Below is my column in The Hill on the Supreme Court’s rejection of the case of a former West Point cadet who was barred from suing over the handling of her alleged rape. The case would have allowed a reconsideration of the Feres Doctrine, one of the most damaging and pernicious doctrines ever created by the Supreme Court.
Here is the column:
The often-divided Supreme Court reached an almost unanimous decision on Monday. It was the wrong decision.
The court refused to review the case of a rape victim who was barred from having her case heard in federal courts because “Jane Doe” was serving in our military. Only one justice demanded justice for the former West Point cadet: Clarence Thomas.
The injustice of the court’s decision, however, goes beyond “Jane Doe” and extends to every member of the military.
The court missed the opportunity to overturn one of its most infamous, indefensible doctrines. Created more than 70 years ago, the Feres Doctrine has victimized hundreds of thousands of service members and their families. The court’s failure should now put pressure on Congress to finally act to end the tragic legacy of the Feres decision.
I have been a vocal critic of Feres for decades and wrote a three-part study of the military legal system 20 years ago that detailed how this doctrine began in 1950 with a clearly erroneous reading of the Federal Tort Claims Act (FTCA). The doctrine is named after Army Lt. Rudolph Feres, who died in a fire allegedly caused by an unsafe heating system in his New York barracks. It was one of three cases combined for review by the court, including a soldier who sued after an Army doctor left a 30-by-18-inch towel (marked as “Medical Department U.S. Army” property) inside him.
These should have been easy cases of breathtaking negligence. The FTCA only bars lawsuits against the military for “combat-related” injuries — a logical and clear exception. However, the court set out to create a sweeping new immunity for the military and declared that any lawsuit by military personnel would be considered “combat related.” It was entirely nonsensical since there would be no reason to refer to combat if Congress wanted to grant total immunity for the military. Indeed, the late Justice Antonin Scalia denounced the doctrine as raw judicial activism. He was joined in his condemnation from the left by the late Justice John Paul Stevens.
The West Point case shows the legal lunacy and lethality of this doctrine. Jane Doe was a cadet who was allegedly raped by a fellow cadet and, according to court documents, came forward to bring charges. However, West Point failed to follow military regulation and she later dropped out of the academy. The district court and the Second Circuit then dismissed her lawsuit as “incident to service” and thus barred under the Feres Doctrine.
Those lower courts can be excused for dismissing the case. After all, this is a controlling Supreme Court precedent. But the Supreme Court itself has no such excuse.
The former cadet is not alone when it comes to negligence in handling criminal cases. In Illinois, eight women sued the Army for “harassment and retaliation, including rape, sodomy, unwelcome sexual advances and touching, requests for sexual favors, sexual innuendos, harassing phone calls, threats of physical harm, non-consensual sex and duress.” A federal court dismissed their lawsuit under Feres.
My study found an array of such cases. For example, soldier Julius Pringle was severely injured at a bar on a military reservation in Kansas that served both civilians and military personnel; a gang had effectively taken over the bar. After Pringle exchanged words with members of the gang who were harassing his girlfriend, bar managers had him thrown outside into the midst of waiting gang members. He was beaten so severely that he suffered brain damage. Yet, he was barred from suing.
I found many deaths caused by contractors who failed the most basic obligations in maintaining or using equipment, along with negligent acts that were long addressed in civilian businesses and deterred through civil liability. For example, Lt. Joseph McConnell was killed while waterskiing after a boat rented in Arizona from an Air Force recreation center surged out of control because of a mechanical failure and hit him.
In the area of medical malpractice, the study found practices and conduct that would be considered primeval in modern torts cases. When civilian doctors leave a patient paralyzed or crippled for a lifetime of care, family members often receive millions in compensation. In the military, families receive a couple thousand dollars a month and more military medical care. Take Dorothy Meagher, who found herself caring for her son after he entered a Navy hospital to have a cyst removed; due to an alleged overdose of anesthetics and the failure of a Navy doctor to call immediately for assistance, her son was left a quadriplegic.
Tort liability does not simply make victims whole but encourages others to take precautions. Yet, military families are left with a fraction of the financial help afforded to civilians and there is less incentive to bring equipment and practices up to modern standards.
As Justice Thomas correctly noted, the Feres Doctrine results in absurd results: “If two Pentagon employees — one civilian and one a service member — are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim on the merits.”
Thomas said it is time to end the “judicial legislating” and “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.” Indeed, it is a farewell that is 70 years overdue.
There is one other body that can do justice for military personnel: Congress. For 30 years, I have called on Congress to correct this judicial error. It needs to state expressly what already should be obvious in the FTCA: Military personnel have the same access to the courts except for injuries related to actual wartime or combat operations. Politicians are keen to use military personnel as props at Veteran’s Day and Memorial Day events. However, they have left them fodder for negligent military and contractor operations.
It is time for Congress to act and to put an end to the Feres Doctrine.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.