Thomas would have allowed Camp Lejeune widow to sue over contaminated water | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The U.S. Supreme Court's longest-serving justice broke with colleagues Monday in a case involving water contamination at Camp Lejeune. Justice Clarence Thomas would have taken up the case of a widow who sued the federal government. She blamed the water contamination for her military husband's death.

    The rest of the nation's highest court rejected the case titled Clendening v. United States. Thomas outlined his concerns about his colleagues' decision in a four-page dissent.

    "While stationed at Camp Lejeune, Gary Clendening allegedly was exposed to toxins and contaminated water. He later died of leukemia," Thomas wrote. "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."

    Thomas spelled out the negative role of a 1950 Supreme Court precedent.

    "Nevertheless, the District Court determined that Carol's suit was barred by Feres v. United States, which held that military personnel cannot sue the United States for any injury 'incident to military service,' even if the FTCA would otherwise allow the suit," he wrote.

    The 4th U.S. Circuit Court of Appeals agreed with the trial court. Thomas wrote that appellate judges "noted that 'criticism of the Feres doctrine abounds,'" but left a decision about the future of that doctrine to Thomas and his colleagues.

    "We should accept the invitation," he wrote. "As I have explained several times, Feres should be overruled."

    FTCA bars lawsuits related to combat in time of war, according to the dissent. "Nothing in the Act bars suits by servicemen based on their military status alone," Thomas wrote. "Yet, in Feres, this Court invented an atextual, policy-based carveout that prevents servicemen from taking advantage of the FTCA's sweeping waiver of sovereign immunity. Feres 'heartily deserves the widespread, almost universal criticism it has received.'"

    Thomas issued his dissent to "highlight the consequences of this Court's refusal

    to reconsider Feres."

    Lower courts' attempts to apply the Feres standard "are marked by incoherence," he wrote. "One might be surprised to learn, for example, that a serviceman's exposure to excessive carbon monoxide at Fort Benning is not incident to service, but exposure to contaminated drinking water at Camp Lejeune is. ... Or that the dissemination of personal materials stored on a military base by fellow servicemen is not incident to service, but a West Point cadet's rape by a fellow cadet is."

    Thomas assessed the impact of the court's actions since the 1950 Feres ruling.

    "Far from limiting Feres, this Court 'has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military,'" he wrote. "This expansion has led to further distortion and incoherence in our jurisprudence."

    The Supreme Court can't blame other political actors for the problem, Thomas argued. "It would be one thing if Congress itself were responsible for this incoherence. But Congress set out a comprehensive scheme waiving sovereign immunity that we have disregarded in the military context for nearly 75 years," he wrote. "Because we caused this chaos, it is our job to fix it."

    Since Thomas was the only justice willing to take on the Feres doctrine, the Clendening case is effectively over.