Doe v. United States ( 2021 )

Cite as: 593 U. S. ____ (2021) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
JANE DOE v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 20–559. Decided May 3, 2021
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
Petitioner alleges that she was raped by a fellow cadet
while she was a student at the U. S. Military Academy at
West Point. She sued the United States under the Federal
Tort Claims Act, claiming that West Point’s sexual assault
policies were inadequate to protect students from sexual vi-
olence. Under the plain text of the Act, petitioner’s status
as a West Point cadet should have posed no bar to litigation.
But 70 years ago, this Court made the policy judgment that
members of the military should not be able to sue for inju-
ries incident to military service. See Feres v. United States,
340 U. S. 135 (1950). Relying on Feres, the Second Circuit
held that sovereign immunity barred petitioner’s claims,
even if she could have brought these same claims had she
been a civilian contractor employed by West Point instead
of a student.
As I have previously explained, this approach has little
justification. The Act “ ‘renders the United States liable to
all persons, including servicemen, injured by the negligence
of Government employees.’ ” Lanus v. United States, 570
U. S. 932 (2013) (THOMAS, J., dissenting from denial of cer-
tiorari) (quoting United States v. Johnson, 481 U. S. 681,
693 (1987) (Scalia, J., dissenting)); see also Daniel v. United
States, 587 U. S. ___, ___–___ (2019) (THOMAS, J., dissent-
ing from denial of certiorari) (slip op., at 1–2). Emphasizing
its breadth, the law contains a narrow carve out for mili-
2 DOE v. UNITED STATES
THOMAS, J., dissenting
tary-related claims: those “arising out of . . . combatant ac-
tivities . . . during time of war.” 28 U. S. C. §2680(j). This
single military exception involving “combatant activities”
clearly does not apply here. And, other than this specific
exception, the law does not “ ‘preclud[e] . . . suits brought by
servicemen’ ”—at least not because of their military status.
Lanus, 570 U. S., at 932. Feres was wrongly decided; and
this case was wrongly decided as a result.
We should grant certiorari to correct this error. The Feres
Court’s foray into judicial legislating has been met with
“ ‘widespread, almost universal criticism.’ ” Johnson, 481
U. S., at 700 (Scalia, J., dissenting). And it is easy to see
why. Under our precedent, if two Pentagon employees—
one civilian and one a servicemember—are hit by a bus in
the Pentagon parking lot and sue, it may be that only the
civilian would have a chance to litigate his claim on the
merits. Cf. Frankel v. United States, 810 Fed. Appx. 176,
180–182 (CA4 2020) (per curiam) (Feres barred claim of ser-
vicemember who was struck by a vehicle); Newton v. Lee,
677 F. 3d 1017, 1030 (CA10 2012) (Feres does not bar claim
by “a purely civilian employee of the military”). Nothing in
the text of the Act requires this disparate treatment. Nor
is there any background rule that federal bus drivers owe a
greater duty of care toward workers who are civilian than
those who are military.
At a minimum, we should take up this case to clarify the
scope of the immunity we have created. Without any stat-
utory text to serve as a guide, lower courts are understand-
ably confused about what counts as an injury “incident” to
military service. One might be surprised to learn, for ex-
ample, that Feres sometimes bars claims of a drunken ser-
vicemember who drowns, except when it does not. Compare
Morey v. United States, 903 F. 2d 880, 881 (CA1 1990), with
Dreier v. United States, 106 F. 3d 844, 845–846 (CA9 1996).
Or, to discover that Feres apparently forecloses a claim for
a servicemember’s injury while waterskiing because the
Cite as: 593 U. S. ____ (2021) 3
THOMAS, J., dissenting
recreational boat belonged to the military, but not for an
injury while attending a rugby event caused by a service-
member’s negligent operation of an Army van. Compare
McConnell v. United States, 478 F. 3d 1092, 1093–1094
(CA9 2007), with Whitley v. United States, 170 F. 3d 1061,
1068–1070 (CA11 1999). And like Judge Chin in dissent,
one might be concerned to find out that a student’s rape is
considered an injury incident to military service. See Doe
v. Hagenbeck, 870 F. 3d 36, 51, 58–62 (CA2 2017) (“[I]n my
view Doe’s injuries did not arise ‘incident to military ser-
vice’ ”). But that is exactly what the court held below. See
815 Fed. Appx. 592, 595 (CA2 2020).
Perhaps the Court is hesitant to take up this issue at all
because it would require fiddling with a 70-year-old prece-
dent that is demonstrably wrong. But if the Feres doctrine
is so wrong that we cannot figure out how to rein it in, then
the better answer is to bid it farewell. There is precedent
for that approach. See, e.g., Trump v. Hawaii, 585 U. S.
___, ___ (2018) (slip op., at 38) (overruling Korematsu v.
United States, 323 U. S. 214 (1944)); Leegin Creative
Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 882
(2007) (overruling Dr. Miles Medical Co. v. John D. Park &
Sons Co., 220 U. S. 373 (1911)); Lapides v. Board of Regents
of Univ. System of Ga., 535 U. S. 613, 623 (2002) (overruling
Ford Motor Co. v. Department of Treasury of Ind., 323 U. S.
459 (1945)); Exxon Corp. v. Central Gulf Lines, Inc., 500
U. S. 603, 612 (1991) (overruling Minturn v. Maynard, 17
How. 477 (1855)); Malloy v. Hogan, 378 U. S. 1, 2, 6 (1964)
(overruling Twining v. New Jersey, 211 U. S. 78 (1908));
Brown v. Board of Education, 347 U. S. 483, 494–495 (1954)
(overruling Plessy v. Ferguson, 163 U. S. 537 (1896)); Erie
R. Co. v. Tompkins, 304 U. S. 64, 79–80 (1938) (overruling
Swift v. Tyson, 16 Pet. 1 (1842)).
We should follow it.