Cite as: 587 U. S. ____ (2019) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

WALTER DANIEL, INDIVIDUALLY AND AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF REBEKAH 

DANIEL v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

No. 18–460. Decided May 20, 2019

 The petition for a writ of certiorari is denied. JUSTICE 

GINSBURG would grant the petition for a writ of certiorari. 

JUSTICE THOMAS, dissenting from the denial of certiorari. 

Petitioner Walter Daniel filed this tort suit against the

United States after his wife, Navy Lieutenant Rebekah

Daniel, died at a naval hospital due to a complication 

following childbirth. The District Court determined that 

the suit was barred by Feres v. United States, 340 U. S. 

135 (1950), which held that military personnel injured by

the negligence of a federal employee cannot sue the United 

States under the Federal Tort Claims Act. The Court of 

Appeals “regretfully” reached the same conclusion and 

affirmed. 889 F. 3d 978, 980 (CA9 2018).

Petitioner now asks the Court to reconsider Feres. I 

have explained before that “‘Feres was wrongly decided 

and heartily deserves the widespread, almost universal 

criticism it has received.’” Lanus v. United States, 570 

U. S. 932, 933 (2013) (quoting United States v. Johnson, 

481 U. S. 681, 700 (1987) (Scalia, J., dissenting)). I write 

again to point out the unintended consequences of this 

Court’s refusal to revisit Feres. 

Earlier this Term, in Air & Liquid Systems Corp. v. 

DeVries, 586 U. S. ___ (2019), we confronted the case of 

two veterans who alleged that their exposure to asbestos 

caused them to develop cancer. Id., at ___ (slip op., at 3). 

Both veterans served in the U. S. Navy on ships outfitted 
 

 

 

 

2 DANIEL v. UNITED STATES 

THOMAS, J., dissenting 

with equipment that used asbestos insulation or parts. 

Id., at ___ (slip op., at 2). The manufacturers of that 

equipment delivered much of it to the Navy in “baremetal” condition, i.e., without asbestos, meaning that the 

Navy added the asbestos to the equipment after delivery. 

Id., at ___ (slip op., at 3). Neither veteran was exposed to 

any asbestos sold or delivered by the equipment manufacturers, as opposed to asbestos added by the Navy. See id., 

at ___, and n. 1 (slip op., at 3, and n. 1). Yet because the 

Navy was likely immune from suit under Feres, the veterans sued the manufacturers. 586 U. S., at ___ (slip op., 

at 3). This Court then twisted traditional tort principles 

to afford them the possibility of relief. Id., at ___–___ 

(GORSUCH, J., dissenting) (slip op., at 2–3).

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. 

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.” Johnson, 

supra, at 703 (Scalia, J., dissenting). But it did not. Accordingly, I respectfully dissent from the Court’s decision 

to deny this petition.