Court upholds law barring suits for off-duty military casualties WAR IN THE GULF

January 23, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court refused yesterday to reconsider the long-standing legal rule that the U.S. government cannot be sued for damages for injuries or deaths of members of the service in military-sponsored activity -- even off-duty rest and relaxation trips.

Although the case that sought to test that rule involved three servicemen killed in an auto crash as they returned to their base from a trip to California's Disneyland, the rule at issue applies to military-related, off-duty activities everywhere -- including the Middle East, where U.S. troops are now at war.

The legal ban thus could rule out damage lawsuits against the U.S. government for the military role's in arranging a recreational trip for sailors that left 21 of them dead, just before Christmas, in the Mediterranean Sea. The men drowned in a commercial ferryboat accident when they were returning to the aircraft carrier USS Saratoga from shore leave in the Israeli port of Haifa.

The rule against lawsuits for that kind of incident, or for accidents during any other military-sponsored activity, stems from a 1950 Supreme Court decision. That decision, Feres vs. U.S., flatly bars damage lawsuits aimed at the government when a member of the service gets hurt or dies in any "activity incident to . . . military service."

The government has always been immune to lawsuits for injuries or deaths that a member of the military suffers in actual combat operations during a war. There has been an ongoing controversy, however, over how far its immunity extended to incidents in peacetime or during off-duty hours.

The so-called "Feres doctrine" has been attacked sharply by legal commentators for years, particularly as lower courts extended it to rule out damage lawsuits for service members' accidents well away from their military assignments or bases.

Three of the present justices of the Supreme Court joined in that criticism in 1987, arguing that the doctrine was wrong even as the court then reaffirmed it. Thus, it had seemed likely that the new test case, seeking to exploit the criticism, might gain the court's renewed attention.

The justices, however, turned the new case aside without comment or explanation, and there was no sign that any of the nine members of the court had voted to hear it.

In the new test case, Sonnenberg vs. U.S. (No. 90-539), families of three servicemen who died when their van overturned from a day-off trip to Disneyland urged the Supreme Court to cast aside the immunity rule entirely or, at least, to limit it to situations closely connected to military duties.

The accident in that case came early in a morning in the fall of 1981, when a group of servicemen assigned to Nellis Air Force Base near Las Vegas were riding in a van headed back to the base from California. The van left the road, rolled, crashed and burned, and three of the men died. Their wives and children sought to sue the government for the alleged negligence of the military driver, who also had been killed. A lower court said the damages lawsuit was forbidden by the 1950 ruling.

The Justice Department successfully urged the Supreme Court to pass up the new case. The department said nothing had changed since the court reaffirmed the immunity doctrine in 1987.

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