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7th Circuit: Retired veteran can’t sue government for distress

June 8, 2017

A retired veteran who was wrongfully deprived of incapacitation payments during his time in the reserves cannot sue the U.S. government for distress caused by that deprivation because existing caselaw prohibits servicemembers from suing the government for injuries accrued while in the military, the 7th Circuit Court of Appeals ruled Thursday.

John Futrell served in the Indiana National Guard and U.S. Army from 1983 to 2014, rising to the rank of captain and serving in combat in Iraq. During his time in the military, Futrell was diagnosed with adult-onset diabetes, and his blood-glucose rose to a level that created concern as to whether he could continue to perform his military duties.

Eventually Futrell was released from active duty in 2011 and placed on reserve duty until his retirement from the U.S. Army Reserve in November 2014. After his retirement, Futrell was eligible to receive a monthly pension from the government, and “had his medical paperwork gone through he would have received in addition incapacitation payments to cover the gap between his release from duty and his retirement.”

However, a “mix-up” resulted in Futrell receiving no money from the government from December 2011 to January 2013, an oversight he claims inflicted financial and emotional distress on his life. The government eventually paid Futrell a lump sum that covered the cost of the incapacitation payments, but he was not compensated for his distress.

Futrell brought suit against the United States under the Federal Tort Claims Act, but Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana held the case was barred by Feres v. United States, 340 U.S. 135 (1950). That decision made the Federal Tort Claims Act “unavailable to a member of the armed forces who ‘while on active duty and not on furlough, sustained injury due to a negligence of others in the armed forces.’”

Futrell claims his case falls outside the scope of Feres because “the negligent acts for which he seeks redress were not the injuries…that he suffered while he was in active military service, but rather the financial and emotional damages that he incurred while an Army reservist because of the Army’s delays in paying him the disability benefits to which he was entitled as a result of his injuries.” But in a Thursday opinion, 7th Circuit Court of Appeals Judge Richard Posner wrote Futrell’s reserve status was irrelevant because Feres applies to both reservists and active military personnel.

“We are not told whether he made any efforts to light a fire under the paymasters, for example by filing grievances up the chain of command or complaining to his senator or representative, who probably would have been aggressive in pressing the paymasters on behalf of a constituent who had served in combat, been injured, and contracted a serious disease, all while in service,” Posner wrote. “But whether the delay in his receiving money due to him from the government was purely the fault of the government or compounded by laxity in his pursuit of his rights is irrelevant; all that matters is Feres renders the Federal Tort Claims Act inapplicable to a serviceman who incurs injuries that exist only because of his military employment.”

The case is John Lee Futrell v. United States of America, 16-3079.

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