Supreme Court Declines Request to Revisit Precedent Barring Military Cadet’s Sexual Assault Claim Against United States

Legal Sidebari

Supreme Court Declines Request to Revisit
Precedent Barring Military Cadet’s Sexual
Assault Claim Against United States
May 24, 2021
With various exceptions, the Federal Tort Claims Act (FTCA) enables plaintiffs to sue the United States
when a federal employee commits a wrongful or negligent act that causes personal injury or death.
However, in Feres v. United States, the Supreme Court held that the FTCA generally does not authorize
military personnel to sue the United States for injuries arising out of military service. Although some
Members of Congress, judges, and scholars have criticized Feres, the Court has consistently declined to
reconsider the decision. Most recently, the Court denied certiorari in Doe v. United States, in which a
West Point cadet asked the Court to narrow or overrule Feres to let her sue the United States for allegedly
failing to implement adequate policies to prevent, investigate, and punish sexual assault at West Point.
This Sidebar analyzes Feres, Doe, and their potential significance to Congress.
The Federal Tort Claims Act
A person injured by a private party’s wrongful conduct may potentially file a tort lawsuit against that
defendant for monetary damages. However, when a federal officer or employee allegedly commits a tort,
the doctrine of sovereign immunity—which forbids private citizens from suing the government without
its consent—constrains plaintiffs from suing the United States. Congress may, however, waive the United
States’ sovereign immunity with respect to specified claims. Accordingly, the FTCA waives the federal
government’s immunity from certain state law tort claims based on negligent or wrongful acts that federal
officers and employees commit within the scope of their employment. However, Section 2680 of the
FTCA preserves the United States’ immunity from certain tort claims. For example:
 Section 2680(j) shields the United States from tort claims arising out of the military’s
wartime combatant activities;
 Section 2680(h) bars plaintiffs from suing the United States for certain intentional torts
committed by federal employees; and
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 Section 2680(a), known as the “discretionary function exception,” protects the United
States from liability for torts its employees commit while performing certain
discretionary, policy-based activities.
Feres v. United States
Besides the exceptions explicitly codified in Section 2680, the Supreme Court recognized in Feres v.
United States another implicit exception to the FTCA’s waiver of sovereign immunity. In Feres, several
military servicemembers (or their executors) asserted various tort claims against the United States. For
instance, one Army servicemember claimed that a military surgeon negligently left a towel in his stomach
during an operation. Another servicemember’s executor alleged that army surgeons’ negligent medical
treatment caused the servicemember’s death. A third servicemember’s executor claimed that the military
negligently quartered the servicemember in an unsafe barracks without an adequate fire watch, causing
the servicemember to die when the barracks caught fire. The Court dismissed the plaintiffs’ claims,
holding “that the Government is not liable under the [FTCA] for injuries to servicemen where the injuries
arise out of or are in the course of activity incident to service.” Courts refer to this rule as the
“intramilitary immunity” doctrine, or simply the “Feres doctrine.”
The Court has offered several rationales for Feres’s holding. According to the Court, adjudicating tort
claims based on service-related injuries would undesirably “involve the judiciary in sensitive military
affairs at the expense of military discipline and effectiveness.” Observing that Congress provided
statutory benefits to servicemembers who suffer service-related injuries or death, the Court has also
inferred that Congress would not have “provided such a comprehensive system of benefits while at the
same time contemplating recovery for service-related injuries under the FTCA.” Finally, given the
“distinctly federal” relationship “between the Government and members of its armed forces,” the Court
has opined that it would be inappropriate to subject the United States to liability based on state tort law
for its military activities.
Doe v. United States
The Court has reaffirmed or declined to reconsider Feres on multiple occasions. Most recently, in Doe v.
United States, a West Point cadet alleged that another cadet sexually assaulted her on campus. She sued
the United States under the FTCA, alleging that military officials failed to implement adequate policies to
prevent, investigate, and punish sexual assault at West Point. Noting that adjudicating the plaintiff’s
claims would require a civilian court to scrutinize military officials’ decisions regarding the discipline,
supervision, and control of military cadets, the U.S. Court of Appeals for the Second Circuit held that the
plaintiff’s claims were service-related and thus barred by Feres. Reasoning that the plaintiff’s educational
activities were “inextricably intertwined” with her military service, the Second Circuit rejected the
plaintiff’s arguments that her claims were “related to her role as a student and not her role as a soldier.”
The plaintiff asked the Supreme Court to grant certiorari to either overrule Feres or limit the doctrine “so
as not to bar tort claims brought by servicemembers injured by violations of military regulations, during
recreational activities, or while attending a service academy.” The Court denied the plaintiff’s petition
without comment.
Opining that “Feres was wrongly decided,” Justice Thomas dissented from the denial of certiorari. He
noted that nothing in the FTCA’s text imposes an across-the-board bar against military servicemembers’
tort claims, as Feres holds. Rather, noted Justice Thomas, Section 2680(j) only bars FTCA claims based
on wartime combatant activities, which were not at issue in Doe. Justice Thomas thus urged the Court to
overrule Feres, or at least grant certiorari to consider which injuries qualify as “incident to military
service.”

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Considerations for Congress
Policymakers, judges, and commentators have debated the Feres doctrine’s desirability and legal
justifications. Some maintain that authorizing lawsuits against the United States would disrupt military
operations. Supporters also note that Feres does not leave injured servicemembers wholly without a
remedy, because injured and deceased servicemembers are potentially eligible for statutory benefits.
Critics maintain that Feres unjustly precludes injured or deceased servicemembers from obtaining
complete recourse through the judicial system.
The Supreme Court’s past disinclination to reconsider Feres suggests that it is unlikely that the Court will
revisit the doctrine in the near future. Because Congress may amend a statute if it believes the judiciary
has interpreted it incorrectly, the Court seldom overrules its own precedents interpreting federal statutes
like the FTCA. Thus, if Congress disapproves of Feres, it may consider abrogating or modifying the
doctrine legislatively.
Legislative proposals to override Feres implicate several legal questions. The first concerns the proposal’s
scope. For instance, Congress could abrogate the Feres doctrine entirely, or it could legislate more
narrowly to make the doctrine inapplicable to specified categories of claims only, such as claims arising
from sexual assault, or claims by military cadets.
If Congress ultimately decides to modify Feres, it may consider whether to also amend FTCA provisions
that may impose other barriers to servicemember lawsuits. For example, with limited exceptions, Section
2680(h) of the FTCA forbids plaintiffs from suing the United States for certain intentional torts, including
battery and assault. Depending on the circumstances, this exception may bar military personnel from
suing the federal government for a sexual assault committed by another servicemember, irrespective of
whether the Feres doctrine would independently defeat the plaintiff’s claim. Similarly, in Doe, the United
States argued that the discretionary function exception supplied an independent basis to dismiss the
plaintiff’s FTCA claim, because the development and implementation of sexual assault policies at a
service academy implicated military officials’ policy-driven judgments and choices. (The Second Circuit
did not consider the discretionary function issue because its ruling on the Feres doctrine sufficed to
resolve the case.) Thus, if Congress wishes to remove barriers to servicemembers suing the federal
government for injuries arising from sexual assaults, it might consider amending Section 2680 as well.
As an alternative to letting servicemembers sue the United States, Congress could consider compensating
injured servicemembers through internal military procedures. For instance, while the House version of the
National Defense Authorization Act for Fiscal Year 2020 (NDAA) proposed to modify Feres to authorize
servicemembers to sue the United States for military healthcare providers’ torts, the NDAA as enacted
instead creates an administrative procedure by which such servicemembers may request compensation
from the Secretary of Defense. Congress likewise could consider establishing similar administrative
mechanisms to compensate servicemembers for other types of claims. For instance, a provision of the I
Am Vanessa Guillén Act of 2021 (H.R. 3224, S. 1611, 117th Cong.) would authorize the Secretary of
Defense to pay certain claims for personal injury or death arising from sex-related offenses committed by
members of the armed forces or Department of Defense employees, or from the negligent failure to
prevent or investigate such an offense.
Besides creating new compensatory remedies for survivors of military sexual assault, there may be other
actions Congress or the Executive could take to address sexual assault in the military. At President
Biden’s direction, the Secretary of Defense has established an Independent Review Commission to study
and make recommendations regarding responses to military sexual assault and harassment. A separate
CRS product analyzes potential policy responses to military sexual assault in greater depth.

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Author Information

Kevin M. Lewis

Legislative Attorney




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