Servicemembers in the 11th Circuit, the good news is you now may be able to sue that government contractor that injures you while on duty. The bad news . . . you now may be able to sue that government contractor that injures you while on duty. The Eleventh Circuit decided last week, opinion here, that the servicemembers killed during a Presidential Air flight in Afghanistan had the right to sue the government contractor operating the flight. The court, while not holding that Feres could never bar a servicemember suit against a government contractor, held that in this case the derivative-Feres theory asserted by the contractor was inapplicable and suit was not barred by the political question doctrine.
So where is the bad news you say? Remember my fascination with the Art. 2, UCMJ Amendment? Here is what the court said about the “discipline strand” of Feres:
The discipline strand of the third Feres rationale does not have application in the context of private contractors. In Shaw [v. Grumman Aerospace Corp., 778 F.2d 736, 740 (11th Cir. 1985)], we noted that the “essential military discipline” rationale itself embodies two concerns: “(1) the notion that a soldier might use the civilian courts to challenge the act or order of a superior officer; and (2) the idea that in a civilian suit of any sort involving a serviceman, members of the military might be compelled to testify against one another.” Id. at 742. We concluded that neither concern would justify protection of the military contractor. In the first place, the concern that a soldier might use a suit to challenge a superior officer is absent because a private contractor is not in the chain of command. Id. at 742-43. That observation is equally true where the private contractor happens to be an agent of the government.
OK, so maybe this is a case of “to a man with a hammer everything looks like a nail.” But, isn’t there a problem, after the recent Art. 2 amendment, with saying that there is no “discipline” issue in a case dealing with private contractors in Afghanistan? I think that this case could, if used deviously, incrementally erode Feres which, as the title of this post suggests, is the bad news, in my opinion.