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We want to welcome to Veterans Radio today
Dwight Sterling.
Dwight is a retired major.
We're going to talk about his background a little bit, but he's an expert.
He has a doctorate in something called the Ferris Doctrine that he did his thesis on.
Don't worry, folks. This isn't too complicated, and it's trying to address a real issue.
Dwight, welcome to Veterans Radio.
Yeah, thank you, Jim. Thank you.
Well, you spent 21 years in service as an active duty JAG officer.
You were also deployed overseas as part of a NATO thing.
Tell us a little bit about your background.
I joined a late in life, Jim, as a 32-year-old.
I was working at a big law firm in Los Angeles, and then a 9-11 happened.
A lot of us, it really turned my world upside down.
Within a couple of months, I had quit my civilian job and was back at Fort Jackson, South Carolina, for my boot camp.
Then I did that and became an officer, went into the infantry for a while,
and then I realized that is when my real skill set is as a lawyer, and so I switched to being a JAG.
And you have time, both active duty and, as I say, with the California National Guard.
Yes, I was active with the Guard for about 12 years,
and then went back into reserve type of a status at the end of my time.
You hold your bachelor's degree from Ponomo College, your law degree from USC,
and a doctorate in education from Pepperdine University.
So you're a schooled, you've done all this great schooling,
and that's what we're going to talk about, applying it to something that is, sounds esoteric.
It's the Ferris Doctrine. Tell us what that's about for the military family.
Yeah, it does sound esoteric, but it's not.
When it gets down to it, it's really quite simple.
It's a judicial rule that says that if you serve in the military,
it's where you can't sue for any harm that you incur, that you sustain,
so while you're a part of the military.
So if you're hurt, be it through the negligence of a doctor,
or be it through a training accident, or be it through even something like a sexual assault,
it's where the rule is that you cannot bring a lawsuit against the wrong doer.
So whereas if any of that harm that I just had described,
that took place in the civilian world, of course,
it's where you could sue and have your day in court and hold the person to account in a court of law.
But the Ferris Doctrine says in a nutshell that the rule of civil liability
doesn't apply to folks who serve in the military.
So this is a United States Supreme Court decision from 1950,
and it arises out of an individual who died in a fire at a New York military barracks,
and his wife tried to sue the army for her husband's death in the fire,
and the result is this really broad sweeping doctrine that's been applied for 70 years now or something,
that military members, no matter what the injury,
not necessarily on the battlefield, but injuries, you know, you trip and fall in the office at the barracks,
you don't get to sue anybody.
No, that's right, and that's right, it does stem from that case back in the late part of the 40s,
that's when the fire happened up in upstate New York, and it was a terrible accident.
It was a faulty, a surreader at the barracks,
at the Fort, it's the Fort's up in upstate, that's New York, it slips my mind, and the right.
And what happened is, through this, you know, this, it's a contractor air with the installation of this heater,
in the middle of the night, the barracks just, you know, it just catches on fire, and they're flames,
and it's a group of officers, of young officers,
so many of which had served, you know, on D-Day in the Second World War, this was like 1948,
and almost all of them, you know, were killed in this fire in a very kind of tragic and gruesome manner.
So I've talked to some of the families, like the relatives of some of the officers who passed,
and the devastation that that did with the death of their dads or their grandfathers is just untold,
and it really kind of broke my heart to talk to these folks,
but as a result, yes, it's like what you said, it's where the wives and the survivors,
brought a lawsuit against, you know, the army under the Federal Tort Acclaims Act,
and the Supreme Court, well here, at the lower level courts,
it's where the courts all ruled in favor, you know, in favor of the families,
and the suits were allowed to go forward, but then the military brought the appeal up to the Supreme Court,
and they took the case, and they came down with this doctrine that said, you know,
whereas if a civilian is hurt due to the mistake of, you know, a survived military member,
a military member, you know, a service member, if they're hurt by a colleague,
as a result of the error of a colleague, it's where they can't get their day in court,
it's where they can't file a civil suit, and that happened in 1950,
and it's the Ferry's case, and that is now the Ferry's doctrine,
and now, you know, three years later, it's still good law.
Well, it's one of those things where you go, wait a minute, I gave up my right to sue for negligence,
for simple wrongdoing, somebody, and indeed, that's what the doctrine held.
Now, you know, doctor, play law professor here,
this is a United States Supreme Court case, so does every court have to follow this?
Yes, it does, that's how our system of law works,
if the Supreme Court issues a, you know, ruling, it applies, you know, to every person
in every state in the country, and so it becomes what's called as a binding precedent,
and it's what's known as a case law, because it's, you know, made by a case, by a judge,
or judge made law, and yes, and it has been expanded to every nook and cranny of kind of wrongdoing
or harm that happens in the military, if you're on an MWR trip, on a rafting trip,
and you know, due to the error of the rafting, that's what guides, or a problem with your raft,
it's where we've had some many folks who've died on these trips, and their families have sued,
and it's where the court applied the doctrine there, if you're in the commissary, you get bad food,
and you get, you know, sick if they're, well, like right now, if the water at your base is contaminated,
it's where that applies, and you can't see, because it's where the, you know, Jim, it's where the theory is that,
you know, it's where this harm is deemed by the court to be an incident to service,
and that basically means that it happened in the line of duty, and the court has said, as you know,
which is what these lower courts have applied this as a precedent to each one of these cases,
and said that, you know, service members, if they're harmed, you know, by a fellow service member,
it's where they can't have their day in court.
Well, this is a sort of thing that drives regular people a little crazy, because as you say,
it's sort of creeped out like weeds to every crook and daddy, and you've been following this,
and been scholarly on this for a long time, and you are the founder of the Center for Law and Military Policy,
and one of the things that, you know, sometimes bad facts make bad law, sometimes good facts make better law,
is the, are the courts now taking this issue up in the context of sexual harassment claims or negligence claims,
and saying maybe there's a little exception, or maybe there's some things around the edges we can do here.
What's the current status of this?
Yeah, and I'll just say this at the top, as I answer what you've asked here, Jim,
and that is that civil liability is really the only way to hold people to account when, you know,
there's a mistake made, you know, be it on the freeway with, you know, bad driver, be it with a mistake where,
where, you know, where your employer takes retaliation against you, where you know,
and say you're the whistleblower, and you're fired, it's a wrongful termination,
it's where, you know, it's where the ability to file a civil claim and to bring and really to speak to us the truth,
the power is the way that our government and our Constitution has kind of envisioned kind of the little guy being able to,
so have his day and to hold the accountability to, to those who, who are in charge,
and that's how our system is built, and so you ask, you know, are there changes in the armor of the Ferris Doctrine?
And by the way, I'll just go on record as I have in front of Congress and in my scholarship,
I'm a, I am a big critic of the Ferris Doctrine.
I mean, I will, you know, it's where I'll tell you what it is, but at the same time,
I think it's the worst, you know, law that has been on our books for, for years.
So the kind of damage it's done to lives of service members, it's just, it's just, you know, it, it, it's where it can't be put into words.
And so I want to see it, you know, kind of a ripped, you know, hook, line and sinker out of, of our, like of our legal system and thrown into the trash heap.
And so, yes, it's where there have been some, you know, it's where there have been some chinks in the armor,
where there, so, so the Ferris Doctrine, and in particular, in the realm or in the scope of sexual assault.
And as we know, it's, it's, it's been, it's been a, a big problem even up to the level of,
it's like an epidemic where, so female service members, I said, by and large, have been assaulted by their colleagues.
And oftentimes it's a senior, a member who will, you know, rape or assault, you know, a junior member.
I've done a lot of work in this area. And, and yes, you know, up until now, it's where, if, you know, it's where, if and when,
the victim, so brings a civil suit against, you know, the perpetrator, it's where the court, you know, that judge of that courtroom will look at the Ferris Doctrine,
and will say, look, you know, you, as the victim were hurt by a fellow service member, and the Supreme Court has said that,
you know, that is an incident to your service, and therefore the court will dismiss that case and throw it out of court,
and the victim will not be allowed to suppress that case. And the defendant, which is the wrongdoer here, which is the rapist,
just gets off a Scott Free in terms of civil liability. And as you know, with, with the application of the UCMJ,
it's where, you know, it's where there can always be a court martial against the, the, the perpetrator.
But I'm sure you are well aware, as is the audience, that it's where the application of the UCMJ to people in power,
like your, as a colonels, or your sergeants, or your, you know, your sergeants major, it's where the application there is very uneven.
It's where it's easy to go after the privates, but it's where the system is not inclined to go after those at the top of the food chain.
And so often, it's where there'll be no civil liability, which is the result of the Ferris Doctrine.
And then, and then the chain of command, you know, it's where they won't go after the perpetrator either.
Well, it's the result, you know, it's where there's no liability at all.
There's, and this is, I want to bring this back down to something simple for the audience to think about.
The doctrine was set up that if, okay, if, if you get harmed in the service of the military as part of your military service,
you can't, there's no civil liability under the Ferris Doctrine.
But when we're talking about sexual harassment and sexual assault, in the Ninth Circuit recently used this kind of language,
it's clear the act of alleged sexual assault was not incident to military service.
Nobody can say the colonel, the sergeant, whoever, the private on private, that that sexual assault is part of military service.
So do you think the courts can, can carve out a, an exception to the Ferris Doctrine?
And does it ultimately have to get up to the Supreme Court to, to carve that out?
How's, how's that going to play out?
And I wanted to mention earlier, Congress could do something and they haven't.
But, but, but answer that question on the carve out.
I will, I will.
And like you have said here, it's where the Ninth Circuit last year, you know, had a sexual assault case of this type.
It was a service member, a armed service member.
And the victim, you know, brought a civil case out here in California and the district court.
And so that's the trial court kind of ruled in her favor and said that the Ferris Doctrine, that it did not apply.
And then it went up on appeal.
It's where it's with the military.
Then, you know, it's where they filed the appeal.
And the Ninth Circuit said, just like you said here, Jim, that the act of a sexual assault is not an incident to service.
That, that is a crime.
It's, it's a, you know, it's, it's awful.
It's a tragedy.
It's, you know, reckless behavior.
It is a horrible behavior.
And the court said that the act of a sexual assault is not a part, you know, obviously of the military duty of the victim.
And that therefore they didn't apply the Ferris Doctrine.
And that means they did not throw out that case and they let it go forward.
And that's resulted in a carve out.
So here in the West Coast in California, that's where I live.
And all the Western states, it's where presently, you know, that is, you know, it's where that is.
That's our precedent.
So a service member that lives within the realm of these Western states, the 13 Western states, if they're sexually assaulted, so by a call, they get where they can sue now.
It's where Ferris, you know, it's where it's been deemed to not apply.
And, and so what I would expect is that, you know, eventually, you know, through that kind of case will go up and be in front of the Supreme Court.
Yeah, I would expect every other circuit, particularly in the Southern circuits, Federal Circuit Courts, where there are a lot of military bases and a lot of this kind of sexual harassment and discrimination.
Because you're going to see more of these cases and sooner or later, there'll be some conflicts.
And that's the sort of thing that the Supreme Court tries to sort out or iron out.
Right.
And so, you know, Jim, at present, there's a conflict of law between the various circuits.
It's where, you know, every circuit, except for the ninth, has ruled, you know, they ruled the other way.
It's where they've sided with the defendant or with the perpetrator and said that Ferris, so does as a bar, you know, as shoots in the context of the sexual assault.
And so it's for now the ninth circuit, it's where the outlier now.
And when there's a conflict of law within the circuits, if that is where the Supreme Court gets involved.
Well, I think that actually this is good news for service members that particularly in those kind of situations where the egregious act has nothing to do with the service duties, nothing to do with government service,
or another way to say it is totally unrelated to a service member's military duties.
Maybe, maybe you have a way forward.
Jim, if I could jump in there, just Jim, if I could jump in, just think of the message that, you know, the other circuits are sending to our service members.
It's where they're saying that the act of being a sexist, salted is part and parcel of your job in the military.
It's where that's what they're saying in so many words. And one has to question just kind of the morality of those judges.
You know, how do you as a judge, you know, say, you know, through your decision that being assaulted is a part of the military duty of a service member.
I mean, it's kind of unsupportable.
Unsupportable position.
Yeah, it's just, it is beyond the pale.
So, so, you know, we're beating up on the court here and probably rightfully so.
Hopefully the California Bar Association won't won't come calling to you, Dr. Sterling, but there's another way to fix this problem isn't there in Washington.
Well, yeah, I mean, and heck, if I mean it's where the California bars on my side on this, they, you know, it's where it's clear that
that's a fairies is a doctrine that has gone amiss. It's, you know, way past this expiration date.
It's way past kind of the scope that it was so for it's been applied as you say it's it has grown like a weed to areas that it had a snow business being applied to.
And so the cow bars well aware of that and and they won't be upset with me.
It's where they'll be on my side on this issue.
Understood.
But but yes, it's where, you know, they're, you know, it's where there are two ways to change a case law or judge made law.
So one way is having a, you know, is having the.
So it's to have on the court decision by either the same court or a higher court to rule, you know, rule the other way.
And so here's where the Supreme Court could, you know, ruled, you know, could rule the other way and say that either there's a carve out for sexual assault or for medical malpractice or, you know, or whatever, and make another kind of carve out there.
But it's where there's also a Congress, right. It's for Congress could simply so pass a statute that says that if you are injured.
If you were sexually assaulted and you serve in the military, you know, by a service member that you have standing to bring a civil lawsuit, it could be as easy as that one sentence.
And then it would give the standing to all survivors to get the court in the zoo.
Now I believe you've testified in front of Congress.
Why haven't why have that seems like a simple, rational, easy solution to this problem.
Why hasn't it been implemented.
Well here, Jim, it's it's I've learned the power of the Pentagon lobby.
What what happens here is that it's where the Pentagon at the highest level of our military at the very senior level, they love the ferries doctrine.
And so why the answer why do they love it because it protects them from civil liability from top to bottom. It both protects them individually, as well as the as the whole institution of the military.
And what employer, you know, wouldn't you know love to kind of operate within a world where they can't be sued where there's no accountability.
And it's not kind of calling out like the morals of our leadership there in the Pentagon, but from, you know, it's just from a corporate level.
They fight a tooth and nail to save ferries and to protect ferries and so when, you know, I testified on this back in 2019 and 2019.
And that's where I had the consensus of the committee that that was in the house on some military personnel it's where I had a consensus there.
But then what happened is the Pentagon kind of moved in in the background.
And the Pentagon essentially said that, you know, they went, you know, they went to the members and said, look, if you, you know, attempt to roll back the ferries doctrine, it's where you'll be painted as being so soft on defense.
And that's what they do. It's where then it's where the kind of assumption is, if you allow there to be civil suits, it's where you're seen as being a so, you know, pro the plaintiffs bar as a pro litigation and being a kind of soft on defense and where the Pentagon then will
will get in the way of your reelection. And that's what will happen there. I saw it. And so what happened is, you know, once that kind of roll out occurred, it's where the, and it's where the viewpoints of the members to change.
And, right. And by members, I mean, you know, I mean the house members.
Yeah, yeah.
It's really just, it's really disappointing that it comes down to that kind of politics, but I think we can all understand that it does. Congress could fix this, it'd be a simple fix, but it's unlikely.
I think actually the court pulling Ferris back and saying that what you know is was not the original intent to to protect those who are committing rape.
That's clearly unrelated to service members military duties is where this will ultimately go.
Are you hopeful that that will occur.
Dwight.
Well, Jim, and just, it's where it's where when I went to testify into 19 it's where the context was some medical malpractice.
I was a part of a bill I was I was the expert on a bill that would have so allowed on the service member to bring a civil lawsuit if their doctor made a mistake in terms of the, you know, in terms of the care that, you know, in terms of the care that was given.
So a, you know, they're all kind of errors that happen in the medical, you know, within the medical scope in terms of just your day to day, like, like a pregnancy where there's a hysterectomy where the doctor makes mistake, or there's a dentist right it's where
there's a dentist who gives too much of the Nova King and the person will go into coma there's all kind of errors that happen there and we had a victim after victim who testified to the errors that were made.
And if these things happen to, you know, to, to, if they happen to me or you when we are civilians that they happen to the audience and, you know, we, you know, if they're, you know, there are civilians and they're harmed by their doctor.
And so through the air of some negligence, it's where they can sue and doctors are well aware of this and doctors, you know, it's been well established. It's where they, you know, it's where they give better care and are more so careful.
So if they know that they could be held husted to account, so in a court of law, but some military doctors, they don't have this kind of accountability, they can't be sued for, they, you know, when they can't be sued for malpractice.
Yeah, there are negligence from this. And so as a result, it's, you know, it's, it's where there's more recklessness there. And so that was the context of, you know, of some my testimony.
And what happened was, again, it's where we had the support of the committee, but then after the fact is where they all flipped on us.
Well, I would hope that the sexual assault harassment area is different and viewed differently. And maybe Congress would do something, but maybe it won't. But again, I'm back to a hopefully the courts will do this.
Other circuits will follow what the Ninth Circuit has said. And ultimately, it's got to be resolved by the US Supreme Court. So I hope veteran radio listeners didn't find this.
Hey, this is a little wonky because it really impacts every service member's life. And there's way too much sexual discrimination or harassment and assault going on in the military, and maybe bringing the element of civil liability to somebody would correct that kind of behavior.
Dwight Sterling, I really appreciate the extra time you spent with us today to talk about this issue and encourage you as I'm sure I don't have to to continue your fight to deal with the vestiges of the various doctrine.
Yeah, good, Jimmy. Thank you very much. It was a pleasure.
And I want to thank everybody for listening to Veterans Radio today. I am Jim Fawcone. It's been a pleasure to be your host. I'm a Veterans Disability lawyer at Legal Help for Veterans, and you can reach us at 800-693-4800 or legalhelpforveterans.com on the web.
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