Clendening v. United States ( 2022 )

Cite as: 598 U. S. ____ (2022) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
CAROL V. CLENDENING, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF GARY J. CLENDENING v.
UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21–1410. Decided November 7, 2022
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from denial of certiorari.
While stationed at Camp Lejeune, Gary Clendening
allegedly was exposed to toxins and contaminated water.
He later died of leukemia. Gary’s widow, petitioner Carol
Clendening, then filed this tort suit against the United
States. For most plaintiffs like Carol, the Federal Tort
Claims Act (FTCA) waives the United States’ sovereign im-
munity and allows for recovery. Nevertheless, the District
Court determined that Carol’s suit was barred by Feres v.
United States, 340 U. S. 135 (1950), which held that mili-
tary personnel cannot sue the United States for any injury
“incident to military service,” id., at 144, even if the FTCA
would otherwise allow the suit. Affirming, the Court of Ap-
peals noted that “criticism of the Feres doctrine abounds,”
but it “ ‘le[ft] to [this] Court the prerogative of overruling its
own decisions.’ ” 19 F. 4th 421, 431 (CA4 2021).
We should accept the invitation. As I have explained sev-
eral times, Feres should be overruled. The FTCA “ ‘renders
the United States liable to all persons, including service-
men, injured by the negligence of Government employees.’ ”
Lanus v. United States, 570 U. S. 932 (2013) (opinion dis-
senting from denial of certiorari) (quoting United States v.
Johnson, 481 U. S. 681, 693 (1987) (Scalia, J., dissenting)).
The Act expressly excepts only a specific class of military-
related claims: those “arising out of . . . combatant activities
2 CLENDENING v. UNITED STATES
THOMAS, J., dissenting
. . . during time of war.” 28 U. S. C. §2680(j). Nothing in
the Act bars suits by servicemen based on their military
status alone. Doe v. United States, 593 U. S. ___, ___–___
(2021) (THOMAS, J., dissenting from denial of certiorari)
(slip op., at 1–2). Yet, in Feres, this Court invented an atex-
tual, policy-based carveout that prevents servicemen from
taking advantage of the FTCA’s sweeping waiver of sover-
eign immunity. Feres “ ‘heartily deserves the widespread,
almost universal criticism it has received.’ ” Lanus, 570
U. S., at 933 (opinion of THOMAS, J.) (quoting Johnson, 481
U. S., at 700 (Scalia, J., dissenting)); see also J. Turley, Pax
Militaris: The Feres Doctrine and the Retention of Sover-
eign Immunity in the Military System of Governance, 71
Geo. Wash. L. Rev. 1, 68 (2003) (“At a minimum, Feres rep-
resented a total departure from principles of judicial re-
straint and deference to the political branches”). I write yet
again to highlight the consequences of this Court’s refusal
to reconsider Feres.
The lower courts’ attempts to apply Feres’ “incident to
military service” standard are marked by incoherence. One
might be surprised to learn, for example, that a service-
man’s exposure to excessive carbon monoxide at Fort Ben-
ning is not incident to service, Elliott v. United States, 13
F. 3d 1555, 1556–1557 (CA11 1994),1 but exposure to con-
taminated drinking water at Camp Lejeune is, Gros v.
United States, 232 Fed. App. 417, 418–419 (CA5 2007)
(per curiam).2 Or that the dissemination of personal mate-
rials stored on a military base by fellow servicemen is not
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1 In Elliott, rehearing en banc was granted and the panel opinion va-
cated, 28 F. 3d 1076; the en banc court then affirmed the result by an
equally divided vote, 37 F. 3d 617.
2 The Camp Lejeune Justice Act of 2022, Pub. L. 117–168, §804, 136
Stat. 1802–1804, does not alter the availability of recovery under the
FTCA. Rather, the Act provides an alternative remedy to the FTCA that
presupposes multiple routes to recovery. See §804(e)(1), id., at 1803. It
is also much narrower in scope than the FTCA.
Cite as: 598 U. S. ____ (2022) 3
THOMAS, J., dissenting
incident to service, Lutz v. Secretary of the Air Force, 944
F. 2d 1477, 1478–1479 (CA9 1991), but a West Point cadet’s
rape by a fellow cadet is, Doe v. Hagenbeck, 870 F. 3d 36,
44–49 (CA2 2017).
Far from limiting Feres, this Court “ ‘has embarked on a
course dedicated to broadening the Feres doctrine to encom-
pass, at a minimum, all injuries suffered by military per-
sonnel that are even remotely related to the individual’s
status as a member of the military.’ ” 19 F. 4th, at 428. This
expansion has led to further distortion and incoherence in
our jurisprudence. Take, for example, Air & Liquid Sys-
tems Corp. v. DeVries, 586 U. S. ___ (2019). There, manu-
facturers provided the Navy with asbestos-free equip-
ment—to which the Navy subsequently added asbestos,
allegedly causing cancer in servicemen-decedents. See
Daniel v. United States, 587 U. S. ___, ___–___ (2019)
(THOMAS, J., dissenting from denial of certiorari) (slip op.,
at 1–2). Yet the Navy’s immunity under Feres led us to
“twis[t] traditional tort principles” to allow for recovery
against the manufacturers. Id., at ___ (slip op., at 2). The
force of Feres thereby distorts even longstanding principles
of tort law. E.g., Sebright v. General Elec. Co., 525 F. Supp.
3d 217, 241 (Mass. 2021) (significantly limiting a
sophisticated-purchaser defense because, under Feres, the
serviceman-plaintiff “might not have recourse against any-
one other than equipment manufacturers”).
Further, Feres’ professed concern with military discipline
is anomalous, if not downright hypocritical, against the
backdrop of military law more generally. We preclude run-
of-the-mill tort claims that are “remotely related” to mili-
tary status because of their potential to undermine military
discipline.3 But we have “never held . . . that military per-
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3 “[W]e have repeatedly cited the later-conceived-of ‘military discipline’
rationale as the ‘best’ explanation for” Feres. United States v. Johnson,
4 CLENDENING v. UNITED STATES
THOMAS, J., dissenting
sonnel are barred from all redress in civilian courts for con-
stitutional wrongs suffered in the course of military ser-
vice.” Chappell v. Wallace, 462 U. S. 296, 304 (1983). To
the contrary, servicemen “routinely sue their government
and bring military decision-making and decision-makers
into court” seeking injunctive relief. Turley, 71 Geo. Wash.
L. Rev., at 21. For example, we recently left in place an
injunction that dictated personnel decisions to the Navy.
Austin v. U. S. Navy Seals 1–26, 595 U. S. ____ (2022) (par-
tially staying injunction that prevents Navy from taking
any adverse personnel actions against Navy SEAL plain-
tiffs, but only “insofar as it precludes the Navy from . . .
making deployment, assignment, and other operational de-
cisions”). Apparently, the Court cares about the chain of
command when considering money-damages suits against
the Government, but our concerns evaporate when service-
men seek injunctions against their superior officers’ person-
nel decisions.
That is completely backwards. “Injunctions and regula-
tions tell people what they must do and what they must not
do, and it is these types of intrusions that would entangle
courts in military affairs.” Taber v. Maine, 67 F. 3d 1029,
1048 (CA2 1995). By contrast, “[t]ort judgments do neither
of these things.” Ibid.; see also Johnson, 481 U. S., at 700(Scalia, J., dissenting) (“[P]erhaps Congress assumed that,
since liability under the FTCA is imposed upon the Govern-
ment, and not upon individual employees, military deci-
sionmaking was unlikely to be affected greatly”). If military
discipline is not sufficiently harmed by judicial decisions
countermanding military personnel choices, it is difficult to
see how Feres’ concern with preserving the chain of com-
mand has any validity.4
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481 U. S. 681, 698 (1987) (Scalia, J., dissenting).
4 The courts below held that one of Clendening’s claims survived Feres
but was barred under the FTCA’s textual discretionary-function excep-
tion. See 19 F. 4th 421, 432–436 (CA4 2021); 28 U. S. C. §2680(a). The
Cite as: 598 U. S. ____ (2022) 5
THOMAS, J., dissenting
It would be one thing if Congress itself were responsible
for this incoherence. But Congress set out a comprehensive
scheme waiving sovereign immunity that we have disre-
garded in the military context for nearly 75 years. Because
we caused this chaos, it is our job to fix it.
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FTCA’s specific exceptions could mitigate the discipline concerns driving
the maintenance of Feres’ atextual “incident to military service” excep-
tion. See Johnson, 481 U. S., at 699–700 (Scalia, J., dissenting) (“[P]er-
haps Congress assumed that the FTCA’s explicit exclusions would bar
those suits most threatening to military discipline, such as claims based
upon combat command decisions, 28 U. S. C. §2680(j); claims based upon
performance of ‘discretionary’ functions, §2680(a); claims arising in for-
eign countries, §2680(k); intentional torts, §2680(h); and claims based
upon the execution of a statute or regulation, §2680(a)”).