The Feres Doctrine protects the military from lawsuits brought against it by Families of service members killed in the line of duty as a result of its negligence. The Feres Doctrine does not, however, prevent civilians who have lost love ones from suing.

Families must still navigate the nuances of the Federal Tort Claims Act. The Federal Claims act is the the statute that allows civilians to sue the federal government notwithstanding the doctrine of sovereign immunity, which hold that the government cannot be sued without its consent.

Navigating the Federal Tort Claims Act

To sue the military, the Federal Tort claim must be based on a military member’s negligence, wrongful act, or omission.  Here, the claim would that the Black Hawk crew was negligent in failing to avoid the American Eagle flight, despite having been warned of its position and having been instructed by air traffic control to pass behind the airliner. Aside from the forensic evidence that may prove the Black Hawk was in the wrong position and at the wrong altitude, the families will likely be able to offer evidence that government officials — including the President and the Secretary of Defense — have essentially admitted that the Black Hawk crew was at fault.

Exceptions to the FTCA Don’t Seem to Apply

There are exceptions to the Federal Tort Claims Act that can stop a civilian’s suit against the military in its tracks. But none seem to apply.

• “Combatant activities exception.” A civilian is not allowed to sue the military if the claim for injuries or death occurred during combatant activities. That is not the case here, so this exception would not be a bar to suit.

• “Discretionary Function Exception.” This exception to the Federal Tort Claims Act protects the military from liability if the act giving rise to the injury or death involved a discretionary function or duty. While the military’s decision to allow its aircraft to fly through congested civilian airspace might involve such discretion, the Black Hawk crew’s failure to avoid the Flight 5342 would not. Thus, the Discretionary Function Exception should not bar the families’ claims.

Federal Tort Claims Act Requirements

Though Flight 5342 families may sue the US military for the loss of their loved ones, as is the case when suing Air Traffic Control for its role in the mid-air collision, certain rules will apply to the families’ lawsuit: 

• Before starting the suit, the families must file a claim against the government on a Form 95: 
• Before starting the suit, the families must wait for the claim to be denied;
• The lawsuit must be filed in Federal Court, not State Court;
• The families are not entitled to a jury.  Rather, a judge will decide the case;
• The family cannot seek punitive damages; and
• The family’s attorney can charge a contingency fee of no more than 25% of any judgment that the court renders.