Access to Justice

Jane Doe v. United States

In Jane Doe v. United States, the Supreme Court was asked to reconsider whether servicemembers may sue the United States for money damages pursuant to the Federal Tort Claims Act (FTCA) when they are injured in the course of activity incident to their military service.

Case Summary

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.”

Case Timeline

  • November 30, 2020

    CAC and The Rutherford Institute file amici curiae brief in support of certiorari petition

    Sup. Ct. Amici Br.
  • May 3, 2021

    The Supreme Court denies the petition for a writ of certiorari

More from Access to Justice

Access to Justice
May 10, 2021

RELEASE: 89 Organizations to Senate: “Qualified Immunity Doctrine Must End Without Exception” 

WASHINGTON – Today, Constitutional Accountability Center is releasing a letter on behalf of 89 organizations calling on the Senate to...
Access to Justice
May 10, 2021

Qualified Immunity | Beyond Policing

In 1967, the Supreme Court created from whole cloth the legal doctrine of qualified immunity,...
By: Kristine A. Kippins, Becca Damante
Access to Justice
U.S. Supreme Court

Thompson v. Clark

In Thompson v. Clark, the Supreme Court is considering whether people may sue a police officer for instigating baseless criminal charges against them once those charges are dropped—or whether, instead, victims may sue only if...
Access to Justice
U.S. Supreme Court

Cates v. Stroud

In Cates v. Stroud, the Supreme Court is being asked to consider whether state officials who strip-searched a prison visitor without informing her she was free to leave, are immune from being sued for violating...
Access to Justice
March 11, 2021

Unlikely bedfellows in TransUnion SCOTUS case: Justice Thomas and class action fans

(Reuters) - As the U.S. Supreme Court gets ready in TransUnion v. Ramirez to revisit the vexing...
Access to Justice
March 4, 2021

Opinion: How the Supreme Court can help sexual assault survivors in the military

Washington Post
Last month, a U.S. Marine posted a video to TikTok sharing her frustration with authorities’ handling of...
By: Miriam Becker-Cohen