The Supreme Court on Monday declined to hear a lawsuit from a former West Point cadet who alleges she was raped on campus and that the academy failed to address its “pervasive and well-known culture of sexual violence.”
Justice Clarence Thomas dissented from the decision not to take up the case, writing in a brief opinion that the high court should reconsider a 1950 ruling that held that service members cannot bring such lawsuits against the government under the Federal Tort Claims Act (FTCA).
“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,” Thomas wrote. “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.”
The petitioner who was seeking Supreme Court review is identified only as Jane Doe. According to her court filings, she entered the academy in 2008 and alleged that she was raped by a fellow cadet in 2010 as a second-year student.
She says West Point officials failed to adhere to Pentagon regulations around sexual assault and did not provide her with “appropriate medical and emotional support.” Doe dropped out of the school three months after her assault.
“No servicemember should ever be told that their rape is ‘incident to service,'” Kathryn Pogin, a member of Jane Doe’s legal team, said in a statement. “Justice Thomas is right: For seventy years, the Feres doctrine has unjustly slammed shut the courthouse doors to servicemembers — even when their injuries occur, like Ms. Doe’s, on an academic campus, thousands of miles from any battlefield, and in blatant violation of the Department of Defense’s own policies and regulations. Feres was wrongly decided in 1950, and the injustice it inflicts on servicemembers is wrong today.”
The FTCA is a 1946 law that allows U.S. citizens to bring federal lawsuits against the government. The Supreme Court’s 1950 decision in Feres v. United States created a carveout that largely exempted active-duty service members from the right to file lawsuits.
It’s unclear whether other justices aside from Thomas would have supported hearing the case. Thomas wrote on Monday that there is little sense in keeping the Feres decision intact and noted that a lower court had found that under the precedent, Doe “could have brought these same claims had she been a civilian contractor employed by West Point instead of a student.”
“Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong,” he wrote. “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.”
—Updated at 5:39 p.m.