Opinions Relating to Orders - 2022

Clendening v. United States

JUSTICE THOMAS, dissenting from denial of certiorari. While stationed at Camp Lejeune, Gary Clendening allegedly was exposed to toxins and contaminated water.

He later died of leukemia. Gary’s widow, petitioner Carol Clendening, then filed this tort suit against the United States. For most plaintiffs like Carol, the Federal Tort Claims Act (FTCA) waives the United States’ sovereign immunity and allows for recovery.

Nevertheless, the District Court determined that Carol’s suit was barred by Feres v. United States, 340 U. S. 135 (1950), which held that military personnel cannot sue the United States for any injury “incident to military service,” id., at 144, even if the FTCA would otherwise allow the suit. Affirming, the Court of Appeals noted that “criticism of the Feres doctrine abounds,” but it “‘le[ft] to [this] Court the prerogative of overruling its own decisions.’” 19 F. 4th 421, 431 (CA4 2021). We should accept the invitation. As I have explained several times, Feres should be overruled. The FTCA “‘renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.’” Lanus v. United States, 570 U. S. 932 (2013) (opinion dissenting from denial of certiorari) (quoting United States v. Johnson, 481 U. S. 681, 693 (1987) (Scalia, J., dissenting))