the decades since that decision, Feres has been broadly applied to cases far outside the battlefield, from military sexual assault to training incidents, to allegations of command negligence, and military medical malpractice.
The Feres Doctrine is a Supreme Court precedent, and as such it can only be changed in two ways: through Congress, in the form of legislation amending the Federal Tort Claims Act (recently a bipartisan bill was introduced to do just that); or by overturning the initial Supreme Court decision, which Daniel and his attorneys aimed to do with their case.
Because of the Feres Doctrine, Daniel was left with little legal recourse after his wife's death; his only chance to move his lawsuit forward rested in the nation's highest court. In 2015, he took the first in a series of lengthy legal steps to get there by filing a wrongful death claim, but the case was immediately dismissed.
Next, Daniel's case went before the 9th Circuit Court of Appeals, and though the ruling was upheld, the judge offered a strongly-worded critique of the Feres Doctrine.
"Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death," wrote Michael Daly Hawkins, the judge who presided over the case. "If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so."
Rebekah "Moani" Daniel and her husband Walter Daniel. (Walter Daniel/Luvera Law Firm)
In October 2018, Daniel and his attorneys submitted a petition to the Supreme Court to have their case heard in the hopes of challenging, and potentially overturning Feres. The last time a Feres doctrine petition went before the Supreme Court was in 2016, as Patricia Kime reported for Military.com. Those hopes to have Daniel's case overturn the legal rule in the nation's highest court were dashed with the May 20 announcement that the petition was denied.
"The United States Supreme Court missed a clear opportunity to reexamine Feres, especially considering the sea change that has occurred since the court last addressed its bearing on medical malpractice cases seven decades ago," Andy Hoyal, one of Daniel's attorneys said in an emailed statement to Task & Purpose.
"The legal underpinnings supporting this doctrine have eroded and shifted," he added. "The mission and nature of the Military Health System itself has been completely transformed. Our military personnel live and serve in a completely different world than when Feres was adopted, and it's tragic that their legal rights have failed to keep pace."
In the Supreme Court decision, Justices Ruth Bader Ginsburg and Clarence Thomas noted that they would have heard the case, and Thomas submitted a dissenting opinion on the Court's decision to refuse the petition.
"I write again to point out the unintended consequences of this Court's refusal to revisit Feres," Thomas wrote. "Such unfortunate repercussions — denial of relief to military personnel and distortions of other areas of law to compensate — will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres."
The controversy around the Feres Doctrine stems from what many consider a double standard: one set of rules for civilians, and another for service members. For example, if a military dependent and a service member went to the same on-base hospital, got the same care for the same ailments, and the same mistakes were made in each case, the law would treat them quite differently. The civilian could sue, and the service member could not.
"Our case and our fight is over — but it continues for other service members," Daniel said in a statement. "Moani's story has generated a groundswell of momentum to correct the injustice of Feres, and now this issue is going all the way to Capitol Hill. I support the efforts of legislators, military and veterans' organizations, and others who are committed to revising our laws to give service members the rights they deserve."
A Minnesota Army National Guard UH-60 Black Hawk helicopter with three Guardsmen aboard crashed south of St. Cloud on Thursday, said National Guard spokeswoman Army Master Sgt. Blair Heusdens.
At this time, the National Guard is not releasing any information about the status of the three people aboard the helicopter, Heusdens told Task & Purpose on Thursday.
The Pentagon's latest attempt to twist itself in knots to deny that it is considering sending up to 14,000 troops to the Middle East has a big caveat.
Pentagon spokeswoman Alyssa Farah said there are no plans to send that many troops to the region "at this time."
Farah's statement does not rule out the possibility that the Defense Department could initially announce a smaller deployment to the region and subsequently announce that more troops are headed downrange.
The Navy could deploy a second carrier to the Middle East if Trump orders an Iran surge, top admiral says
The Navy could send a second aircraft carrier to the Middle East if President Donald Trump orders a surge of forces to the region, Chief of Naval Operations Adm. Mike Gilday said on Thursday.
Gordon Lubold and Nancy Youssef of the Wall Street Journal first reported the United States is considering sending up to 14,000 troops to the Middle East to deter Iran from attacking U.S. forces and regional allies. The surge forces could include several ships.
I didn't think a movie about World War I would, or even could, remind me of Afghanistan.
Somehow 1917 did, and that's probably the highest praise I can give Sam Mendes' newest war drama: It took a century-old conflict and made it relatable.
An internal investigation spurred by a nude photo scandal shows just how deep sexism runs in the Marine Corps
"I will still have to work harder to get the perception away from peers and seniors that women can't do the job."
Some years ago, a 20-year-old female Marine, a military police officer, was working at a guard shack screening service members and civilians before they entered the base. As a lance corporal, she was new to the job and the duty station, her first in the Marine Corps.
At some point during her shift, a male sergeant on duty drove up. Get in the car, he said, the platoon sergeant needs to see you. She opened the door and got in, believing she was headed to see the enlisted supervisor of her platoon.
Instead, the sergeant drove her to a dark, wooded area on base. It was deserted, no other Marines were around. "Hey, I want a blowjob," the sergeant told her.
"What am I supposed, what do you do as a lance corporal?" she would later recall. "I'm 20 years old ... I'm new at this. You're the only leadership I've ever known, and this is what happens."
She looked at him, then got out of the car and walked away. The sergeant drove up next to her and tried to play it off as a prank. "I'm just fucking with you," he said. "It's not a big deal."
It was one story among hundreds of others shared by Marines for a study initiated in July 2017 by the Marine Corps Center for Advanced Operational Culture Learning (CAOCL). Finalized in March 2018, the center's report was quietly published to its website in September 2019 with little fanfare.
The culture of the Marine Corps is ripe for analysis. A 2015 Rand Corporation study found that women felt far more isolated among men in the Corps, while the Pentagon's Office of People Analytics noted in 2018 that female Marines rated hostility toward them as "significantly higher" than their male counterparts.
But the center's report, Marines' Perspectives on Various Aspects of Marine Corps Organizational Culture, offers a proverbial wakeup call to leaders, particularly when paired alongside previous studies, since it was commissioned by the Marine Corps itself in the wake of a nude photo sharing scandal that rocked the service in 2017.
The scandal, researchers found, was merely a symptom of a much larger problem.