By Amy Howe
on May 3, 2021
at 11:25 a.m.
The US Military Academy at West Point, which came under fire for its sexual assault policy (Jazz Guy via Flickr)
The Supreme Court will not consider whether or not a West Point cadet sexually assaulted by a classmate can sue the federal government. The judges announced Monday morning that they will not hear a hearing in Doe v. The United States, one of the cases they examined at their private conference last week. The judges also challenged the federal government on two counts, but again failed to respond to a closely watched challenge to a Mississippi law that generally bans abortion after the 15th week of pregnancy. The lower courts have knocked the law down and the state has asked the judges to accept and reopen the case.
Over 70 years ago, the Supreme Court established the “Feres Doctrine”: In the Feres v. United States case, it ruled that members of the armed forces cannot sue the federal government for violations, despite the fact that Congress generally approves the federal government’s immunity Tort Claims Act repealed has been maintained on active duty. Over the past decade, judges have been asked several times – most recently in 2019 – to reconsider their decision in Feres, but declined due to disagreements from Justice Clarence Thomas.
The court again refused to take up the question on Monday, again because of Thomas’s objection. This time, the facts were compelling: the case was brought by a United States Military Academy cadet at West Point who claims she was subjected to sexual harassment at the academy and raped by another cadet on campus, and that school policy did not Don’t do enough to protect them. The cadet known as Jane Doe came from a military family and was highly ranked in her class, but dropped out of school after her attack. A federal district court dismissed her FTCA claims citing the Feres Doctrine, and the appellate court upheld that decision on the grounds that her claims were “incidents on duty.” Doe came to the Supreme Court last fall and asked the judges to take her case and consider repealing the Feres Doctrine. Alternatively, Doe said, judges should decide whether to restrict the doctrine so that it does not apply to cases like hers where service members injured by violating military regulations are involved during recreational activities (she was on a walk , as the rape) or while attending a service academy.
In a tripartite disagreement with the court’s decision to deny the review, Thomas argued that, under the text of the FTCA, it shouldn’t matter whether Doe was a member of the military, as the FTCA removes the government’s immunity from lawsuits by anyone who are injured when government employees are negligent. Thomas acknowledged that there is a narrow exception for “combat activities,” but that exception does not apply to Does’s case. “Feres,” concluded Thomas, “was wrongly decided and this case was wrongly decided as a result.”
At the very least, Thomas said, the Supreme Court should give a review to make it clear what the Feres Doctrine covers and what does not. For example, while citing two separate cases in two different federal appeals courts, Thomas noted: “Feres sometimes forbids claims by a drunken soldier who drowns except when they do not.” And while the court may “be reluctant to take up the matter at all,” because it would involve messing around with a 70-year-old precedent that has been proven to be false, “suggested Thomas,” perhaps saying goodbye to it is a better answer. “
The judges asked the federal government to present their views in two cases. In the First Independent School District No. 283 against EMDH, the question put to the government includes the statute of limitations for violating the Child Detection Requirement of the Disabled Education Act, which makes it a duty of school districts, everyone Identify, locate and evaluate children who have disabilities and may need services. The second case, American Axle & Manufacturing Inc. v. Neapco Holdings LLC, concerns two procedural issues related to patent entitlement. In these cases, there is no time limit for the acting attorney general to express the government’s views. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the respondents in American Axle.]
The judges again failed to act against Dobbs v Jackson Women’s Health Organization, the challenge to the constitutionality of the Mississippi Abortion Act, which they considered for the 12th consecutive week at their conference last week.
The next conference of judges is scheduled for Thursday May 13th. The court will be issuing orders from this conference on Monday, May 17th at 9:30 am
This post was originally published on Howe on the Court.