Staff Sergeant Cameron Beck was riding his motorcycle to his home on Whiteman Air Force Base to have lunch with his wife and seven-year-old son when he was tragically struck and killed by a vehicle driven by a civilian government employee. Distracted by her cellphone, the driver failed to yield when making a left turn and later pleaded guilty to knowingly operating a vehicle in a careless and imprudent manner.

Petitioners—Beck’s wife and son—filed suit against the United States under the Federal Tort Claims Act (FTCA). The FTCA waives the United States’ sovereign immunity in suits “for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” The U.S. District Court for the Western District of Missouri dismissed the suit on the basis of the Supreme Court’s decision in Feres v. United States, which held that the United States government is not liable under the FTCA for injuries to servicemembers when those injuries occur in the course of activity “incident to service.” The U.S. Court of Appeals for the Eighth Circuit affirmed the District Court’s decision, and the Becks asked the Supreme Court to review the case.

CAC and the Rutherford Institute filed a friend-of-the-court brief in support of the Becks’ petition, urging the Supreme Court to hear the case and reverse the decision below on the basis that Feres does not apply to the Becks’ claim, and that it was wrongly decided in the first place.

Our brief first argues that the Court’s ruling in Feres is incompatible with the text and history of the FTCA. There is nothing in the text of the FTCA that suggests servicemembers’ claims incurred “incident to service” are excluded from the statute’s broad waiver of sovereign immunity from tort actions. The statute contains a long list of specific exceptions, none of which bar claims of servicemembers arising out of activities “incident to service.” Further, the Court’s ruling in Feres is at odds with Congress’s plan in passing the FTCA: it frustrates the stated purpose of the statute and ignores the fact that Congress specifically considered and rejected earlier bills containing language barring all claims brought by servicemembers.

Our brief also argues that the Feres doctrine represents an improper effort of the Court to substitute its judgment for that of Congress. In deciding Feres, the Court provided three policy-based reasons for why servicemembers’ claims should be barred under the FTCA, but it has since abandoned those rationales. The Court subsequently provided a fourth rationale: that the Feres doctrine somehow maintains orderly discipline in the military. This post hoc rationalization is yet another poorly veiled attempt to justify an exception that Congress never legislated.

In any event, the Feres doctrine hardly serves any of its judicially created policy justifications. As this case illustrates, the Feres doctrine has strayed so far from its purported justifications that courts now construe it to bar a classic tort claim arising out of the negligent operation of a vehicle by a civilian that caused the death of a servicemember while not engaged in any sort of military service whatsoever. The Supreme Court should grant the petition, reverse the decision below, and realign its case law with the text and history of the FTCA by overturning Feres.