I could easily make a list of 100+ Feres cases that seem unjust to me; where a member of the military has been severely injured -- or, as here, killed -- by the neligence of someone else and yet not allowed to recover even a penny due to his or her military status. Today's decision by the Ninth Circuit would surely be on that list.
Lt. Lawrence McConnell dies while waterskiing on a private lake. The boat that ran over (and killed him) -- and that indisputably had a serious defect -- had been rented from Luke Air Force Base. That's enough, the Ninth Circuit holds, to immunize the United States, which owned and rented the defective boat, from suit. A lawsuit that would allegedly "frustrate military discipline" and the like.
Which is, of course, a crock. And every member of the panel -- which affirms the dismissal of the lawsuit -- knows it; the majority applies Feres here "without relish", and Judge Gould's concurs to expressly note both the injustice of the result here as well as to (slightly) encourage potential review of the Feres doctrine up the appellate ladder.
But we've seen this many, many times before. And the Supreme Court nonetheless has consistently refused to review this nearly-universally critiqued doctrine.
Which really is unacceptable. This is a doctrine that Congress and/or the Supreme Court should change. Its contemporary scope makes no sense. It's repeatedly unjust.
But, sadly, no one -- or at least no one in power -- wants to do anything about it.
Not our most impressive jurisprudential doctrine. At all.
