As he has in the past, Justice Clarence Thomas said it was time for the court to take another look at the Feres Doctrine. It comes from a 1950 decision that Thomas said mistakenly expanded a limited exception in the Federal Tort Claims Act concerning combat-related injuries.
“Under the plain text of the Act, petitioner’s status as a West Point cadet should have posed no bar to litigation,” Thomas wrote in a lone dissent. “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.”
Because of the decision in Feres v. United States, the U.S. Court of Appeals for the 2nd Circuit “held that sovereign immunity barred petitioner’s claims, even if she could have brought these same claims had she been a civilian contractor employed by West Point instead of a student,” Thomas wrote.
The petitioner, identified as Jane Doe in court papers, grew up in a military family and entered the U.S. Military Academy at West Point in 2008. In her second year, Doe said, she was raped by a fellow cadet after a walk one evening. She withdrew from the school in 2010.
She later sued the academy and accused administrators of having “failed to adhere to mandatory Department of Defense regulations governing sexual violence.”
Represented by the Veterans Legal Services Clinic at Yale, Doe took the 2nd Circuit’s decision to the Supreme Court.
“In recent decades, civilians injured by government actions have gained greater access to recovery under the FTCA,” her petition said. “Meanwhile, Feres and its progeny have denied servicemembers — and sometimes even their children — access to the very system of justice they have pledged to defend.”
But the Justice Department opposed the petition. The broad rationales for the Feres decision, wrote Elizabeth B. Prelogar, President Biden’s acting solicitor general, remain “good law: the distinctively federal character of the relationship between the military and service members, the availability of certain no-fault statutory benefits for service-related injuries, and the avoidance of judicial intrusion into military discipline and decision making.”
Asking the Supreme Court to directly overturn a precedent is always an ambitious request. In this case, Prelogar noted that Congress has had decades to rewrite the statute if it felt the court’s reading of the FTCA was in error.
But justices who had shown less deference to the court’s doctrine of letting past decisions stand had called for the court to take action. Justice Antonin Scalia was one, and Justice Ruth Bader Ginsburg was another.
Thomas is perhaps the most willing of all, but he was unable to find three other justices, the minimum needed, to take up such a case.
“Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong,” Thomas wrote. “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.”
The case is Doe v. United States.