Today I am asking the 7th Circuit to rehear a case en banc (all judges in circuit hear the case together) that effects the rights of all servicemembers in Illinois, Indiana, and Wisconsin.
On August 23, 2011 the 7th Circuit issued an interesting opinion reluctantly affirming the Feres doctrine. The practical effect is that the Feres doctrine if to effectively bars service members from ever collecting damages from the United States Government for personal injuries that arise out of an “activity incident to service.” It also bars families of service members from filing wrongful death or loss of consortium actions when a service member is killed or injured. The problem is incident to service was never defined so no all claims are barred! The doctrine is widely criticized by Judges and academic and the Panel seemed to join in the criticism a bit despite affirming the lower court’s decision. The 7th Circuit made it clear the law needs to be changed but stated that only the Supreme Court and Congress empowered to change it.
Attached is the petition for rehearing which was filed on October 6, 2011 with the 7th Circuit. We are giving the court an opportunity to clarify the “incident to service” test before we petition the Supreme Court. Our petition lays out a new definition of incident to service that can be evenly applied and would allow petitioner’s claim to proceed. The test applied by the Panel was not in line with Supreme Court precedent. In light of the Panel’s obvious distaste for the Feres doctrine our chances of rehearing are good.
“This Court should seize this occasion to adopt a clear definition of “activity incident to service” that allows claims like Appellant’s to proceed. The test should be: If the same claim could arise for a civilian under similar circumstances then it is not an activity incident to service. Refusing to rehear this case en banc is silently consenting to a distortion of Supreme Court precedent. The Seventh Circuit should not tacitly accept a distortion of precedent and allow yet another opportunity to clarify the ill-defined Feres doctrine pass.” Quote from Brief
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