Feres Doctrine Reform in 2025–2026: What's Changing for Military Malpractice

Last Updated: June 26, 2026

For more than 70 years, the Feres doctrine has stood as one of the most criticized legal barriers in American military law. The rule — created by the Supreme Court in Feres v. United States, 340 U.S. 135 (1950) — bars active-duty servicemembers from suing the United States for injuries that arise "incident to service," including injuries caused by negligent medical treatment at military hospitals. Servicemembers who suffer devastating, career-ending, or life-limiting harm due to military medical malpractice have had little recourse in the courts.

That began to change — at least partially — with growing pressure from Congress, vocal dissent from members of the Supreme Court, and the partial reform enacted in the 2020 National Defense Authorization Act. This guide explains the current state of Feres doctrine reform, what has actually changed for active-duty servicemembers, and what remains unchanged for veterans who have already been discharged.

Important upfront: If you are a veteran who received negligent care from the VA after your discharge, Feres has never applied to your claims. Veterans have full FTCA rights regardless of where Feres reform stands. The reform discussed in this article primarily matters to active-duty servicemembers — a group that has historically been entirely shut out of federal court.

A 70-Year History of Judicial Creation

To understand reform, you must understand what Feres actually is and is not. The Feres doctrine is not written in any statute. Congress did not create it. The Supreme Court created it in 1950 by inference, based on its reading of the Federal Tort Claims Act's structure and various perceived policy concerns about military order and discipline.

The FTCA itself — 28 U.S.C. §§ 1346(b), 2671–2680 — contains several explicit exceptions: claims arising in foreign countries, claims involving combat activities, claims arising from quarantine, claims for certain enumerated intentional torts. Active-duty servicemember claims are not among those explicit exceptions. The Court in Feres inferred the bar from the FTCA's general structure and from the existence of a separate military compensation system.

The three rationales the Court identified — the unique federal military relationship, the existence of the military compensation system, and concerns about judicial interference in military decisions — have been questioned and eroded over the decades. But the doctrine itself has persisted, not because the underlying logic is airtight, but because the Supreme Court has declined to revisit it and Congress has (until recently) declined to act.

The Supreme Court Refuses to Fix What It Created

Despite widespread criticism of Feres, the Supreme Court has repeatedly declined to reconsider the doctrine. The Court has had multiple opportunities over the decades to overrule or narrow Feres, and it has declined each time — typically without explanation.

The most significant recent expression of dissatisfaction came from Justice Clarence Thomas, who has written the most pointed critique of Feres in recent Court history.

Justice Thomas's Repeated Calls to Overrule Feres

Justice Clarence Thomas has written a series of dissents from the denial of certiorari urging the Court to reconsider — and overrule — the Feres doctrine.

In Lanus v. United States, 570 U.S. 932 (2013), Thomas dissented from the denial of certiorari, writing that "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."

In Daniel v. United States, 139 S. Ct. 1713 (2019) — the case of Navy Lieutenant Rebekah Daniel, a labor-and-delivery nurse who bled to death after childbirth at a naval hospital — Thomas again dissented from the denial of certiorari. He warned that the "unfortunate repercussions — denial of relief to military servicemembers and distortions of other areas of law to compensate — will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres."

Most recently, in Carter v. United States (certiorari denied February 24, 2025) — brought by Air National Guard Staff Sergeant Ryan Carter, who was paralyzed by surgical complications at Walter Reed National Military Medical Center — Thomas issued a forceful dissent calling the doctrine "indefensible" and "senseless as a policy matter." He wrote plainly that "this Court should overrule Feres," that the doctrine "has no basis in the text of the Federal Tort Claims Act," and that it "has been almost universally condemned by judges and scholars."

These dissents do not change the law. Only a majority of the Court can do that, and the Court has so far declined to take up a Feres case for reconsideration. But they have energized the legislative reform movement and given advocates a powerful framework for arguing that Feres is judicially illegitimate — the kind of argument that can eventually move Congress to act.

The 2020 NDAA: A Landmark but Limited Reform

The most significant legislative development in Feres reform came in the National Defense Authorization Act for Fiscal Year 2020, signed into law in December 2019. Section 731 of the NDAA added 10 U.S.C. § 2733a to the U.S. Code, creating a new administrative claims process for active-duty servicemembers who suffer medical malpractice at military treatment facilities.

What § 2733a Created

The statute established a Department of Defense administrative process for medical malpractice claims with these key features:

Who Can File: Active-duty members of the Armed Forces who suffer injury or death caused by medical malpractice at a military treatment facility.

How to File: Servicemembers submit a claim through the military branch chain of command to the relevant military department (Army, Navy, Air Force). The DoD has established regulations for the review process.

Expert Review: A trained independent medical professional — typically a senior military doctor — reviews the claim and makes a determination about whether negligence occurred and what the appropriate compensation should be.

How Awards Are Paid: The DoD pays substantiated claims of $100,000 or less directly. For meritorious claims valued above $100,000, it pays the first $100,000 and refers the remaining amount to the U.S. Treasury under 31 U.S.C. § 1304 — so recovery is not hard-capped at $100,000. Damages are valued administratively under DoD regulations (32 C.F.R. Part 45), rather than by a court.

No Federal Court Review: The administrative award is final. Servicemembers cannot appeal an adverse decision to a federal court. This is the most significant limitation of the statute — there is no judicial backstop if the DoD process produces an unjust result.

What § 2733a Did NOT Do

The 2020 NDAA partial fix falls far short of what full Feres reform would provide:

• It does not allow federal court lawsuits. Active-duty servicemembers still cannot file a civil suit in federal district court. The only remedy is the administrative process with a capped award.

• It does not provide a day in court on damages. A servicemember who suffers paralysis, blindness, or a life-altering catastrophic injury due to military hospital malpractice has their damages valued administratively by the DoD under its own regulations — not decided by a federal judge weighing expert testimony, as a veteran or civilian can under the full FTCA.

• It does not apply retroactively. Claims arising from malpractice that occurred before the statute's effective date are not covered.

• It provides no right of appeal. If the DoD review process concludes there was no negligence, or awards less than what is justified, the servicemember has no recourse in the courts.

For comparison: a veteran who suffers the same injury due to VA negligence can sue the federal government under the full FTCA, present their case to a federal judge, put on expert medical testimony, and recover uncapped compensatory damages. The contrast between the active-duty remedy under § 2733a and the veteran's FTCA remedy illustrates just how much work Feres reform still has to do.

The Reform Landscape in 2025–2026

As of 2026, the legislative and judicial pressure on the Feres doctrine continues, even as the doctrine itself remains intact for active-duty federal court claims.

Congressional Activity

Members of Congress have introduced legislation in multiple sessions aimed at repealing or substantially narrowing the Feres doctrine. These bills have consistently gained bipartisan support and co-sponsors from both military and veterans' advocacy communities. None has yet passed into law, but the trend is clear: there is increasing congressional appetite for more comprehensive reform.

Advocacy organizations representing military families, veterans' groups, and legal reform organizations continue to press for:

• Full repeal of the Feres doctrine so active-duty servicemembers can sue in federal court under the FTCA
• Expansion of § 2733a coverage beyond medical malpractice at military treatment facilities
• Addition of judicial review rights for § 2733a administrative determinations
• Retroactive application to give relief to servicemembers harmed before the NDAA reform

Ongoing Litigation

Some attorneys have continued to press Feres challenges in federal court — particularly in cases where the injury might be characterized as not "incident to service," or where the servicemember's status is ambiguous (such as National Guard and Reserve members in certain duty statuses). These arguments rarely succeed in overcoming Feres, but the continued litigation keeps the issue in the courts and may eventually produce a circuit split significant enough to bring the issue back to the Supreme Court.

What to Watch For

For active-duty servicemembers and their families, the practical question in 2025–2026 is whether new legislation will further expand § 2733a or create a federal court pathway. At this writing, the Feres bar remains in place for federal court suits. The administrative process under § 2733a is the only available remedy for most active-duty medical malpractice claims.

For National Guard and Reserve members, the analysis depends on specific duty status at the time of injury, and the evolving law in this area deserves close attention.

What This Means for Active-Duty Servicemembers Today

If you are an active-duty servicemember who has been harmed by medical malpractice at a military treatment facility, your current options are:

1. File a § 2733a Administrative Claim with the DoD. This is the primary avenue created by the 2020 NDAA. You must file within the applicable administrative deadlines. The process is internal to the DoD and does not give you access to a federal judge, but it provides a formal review process and compensation for medical malpractice — paid directly by the DoD up to $100,000, with any larger meritorious award paid in part through the U.S. Treasury.

2. Pursue VA Direct Benefits Under 38 U.S.C. § 1151. If your malpractice injury has resulted in additional disability, you may be able to pursue VA disability compensation for the additional impairment, separate from and in addition to the § 2733a process.

3. Monitor Legislative Developments. Full Feres repeal or expansion of § 2733a rights could change the landscape significantly. An FTCA attorney with experience in military malpractice law can advise you on how to position your situation as the law evolves.

4. Consult an Experienced Military Malpractice Attorney. The § 2733a process is new, and its procedures and standards are still developing. The military has significant institutional interests in defending its medical personnel. An attorney familiar with this process can help you present the strongest possible administrative claim and ensure your rights are preserved.

What This Means for Veterans Today

If you are a veteran who was harmed by VA medical negligence after your discharge, Feres reform is largely irrelevant to your case. You already have the right to sue under the FTCA.

Your rights are governed by 28 U.S.C. § 1346(b) — and the primary threat to your ability to recover is not Feres, but the 2-year statute of limitations under 28 U.S.C. § 2401(b). That clock starts running when you knew or should have known that VA negligence caused your injury. If you are in the 2-year window, act now.

Attorney fees in your FTCA case are capped at 25% of a court judgment or 20% of an administrative settlement under 28 U.S.C. § 2678 — statutory protections that ensure you keep the lion's share of any recovery.

The Archuleta Law Firm has handled more than 600 FTCA cases and recovered more than $145 million for veterans and their families. Our clients receive an average settlement of $241,641, compared to the $63,219 average recovered by veterans who represent themselves. See our case results →

The Bottom Line on Feres Reform

The Feres doctrine remains one of the most criticized legal rules in American law — a judicially invented bar that has denied justice to thousands of servicemembers harmed by government medical negligence. The 2020 NDAA § 2733a reform was a meaningful step forward, giving active-duty personnel their first meaningful administrative remedy. But it is a partial fix, not a solution.

Full reform — whether by Congress enacting a Feres repeal, or the Supreme Court revisiting the doctrine — could transform military malpractice law. Until that happens, the stark difference between the active-duty remedy (administrative valuation by the DoD, no access to court) and the veteran's remedy (uncapped damages decided by a federal judge) remains a powerful argument for understanding your status and exercising your legal rights accordingly.

Related Articles

• The Feres Doctrine Explained →
• Does the Feres Doctrine Apply to Veterans? →
• Active-Duty Military Malpractice and the 2020 NDAA →
• National Guard and Reserve Malpractice →
• FTCA Statute of Limitations →
• FTCA and VA Tort Claim Payouts →
• VA Malpractice Case Timeline →

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only. Readers should contact their attorney to obtain advice concerning any particular legal matter.

EJ Archuleta, J.D., is a federal practice attorney with over 13 years of experience handling FTCA medical malpractice claims against the VA and military treatment facilities. He is licensed to practice law in the State of Texas, is a member of the State Bar of Texas, and is admitted to the United States District Court for the Western District of Texas. He has helped hundreds of military servicemembers, veterans, and their families receive compensation for injuries and wrongful death caused by the Department of Veterans Affairs.