Ask the Lawyer: Suing the military nearly a lost cause - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Suing the military nearly a lost cause

Q. My sister lost her husband in the Fort Hood, Texas, shooting in November. Can she sue the Army for her husband’s death?

A. You can sue anybody for anything. Whether you will win and get compensation for your damages is another story.

Your sister can sue the Army, but she will not win because of a 1950 Supreme Court decision, Feres v. United States.

In that case, a widow whose husband died in a barracks fire on an Army post sued the federal government, alleging negligence in that his military housing had a broken heater and did not keep a proper fire watch. The Supreme Court ruled that the federal government was not liable for negligence involving active-duty service members.

This opinion, known as the Feres Doctrine, bars any lawsuits for death or injury that happen “incident to military service.” The Supreme Court recognized that the military is “a specialized society” that “must foster instinctive obedience, unity, commitment, and esprit de corps” to accomplish its mission.

There has been movement toward loosening this ruling. In 2002, a federal appeals court ruled that Feres does not take precedence over the 1974 Privacy Act, effectively allowing active-duty members to sue the government for certain privacy violations.

A bill also is pending in Congress that would overturn a portion of Feres to allow service members to sue the government for medical malpractice.

While military members cannot sue the federal government for injuries related to their military service, they can file claims relating to death and injury with the Veterans Affairs Department.

If you are intent on suing somebody because of the horrible tragedy at Fort Hood, you may want to consult with an attorney who specializes in personal injury law. Depending on the facts, such an attorney may be able to develop a successful litigation strategy against third parties such as the gun dealer, gun manufacturer or the civilian security company involved.

If you do want to go that route, you should not procrastinate. Personal injury lawsuits have strict time limits for filing, and if you don’t file within those limits (in legal terms, the “statute of limitations”), your claim will be thrown out of court no matter how solid it seems to be.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.