Thomas Blasts Refusal to Close 70-Year-Old Federal Tort Loophole

U.S. Supreme Court Justice Clarence Thomas (Charles Dharapak, Associated Press)

(CN) – U.S. Supreme Court Justice Clarence Thomas blasted his colleagues Monday for refusing to hear a tort case brought against the United States by the husband of a Navy lieutenant who died during childbirth at a naval hospital.

Both a federal judge and the Ninth Circuit determined the lawsuit brought by Walter Daniel was barred by the Supreme Court’s decision in the 1950 case Feres v. United States, in which the court held military personnel injured by the negligence of a federal employee cannot sue the government under the Federal Tort Claims Act.

Daniel asked the justices to reconsider Feres, and while the high court declined to grant certiorari Thomas took the opportunity to “again point out the unintended consequences of this court’s refusal to revisit Feres.”

Thomas noted he raised the issue in the 2013 case Lanus v. United States, in which he wrote, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

“Such unfortunate repercussions – denial of relief to military personnel 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,” Thomas wrote in his dissent. “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.’ But it did not.”

Justice Ruth Bader Ginsberg would have granted certiorari but did not join Thomas’ dissent.

Thomas joined Justice Samuel Alito in another dissent Monday, involving a man’s 1987 conviction in Florida for battery on a police officer. While the high court said it had doubts that Reinaldo Santos’ conviction qualifies as a “violent felony” as defined by the Armed Career Criminal Act’s elements clause, Alito said he has no such doubts.

“As the case comes to us, it is undisputed that petitioner was convicted of battery on a law enforcement officer after he ‘struck [an] officer in the face using a closed fist,’” Alito wrote in his dissent. “Because the record makes ‘perfectly clear’ that petitioner ‘was convicted of battery on a law enforcement officer by striking, which involves the use of physical force against the person of another,’ I would count the conviction as a ‘violent felony’ under the elements clause and would therefore deny the petition.”

The high court remanded Santos’ case to the 11th Circuit for reconsideration in light of a brief in the case filed by the U.S. solicitor general, who said Florida’s battery law includes everything from an unwanted tap on the shoulder to striking someone and causing pain or injury and “nothing in the record of this case indicates the petitioner’s conviction for battery on a law enforcement officer was for ‘bodily harm battery” under Florida law.

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