INCIDENT TO SERVICE: THE FERES DOCTRINE AND THE UNIFORM CODE OF MILITARY JUSTICE

The Feres doctrine is an interpretation of the Federal Tort Claims Act that bars military service members from bringing claims against the federal government that arose incident to service. Despite widespread criticism among academics and lower courts, Feres s incident to service test is still the law of the land. The principal policy justification of the Feres doctrine is a concern about exposing too much of the military s unique discipline and command decisions to judicial second-guessing. Previously proposed alternatives to the Feres doctrine do not adequately handle this concern. This article proposes to refine the Feres incident to service test by looking to where Congress has already designated certain types of military activity as so critical that civilians may be subject to court-martial: the Uniform Code of Military Justice Article 2(a)(10). While the notion that Article 2(a) (10) functions as an activity test is not apparent in its recent caselaw, earlier cases and practices support just such an understanding. Courts should import this activity test from military law into the Feres incident to service context. By looking to the body of military justice law approved by the political branches, courts will be able to employ an incident to service test that only invites judicial second-guessing into activities the political branches have designated as not critical to the military s disciplinary structure.