Constitution Daily

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In the U.S. Supreme Court, one more fight to change a losing battle

March 29, 2021 by Marcia Coyle


Some issues return in cases to the U.S. Supreme Court year after year in hopes that the timing is right for review by the justices. Frequent filers include cases attempting to overturn the landmark abortion ruling Roe v. Wade, to expand gun rights and, more recently, to limit or eliminate qualified immunity for police from civil suits.

Not as sexy as those three efforts, but just as persistent, have been efforts to persuade the court to overrule the 71-year-old decision in Feres v. United States. Under that decision, members of the military who are injured as a result of their service because of the negligent or wrongful act of a government employee are barred from suing the federal government under the Federal Tort Claims Act.

The justices on April 16, 2021 will take their first look at Jane Doe v. United States, a petition filed by a woman, who, while a second-year student at West Point, was raped in 2010 by a fellow cadet during a recreational walk on campus late one evening. She sought immediate medical attention from West Point, according to her petition, which failed to comply with military directives or to provide medical and emotional support. Three months after the rape, Jane Doe resigned and left West Point.

The petition states that West Point in 2011 did not comply with the Department of Defense’s sexual harassment and assault policies, and its programs had been on the decline since 2008. After Jane Doe exhausted her administrative remedies, she filed suit in federal court against the United States and two military leaders of West Point, and that’s where she ran into the Feres doctrine.

In 1946, Congress limited the United States’ sovereign immunity from suit in the Federal Tort Claims Act. The act permitted suits for money damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The act’s text does not bar claims by military members and neither do any of the act’s exceptions. The Supreme Court itself, in an opinion by Justice Robert Jackson, essentially closed the federal courthouse door to military members. The most common reason given by the court has been that "military discipline would be undermined and civilian courts would be required to second-guess military decision-making" if suits were allowed.

The 1950 decision has been widely criticized, particularly in recent years. Some of its critics have been justices. In a 2019 order denying review in another Feres case, one involving medical malpractice, Justice Ruth Bader Ginsburg wrote that she would have granted review. Justice Clarence Thomas, dissenting from the denial of review, quoted the late Justice Antonin Scalia, when he wrote: “I have explained before that ‘Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.’” Thomas said that “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.”

In Jane Doe’s petition, her lawyers from Yale Law School’s Veterans Legal Services Clinic ask the justices to overrule Feres because it is contrary to the plain text of the Federal Tort Claims Act; has been applied to all injuries suffered by military members that are even remotely related to their service; it lacks a single, coherent rationale, and it has produced inconsistent results in the lower courts.

But her lawyers also suggest an alternative to overruling the entire doctrine: make an exception for suits by service members injured by violations of military regulations, during recreational activities, or while attending a service academy. Jane Doe’s case shows the doctrine’s overreach, they argue. She left West Point before incurring an active-duty obligation, they tell the court, and her rape occurred on campus far from any battlefield. And yet, her injury was still considered “incident to service.”

The Biden Administration is opposing review of her petition. The government contends that Doe has offered “no sound basis” for reconsidering Feres and the justices have declined to review more than 20 other petitions challenging Feres since 1991 and most recently last year. Congress, well-aware of the doctrine, also has done nothing to enable service members’ claims.

A number of briefs supporting Jane Doe have been filed. Particularly compelling is a brief by 10, high ranking, female graduates of the military academies detailing what they say is a “rampant” culture of sexual harassment and assault on those campuses.

The petition comes at an interesting time. There has been increased attention in Congress and the media on sexual misconduct in the military. But Jane Doe’s petition is likely to suffer the same fate as other Feres challenges unless Justice Thomas and three other justices are willing to vote to review her case.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.


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