Is There Real Justice for Military Servicemen in the Federal Court?

In the famous words of Sir George S. Patton, Jr., a general of the US Army, “No army is better than its soldiers. The soldier is also a citizen. In fact, the highest obligation and privilege of citizenship is that of bearing arms for one’s country.”

There may be different military ranks in an Army, but every personnel fighting for their country’s freedom and people deserves special honor. However, does this hold true in the Federal court of law? For over seven decades, the Federal Court has been carrying a heavy accusation on its shoulders, that of serving pseudo-justice to its most important people – military servicemen.

In this article, we will attempt to dissect the US judiciary system to understand the extent to which the aspersions cast on the Federal Court are true.

The Federal Court Gives up Sovereign Immunity under Certain Conditions

Just like the English court, the US Federal and State Courts enjoy what is known as ‘sovereign immunity.’ This idea stems from the 18th-century belief that the monarch is incapable of doing any wrong. Back then, people conferred such trust upon their King/Queen that all their actions were considered lawful.

It was impossible to drag the King/Queen into their own courts unless they consented to be put on trial. The US Courts (barring all municipalities) enjoy similar immunity, so unless self-consent is given, no citizen (be it military personnel or civilian) can sue them. However, for the sake of justice, the Federal Court has made certain exceptions to this legal doctrine through the Federal Tort Claims Act (FTCA) of 1946.

According to this Bill, citizens can file a lawsuit against the Federal and State Courts, provided they meet the following conditions for validity –

  • The plaintiff should have suffered damage at the hands of a Federal employee.
  • The employee must be functioning within the scope of their official duties at the time the damage occurred.
  • The damage must be caused due to the employee’s omission, wrongful act, or negligence.
  • The plaintiff’s damage must be a direct consequence of the employee’s negligence or wrongdoing.

It is important to note that despite meeting these conditions (and being granted the right to sue the US Court), plaintiffs cannot directly file a lawsuit. They must first make an administrative claim to the designated regulatory body, and if no resolution is achieved within a specified period, a lawsuit may be filed.

The Feres Doctrine: An Exception to an Exception?

The Feres doctrine is a part of the Federal Tort Claims Act, which states that active-duty members of the armed forces cannot sue the Federal government (under any circumstances) for injuries suffered, despite wrongdoing and negligence. This doctrine was enforced by the US Supreme Court during the Feres vs. United States case back in 1950.

The Court dismissed an active-duty military member’s tort claim against the Federal government on grounds that the injury was sustained while performing an activity incident to their military service. Many believed (including members of the US judiciary system) that this doctrine only granted the Federal government a bold excuse to waive responsibility for employee malpractices and negligence.

Criticisms regarding the doctrine’s biasedness persisted for decades. Finally, Congress had to bite the bullet and pass the National Defense Authorization Act (NDAA) as the Feres doctrine’s limited exception. 

According to this Bill, all military servicemen had the right to sue for wrongful death or personal injury sustained in the form of medical malpractice from a healthcare provider of the Department of Defense. There was a slight twist to this already limited exception – the plaintiff could file a claim only if the medical malpractice occurred at a covered military medical facility. This would include only those medical facilities owned by the Secretary of Defense.

By and large, the NDAA was a deplorable attempt by Congress to mock-seal the cracks of the widely-criticized Feres doctrine (which continued to stand as firm as it did for the previous 70 years).

Camp Lejeune Mass Tort: Major Litigation on Hold Due to Feres

Over the years, the Federal government has dodged, fought, and settled numerous lawsuits against it, but rarely any filed by military personnel. There was not much these servicemen could do even after the large-scale infamous water contamination disaster of North Carolina’s US Marine Corps Base, Camp Lejeune.

As many as one million veterans and their families were exposed to water with deadly levels of Volatile Organic Compounds (VOCs) between 1953 and 1987. Despite discovering the issue in 1982,  the US Navy closed the contaminated wells only in 1985. According to TorHoerman Law, the US Navy’s negligence made thousands of veterans and their families suffer injuries like Non-Hodgkin’s lymphoma, infertility issues, Parkinson’s disease, and cancers of the liver, esophagus, bladder, breast, and stomach.

One would expect that an injury at such an unmistakably large scale would compel the Federal government to give up its sovereign immunity, but quite the opposite happened. The initial appeals for a Camp Lejeune lawsuit were declined on the following grounds –

1. The Camp Lejeune Injuries Were Not Clear-Cut Enough

Shouldn’t it be easy to prove injuries suffered over a 35-year period of consuming toxic water? Not exactly, because the Federal government kept dismissing veteran and civilian appeals, questioning the veracity of their damages.

At the time, new cases of physical injuries were being reported, and it was largely unclear (due to a lack of relevant studies) whether they all were a direct consequence of the Camp Lejeune water. Today, the US Department of Veterans Affairs lists down all the possible health hazards associated with Camp Lejeune.

2. The Feres Doctrine Was Applied

Another (major) reason why the Camp Lejeune litigation failed is because of the application of the Feres doctrine. This was absurd given the fact that the doctrine bars only “active-duty” military servicemen from suing the Federal government. The Camp Lejeune victims (veterans and their families) lived on the US government’s grounds but were not essentially on active duty when the damages occurred.

This was when the unfairness of the doctrine came to light. It even happened that a widow named Carol Clendening was denied a filing by the US Supreme Court on grounds of the Feres doctrine. Clendening wanted to sue the Federal government on behalf of her late husband, Gary, who died of leukemia caused due to the Camp’s contaminated water.

The interesting thing about this case is that the government admitted that it was indeed the Camp’s water that caused Gary’s leukemia but still escaped unscathed due to the unfair Feres doctrine.  

President Biden to the Rescue

The first ray of hope for Camp Lejeune victims came in August 2022 when President Joe Biden officially enacted the Camp Lejeune Justice Act. The language of this Bill was such that the Federal government’s pleas on grounds of immunity, the statute of repose, or the Feres doctrine would become futile.

Here’s how the CLJA made it crystal clear that military servicemen and their families could seek government compensation for their injuries –

  • The Bill introduced its separate statute of limitations (which was two years from its enactment date). It recognized that most victims were not even aware of the water contamination by the time the ten-year statute of repose ended. Now, no other statute of limitations (except for the one the Bill exclusively provides) can be used as a defense.
  • The government voluntarily gave up its immunity as a part of the CLJA, not just for matters of gross negligence but those where discretionary immunity would be applicable.
  • Since no military servicemen could sue the Federal government while performing an act incident to their service, the CLJA allowed a cause of action for veterans and civilians harmed due to the Camp’s water.

Red Tape and the Anticipated Future

Now that the Camp Lejeune water contamination tragedy is an active lawsuit, it is expected that nearly 500,000 claims could be filed by August 2024 (the final deadline). That would make it the largest-ever mass tort case in US history.

However, veterans and attorneys alike are concerned about the slow pace with which the US Navy is processing administrative claims. Is it internal red tape to delay the claims process and waive off responsibility (yet again!)? The Department of Justice has pleaded with the district judges to accelerate the process for the sake of old and diseased victims.

Will real justice finally be served to those who uphold America’s freedom? Plaintiff attorneys are giving their all to maximize recovery through fair settlements and payouts.

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