Supreme Court Justice Castigates Feres Doctrine, Court in Military Rape Case

The Supreme Court of the United States in Washington, D.C.
The Supreme Court of the United States in Washington, D.C., Feb 6, 2021. (2nd Lt. Ashley Goodwin/U.S. Army National Guard photo)

In a strongly worded dissent filed in opposition to his fellow jurists' decision to reject a case involving a former cadet who was raped while attending the U.S. Military Academy, Supreme Court Justice Clarence Thomas reaffirmed his opposition to the 70-year-old precedent that prevents troops from suing the federal government.

The Court on Monday denied a petition from a former West Point cadet, identified as Jane Doe, who charged that the school's sexual assault policies failed to protect students from sexual assault and violence.

A lower court ruled in favor of the government, saying the case didn't stand in light of Feres -- a precedent-setting case that effectively bars active-duty troops from suing the government under the Federal Tort Claims Act, or FTCA.

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In his dissent, Thomas said the court's reasoning, based on Feres, "has little justification." He noted that had the cadet been a civilian contractor employed at West Point, she would have had grounds for a suit.

"Under the plain text of the [FTCA], petitioner's status as a West Point cadet should have posed no bar to litigation. But 70 years ago, this court made the policy judgment that members of the military should not be able to sue for injuries incident to military service. Emphasizing its breadth, the law contains a narrow carve out for military related claims: those 'arising out of ... combatant activities ... during time of war.' This single military exception involving 'combatant activities' clearly does not apply here," Thomas wrote.

Feres has been cited for years in cases brought by service members against the federal government, including medical malpractice and challenges of legal representation.

The fiscal 2020 National Defense Authorization Act gave active-duty troops or their survivors the right to file a malpractice claim for personal injury or death caused by military doctors, but it stopped short of giving them the right to sue the federal government over tort claims.

Thomas has consistently objected to Feres, as did former Justices Antonin Scalia and Ruth Bader Ginsburg. In 2019, Thomas penned the dissent in a case filed by a former Coast Guard officer over the death of his wife, a Navy officer, who died during childbirth at a naval hospital.

"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," Thomas wrote in the dissent of that case, Daniel v. the United States.

Attorneys and legal scholars have long debated whether Feres should apply only to combat-related injuries or military training mishaps.

Supporters of the status quo -- regarding medical malpractice in particular -- have argued that the military has an established system for compensating victims and that doing away with the precedent could expose commanders and the government to baseless lawsuits and financial risk.

According to court documents, petitioner Jane Doe entered West Point in 2008 and endured "pervasive sexual harassment" before she was raped during her second year by a fellow cadet.

She reported the assault, but West Point failed to adhere to Defense Department regulations regarding sexual assault, according to her attorneys. She withdrew from the school in 2010.

"School administrators failed to take necessary steps to protect female cadets from a pervasive and well-known culture of sexual violence," Doe's attorneys wrote in their petition to the court. "West Point and its leaders fostered a sexually aggressive and misogynistic environment, failed to punish rapists and other sexual assailants, and failed to implement mandatory DOD directives and instructions to protect victims."

After years of debate in Congress on how the military should handle cases of sexual assault and harassment, legislation has been reintroduced this year that would remove the decision to prosecute from commanders. The measure would leave misdemeanors and military-specific crimes in the hands of commanders, but cases of violence and sexual assault would be investigated and pursued by specially trained military prosecutors.

Last month, a Pentagon panel recommended that the decision to prosecute service members for sexual assault be made by independent authorities outside the chain of command. Defense Secretary Lloyd Austin is now seeking input from the service chiefs before making a final decision, according to sources cited by The Associated Press.

In his dissent, Thomas theorized that his fellow justices were hesitant to take up a Feres case because it "would require fiddling with a 70-year-old precedent that is demonstrably wrong."

"But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell. There is precedent for that approach," he wrote.

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime.

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