Daniel v. United States

Cite as: 587 U. S. ____ (2019) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
WALTER DANIEL, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF REBEKAH
DANIEL v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 18–460. Decided May 20, 2019
The petition for a writ of certiorari is denied. JUSTICE
GINSBURG would grant the petition for a writ of certiorari.
JUSTICE THOMAS, dissenting from the denial of certiorari.
Petitioner Walter Daniel filed this tort suit against the
United States after his wife, Navy Lieutenant Rebekah
Daniel, died at a naval hospital due to a complication
following childbirth. The District Court determined that
the suit was barred by Feres v. United States, 340 U. S.
135 (1950), which held that military personnel injured by
the negligence of a federal employee cannot sue the United
States under the Federal Tort Claims Act. The Court of
Appeals “regretfully” reached the same conclusion and
affirmed. 889 F. 3d 978, 980 (CA9 2018).
Petitioner now asks the Court to reconsider Feres. I
have explained before that “ ‘Feres was wrongly decided
and heartily deserves the widespread, almost universal
criticism it has received.’ ” Lanus v. United States, 570
U. S. 932, 933 (2013) (quoting United States v. Johnson,
481 U. S. 681, 700 (1987) (Scalia, J., dissenting)). I write
again to point out the unintended consequences of this
Court’s refusal to revisit Feres.
Earlier this Term, in Air & Liquid Systems Corp. v.
DeVries, 586 U. S. ___ (2019), we confronted the case of
two veterans who alleged that their exposure to asbestos
caused them to develop cancer. Id., at ___ (slip op., at 3).
Both veterans served in the U. S. Navy on ships outfitted
2 DANIEL v. UNITED STATES
THOMAS, J., dissenting
with equipment that used asbestos insulation or parts.
Id., at ___ (slip op., at 2). The manufacturers of that
equipment delivered much of it to the Navy in “bare-
metal” condition, i.e., without asbestos, meaning that the
Navy added the asbestos to the equipment after delivery.
Id., at ___ (slip op., at 3). Neither veteran was exposed to
any asbestos sold or delivered by the equipment manufac-
turers, as opposed to asbestos added by the Navy. See id.,at ___, and n. 1 (slip op., at 3, and n. 1). Yet because the
Navy was likely immune from suit under Feres, the veter-
ans sued the manufacturers. 586 U. S., at ___ (slip op.,
at 3). This Court then twisted traditional tort principles
to afford them the possibility of relief. Id., at ___–___
(GORSUCH, J., dissenting) (slip op., at 2–3).
Such unfortunate repercussions—denial of relief to
military personnel and distortions of other areas of law to
compensate—will continue to ripple through our jurispru-
dence as long as the Court refuses to reconsider Feres.
Had Congress itself determined that servicemembers
cannot recover for the negligence of the country they
serve, the dismissal of their suits “would (insofar as we are
permitted to inquire into such things) be just.” Johnson,
supra, at 703 (Scalia, J., dissenting). But it did not. Ac-
cordingly, I respectfully dissent from the Court’s decision
to deny this petition.