Justices Turn Down Cadet’s Attempt to Sue Government Over Sexual Assault
AMY HOWE

eHezi Amy Howe, Law, SCOTUS 2 Comments

Until September 2016, Amy Howe served as the editor and a reporter for SCOTUSblog; she continues to serve as an independent contractor and reporter for SCOTUSblog. She primarily writes for her eponymous blog, Howe on the Court. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University..

WASHINGTON, DC — May 6, 2021 — The Supreme Court won’t weigh in on whether a West Point cadet who was sexually assaulted by a fellow classmate can sue the federal government. The justices announced on Monday morning that they will not hear oral argument in Doe v. United States, one of the cases that they considered at their private conference last week. The justices also called for the federal government’s views in two cases, but they once again did not act on a closely watched challenge to a Mississippi law that would generally bar abortions after the 15th week of pregnancy. Lower courts struck down the law, and the state has asked the justices to take the case and reinstate it.

Over 70 years ago, the Supreme Court established the “Feres doctrine”: It ruled in Feres v. United States that although Congress generally waived the government’s immunity in the Federal Tort Claims Act, members of the armed forces cannot sue the federal government for injuries sustained on active duty. Over the last decade, the justices have been asked on several occasions – most recently in 2019 – to reconsider their ruling in Feres but have declined to do so, over dissents from Justice Clarence Thomas.

The court on Monday once again refused to take up the question, once again over Thomas’ objection. This time the facts were compelling: The case was brought by a cadet at the United States Military Academy at West Point who alleges that while at the academy she was subjected to sexual harassment and raped on campus by another cadet, and that the school’s policies didn’t do enough to protect her. The cadet, known as Jane Doe, came from a military family and was ranked high in her class, but left the school after her assault. A federal district court dismissed her claims under the FTCA, citing the Feres doctrine, and the court of appeals upheld that ruling, reasoning that her claims were “incident to service.” Doe came to the Supreme Court last fall, asking the justices to take her case and weigh in on whether the Feres doctrine should be overruled. In the alternative, Doe suggested, the justices should decide whether to limit the doctrine so that it would not apply to cases like hers, involving service members who are injured by violations of military regulations, during recreational activities (she was on a walk when the rape occurred) or while attending a service academy.

In a three-page dissent from the court’s decision to deny review, Thomas reasoned that under the text of the FTCA, it shouldn’t matter whether Doe was a member of the military because the FTCA waives the government’s immunity from lawsuits brought by people who are injured when government employees are negligent. There is, Thomas conceded, a narrow exception for “combat activities,” but that exception does not apply to Doe’s case. “Feres,” Thomas concluded, “was wrongly decided, and this case was wrongly decided as a result.”

At the very least, Thomas continued, the Supreme Court should grant review to make clear what the Feres doctrine covers and what it does not. For example, Thomas noted while citing two different cases in two different federal appeals courts, “Feres sometimes bars claims of a drunken servicemember who drowns, except when it does not.” And although the court may be “hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong,” Thomas suggested, perhaps “the better answer is to bid it farewell.”

The justices asked the federal government to provide its views in two cases. In the first, Independent School District No. 283 v. E.M.D.H., the question that the government has been asked to weigh in on involves the statute of limitations for violations of the “child find” obligation of the Individuals with Disabilities Education Act, which imposes a duty on school districts to identify, locate and evaluate all children who have disabilities and may need services. The second case, American Axle & Manufacturing Inc. v. Neapco Holdings LLC, involves two procedural questions related to patent eligibility. There is no deadline for the acting solicitor general to provide the government’s views in these cases. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the respondents in American Axle.]

The justices once again did not act on Dobbs v. Jackson Women’s Health Organization, the challenge to the constitutionality of Mississippi’s abortion law, which they considered at their conference last week for the 12th consecutive time.

The justices’ next conference is scheduled for Thursday, May 13. The court will issue orders from that conference on Monday, May 17, at 9:30 a.m.

This post is also published on SCOTUSblog.

eHeziJustices Turn Down Cadet’s Attempt to Sue Government Over Sexual Assault
AMY HOWE

Comments 2

  1. Every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. I should know because I have been down that same road too already. I even went to federal court in attempt to defend my case. Be aware that Feres also protects the US military from legal malpractice by its own incompetent – and many times unethical – military lawyers.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully “protecting” Fitzgerald and if they were not, the state bar would take action.

    I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of “protection.” Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.

    Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don’t believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.

    Go to the link https://www.facebook.com/people/Feres-Doctrine/100011369043077 and you will see it all.

    1. As a retired NYPD detective I’ve had the misfortune of having dealt with the modern FBI AKA (Famous But Incompetent) as they have evolved or more correctly devolved into little more than the Best Buy Geek Squad with guns and if they were any good the WTC would still be standing. No law enforcement agency including the DEA and ATF wants to deal with FBI of Mueller, Comey, Paige, Rosenstein and Strzok because “lying to a federal agent” is a crime subject to their interpretation with little to no wiggle room for a faulty memory or even complete lack of knowledge of the investigation at hand. They begin an investigation with a predetermined outcome after they’ve conferenced and cherry pick the facts to meet their politically correct outcome. Every NYPD supervisor or detective knew that you just politely declined their friendly questions and deferred to a higher authority because nothing is off the record and that they are only there to hurt you. I would be writing forever if I were to detail the negative experiences of myself, coworkers, a Christian Arab NYC Agency Chief Criminal investigator assigned to the HIDTA and a DEA supervisor friend have had with the modern FBI. We are under attack internally by anarchists, communists and Islamists but they want you to believe “White Supremacy” is the real threat when in reality their complete incompetence and adherence to the modern “Democrats” is.

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