Amicus Curiae Brief — Jane Doe, Petitioner v. United States

Supreme Court briefNov 30, 2020

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No. 20-559

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JANE DOE,

Petitioner,

UNITED STATES,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE PROTECT OUR

DEFENDERS, AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN, BATTERED WOMEN’S

JUSTICE PROJECT, CALIFORNIA WOMEN’S LAW

CENTER, THE CENTER FOR LAW AND MILITARY

POLICY, END RAPE ON CAMPUS, EQUAL RIGHTS

ADVOCATES, GEORGIA MILITARY WOMEN,

HER JUSTICE, HUMAN RIGHTS WATCH,

LEGAL MOMENTUM, THE MILITARY WOMEN’S

COALITION, MINORITY VETERANS OF AMERICA,

MODERN MILITARY ASSOCIATION OF AMERICA,

NATIONAL ALLIANCE TO END SEXUAL

VIOLENCE, NATIONAL CRIME VICTIM LAW

INSTITUTE, NOT IN MY MARINE CORPS,

RED FEATHER RANCH, SERVICE WOMEN’S

ACTION NETWORK, AND THE WOMEN’S LAW

PROJECT IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------MAYA M. ECKSTEIN

Counsel of Record

MATTHEW R. MCGUIRE

KELLY R. OELTJENBRUNS

HUNTON ANDREWS KURTH LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8788

meckstein@huntonAK.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

1. Was Feres wrongly decided and should it be

overruled?

2. Alternatively, should Feres be limited so as not

to bar tort claims brought by service-members injured

by violations of military regulations, during recreational activities, or while attending a service academy?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

TABLE OF CONTENTS ......................................

INTEREST OF AMICI CURIAE .........................

SUMMARY OF THE ARGUMENT ..................... 10

ARGUMENT ........................................................ 11

The Feres Doctrine Enables Continued

Sexual Violence Perpetrated Against Service-members ............................................. 11

A. Sexual violence is pervasive in the

military ................................................ 11

B. The military justice system does not

provide an effective remedy to servicemember victims of sexual assault ....... 15

C. Feres creates a fictional dichotomy between civilians, who may seek judicial

relief for sexual violence, and servicemembers, who may not ........................ 18

II.

This Court Should Revisit Feres Now ....... 24

CONCLUSION..................................................... 27

iii

TABLE OF AUTHORITIES

Page

CASES

Brooks v. United States,

337 U.S. 49 (1949) ...................................................18

Cioca v. Rumsfeld,

720 F.3d 505 (4th Cir. 2013) ....................................22

Daniel v. United States,

139 S. Ct. 1713 (2019) .............................................25

Day v. Mass. Air Nat’l Guard,

167 F.3d 678 (1st Cir. 1999) ....................................23

Dexheimer v. United States,

608 F.2d 765 (9th Cir. 1979) ....................................23

Girouard v. United States,

328 U.S. 61 (1946) ...................................................26

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) .................................................24

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) .................................................24

Klay v. Panetta,

758 F.3d 369 (D.C. Cir. 2014) ..................................22

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) .............................................24

Lanus v. United States,

570 U.S. 932 (2013) .................................................25

Mackey v. United States,

226 F.3d 773 (6th Cir. 2000) ....................................23

Marquet v. Gates,

No. 12-cv-3117 (S.D.N.Y. Sept. 11, 2013) ................23

TABLE OF AUTHORITIES—Continued

Page

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) .................................................26

Ricks v. Nickels,

295 F.3d 1124 (10th Cir. 2002) ................................22

Smith v. United States,

196 F.3d 774 (7th Cir. 1999) ....................................23

State Oil Co. v. Khan,

522 U.S. 3 (1997) .....................................................25

Stubbs v. United States,

744 F.2d 58 (8th Cir. 1984) ......................................23

United States v. Johnson,

481 U.S. 681 (1987) ......................... 18, 19, 20, 25, 26

STATUTES

8 U.S.C. § 2674 ............................................................18

8 U.S.C. § 2680(j) .........................................................18

OTHER AUTHORITIES

2016-2018 Active Duty Military Personnel by

Service by Rank/Grade, DEFENSE MANPOWER

DATA CENTER, https://www.dmdc.osd.mil/appj/

dwp/dwp_reports.jsp ...............................................17

2019 Industry Study Report, PROTECT OUR DEFENDERS, https://tinyurl.com/yy7g2r6t ...................17

Andrew F. Popper, Rethinking Feres: Granting

Access to Justice for Service-members, 60 B.C.

L. REV. 1491 (2019) .................................................20

TABLE OF AUTHORITIES—Continued

Page

Ashley C. Schuyler, et al., Experiences of Sexual

Harassment, Stalking, and Sexual Assault

During Military Service Among LGBT and

Non-LGBT Service-members, 33 J. TRAUMATIC

STRESS 3 (June 2020)...............................................12

Chelsea M. Austin, Who’s Got Your Six: Ramiﬁcations of the Court’s Refusal to Deﬁne Incident to Service in the Feres Doctrine on

Military Sexual Assault Survivors, 2018

MICH. ST. L. REV. 987 (2018) ...................................20

CONG. RSCH. SERV., R46107, FY2020 National

Defense Authorization Act: Selected Military

Personnel Issues (2020) ..........................................19

Deirdre G. Brou, Alternatives to the Judicially

Promulgated Feres Doctrine, 192 MIL. L. REV.

1 (2007) ....................................................................21

Department of Defense Academic Program Year

2018-2019 Annual Report on Sexual Harassment and Violence at the Military Service

Academies, https://tinyurl.com/y3llydfe .................13

Department of Defense Fiscal Year 2018 Annual

Report on Sexual Assault in the Military,

https://tinyurl.com/y88k7fbr ............................. 12, 13

Department of Defense Fiscal Year 2019 Annual

Report on Sexual Assault in the Military,

https://tinyurl.com/y4dvearl ........... 12, 13, 15, 16, 17

Dwight Stirling, The Feres Doctrine and Accountability, 1 J.L. POL’Y & MIL. AFF. 1 (2019) ... 16, 19, 20

TABLE OF AUTHORITIES—Continued

Page

Earl Warren, The Bill of Rights and the Military,

37 N.Y.U. L. REV. 181 (1962) ...................................21

Gregory C. Sisk, Holding the Federal Government Accountable for Sexual Assault, 104

IOWA L. REV. 731 (2019) ..........................................21

Inspector General, U.S. Department of Defense,

Evaluation of the Separation of Service-members Who Made a Report of Sexual Assault

(May 9, 2016), https://tinyurl.com/y4ppe6xe ..........13

Janelle Nanos, Base Boston: Rape and Sexual

Assault in the Coast Guard, BOSTON MAG.

(June 25, 2013), https://tinyurl.com/y2hhtlke ........15

Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity

in the Military System of Governance, 71 GEO.

WASH. L. REV. 1 (2003) ...........................................21

Katherine Shin, Note, How the Feres Doctrine

Prevents Cadets and Midshipmen of MilitaryService Academies from Achieving Justice for

Sexual Assault, 87 FORDHAM L. REV. 767

(2018) .......................................................................22

Meagan Flynn, He went AWOL after being sexually assaulted. After 30 years, the Navy ﬁnally believed him, THE WASHINGTON POST

(June 5, 2018), https://tinyurl.com/yavp2rum ........14

Michael Winerip, Revisiting the Military’s Tailhook Scandal, N.Y. TIMES (May 13, 2013),

https://tinyurl.com/yy73lr5o ...................................11

vii

TABLE OF AUTHORITIES—Continued

Page

Military Justice Overview, PROTECT OUR DEFENDERS, https://tinyurl.com/y64g5bug ..................16

Richard E. Custin, Jordan Ondatje & Deborah

Kelly, Is It Time to Revisit the Feres Doctrine:

The Disparate Treatment of Active Duty Military Personnel under the Federal Tort Claims

Act, 22 J. L. BUS. & ETHICS 1 (2016) .......................19

Sexual Assault in the Military: Hearings Before

the Senate Armed Services Subcomm., 116th

Cong. 262 (2019) ......................................................15

Survivor Spotlight: Aviation Commander

Darchelle Mitchell, Protect Our Defenders

News Blog (May 28, 2020), https://tinyurl.com/

yxwu5m7o ...............................................................14

INTEREST OF AMICI CURIAE1

Amici curiae are committed to protecting servicemembers from sexual assault and other violence and

to ensuring that legal recourse is available when such

violence occurs.

Protect Our Defenders is dedicated to ending rape

and sexual assault in the military. It honors, supports,

and gives voice to survivors of military sexual assault

and sexual harassment—including service-members,

veterans, and civilians assaulted by members of the

military. Protect Our Defenders works for reform to ensure survivors and service-members are provided a

safe, respectful work environment and have access to

a fair, impartially administered system of justice. Protect Our Defenders routinely advocates against Feres

v. United States and the consequences the doctrine has

on service-members.

American Association of University Women

(“AAUW”) was founded in 1881 by like-minded women

who had challenged society’s conventions by earning

college degrees. Since then it has worked to increase

women’s access to higher education through research,

advocacy, and philanthropy. Today, AAUW has more

than 170,000 members and supporters, 1,000 branches,

and 800 college and university partners nationwide.

No counsel for a party authored this brief in whole or in

part, and no person other than Amici, their members, or its counsel made a monetary contribution intended to fund the preparation or submission of this brief. Counsel of record for the parties

received timely notice of Amici’s intent to ﬁle this brief under Rule

37(2)(a). All counsel consented to the ﬁling of the brief.

AAUW plays a major role in mobilizing advocates nationwide on AAUW’s priority issues to advance gender

equity. In adherence with its member-adopted Public

Policy Program, AAUW supports freedom from violence and fear of violence in homes, schools, workplaces, and communities, which extends to freedom

from sexual harassment and violence for women serving in the military and attending military academies.

Battered Women’s Justice Project (“BWJP”) serves

as a national resource center on the civil and criminal

legal responses to intimate partner violence and promotes systemic change to create an effective and just

response to victims and perpetrators of intimate partner and sexual violence, as well as the children exposed to this violence. BWJP provides resources and

training to advocates, battered women, legal system

personnel, policy makers, and others engaged in the

justice system’s response to intimate partner and sexual violence.

The mission of California Women’s Law Center

(“CWLC”) is to create a more just and equitable society

by breaking down barriers and advancing the potential

of women and girls through transformative litigation,

policy advocacy, and education. For over thirty years,

CWLC has prioritized eliminating gender discrimination and violence against women in California. CWLC

has fought for justice on behalf of female veterans who

experience Military Sexual Trauma with impact litigation, policy advocacy, trainings, and resource development.

The Center for Law and Military Policy is a nonprofit

think tank dedicated to strengthening the legal protections of those who serve our nation in uniform. Its foremost scholarly objective is elimination of the Feres

doctrine, a policy that has done—and continues to do—

substantial harm to service-members and one the Center considers a blight on the American judicial system.

End Rape On Campus (“EROC”) works to end

campus sexual assault by providing direct support for

survivors and their communities, prevention through

education, and policy on the campus, local, state, and

federal levels. EROC works to combat and eradicate

the toxicity that rape culture permeates through our

nation’s higher educational institutions, including in the

military, where this culture has persisted for decades.

Equal Rights Advocates (“ERA”) is a national

nonproﬁt legal advocacy organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. ERA works

to advance gender equity and economic security for

women and families through a combination of litigation, policy reform, direct service, and community outreach and education. Since its founding in 1974, ERA

has litigated numerous high-impact cases on issues of

gender discrimination and civil rights. Through litigation and other advocacy efforts, ERA has helped expand workplace protections and conferred signiﬁcant

beneﬁts on large groups of women and girls. ERA also

assists hundreds of individuals each year facing unfair

substandard, and unequal conditions on the job and

at school through our free national Advice and

Counseling program, including women experiencing

sexual harassment and assault in the military. ERA

has participated as amicus curiae in numerous cases

involving the interpretation and application of legal

rules and laws affecting workers’ rights and access to

justice. ERA has also represented plaintiffs in numerous employment-related civil rights cases, including

the ﬁrst case in the Ninth Circuit to establish that sexual harassment is a form of discrimination prohibited

by Title VII of the Civil Rights Act of 1964, Miller v.

Bank of America, 600 F.2d 211 (9th Cir. 1979). ERA

contends that sexual assault and violence goes largely

unaddressed in the military and simply cannot continue to be held “incident to military service.”

Georgia Military Women (“GMW”) is an informal

club of roughly 4,000 diverse individuals based in

Georgia to serve women veterans and support them as

leaders, advocates, and individuals. The group hosts

numerous meetup and networking opportunities, advocates for state legislation, and exchanges information about veteran resources and beneﬁts. GMW is

recognized nationally as a model program for bringing

military women together.

Her Justice recruits and mentors volunteer lawyers to provide free legal help to address individual

and systemic legal barriers for women in poverty in

New York City. Since 1993, Her Justice has been dedicated to making a real and lasting difference in the

lives of low-income, under-served, and abused women

by offering them legal services designed to foster equal

access to justice and an empowered approach to life.

Informed by its work, Her Justice promotes policies

that make society more responsive to the legal issues

confronting the women it serves. Approximately 80%

of Her Justice’s clients are survivors of gender-based

violence, and assisting survivors of gender-based violence has always been a substantial part of Her Justice’s practice.

Human Rights Watch is a nonproﬁt, independent

organization and the largest international human

rights organization based in the United States. For

more than 40 years, Human Rights Watch has investigated and exposed human rights violations and challenged governments to protect the human rights of all

people. Human Rights Watch investigates allegations

of human rights violations in more than 90 countries

around the world by interviewing witnesses, gathering

information from a variety of sources, and issuing detailed reports. Human Rights Watch documented the

experiences of United States service-members who are

sexual assault survivors in two reports: Booted: Lack

of Recourse for Wrongly Discharged US Military Rape

Survivors (2016) and Embattled: Retaliation Against

Sexual Assault Survivors in the US Military (2015).

Legal Momentum: The Women’s Legal Defense &

Education Fund is the nation’s oldest legal advocacy

organization for women. For 50 years, Legal Momentum has worked to advance the rights of all women and

girls by using the power of the law and creating innovative public policy. Legal Momentum was the leading

advocate for the landmark Violence Against Women

Act and its subsequent reauthorizations, which seek to

redress the historical inadequacy of the justice system’s response to domestic and sexual violence. For 40

years, Legal Momentum’s National Judicial Education

Program (“NJEP”) has provided judges across the

country with education about all aspects of sexual violence. NJEP’s two-day curriculum, Understanding Sexual Violence: The Judicial Response to Stranger and

Nonstranger Rape and Sexual Assault, has been presented in more than 25 states. Legal Momentum’s Legal Director, Lynn Hecht Schafran, is widely published

on sexual assault issues, e.g., Maiming the Soul:

Judges, Sentencing and the Myth of the Nonviolent

Rapist, 20 FORDHAM U. L. J. 3 (1993) and Judges Tell:

What I Wish I Had Known Before I Presided in an

Adult Victim Sexual Assault Case (2016), https://www.

legalmomentum.org/node/205. Ms. Schafran is a former Presidential appointee to the Defense Department

Advisory Committee on Women in the Services and a

former member of the American Bar Association

Standing Committee on Armed Forces Law.

The Military Women’s Coalition (“MWC”) is a national group of formal and informal organizations that

work collaboratively to serve and support U.S. active

duty, Guard, Reserve, Veteran, and retired servicewomen by uniting and elevating their voices to inﬂuence policy and improve their well-being. The MWC’s

member organizations, friends of the coalition, and the

scores of women they serve, stand to beneﬁt from the

overturning of Feres.

Minority Veterans of America (“MVA”) is a nonpartisan, nonproﬁt organization that was designed to

create belonging and advance equity for underserved

and underrepresented veterans, including women, people

of color, LGBTQ, and religious minorities. With several

thousand members and supporters located throughout

the country, the organization aims to transform the

narrative of the American veteran by building an interconnected community, fostering greater understanding of our memberships’ identities, and serving

minority veterans through the development of targeted programming and advocacy. MVA frequently advocates on behalf of military sexual trauma survivors

in federal and state legislatures, government agencies,

and within community organizations.

Modern Military Association of America (“MMAA”)

is a nonproﬁt, non-partisan legal services, policy, and

advocacy organization serving lesbian, gay, bisexual,

transgender, and queer military personnel, veterans,

military spouses, family members, allies, and individuals living with HIV. With over 75,000 members,

MMAA has a unique understanding of the challenges

faced by the populations it serves. Since 1993, MMAA

and its predecessors have provided legal and advocacy

assistance to over 15,000 people, including relating to

issues of military sexual assault, and has challenged

laws and regulations that target, stigmatize, discriminate against, or otherwise negatively affect LGBTQ

service-members and their families—thereby reducing

morale and diminishing military readiness by inhibiting the military’s efforts at recruiting and retention.

MMAA and its predecessors routinely appear as amici

in cases that directly affect the communities it serves.

The National Alliance to End Sexual Violence is

the voice in Washington for the 56 state and territorial

sexual assault coalitions and over 1500 local sexual assault programs who work in their communities to support survivors and end sexual violence. Its programs

see the devastating impacts of sexual violence every

day, and are deeply committed to ensuring survivors,

including those in the military and military academies,

are able to seek and receive justice.

The National Crime Victim Law Institute

(“NCVLI”) is a nonproﬁt educational and advocacy organization located at Lewis and Clark Law School in

Portland, Oregon. NCVLI’s mission is to actively promote balance and fairness in the justice system

through crime victim-centered legal advocacy, education, and resource sharing. NCVLI accomplishes its

mission through training and education; providing legal technical assistance on cases nationwide; researching and analyzing developments in crime victim law;

promoting the National Alliance of Victims’ Rights

Attorneys & Advocates; and participating as amicus

curiae in select cases that present victims’ rights issues of broad importance.

Not In My Marine Corps advocates for survivors

of sexual assault and harassment among military service-members, exposing the pervasive behaviors and

attitudes ingrained by complacent and dismissive military leadership. It provides resources for servicemembers to report harassment or assault, take action

to help themselves, and stand up for others.

Red Feather Ranch is a transformational earthbased place where women veterans and their children

transcend trauma through their relationships with

land, livelihood, and community. Many of the women

veteran trauma survivors that Red Feather Ranch

serves experienced a secondary trauma due to the negligent and or intentional acts of the military and the

military justice system.

Since its founding, Service Women’s Action Network (“SWAN”) has worked to support victims of military sexual assault, hold perpetrators accountable in

the military justice system, and ensure victims with

posttraumatic stress resulting from a sexual assault

are recognized by the United States Department of

Veteran Affairs. SWAN continues to work on these

issues today and provide direct assistance to women

facing challenges related to mental health, sexual assault, VA claims, and more. SWAN has and will continue to denounce Feres due to the barrier to justice

it creates for service-members attempting to collect

damages from the United States government for personal injuries experienced in the performance of their

duties.

The Women’s Law Project (“WLP”) is a nonproﬁt

public interest law ﬁrm with ofﬁces in Philadelphia

and Pittsburgh, Pennsylvania that seeks to eliminate

discrimination based on gender through impact litigation, policy advocacy, public education, and individual

counseling. Elimination of violence against women and

safeguarding the legal rights of women and children

who experience sexual abuse is a high priority. WLP’s

work encompasses institutional response to sexual violence in the home, at work, in school, in the military,

and in the criminal justice system. WLP represents

and counsels students subjected to sexual misconduct

in educational programs, engages in policy advocacy to

improve the response of educational institutions to

sexual violence, and participates as amicus curiae to

challenge bias against victims of domestic and sexual

violence in educational programs. WLP believes it is

essential that schools respond appropriately to sexual

harassment and that courts hold them accountable under the applicable law.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

This petition presents an all-too-familiar circumstance: a federal court (here, the U.S. Court of Appeals

for the Second Circuit) found itself bound by an incorrect and unjust legal doctrine, which required the court

to slam the courthouse doors, yet again, to a servicemember who was raped—this time on a college campus.

Sexual violence in the military is rampant, and

this Court’s decision in Feres perpetuates it. Unlike

their civilian counterparts, service-member survivors

of sexual violence have virtually no judicial recourse.

That would be an indefensible policy decision if Congress had chosen to enact a law dictating such a result.

But it is made all the worse when this unconscionable

injustice is a pure judicial creation, resulting from an

interpretation of the Federal Tort Claims Act (“FTCA”)

that is untethered to statutory text, reason, and experience.

The petition should be granted, so this Court can

ﬁx a 70-year wrong.

---------------------------------♦---------------------------------

ARGUMENT

The Feres Doctrine Enables Continued

Sexual Violence Perpetrated Against Service-members.

The history of sexual violence in the military

is deeply disturbing, but it is not inevitable. The

judicially-created Feres doctrine, unfortunately, has allowed its perpetuation, gifting a “free pass” to military

sexual assailants while leaving our nation’s defenders

without an effective avenue of redress.

A. Sexual violence is pervasive in the military.

Military sexual assault and harassment are epidemic. This is no secret.2 The statistics are staggering:

The nation’s eyes were opened to the severe problem by the

infamous 1991 Tailhook Convention, an annual Navy reunion at

which more than 90 men and women were sexually assaulted by

peers and superiors. See Michael Winerip, Revisiting the Military’s Tailhook Scandal, N.Y. TIMES (May 13, 2013), https://

tinyurl.com/yy73lr5o.

•

One-fourth of active duty women reported

that they were sexually harassed in 2018. Department of Defense Fiscal Year 2018 Annual

Report on Sexual Assault in the Military

(“2018 DOD Annual Report”), at 12, https://tinyurl.com/y88k7fbr.

•

20,500 service-members were sexually assaulted or raped in 2018. Department of Defense Fiscal Year 2019 Annual Report on

Sexual Assault in the Military (“2019 DOD

Annual Report”), at 6, https://tinyurl.com/

y4dvearl.

•

At least 62% of military sexual assaults are

committed by a service-member perpetrator

on a service-member victim. 2019 DOD Annual Report, Appendix B at 11.

•

Sexual-minority service-members suffer harassment and assault at even higher numbers.

See Ashley C. Schuyler, et al., Experiences of

Sexual Harassment, Stalking, and Sexual Assault During Military Service Among LGBT

and Non-LGBT Service-members, 33 J. TRAUMATIC STRESS 3, 6 (June 2020). This is particularly true for male service-members

identifying as gay or bisexual. Id. at 7.

These startling numbers do not tell the whole

story. Compounding the problem, sexual assault in the

military is underreported. 2019 DOD Annual Report at

14. Two of every three military victims of sexual assault did not report their assault in 2018. 2018 DOD

Annual Report at 4. The tragic underreporting makes

perfect sense: there is a well-known fear of retaliation

for reporting military sexual harassment and assault.

Indeed, reports of actual retaliation abound and add to

an already stark story:

•

Approximately 21% of female service-members who reported a sexual assault were subjected to conduct that met the legal criteria for

the kind of retaliatory behavior prohibited by

military law. 2018 DOD Annual Report at 20.

•

A third of victims separate from the military

after reporting abuse. Inspector General, U.S.

Department of Defense, Evaluation of the

Separation of Service-members Who Made a

Report of Sexual Assault, at 4 (May 9, 2016),

https://tinyurl.com/y4ppe6xe.

•

Of 82 retaliation offenses investigated in FY

2019, most involved reprisal—actions that

negatively affect professional opportunities—

and ostracism. 2019 DOD Annual Report, Appendix B at 38.

Military Service Academies are no exception to

these statistics, as Petitioner’s case reveals. Department of Defense statistics show 149 reports of sexual

assault involving a cadet or midshipman as a victim in

a single school year, 2018-19. Department of Defense

Academic Program Year 2018-2019 Annual Report on

Sexual Harassment and Violence at the Military Service Academies, at 14, https://tinyurl.com/y3llydfe.

These numbers do not represent faceless victims.

They are real people—real people who agreed to serve

this country, often at great risk to their lives, by voluntarily joining the military.

For example, Darchelle Mitchell was an Aviation

Commander in the Navy, where she has received numerous awards and accolades, including the Meritorious Unit Commendation Medal, the Navy and Marine

Corps Commendation Medal, the Navy Achievement

Medal (twice), and the Presidential Volunteer Service

Award.3 Yet, Darchelle was raped by a military colleague who forced his way into her bedroom. When

Darchelle’s son came to the door and asked what was

happening, her colleague barricaded the door and

raped her.

Heath Phillips had long wanted to follow his father and stepfather into the military and enlisted in

the Navy just ﬁve days after his seventeenth birthday.

Shortly after joining, he woke to two colleagues standing over him, one attempting to pull his pants down,

and the other ejaculating on his face. Heath reported

the assault, but his commanders did not believe him.

After that, the assaults escalated, and Heath was

raped several times. Heath tried to commit suicide and

went AWOL to get away from the abuse. He eventually

accepted an other-than-honorable discharge so that he

would not be convicted of going AWOL and forced to

return to the same ship where he was assaulted.4

Darchelle retired in 2018 with 14 years of honorable service. Survivor Spotlight: Aviation Commander Darchelle Mitchell,

Protect Our Defenders News Blog (May 28, 2020), https://tinyurl.

com/yxwu5m7o.

In May 2018, the Navy agreed to grant Heath an honorable

discharge. Meagan Flynn, He went AWOL after being sexually

Coast Guard service-member Panayiota Bertzikis

was raped by a colleague while hiking with him. When

she reported the rape, she was promptly told to “get

out” of the commanding ofﬁcer’s ofﬁce. Eventually, the

Coast Guard administratively discharged her against

her will.5

B. The military justice system does not

provide an effective remedy to servicemember victims of sexual assault.

As explained above, sexual violence in the military

is grossly underreported. This is often because survivors simply do not believe that the military will do anything about it. See, e.g., Sexual Assault in the Military:

Hearings Before the Senate Armed Services Subcomm.,

116th Cong. 262 (2019) (testimony of Senator Martha

McSally) (explaining that she did not report being

raped by a superior ofﬁcer while serving in the United

States Air Force because she “didn’t trust the system

at the time”).

That is a fair assumption—of the 5,699 “unrestricted reports” of sexual assault ﬁled in 2019,6 only

assaulted. After 30 years, the Navy ﬁnally believed him, THE

WASHINGTON POST (June 5, 2018), https://tinyurl.com/yavp2rum.

Panayiota has since started the Military Rape Crisis Center, an organization for military rape survivors. Janelle Nanos,

Base Boston: Rape and Sexual Assault in the Coast Guard, BOSTON MAG. (June 25, 2013), https://tinyurl.com/y2hhtlke.

“Restricted reports” are kept conﬁdential, are not referred

for investigation, and do not involve review by command authorities. 2019 DOD Annual Report, Appendix B at 5. “Unrestricted

795 cases (or 13.9%) were referred to court martial by

military commanders in 2019. 2019 DOD Annual Report, Appendix B at 22-23. Of those, 91 charges were

dismissed, 86 assailants were granted discharge or

resignation in lieu of court martial, and 363 proceeded

to trial. Id. Of those that proceeded to trial, only 264

involved convictions of any particular offense—or just

4.6% of the 5,699 unrestricted reports. Id.

The military justice system, as currently operating, simply is not sufﬁciently responsive to servicemembers’ reports of sexual assault. The system emerged

from historically-deferential British military principles, vesting commanders with immense authority.

Military Justice Overview, PROTECT OUR DEFENDERS

at 1, https://tinyurl.com/y64g5bug. Since World War II,

a patchwork system developed that remains inefﬁcient

and ineffective at least in part because military commanders—and not independent prosecutors—retain

power over the entire justice process, and because the

process is far more complex that its civilian counterpart. Id. at 2. The lack of external check on the system

also works against justice despite internal accountability mechanisms. See Dwight Stirling, The Feres

Doctrine and Accountability, 1 J.L. POL’Y & MIL. AFF.

1, 18-21 (2019). As evidenced by the numbers, few receive the justice they deserve, and many instead are

subject to retaliation. Indeed, service women who report sexual assault are 11 times as likely to be retaliated against as to see their attacker convicted of a sex

reports” are referred for investigation and command is notiﬁed of

the allegations. Id.

offense. 2019 DOD Annual Report, Appendix C at 20;

accord id., Appendix B at 14, 23.

Take Darchelle, Heath, and Panayiota. Despite

DNA evidence of Darchelle’s rape, the perpetrator

was found not guilty and suffered no consequence.

Darchelle’s reenlistment, though, was denied. Heath

had to take an “other than honorable” discharge so that

he would not be returned to the ship where he had

been subjected to repeated sexual abuse. And Panayiota was forcibly discharged after speaking up,

while her rapist faced no consequences.

Military personnel and statistics all tell the same

story: sexual violence is rampant among our armed

forces, and the military justice system has failed in the

vast majority of cases.7

Sexual violence in the military affects men, women, and

other gender identity individuals. And while Amici certainly hope

the pervasiveness abates for everyone, increasing gender diversity makes addressing the problem of sexual assault all the more

urgent. Between 2016 and 2018, the percentage of active duty

personnel who are women increased from 15.88% to 16.55%. 2019

Industry Study Report, PROTECT OUR DEFENDERS, at 4, https://

tinyurl.com/yy7g2r6t (compiling statistics from 2016-2018 Active

Duty Military Personnel by Service by Rank/Grade, DEFENSE

MANPOWER DATA CENTER, https://www.dmdc.osd.mil/appj/dwp/

dwp_reports.jsp). The Department of Defense’s goal of increasing

gender diversity is laudable, but the problems with Feres are unlikely to abate. Congress plainly expected the FTCA to safeguard

all of our service-members. And as women increasingly make up

more of the Armed Forces, it is vital that they have access to justice in the face of victimization.

C. Feres creates a fictional dichotomy between civilians, who may seek judicial

relief for sexual violence, and servicemembers, who may not.

Feres exacerbates the epidemic of military sexual

assault. It creates an artiﬁcial split between servicemembers and civilians, barring relief for the former

simply because they “devoted [their] li[ves] to serving

in [their] country’s Armed Forces.” United States v.

Johnson, 481 U.S. 681, 703 (1987) (Scalia, J., dissenting). This result is untenable, not because there are not

legitimate differences between service-members and

civilians, but because Feres does not draw a credible

line between the two.

Congress crafted the FTCA to act as a limited

waiver of federal sovereign immunity. When a claim

falls under the FTCA, the United States is liable to the

same extent as a private tortfeasor. 28 U.S.C. § 2674.

Congress carved out a narrow exception in the military

context for “[a]ny claim arising out of the combatant

activities of the military or naval forces, or the Coast

Guard, during time of war.” 28 U.S.C. § 2680(j) (emphases added). This Court has unequivocally permitted

service-members to bring claims under the FTCA, as

“[i]t would be absurd to believe that Congress did not

have the servicemen in mind in 1946, when this statute was passed.” Brooks v. United States, 337 U.S. 49,

51 (1949). The FTCA’s limited exceptions for combatant activities “make this plain.” Id. The text of the

FTCA, then, draws only a very limited distinction between service-members and civilians.

Feres is utterly inconsistent with Congress’s decision that service-members should be treated the same

as private citizens in most circumstances.8 Because

of Feres, service-member suits are “singled out and

barred under the FTCA.” See Richard E. Custin, Jordan Ondatje & Deborah Kelly, Is It Time to Revisit the

Feres Doctrine: The Disparate Treatment of Active Duty

Military Personnel under the Federal Tort Claims Act,

22 J. L. BUS. & ETHICS 1, 7 (2016); see also Johnson, 481

U.S. at 700 (Scalia, J., dissenting) (“[Johnson’s] widow

and children will receive only a fraction of the amount

they might have recovered had he been piloting a commercial helicopter at the time of his death.”). And Feres

follows active service-members, barring their claims

even when their assailants are not members of the military. See Johnson, 481 U.S. at 688-91. This Court thus

has concluded that service-members are disfavored

members of society when it comes to vindicating their

legal rights vis-à-vis the federal government.

In the face of this clear inconsistency, Congress recently

took some steps to re-open avenues of relief to service-members:

the FY20 National Defense Authorization Act establishes an

administrative claims process to compensate injured servicemembers whose claims for medical malpractice had been barred

by Feres. See CONG. RSCH. SERV., R46107, FY2020 National Defense Authorization Act: Selected Military Personnel Issues 262

(2020). But sexual assault victims remain without remedy, and

the complexity of the military system, along with the desire to

appear patriotic, leads “Legislators . . . to see the military as an

entity to be funded and equipped as opposed to scrutinized or

questioned.” Stirling, supra, at 14. It is no wonder, then, that Congress has not ﬁxed a problem it did not create.

Service-members face this unfair treatment for no

cognizable purpose. Consider the supposed strongest

rationale for the Feres doctrine: that FTCA suits by service-members would undermine “military discipline

and effectiveness” by involving the civilian judiciary in

military affairs. Johnson, 481 U.S. at 690. Scholarship

and experience, however, show that this is not the case.

Instead, predators are emboldened as Feres seriously

reduces their risk of facing consequences. As one study

ﬁnds, under Feres, “military managers’ power is unchecked,” and the “result is a dynamic of being ‘above

the law,’ of operating outside of the reach of standard

legal norms and standards.” See Stirling, supra, at 2.

The result? “Process is ignored and the rule of law is

deﬁled.” Id. at 24; see also Andrew F. Popper, Rethinking Feres: Granting Access to Justice for Servicemembers, 60 B.C. L. REV. 1491, 1523-24 (2019) (explaining that the military discipline rationale is unreasonable and laying out seven simple arguments why,

absent Feres, increased accountability under the FTCA

would have a “powerful corrective effect”; explaining

also that the frequency of wrongs like sexual assault

and rape “has increased to epidemic levels because of

the absence of the accountability and deterrence that

would otherwise ﬂow from civil tort actions”); and

Chelsea M. Austin, Who’s Got Your Six: Ramiﬁcations

of the Court’s Refusal to Deﬁne Incident to Service in

the Feres Doctrine on Military Sexual Assault Survivors, 2018 MICH. ST. L. REV. 987, 1017 (2018) (“[S]hutting the courthouse doors to military personnel who

have suffered at the hands of military rapists and

sexual assaulters diminishes military discipline and

cohesion.”).

Further, this artiﬁcial divide does not make sense

when military members today engage in many civilian

tasks that are not “characteristically military.” Pet.

App. 57a. The military has expanded in the past decades into “collateral areas of governance such as medicine, entertainment, and transportation,” in which the

military often “openly competes with private businesses for both military and civilian customers.” See

Jonathan Turley, Pax Militaris: The Feres Doctrine and

the Retention of Sovereign Immunity in the Military

System of Governance, 71 GEO. WASH. L. REV. 1, 4

(2003); see also Deirdre G. Brou, Alternatives to the Judicially Promulgated Feres Doctrine, 192 MIL. L. REV.

1, 4-5, 43-44 (2007) (arguing that the military performs

many functions that private individuals perform, well

beyond military decision-making).

This has two consequences: ﬁrst, more people are

affected by the military and service-member actions

and, second, the distinctly-military rationales underlying Feres make little sense in these traditionally-civilian spaces. See Gregory C. Sisk, Holding the Federal

Government Accountable for Sexual Assault, 104 IOWA

L. REV. 731, 781 (2019) (explaining that as the federal

government expands and adds public employees, “occasions expand for misconduct by federal agents to impact on individual members of the populace”); see also

Earl Warren, The Bill of Rights and the Military, 37

N.Y.U. L. REV. 181, 188 (1962) (“When the authority of

the military has such a sweeping capacity for affecting

the lives of our citizenry, the wisdom of treating the

military establishment as an enclave beyond the reach

of the civilian courts almost inevitably is drawn into

question.”).

Indeed, some of the most egregious examples of

Feres’s application come in a distinctly non-military

context, as here. By mere nature of her decision to attend a military academy and serve her country, Petitioner lacks a judicial remedy for the rape she suffered.

But if she had been raped at a non-military academy,

her claim would certainly be heard on the merits. See

Katherine Shin, Note, How the Feres Doctrine Prevents

Cadets and Midshipmen of Military-Service Academies

from Achieving Justice for Sexual Assault, 87 FORDHAM

L. REV. 767, 793 (2018) (explaining that Petitioner may

have had a successful Title IX claim had she attended

a federally funded civilian institution); accord Pet.

App. 60a-61a.

Petitioner’s case is emblematic of the overall problem with Feres and how federal courts apply the doctrine to repeatedly bar relief for survivors of sexual

violence. Examples abound. See, e.g., Klay v. Panetta,

758 F.3d 369 (D.C. Cir. 2014) (dismissing Bivens actions by twelve service-members who were “raped, sexually assaulted, stalked, . . . and severely harassed”

while on active duty); Cioca v. Rumsfeld, 720 F.3d 505

(4th Cir. 2013) (Feres precluded suits for sexual assault

incurred while on active duty in the military); Ricks v.

Nickels, 295 F.3d 1124 (10th Cir. 2002) (Feres precluded

claims for sexual assault that occurred in military

prison even though victim was fully discharged from

the military at the time of the assaults); Mackey v.

United States, 226 F.3d 773 (6th Cir. 2000) (Feres precluded claims for sexual harassment brought by Air

Force Captain against superiors who regularly ogled

and inappropriately touched her); Day v. Mass. Air

Nat’l Guard, 167 F.3d 678 (1st Cir. 1999) (Feres precluded federal claims ﬁled by National Guard member

following hazing incident in which he was sexually assaulted by other Guardsmen); Smith v. United States,

196 F.3d 774 (7th Cir. 1999) (Feres precluded claims relating to repeated rapes of female service-member

even though all of the assaults occurred while she was

off-duty and off-base); Stubbs v. United States, 744 F.2d

58 (8th Cir. 1984) (Feres precluded claims by army private sexually harassed by drill instructor; she subsequently killed herself ); Dexheimer v. United States, 608

F.2d 765 (9th Cir. 1979) (Feres precluded FTCA claims

brought by army private who alleged he was sexually

assaulted while conﬁned to disciplinary barracks);

Marquet v. Gates, No. 12-cv-3117 (S.D.N.Y. Sept. 11,

2013), ECF No. 15 (citing Feres to dismiss Bivens suit

by fourth-year cadet alleging that West Point was indifferent to her rape by an upper classman).

In short, with no statutory justiﬁcation whatsoever, Feres acts as an insurmountable obstacle to

service-members who have faced sexual violence committed by military colleagues. Congress did not intend

that result, and for good reason: it makes no sense as

a matter of law or policy.

This Court Should Revisit Feres Now.

II.

As noted above and discussed in detail by Petitioner, Pet. 8-10, Feres is an indefensible interpretation

of the FTCA, and this case is an exceptionally clean

vehicle for addressing the questions presented.9 The

time thus has come for this Court to jettison Feres notwithstanding the importance of stare decisis.

We recognize that this Court does not lightly overrule prior precedent, even when it is obviously wrong.

Knick v. Township of Scott, 139 S. Ct. 2162, 2177 (2019)

(“The doctrine of stare decisis reﬂects a judgment ‘that

in most matters it is more important that the applicable rule of law be settled than it be settled right.’ ”) (citation omitted). And when the Court has construed a

statute (as it did in Feres), stare decisis often weighs

heavily in favor of upholding prior precedent. Kimble

v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015) (citation

omitted). But it is “not an inexorable command,” id. (citation omitted), and “special justifications” exist for

overruling Feres. Halliburton Co. v. Erica P. John

Fund, Inc., 573 U.S. 258, 266 (2014). This is truly a rare

To be sure, the case has a lengthy procedural history, but

that is largely because the parties disputed whether appeals belonged in the Second Circuit or the Federal Circuit. See Pet. App.

14a-15a. The Second Circuit ultimately decided all appeals in the

case, and the court’s decision addressing the FTCA claim was unpublished because the court concluded that Petitioner’s claim was

“foreclosed by [the court’s] decision in Doe I.” Pet. App. 5a. Thus,

neither the procedural posture, nor the fact that the Second Circuit’s FTCA decision is unpublished, impacts the cert-worthiness

of this case.

case for various reasons, several of which we highlight

below.

First, Feres is an outlier that has received “widespread, almost universal criticism.” Johnson, 481 U.S.

at 700 (citation omitted) (Scalia, J., joined by Brennan,

Marshall, & Stevens, JJ., dissenting); accord Pet. 15-16

(citing criticism by lower courts). At this point, at least

ﬁve members of this Court have expressly stated that

Feres is wrong, see Daniel v. United States, 139 S. Ct.

1713, 1713 (2019) (Thomas, J., dissenting), and Justice

Ginsburg would have granted certiorari in a case that

asked for the decision to be reconsidered, id. To reiterate, the reason for that near-universal criticism is because (1) “[t]here is no support for” Feres in the text of

the FTCA, and (2) the “consequence of ” Feres’s atextual

interpretation is that service-members are “depriv[ed]

. . . of any remedy when they are injured by the negligence of the Government or its employees.” Lanus v.

United States, 570 U.S. 932, 932 (2013) (Thomas, J., dissenting) (discussing Johnson). Undoubtedly, “the analytical underpinning[s]” of Feres have been

“substantially weakened.” State Oil Co. v. Khan, 522

U.S. 3, 14 (1997).

Second, overruling Feres implicates no meaningful

reliance interests. There are no private reliance interests at stake—private interests plainly favor overruling Feres so that service-members can have their day

in court. And whatever interest the federal government has in avoiding tort liability, there is no principled basis for continuing to shield the military from

tort liability for sexual assault when all manner of

other federal agencies, like the federal prison system,

would be subject to liability for the same actions.

Johnson, 481 U.S. at 697; accord id. at 700 (rejecting

reliance on “military discipline” to justify Feres).

Lastly, it is beyond dispute that Feres has been

“tested by experience [and] has been found to be inconsistent with the sense of justice or with the social

welfare.” Patterson v. McLean Credit Union, 491 U.S.

164, 174 (1989). For more than 70 years, the men and

women who sacriﬁce so much for our country have had

the courthouse doors barred to them, including when

they are sexually assaulted on a college campus. See

supra Part I; accord Pet. 11-14. This Court’s decision

in Feres is responsible for that ongoing injustice, and

the time has come for the Court to correct its “own error.” Girouard v. United States, 328 U.S. 61, 69-70

(1946).

---------------------------------♦---------------------------------

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

MAYA M. ECKSTEIN

Counsel of Record

MATTHEW R. MCGUIRE

KELLY R. OELTJENBRUNS

HUNTON ANDREWS KURTH LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8788

meckstein@huntonAK.com

November 30, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.