Wednesday, May 5, 2021

Feres barred

Justice Clarence Thomas was the sole member of the Supreme Court to speak out Monday, criticizing the Court’s refusal to hear the case of a West Point cadet who said she was raped by a fellow cadet. Thomas’ dissent from the Court’s order was a rare moment where the conservative justice sided with the ACLU, but it was also a chance for Thomas to remind the Court that there are certain precedents he’d be fine with abandoning altogether.

Thomas argued that Doe should have been allowed to bring her case against the federal government, calling attention to the illogic of a rule that allows government contractors to sue for tort when government employees cannot. Although Congress had not specifically prohibited lawsuits like Doe’s in the FTCA, “70 years ago, this Court made the policy judgment that members of the military should not be able to sue for injuries incident to military service,” pointed out the justice.

Justice Thomas refers to the Feres Doctrine. In Feres v. United States, 340 U.S. 135 (1950), the U.S. Supreme Court held that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. Pp. 340 U. S. 136-146.

Efforts for many years within Congress to change the FTCA have proven unsuccessful. 

We posted last week about a case in Nigeria where a military person  a rape victim was awarded money damages and attorney fees against the government.

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