Carter v. United States

1 Cite as: 604 U. S. ____ (2025)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
RYAN G. CARTER, ET AL. v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23–1281. Decided February 24, 2025
The petition for a writ of certiorari is denied.
J
USTICE THOMAS, dissenting from the denial of certiorari.
The Federal Tort Claims Act (FTCA or Act) makes the
Federal Government liable for tort claims to the same ex-
tent as private individuals, subject to certain enumerated
exceptions. 28 U. S. C. §§2674, 2680. In Feres v. United
States, 340 U. S. 135 (1950), this Court created an addi-
tional, atextual exception for claims based on “injuries inci-
dent to military service.” Id., at 144. The Court has never
articulated a coherent justification for this exception, and
the lower courts for decades have struggled to apply it. The
result is that courts arbitrarily deprive injured service-
members and their families of a remedy that Congress pro-
vided them.
As I have said before, we should fix the mess that we have
made. See Clendening v. United States, 598 U. S. ___ (2022)
(opinion dissenting from denial of certiorari); Doe v. United
States, 593 U. S. ___ (2021) (same); Daniel v. United States,
587 U. S. 1020 (2019) (same); Lanus v. United States, 570
U. S. 932 (2013) (same). Because this case cleanly presents
an opportunity to overrule, or at least limit, Feres, I would
grant the petition for certiorari.
I
The FTCA generally makes the United States liable for
suits in tort “in the same manner and to the same extent as
a private individual under like circumstances.” §2674. It
contains a number of enumerated exceptions, several of
which preclude liability for sensitive military decisions. In

2 CARTER v. UNITED STATES
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HOMAS, J., dissenting
particular, the Act bars claims based on “combatant activi-
ties . . . during time of war,” claims “arising in a foreign
country,” and claims based on an employee’s “execution of a
statute or regulation” or performance of “a discretionary
function.” §§2680(a), (j), (k). But, it contains no general
exception for claims by military personnel.
In its first encounter with an FTCA claim by a service-
member, this Court applied the Act as written. Two broth-
ers in the Army were driving together while on furlough
when an Army truck collided with their car, injuring one
and killing the other. Brooks v. United States, 337 U. S. 49,
50 (1949). When the surviving brother and the deceased
brother’s estate sued the United States for negligence, the
Government asserted sovereign immunity, arguing that the
brothers’ status as servicemen took them outside the FTCA.
Ibid. This Court disagreed, holding that the text of the
FTCA was “clear,” and that none of the Act’s enumerated
exceptions excluded petitioners’ claims. Id., at 51. The
Court explained that it would be “absurd” to read in an im-
plicit exception for servicemembers, because “[t]he overseas
and combatant activities exceptions make . . . plain” that
“Congress . . . ha[d] the servicemen in mind . . . when this
statute was passed.” Ibid. The brothers’ claims could
therefore proceed. Id., at 54.
The following year in Feres, however, this Court carved
out a broad new exception. The decision concerned two
medical-malpractice claims regarding soldiers harmed by
Army surgeons, and one negligence claim by the widow of a
soldier killed during a barracks fire. 340 U. S., at 136–137.
This time, the Court held that sovereign immunity barred
the claims because the soldiers’ “injuries” were “incident to
military service.” Id., at 144. This fact, in the Court’s view,
marked a “vital distinction” from Brooks, where the sol-
diers’ “injury . . . did not arise out of or in the course of mil-
itary duty” because they were “on furlough.” Feres, 340
U. S., at 146.

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T
HOMAS, J., dissenting
The Court gave three rationales for its new rule. First, it
explained that the FTCA permits suits against the Govern-
ment only to the extent that a “‘private individual’” would
be liable “ ‘under like circumstances.’” Id., at 141 (quoting
§2674). In the military context, the Court reasoned, no such
individual exists, because “no private individual has power
to conscript or mobilize a private army.” 340 U. S, at 141.
Second, state law generally governs FTCA suits, and it
would be irrational to subject the “‘distinctively federal’”
“relationship between the Government and members of its
armed forces” to variations in state law. Id., at 143. Third,
servicemembers do not need a remedy under the FTCA be-
cause veterans’ benefits statutes (consolidated in the pre-
sent day in the Veterans’ Benefits Act (VBA), 38 U. S. C.
§101 et seq.) provides compensation for servicemembers in-
jured while performing their duties. 340 U. S., at 144–145.
The Court abandoned each of these rationales in short or-
der. It rejected the first rationale by holding that civilians
could sue when injured by the military, even when the mil-
itary is engaged in activity that no private individual is au-
thorized to perform. Indian Towing Co. v. United States,
350 U. S. 61, 64–69 (1955). It rejected the second rationale
by holding that federal prisoners could sue under the FTCA,
even though doing so would subject the federal prison sys-
tem to “variations in state law.” United States v. Muniz,
374 U. S. 150, 161–162 (1963). And, it rejected the third
rationale by holding that servicemembers not otherwise
barred by Feres can sue under the FTCA despite being en-
titled to VBA benefits because “Congress ha[s] given no in-
dication that it made the right to compensation” under the
VBA a servicemember’s “exclusive remedy.” United States
v. Brown, 348 U. S. 110, 113 (1954).
But, the Court did not abandon Feres itself. Instead, later
decisions adopted a new rationale for its judge-created ex-
ception: that permitting suits for injuries arising out of mil-

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HOMAS, J., dissenting
itary service “would involve the judiciary in sensitive mili-
tary affairs at the expense of military discipline and effec-
tiveness.” United States v. Shearer, 473 U. S. 52, 59 (1985);
accord, Stencel Aero Engineering Corp. v. United States, 431
U. S. 666, 671–672 (1977); Muniz, 374 U. S., at 162; Brown,
348 U. S., at 112. Thus, when determining whether Feres
bars a suit, the key consideration is “whether the suit re-
quires the civilian court to second-guess military decisions,
and whether the suit might impair essential military disci-
pline.” Shearer, 473 U. S., at 57 (citation omitted). In mak-
ing this shift, the Court forthrightly acknowledged that
Feres’s original rationales were “no longer controlling.” 473
U. S., at 58, n. 4.
This modified approach, focused solely on protecting “es-
sential military discipline,” id., at 57, did not last either. In
United States v. Johnson, 481 U. S. 681 (1987), the Court
confronted whether Feres barred the suit of a widow of a
Coast Guard pilot allegedly killed by the negligence of civil-
ian air traffic controllers. 481 U. S., at 682–683. Under
Shearer, the answer would seem to be no; the widow’s suit
would not call into question any military decisionmaking.
See Johnson, 481 U. S., at 683–685. But, rather than ac-
cept this conclusion, the Court resurrected two of the Feres
rationales it had previously discarded. Specifically, the
Court claimed that the Feres doctrine rests on “three broad
rationales”: Shearer’s protection of military discipline, and
the earlier justifications about the irrationality of subject-
ing the military to variations in state law and the adequacy
of VBA benefits, 481 U. S., at 688–691 (emphasis added).
The Court deemed these considerations, viewed together,
sufficient to bar suit. Id., at 691–692.
For now, Johnson remains this Court’s last word on
Feres.
II
This Court should overrule Feres. The Feres doctrine has

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HOMAS, J., dissenting
no basis in the text of the FTCA, and its policy-based justi-
fications make little sense. It has been almost universally
condemned by judges and scholars. And, it is difficult for
lower courts to apply, leading to several splits in the Courts
of Appeals. At minimum, the Court should impose clear
limitations on the Feres doctrine’s scope.
A
Feres is indefensible as a matter of law, and senseless as
a matter of policy. Under the plain terms of the FTCA,
there is no broad exception for injuries incident to military
service. See 28 U. S. C. §2680. The only “rationales” cur-
rently propping the doctrine up—avoiding varying state-
law standards, the adequacy of VBA benefits, and prevent-
ing judicial interference in military affairs—are naked pol-
icy considerations. Johnson, 481 U. S., at 688–691. Of
course, “[a]s this Court has explained, ‘even the most formi-
dable’ policy arguments cannot ‘overcome’ a clear statutory
directive.” BP p.l.c. v. Mayor and City Council of Baltimore,
593 U. S. 230, 245 (2021); see also Rayonier Inc. v. United
States, 352 U. S. 315, 320 (1957) (holding that courts may
not “read exemptions into the Act beyond those provided by
Congress”). But, Feres’s policy rationales are hardly formi-
dable, depriving injured servicemembers and their families
of a remedy for no good reason at all.
Feres’s concern about avoiding variations in state law
proves too much. See Muniz, 374 U. S., at 161–162. The
Federal Government comprises many “‘distinctively fed-
eral’” entities beyond the military, such as the Census Bu-
reau and Immigration and Customs Enforcement, that are
subject to a patchwork of state-law tort standards under the
FTCA. Stencel Aero, 431 U. S., at 674–675 (Marshall, J.,
dissenting). If consistently applied, the uniformity ra-
tionale would thus exempt much of the Federal Govern-
ment from liability, contrary to the manifest purpose of the
FTCA. This Court has recognized as much, refusing to rely

6 CARTER v. UNITED STATES
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HOMAS, J., dissenting
on this rationale outside of claims made by servicemem-
bers. See Muniz, 374 U. S., at 161–162.
Nor does the Feres doctrine even succeed in subjecting the
military to a uniform standard of law. If military negli-
gence injures a civilian, veteran, or servicemember outside
the course of military duty, Feres does not bar recovery un-
der the FTCA. See Indian Towing, 350 U. S., at 62, 69;
Brown, 348 U. S., at 113; Brooks, 337 U. S., at 54. If the
military wishes to avoid liability, it has no choice but to con-
form to local tort law.
Similarly, the availability of VBA benefits cannot justify
Feres. As this Court has already recognized, nothing in the
VBA or FTCA indicates that Congress meant to make VBA
benefits the exclusive remedy for injured servicemembers.
Brown, 348 U. S., at 113; Brooks, 337 U. S., at 53. Nor can
VBA benefits make sense of the line Feres drew, because
“the VBA compensates servicemen without regard to
whether their injuries occur ‘incident to service’ as Feres de-
fines that term.” Johnson, 481 U. S., at 698 (Scalia, J., dis-
senting) (citing 38 U. S. C. §105); see, e.g., Brooks, 337
U. S., at 53 (permitting soldiers injured on furlough to re-
ceive VBA benefits and recover under the FTCA). And,
VBA benefits are not a reliable substitute for tort liability,
since they are often “a fraction of the recovery [the service-
member] might otherwise have received.” Johnson, 481
U. S., at 703 (Scalia, J., dissenting); see, e.g., Siddiqui v.
United States, 783 Fed. Appx. 484, 489 (CA6 2019) (observ-
ing that the family of the deceased servicemember received
$500,000 in benefits when they could reasonably have ex-
pected a $2 million to $3 million wrongful death award); J.
Wells, Comment, Providing Relief to the Victims of Military
Medicine: A New Challenge to the Application of the Feres
Doctrine in Military Medical Malpractice Cases, 32 Du-
quesne L. Rev. 109, 123 (1993) (Wells) (“[N]o one would se-
riously contend that the provisions for veterans disability
payments have kept pace with the medical malpractice

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HOMAS, J., dissenting
award explosion”).
Nor can the Court justify Feres on the theory that it
would cause civilian courts to disrupt military discipline
and decisionmaking. Through its choice of enumerated ex-
ceptions, Congress already determined which military ac-
tivities are too sensitive to permit the intrusion of tort lia-
bility. See 28 U. S. C. §§2680(a), (j), (k); supra, at 1–2.
There is no need for an additional exception to insulate mil-
itary decisionmaking from judicial interference.
In any event, the Feres doctrine is not a rational way of
protecting military discipline and decisionmaking.
Whether a suit requires questioning military orders or de-
cisionmaking usually turns on “the government’s control of
the tortfeasor rather than the victim.” Taber v. Maine, 67
F. 3d 1029, 1042 (CA2 1995) (emphasis added). In other
words, when a lawsuit challenges the legality of an officer’s
orders, the court must second-guess those orders regardless
of whether the plaintiff is a soldier or a civilian. Yet, Feres
turns on the status of the victim, barring suits by service-
members when a “civilian” would be allowed to challenge
“the same acts, by the same injurer, in the same discipli-
nary relationship to the government.” Taber, 67 F. 3d, at
1042.
Moreover, “servicemen ‘routinely sue their government
and bring military decision-making and decision-makers
into court’ seeking injunctive relief.” Clendening, 598 U. S.,
at ___ (opinion of T
HOMAS, J.) (slip op., at 4); see, e.g., Aus-
tin v. U. S. Navy Seals, 595 U. S. ___ (2022) (partially leav-
ing in place an injunction precluding the Navy from taking
adverse personnel actions based on the plaintiff soldiers’
“vaccination status”); National Coalition for Men v. Selec-
tive Serv. System, 593 U. S. ___ (2021) (statement of
S
OTOMAYOR, J., joined by Breyer and KAVANAUGH, JJ., re-
specting denial of certiorari) (suggesting that it may be ap-
propriate to enjoin enforcement of the all-male draft should
Congress refuse to eliminate it); Singh v. Berger, 56 F. 4th

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HOMAS, J., dissenting
88, 97–98, 110 (CADC 2022) (enjoining boot-camp grooming
requirements that the Marine Corps deemed essential for
unit cohesion because they likely violated the Religious
Freedom Restoration Act). Tort suits seeking compensation
for noncombat, nondiscretionary acts committed domesti-
cally are far less intrusive than many of the claims courts
already entertain.
The Feres doctrine is an undisguised act of judicial legis-
lation, and a poor one at that. Its purported rationales have
no basis in the text or logic of the FTCA. Instead, the doc-
trine unjustifiably deprives the injured servicemember of a
tort remedy simply “because [he] devoted his life to serving
in his country’s Armed Forces.” Johnson, 481 U. S., at 703
(Scalia, J., dissenting).
B
I am not the first to offer these critiques. The Feres doc-
trine has received “‘widespread, almost universal criti-
cism.’” Johnson, 481 U. S., at 700 (Scalia, J., dissenting).
Concern about Feres has come from Members of this Court
across the jurisprudential spectrum. See Daniel, 587 U. S.
1020 (noting vote of Ginsburg, J., to grant certiorari to limit
or overrule Feres); Bork v. Carroll, 449 Fed. Appx. 719, 721
(CA10 2011) (majority opinion of Gorsuch, J.) (observing
that Feres created a bar to relief “despite the FTCA’s lan-
guage suggesting a waiver of immunity”); Johnson, 481
U. S., at 703 (Scalia, J., joined by Brennan, Marshall, and
Stevens, JJ., dissenting) (Feres is a “clearly wrong decision”
that “has bred” much “unfairness and irrationality”); Lom-
bard v. United States, 690 F. 2d 215, 233 (CADC 1982)
(Ginsburg, J., concurring in part and dissenting in part)
(Feres is “a problematic court precedent” that imposed a
“limitation . . . upon remedial legislation ordered by Con-
gress”); Stencel Aero, 431 U. S., at 674 (Marshall, J., dis-
senting) (deeming Feres a “judicially created exception to
the waiver of sovereign immunity contained in the [FTCA]”

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HOMAS, J., dissenting
that should “be strictly limited”); Peluso v. United States,
414 U. S. 879 (1973) (noting votes of Douglas, Brennan, and
Blackmun, JJ., to grant certiorari to consider whether to
overrule Feres).
Lower courts and academic commentators have been
equally unsparing. Since Justice Scalia in 1987 collected a
long list of Circuit decisions and law-review articles attack-
ing Feres, see Johnson, 481 U. S., at 701, n. (dissenting
opinion), the criticism has continued apace. Lower courts
have reiterated that Feres’s “reading of the FTCA was ex-
ceedingly willful, and flew directly in the face of a relatively
recent statute’s language.” Taber, 67 F. 3d, at 1038. And,
academic commentators have said that, “[a]t a minimum,
Feres represented a total departure from principles of judi-
cial restraint and deference to the political branches.” J.
Turley, Pax Militaris: The Feres Doctrine and the Retention
of Sovereign Immunity in the Military System of Govern-
ance, 71 Geo. Wash. L. Rev. 1, 68 (2003).
When “forced to apply the Feres doctrine,” lower courts
have “frequently do[ne] so with . . . regret.” Ortiz v. United
States ex rel. Evans Army Community Hosp., 786 F. 3d 817,
822–823 (CA10 2015) (collecting cases); accord, Bowers v.
United States, 904 F. 2d 450, 452 (CA8 1990) (applying
Feres as “obligated” and “with a pronounced lack of enthu-
siasm”). Courts have called the results “harsh,” “inequita-
ble,” “counter-intuitive,” “curious,” “unjust,” and “far re-
moved from the doctrine’s original purposes.” See
Clendening v. United States, 19 F. 4th 421, 431 (CA4 2021);
Costo v. United States, 248 F. 3d 863, 869 (CA9 2001); Rich-
ards v. United States, 176 F. 3d 652, 657 (CA3 1999); Cut-
shall v. United States, 75 F. 3d 426, 429 (CA8 1996).
1
There
——————
1
For additional Circuit decisions and academic articles leveling and
noting criticism of Feres v. United States, 340 U. S. 135 (1950), after
United States v. Johnson 481 U. S. 681 (1987), see, e.g., In re Energetic
Tank, Inc., 110 F. 4th 131, 160 (CA2 2024); Jackson v. Modly, 949 F. 3d
763, 775 (CADC 2020); Daniel v. United States, 889 F. 3d 978, 982 (CA9

10 CARTER v. UNITED STATES
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HOMAS, J., dissenting
is near-universal consensus that the Feres doctrine is wrong
on the law, incoherent in justification, and unjust in prac-
tice.
C
Compounding the problem, lower courts have struggled
to apply Feres in a consistent manner. Our case law pro-
vides “no clear-cut answer as to when a serviceman’s death,
injury, or loss is ‘incident to service.’” L. Jayson & R. Long-
streth, Handling Federal Tort Claims: Administrative and
Judicial Remedies §5A.02, p. 5A–6 (2024). As a result,
lower courts “have consistently wrestled with the mechan-
ics of [the Feres doctrine’s] application to particular facts.”
Ortiz, 786 F. 3d, at 821; see also Costo, 248 F. 3d, at 867
(“[W]e have reached the unhappy conclusion that the cases
applying the Feres doctrine are irreconcilable”); Taber, 67
F. 3d, at 1032 (“[W]e would be less than candid if we did not
admit that the Feres doctrine has gone off in so many dif-
ferent directions that it is difficult to know precisely what
the doctrine means today”). Faced with almost four decades
of silence from this Court on the Feres doctrine, lower courts
have developed an array of tests for determining when it is
triggered, leading to inconsistent results on similar facts.
——————
2018); Ritchie v. United States, 733 F. 3d 871, 874 (CA9 2013); Purcell v.
United States, 656 F. 3d 463, 465–466 (CA7 2011); Regan v. Starcraft
Marine, LLC, 524 F. 3d 627, 633 (CA5 2008); McConnell v. United States,
478 F. 3d 1092, 1098 (CA9 2007); Mackey v. United States, 226 F. 3d 773,
777 (CA6 2000); Day v. Massachusetts Air Nat. Guard, 167 F. 3d 678, 683
(CA1 1999); O’Neill v. United States, 140 F. 3d 564, 566 (CA3 1998)
(Becker, C. J., statement sur denial of petition for rehearing); Selbe v.
United States, 130 F. 3d 1265, 1266 (CA7 1997); Uhl v. Swanstrom, 79
F. 3d 751, 755 (CA8 1996); Persons v. United States, 925 F. 2d 292, 299
(CA9 1991); Appelhans v. United States, 877 F. 2d 309, 313 (CA4 1989);
Loughney v. United States, 839 F. 2d 186, 187, and n. 2 (CA3 1988); D.
Brou, Alternatives to the Judicially Promulgated Feres Doctrine, 192
Mil. L. Rev. 1, 4–5 (2007); Wells 120–128; J. Tomes, Feres to Chappell to
Stanley: Three Strikes and Servicemembers Are Out, 25 U. Rich. L. Rev.
93, 133–134 (1990).

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HOMAS, J., dissenting
The Courts of Appeals are split on whether and how to
take into account the three policy justifications—avoiding
varying state-law standards, the adequacy of VBA benefits,
and preventing judicial interference in military affairs—
that this Court articulated in Johnson. Circuit decisions
have taken many different paths. Some continue to focus
primarily on judicial interference, framing the inquiry as
whether the “‘particular sui[t] would call into question mil-
itary discipline and decisionmaking.’” Clendening, 19
F. 4th, at 427 (CA4); see also Ritchie v. United States, 733
F. 3d 811, 874–875 (CA9 2013). Others insist that the court
must examine all “three Feres rationales, putting no special
weight on whether resolution would involve the judiciary in
sensitive military affairs.” Beck v. United States, 125 F. 4th
887, 891 (CA8 2025); see also Lovely v. United States, 570
F. 3d 778, 783 (CA6 2009). Still others do not consider “the
presence or absence of the [three] Feres rationales” at all.
Tootle v. USDB Commandant, 390 F. 3d 1280, 1282 (CA10
2004). Of those, some decisions simply ask whether the al-
leged injuries arose incident to service, while others have
developed their own set of factors to guide that inquiry.
2
Some decisions use a hybrid standard, drawing in part on
Johnson’s policy rationales and in part on other considera-
tions.
3
Finally, some decisions despair of identifying a gov-
erning standard, concluding that the “‘most appropriate’ ”
——————
2
Compare Tootle, 390 F. 3d, at 1282 (CA10) (framing “the relevant
question” as simply “whether [the plaintiff]’s alleged injuries arose ‘inci-
dent to service’ ”), with Regan, 524 F. 3d, at 637 (CA5) (“This Circuit uses
a three-factor analysis for whether a service member’s injury was inci-
dent to military service: (1) duty status, (2) site of injury, and (3) activity
being performed”).
3
See, e.g., McConnell, 478 F. 3d, at 1095 (CA9) (considering “four fac-
tors”—the three factors articulated in Regan, see n. 2, supra, and “the
benefits accruing to the plaintiff because of the plaintiff ’s status as a
service member”); Taber v. Maine, 67 F. 3d 1029, 1050 (CA2 1995) (hold-
ing that Feres is triggered if the plaintiff was “engaged in activities that
fell within the scope of the plaintiff ’s military employment” or there were

12 CARTER v. UNITED STATES
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HOMAS, J., dissenting
method is simply to “‘ “compar[e]”’ ” the present case to the
“ ‘ “fact patterns”’ ” of previous cases. Daniel, 889 F. 3d, at
982 (CA9); Costo, 248 F. 3d, at 867 (CA9).
These differing approaches have led to divergent out-
comes in factually similar cases. For example, the Circuits
have split on:

whether a sexual assault by another soldier is incident
to military service, compare Doe v. Hagenbeck, 870
F. 3d 36, 49–50 (CA2 2017) (yes), with Spletstoser v.
Hyten, 44 F. 4th 938, 958–959 (CA9 2022) (no);

whether injuries arising during recreational activities
with military-owned equipment are incident to service,
compare Costo, 248 F. 3d, at 864 (CA9) (yes), with Re-
gan, 524 F. 3d, at 645–646 (CA5) (no);

whether the children of servicewomen can sue for inju-
ries sustained in utero from negligent prenatal care,
compare Del Rio v. United States, 833 F. 2d 282, 287–
288 (CA11 1987) (yes), with Ortiz, 786 F. 3d, at 832–
833 (CA10) (no);

whether exposure to toxic chemicals in one’s on-base
home is an injury incident to service, compare Gros v.
United States, 232 Fed. Appx. 417, 418–419 (CA5 2007)
(per curiam) (yes), with Elliott v. United States, 13
F. 3d 1555, 1556, 1563 (CA11 1994) (no); and

whether the Feres doctrine extends to dual-status tech-
nicians, i.e., civilian employees of the military required
as a condition of employment to maintain membership
in the military reserves, compare Zuress v. Donley, 606
F. 3d 1249, 1253–1254 (CA9 2010) (yes), with Jentoft v.
United States, 450 F. 3d 1342, 1348–1349 (CA Fed.
2006) (no).
——————
“unusual circumstances that would call into play the Feres discipline ra-
tionale”).

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T
HOMAS, J., dissenting
So long as this Court refuses to revisit Feres, these diver-
gences are bound to continue. At minimum, this Court
should articulate some clear limiting principles on the doc-
trine to minimize its absurdity and allow courts to apply it
in a consistent and predictable way. “Because we caused
this chaos, it is our job to fix it.” Clendening, 598 U. S., at
___ (opinion of T
HOMAS, J.) (slip op., at 5).
III
The facts of this case illustrate the problems with the
Feres doctrine. Petitioner Ryan Carter was a dual-status
military technician and inactive-duty Staff Sergeant in the
Air National Guard reserves. Carter suffered from a degen-
erative neck condition. To alleviate chronic pain caused by
this condition, he underwent elective surgery at a military
hospital in 2018. During surgery, Carter sustained an in-
jury to his spinal cord that left him permanently disabled
and paralyzed in all four limbs.
Following the surgery, Carter and his wife sued the
United States under the FTCA, alleging that the Govern-
ment is vicariously liable for its medical staff ’s negligence
and failure to obtain informed consent. But, the Fourth Cir-
cuit held that Feres barred their suit because Carter “was a
member of the military” being treated at a military hospital
“by military doctors” at the time of his injury. 2024 WL
982282, *1 (Mar. 7, 2024).
Carter’s suit should be allowed to proceed. None of the
FTCA’s enumerated exceptions bars an ordinary medical-
malpractice suit for treatment received at a domestic hos-
pital. See §2680. In fact, had Carter been a veteran rather
than an inactive-duty reservist, he unquestionably could
have filed suit for the same injuries arising from the same
treatment by the same military staff at the same military
hospital. See Brown, 348 U. S., at 112 (holding that Feres
did not apply to a veteran suing for negligent treatment at
a military hospital “after his discharge”). No command of

14 CARTER v. UNITED STATES
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HOMAS, J., dissenting
the FTCA—and no unique military interest—is honored by
treating Carter’s claim differently.
At the very least, Carter’s case shows why this Court
should clarify the scope of the Feres doctrine. Because
Carter was a dual-status technician rather than a full-time
soldier at the time of his injury, his case could have pro-
ceeded had it been heard in the Federal Circuit. Jentoft,
450 F. 3d, at 1348–1349. And, given that Carter was on
inactive duty at the time of his surgery, perhaps his case
also could have proceeded in a circuit that places weight on
a plaintiff ’s duty status. See, e.g., Regan, 524 F. 3d, at 637
(including “duty status” as one of three factors relevant to
determining “whether a service member’s injury was inci-
dent to military service”). It is hard to see why an inactive-
duty reservist should be treated so differently from a soldier
on furlough or a veteran. Even if the Court wants to keep
Feres in some form, I cannot see why claims with such a
tenuous connection to military activity should fall within its
reach.
* * *
I hope that this Court will one day overrule Feres. Until
then, I offer this advice to lower courts: Do not look for a
principled explanation for our Feres case law; there is noth-
ing to find. Instead, simply ask whether a controlling deci-
sion has held that the Feres doctrine barred suit under ma-
terially indistinguishable circumstances. If not, allow the
suit to proceed. See Lombard, 690 F. 2d, at 233 (opinion of
Ginsburg, J.) (“While lower courts are bound by the Su-
preme Court’s decision in Feres, they are hardly obliged to
extend the limitation Feres placed upon remedial legisla-
tion ordered by Congress”).
As for this Court, we should realign our case law with the
text of the FTCA. I respectfully dissent from the denial of
certiorari.