Below is my column in The Hill about the Supreme Court’s rejection of the case of a former West Point cadet that had been barred from suing over the managing of her alleged rape. The case would have let a reconsideration of the Feres Doctrine, among the most damaging and pernicious doctrines ever created by the Supreme Court.
Here is the column:
The often-divided Supreme Court reached a virtually unanimous decision on Monday. It had been the wrong decision.
The court refused to review case of a rape victim that had been barred from getting her case heard in federal courts since”Jane Doe” had been also operating in the military. Only one justice demanded justice to its former West Point cadet: Clarence Thomas.
The injustice of this court’s conclusion, however, goes beyond”Jane Doe” and goes to every member of the army.
The court missed the opportunity to overturn one of the most notorious, indefensible doctrines. Created more than 70 decades ago, the Feres Doctrine has victimized hundreds of thousands of service members and their families. The court’s failure should now place pressure on Congress to finally act to terminate the tragic legacy of the Feres conclusion.
I’ve been a vocal critic of Feres for years and also wrote a three-part study of the military legal system 20 years ago that detailed this philosophy started in 1950 with a clearly erroneous reading of this Federal Tort Claims Act (FTCA). The philosophy is named after Army Lt. Rudolph Feres, that perished in a fire allegedly caused by an unsafe heating system in his New York barracks. It had been one of three cases combined for inspection by the court, including a soldier who sued following an Army doctor left with a 30-by-18-inch towel (indicated as”Medical Department U.S. Army” property) inside him.
These should have been simple cases of spectacular negligence. The FTCA just bars lawsuits against the army to”combat-related” accidents — an honest and obvious exception. However, the court set out to create a new resistance to the army and declared that any suit by army personnel could be considered”combat related.” It had been entirely nonsensical as there would be no reason to consult with combat when Congress wished to grant complete immunity to the army. He was joined in his condemnation in the left by the late Justice John Paul Stevens.
The West Point case indicates the legal lunacy and lethality of the philosophy. Jane Doe was a cadet that was allegedly raped by a fellow cadet and, according to court records, came ahead to bring costs. But, West Point failed to trace army regulation and she later dropped out of the academy.
Those lower courts can be excused for dismissing the case. After all, this is a controlling Supreme Court precedent.
The former cadet isn’t alone when it comes to neglect in handling criminal cases. In Illinois, eight girls sued the Army for”harassment and retaliation, including rape, rape, sodomy, unwelcome sexual advances and touching, requests for sexual favors, sexual innuendos, including telephone calls, and threats of physical harm, non-consensual sex and duress.” A federal court dismissed their suit under Feres.
My study found an collection of these cases. By way of instance, soldier Julius Pringle was seriously injured at a bar on a military reservation in Kansas that served both civilians and military personnel; a gang had effectively taken over the bar. After Pringle exchanged phrases with all members of this gang that were harassing his girlfriend, bar managers had thrown outside into the middle of waiting gang members. He had been beaten so badly that he suffered brain damage. Yet, he had been barred from suing.
I discovered many deaths caused by contractors who failed the simplest obligations in maintaining or using gear, together with negligent acts which were extended addressed in civilian businesses and discouraged through civil accountability. By way of instance, Lt. Joseph McConnell was murdered while waterskiing following a boat rented in Arizona in an Air Force diversion center jumped out of control due to a mechanical failure and also struck him.
In the area of medical malpractice, the study found practices and conduct that could be considered ancient in contemporary torts cases. When civilian physicians leave a patient paralyzed or crippled for a life of maintenance, relatives frequently receive countless compensation. In the army, families get a few thousand dollars each month and more army healthcare. Take Dorothy Meagher, who saw himself caring for her child once he entered a Navy hospital to have a cyst removed; thanks to an alleged overdose of anesthetics and also the failure of a Navy doctor to call immediately for help, her son had been left a quadriplegic.
Tort liability does not just create victims whole but encourages others to consider precautions. Yet, military families are left with a fraction of the financial aid given to civilians and there is less incentive to deliver practices and equipment up to contemporary standards.
As Justice Thomas properly noted, the Feres Doctrine contributes to absurd results:”When two Pentagon employees — one civilian and one a service member — are struck by a bus in the Pentagon parking lot and also sue, it might be that just the civilian could have an opportunity to litigate his claim on the merits”
Thomas said it is time to end the”judicial legislating” and”when the Feres Doctrine is so erroneous that we can’t figure out how to rein it , the better response would be to bidding it farewell.” Really, it is a farewell that’s 70 years old.
There is one other body which could do justice for army employees: Congress. For 30 decades, I’ve called on Congress to fix this judicial mistake. It needs to state expressly what should be obvious from the FTCA: Army personnel have the exact same access to their courts except for accidents related to real wartime or combat operations. Politicians are eager to use military employees since props at Veteran’s Day and Memorial Day events. However, they’ve abandoned them fodder for negligent army and contractor operations.
It is time for Congress to act and to put a stop to the Feres Doctrine.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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