The often divided Supreme Court made an almost unanimous decision on Monday. It was the wrong decision.
The court declined to consider the case of a rape victim who was banned from trying her case in federal courts because “Jane Doe” served in our military. Only one judiciary called for justice for the former West Point cadet: Clarence Thomas.
However, the injustice of the court’s decision extends beyond “Jane Doe” and extends to any member of the military.
The court missed the opportunity to overturn one of its most infamous unjustifiable doctrines. The Feres Doctrine was founded more than 70 years ago and has fallen victim to hundreds of thousands of service members and their families. The court’s failure should now put pressure on Congress to finally act to end the tragic legacy of the Feres decision.
I have been a vocal critic of Feres for decades and wrote a three-part study of the military legal system 20 years ago detailing how this doctrine began in 1950 with a clearly flawed reading of the Federal Tort Claims Act (FTCA). The doctrine is, according to Army Lt. Rudolph Feres, who died in a fire allegedly caused by an unsafe heating system in his New York barracks. It was one of three cases grouped for forensic review, including a soldier sued after an Army doctor left a 30 by 18 inch towel (labeled U.S. Army Medical Department property) on him.
These should have been slight cases of breathtaking negligence. The FTCA only prohibits lawsuits against the military for “combat-related” injuries – a logical and clear exception. However, the court set out to create a comprehensive new immunity for the military, stating that any lawsuit by military personnel would be considered “combat-related”. It was utterly nonsensical as there was no need to refer to combat if Congress was to grant the military complete immunity. Indeed, the late Judge Antonin Scalia denounced the doctrine as crude legal activism. He was sentenced from the left by the late Judge John Paul Stevens.
The West Point case shows the legal madness and lethality of this doctrine. Jane Doe was a cadet who was alleged to have been raped by another cadet and charged with charges, according to court records. However, West Point did not obey military regulations and later dropped out of the academy. The District Court and the Second Circle then dismissed their lawsuit as an “incident on duty” and were therefore excluded according to the Feres Doctrine.
These lower courts can be excused for dismissing the case. After all, this is a Supreme Court precedent. But the Supreme Court itself has no such excuse.
The former cadet is not alone when it comes to negligence in handling criminal cases. In Illinois, eight women sued the army on “harassment and retribution, including rape, sodomy, unwanted sexual advances and touch, requests for sexual favors, sexual innuendo, harassing phone calls, threats of physical harm, inconsistent sex, and coercion.” A federal court dismissed her action under Feres.
My study found a number of such cases. For example, soldier Julius Pringle was seriously injured in a bar on a Kansas military reservation that served both civilians and military personnel. A gang had effectively taken over the bar. After Pringle exchanged words with members of the gang who were molesting his girlfriend, the bar managers had him thrown outside in the middle of waiting gang members. He was beaten so badly that he suffered brain damage. Still, he couldn’t complain.
I found many deaths caused by contractors failing to meet the most basic obligations in maintaining or using equipment, as well as negligent acts long addressed in civil companies and deterred by civil liability. For example, Lt. Joseph McConnell killed while waterskiing after a boat rented from an Air Force recreational center in Arizona ran out of control due to a mechanical failure and hit him.
In the area of medical misconduct, the study found practices and behaviors that are considered paramount in modern cases. Often times, when civilian doctors leave a patient paralyzed or crippled for a lifetime, family members receive millions in compensation. In the military, families receive a few thousand dollars a month or more in military medical care. Take Dorothy Meagher, who took care of her son after he entered a Navy hospital to have a cyst removed. Her son became paraplegic due to an alleged anesthetic overdose and a Navy doctor’s failure to call for help immediately.
Tort liability not only heals victims, but encourages others to take precautionary measures. However, military families are left with a fraction of the financial aid to civilians, and there is less incentive to update equipment and practices.
As Judge Thomas correctly noted, the Feres Doctrine produces absurd results: “If two Pentagon employees – a civilian and one a service person – are hit by a bus in the Pentagon parking lot and complain, only the civilian could do so to sue his claim in the matter. “
Thomas said it was time to end “legal legislation” and “if the Feres Doctrine is so wrong that we cannot figure out how to curb it, then the better answer is to pass it”. Indeed, it is a farewell 70 years overdue.
There is another body that can do justice to military personnel: Congress. For 30 years I have been calling on Congress to correct this error of law. It must be explicitly stated what should already be evident in the FTCA: Military personnel have equal access to justice, with the exception of injuries related to actual acts of war or combat. Politicians are interested in using military personnel as props at Veterans Day and Memorial Day events. However, they left them fodder for negligent military and contractor operations.
It is time for Congress to act and put an end to the Feres Doctrine.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.