Justice Thomas wants the Supreme Court to revisit the Feres doctrine

In 2020, the Second Circuit held a student could not sue West Point over her rape, which she alleged resulted from West Point's deficient policies which did not protect her from sexual assault. The case was dismissed because the Feres doctrine says you cannot sue the military for civil violations. The plaintiff filed a petition for certiorari with the Supreme Court, which has declined to review the case. The news here is that Justice Thomas wants to narrow the Feres doctrine to allow this case to proceed. But the Supreme Court will not do so, and Thomas is the only Justice who suggests the Court revisit Feres. 

The case is Doe v. United States, certiorari denied on May 3. Thomas thinks Feres goes too far. Thomas notes that "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." That was Feres v. United States, 340 U.S. 135 (1950). Plaintiff could have brought this case under the Federal Tort Claims Act if she were a civilian contractor at West Point. But since she was a cadet, she rules into the Feres doctrine, which prohibits claims like this.

While the Federal Tort Claims act does not allow you to sue for claims "arising out of ... combat activities ... during time of war," it has been interpreted quite broadly, Thomas notes, to even cover non-war-related claims. So, Thomas explains, if two Pentagon employees, one a civilian and the other a service member, are hit by a bus in the Pentagon parking lot, the civilian can sue but the service member cannot. There are cases that so hold.

Thomas wants the Court to take up this case to clarify the scope of the Feres immunity. How exactly is a student's rape "an injury incident to military service?" The Feres doctrine has been expanded so much over the years that even a rape case like this is barred. While Thomas suggests the Court does not want to "fiddle" with a 70-year-old precedent, it should do so, he argues, just as it has done with other unworkable doctrines over the years. 

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