In 2008, petitioner Jane Doe enrolled in the Military Academy at West Point.  Doe encountered a culture of sexual violence and misogyny fostered by the Academy’s leadership and, in her second year, she was raped by a fellow cadet during a recreational walk on campus.  West Point’s authorities failed to adequately respond to Doe’s report of the rape, and she subsequently withdrew from the Academy.

Doe then filed suit against the United States, invoking the Federal Tort Claims Act (FTCA).  The FTCA waives the United States’ sovereign immunity in 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.”  The District Court for the Southern District of New York dismissed Doe’s suit on the basis of the Supreme Court’s decision in Feres v. United States, which held that the United States government is not liable under the FTCA for injuries to servicemembers when those injuries occur in the course of activity “incident to service.”  The U.S. Court of Appeals for the Second Circuit affirmed the District Court’s decision, and Doe asked the Supreme Court to hear that case.

CAC filed a friend-of-the-court brief in support of Doe’s petition, urging the Supreme Court to hear the case and reverse the decision below on the basis that Feres was wrongly decided.

Our brief first argued that the Court’s ruling in Feres is incompatible with the text and history of the FTCA.  There is nothing in the text of the FTCA that suggests servicemembers’ claims incurred “incident to service” are excluded from the statute’s broad waiver of sovereign immunity from tort actions.  The statute contains a long list of specific exceptions, none of which bar claims of servicemembers arising out of activities “incident to service.”  Further, the Court’s ruling in Feres is at odds with Congress’s plan in passing the FTCA: it frustrates the stated purpose of the statute and ignores the fact that Congress specifically considered and rejected earlier bills containing language barring all claims of servicemembers.

Our brief also argued that the Feres doctrine represents an improper effort on behalf of the Court to substitute its judgment for that of Congress.  In deciding Feres, the Court provided three reasons why it would not impute to Congress the intention to allow the claims of servicemembers incurred incident to service.  Since the Feres decision, the Court has come up with a fourth justification for the doctrine.  Our brief explained why none of those reasons stand up to scrutiny and are as divorced from the text of the FTCA as the Feres exception itself.

In May 2021, the Supreme Court denied the petition for a writ of certiorari.  Writing in dissent, Justice Thomas explained why the Feres doctrine is “demonstrably wrong.”  Thomas urged the Court to either “clarify the scope of the immunity” it created under Feres or “bid it farewell.”