On Monday, January 23, 2012 I am filing a petition for certiorari seeking to refine or overturn the Feres doctrine. Over the last 60 years the Feres doctrine – a judicial interpretation of the Federal Tort Claims Act - has been progressively more broadly interpreted. Feres bars claims of arising from activities incident to service. The Court has never defined incident to service and as a result the circuits have no direction on how to apply the doctrine. The result is an ever-expanding application that bars claims of servicemembers injured in the course activities that have nothing to do with their military services. The overly broad interpretation of Feres has dismissed the claim of a servicemember injured when he fell out of defective dormitory window, a servicemember who was exposed to toxic chemicals in his base apartment, or a young soldier who died as a result of medical malpractice at a VA hospital. Servicemembers are barred from filing suits that civilians could in the exact same circumstances.
My firm, Fichera & Miller represents the family of Navy Corpsman Christopher Purcell, who in 2008, at age 21, while stationed at Brunswick Naval Air Station, committed suicide. Base security was called to Purcell’s apartment in time to save him but breached their own procedures and removed his restraints allowing him to pull a gun from his waistband and kill himself. The Navy’s internal investigation and a subsequent congressional investigation both found the Navy was negligent in responding to Purcell’s suicide attempt. The responding officers were punished but the Navy was not required to compensate the Purcell family. Despite the clearly negligent acts and omissions leading to Purcell’s death, the Northern District of Illinois and 7th Circuit Court of Appeals dismissed this case in accordance the ever-expanding Feres doctrine.
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