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

No. 20-559

IN THE

Supreme Court of the United States

JANE DOE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF OF FEDERAL COURTS AND

CONSTITUTIONAL LAW PROFESSORS AS

AMICI CURIAE IN SUPPORT OF

PETITIONER

RASHA GERGES SHIELDS

Counsel of Record

BRITTNEY LANE KUBISCH

JONES DAY

555 South Flower Street

50th Floor

Los Angeles, CA 90071

(213) 243-2719

rgergesshields@jonesday.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ............................... 1

QUESTIONS PRESENTED ...................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 4

I.

II.

THE COURT SHOULD OVERTURN

FERES ................................................................ 4

A.

There Is No Textual Support For

The Feres Doctrine ..................................... 6

B.

The Rationales Underpinning Feres

Have Eroded ............................................... 9

C.

Stare Decisis Should Not Save Feres ....... 15

1.

The Feres doctrine is

unworkable ....................................... 15

2.

Neither reliance interests nor

congressional inaction justify

retaining Feres ................................. 18

AT THE LEAST, THIS CASE

PRESENTS THE OPPORTUNITY TO

LIMIT FERES .................................................. 20

CONCLUSION ......................................................... 23

APPENDIX: LIST OF SIGNATORIES ................... 1a

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Aikens v. Ingram,

811 F.3d 643 (4th Cir. 2016) ................................ 20

Appelhans v. United States,

877 F.2d 309 (4th Cir. 1989) .................................. 5

Boumediene v. Bush,

553 U.S. 723 (2008) .............................................. 13

Bozeman v. United States,

780 F.2d 198 (2d Cir. 1985) ............................. 9, 21

Brooks v. United States,

337 U.S. 49 (1949) .................................. 7, 8, 10, 11

CBOCS W., Inc. v. Humphries,

553 U.S. 442 (2008) .............................................. 20

Costo v. United States,

248 F.3d 863 (9th Cir. 2001) .................. 5, 9, 16, 23

Daniel v. United States,

139 S. Ct. 1713 (2019) ................................ 4, 15, 20

Daniel v. United States,

889 F.3d 978 (9th Cir. 2018) ................................ 21

Day v. Mass. Air Nat’l Guard,

167 F.3d 678 (1st Cir. 1999) .................................. 5

Downes v. United States,

249 F. Supp. 626 (E.D.N.C. 1965) ....................... 17

Dreier v. United States,

106 F.3d 844 (9th Cir. 1996) ................................ 16

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) .............................................. 20

Feres v. United States,

340 U.S. 135 (1950) ...................................... passim

Fleming v. U.S. Postal Serv.,

186 F.3d 697 (6th Cir. 1999) ................................ 22

France v. United States,

225 F.3d 658 (6th Cir. 2000) (per curiam) ............ 5

Girouard v. United States,

328 U.S. 61 (1946) ................................................ 19

Hall v. United States,

130 F. Supp. 2d 825 (S.D. Miss. 2000) ................ 16

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) .............................................. 13

Hatzlachh Supply Co. v. United States,

444 U.S. 460 (1980) (per curiam) ........................ 11

Henslee v. Union Planters Nat’l Bank & Tr. Co.,

335 U.S. 595 (1949) ................................................ 4

Hercules Inc. v. United States,

24 F.3d 188 (Fed. Cir. 1994) .................................. 6

Indian Towing Co. v. United States,

350 U.S. 61 (1955) ................................................ 10

Lanus v. United States,

492 F. App’x 66 (11th Cir. 2012) ......................... 16

Laswell v. Brown,

683 F.2d 261 (8th Cir. 1982) .................................. 5

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Lombard v. United States,

690 F.2d 215 (D.C. Cir. 1982) ...................... 4, 6, 13

Malwarebytes, Inc. v. Enigma Software

Grp. USA, LLC,

No. 19-1284, 2020 WL 6037214

(U.S. Oct. 13, 2020) ................................................ 6

McConnell v. United States,

478 F.3d 1092 (9th Cir. 2007) ........................ 16, 21

McMahon v. Presidential Airways, Inc.,

502 F.3d 1331 (11th Cir. 2007) ........................ 6, 19

Millang v. United States,

817 F.2d 533 (9th Cir. 1987) ................................ 17

Morey v. United States,

903 F.2d 880 (1st Cir. 1990) ................................ 16

Ortiz v. United States,

138 S. Ct. 2165 (2018) .......................................... 12

Ortiz v. United States ex rel. Evans

Army Cmty. Hosp.,

786 F.3d 817 (10th Cir. 2015) .......................... 5, 22

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 15

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 15

Rayonier Inc. v. United States,

352 U.S. 315 (1957) .............................................. 10

Richards v. United States,

176 F.3d 652 (3d Cir. 1999) ....................... 5, 17, 22

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Ritchie v. United States,

733 F.3d 871 (9th Cir. 2013) .................................. 4

Scales v. United States,

685 F.2d 970 (5th Cir. 1982) .................................. 5

Selbe v. United States,

130 F.3d 1265 (7th Cir. 1997) ................................ 5

Shaw v. United States,

854 F.2d 360 (10th Cir. 1988) .............................. 13

Sidley v. U.S. Dep’t of Navy,

861 F.2d 988 (6th Cir. 1988) ................................ 12

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) .......................................... 19

Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666 (1977) .............................................. 10

Taber v. Maine,

67 F.3d 1029 (2d Cir. 1995) ................... 3, 5, 15, 21

United States v. Brown,

348 U.S. 110 (1954) .............................................. 11

United States v. Johnson,

481 U.S. 681 (1987) ...................................... passim

United States v. Muniz,

374 U.S. 150 (1963) .............................................. 14

United States v. Shearer,

473 U.S. 52 (1985) .......................................... 10, 12

Whitley v. United States,

170 F.3d 1061 (11th Cir. 1999) ............................ 16

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

28 U.S.C. § 2674 ...................................................... 7, 9

28 U.S.C. § 2680 ................................................ 8, 9, 14

42 U.S.C. § 1983 ........................................................ 20

Veterans’ Benefit Act,

38 U.S.C. § 101 et seq. .......................................... 11

INTEREST OF AMICI CURIAE1

Amici Curiae, listed in the Appendix, are 15 law

professors from the nation’s leading law schools.

Amici teach, research, and write about federal

jurisdiction, constitutional law, or the intersection of

those fields. Amici have a professional interest in this

Court’s reconsideration of Feres and its extension to

bar Federal Tort Claims Act suits based on sexual

assault of students in military academies.

QUESTIONS PRESENTED

Amici adopt the questions presented by the

Petitioner. In addition, amici add the following

question presented:

If Feres is not overturned, should it be limited to

bar claims only when the servicemember was injured

while performing duties under orders?

SUMMARY OF THE ARGUMENT

Jane Doe, a college student, was raped on campus

by a classmate while out on a walk one evening. Ms.

Doe’s college did little to help her afterwards—indeed,

far less than its own policies required. Worse, the

college tolerated, and in some cases encouraged, the

atmosphere of sexual harassment that led to Ms.

Doe’s rape. In most circumstances, Ms. Doe would be

able to sue her college for the injuries she suffered as

a result of its conduct. But Ms. Doe did not attend just

1 Counsel of record for all parties received timely notice of

the intention to file this brief and consented to the filing. No

counsel for a party authored this brief in whole or part, and no

person other than amici and their counsel made any monetary

contribution intended to fund this brief.

2

any college; she attended West Point. Solely because

of this, the Second Circuit concluded that Ms. Doe

could not bring her claims.

This harsh conclusion rested on this Court’s

decision in Feres v. United States, 340 U.S. 135 (1950).

In Feres, the Court held that although the Federal

Tort Claims Act (“FTCA”) largely waived the federal

government’s sovereign immunity for negligence, it

did not waive immunity for claims of injury sustained

by servicemembers acting “incident to the service.”

Id. at 138. This incident-to-service exception finds no

support in the text of the FTCA, and over the years,

has been interpreted increasingly broadly to include

any injury that an active servicemember suffers at the

hands of the government—no matter how far removed

from his or her actual military duties.

This case exemplifies the overbreadth and

unfairness of Feres. At the time of her rape, Ms. Doe

was not a soldier engaged in combat or on base; she

was, in fact, not yet even obliged to enter into military

service.

Nor was Ms. Doe doing anything

characteristically “military.”

The only thing

connecting Ms. Doe’s rape to military service was her

enrollment at West Point. Yet under Feres, that alone

was enough to make her rape incident to military

service.

Ms. Doe’s case is not an outlier. The Feres

doctrine denies servicemembers recovery for injuries

sustained in many circumstances far removed from

their military duties, including drinking at a bar,

picnicking with family, water-skiing on leave, and

even giving birth.

The result is second-class

citizenship for servicemembers: While civilians can

sue the government under the FTCA to recover when

3

its negligent acts injure them, Feres denies

servicemembers any relief under the statute.

In light of this, it should come as no surprise that

the Feres doctrine is nearly universally criticized and

only reluctantly followed. This, of course, would not

matter if the Feres doctrine had been dictated by

Congress. In that circumstance, the Court would be

bound to apply it, regardless of the harsh

consequences that result. See United States v.

Johnson, 481 U.S. 681, 703 (1987) (Scalia, J.,

dissenting). But Congress did not enact the Feres

exception to the FTCA; this Court created the

exception based on policy rationales that it later

rejected. Without a textual basis or a viable policy

rationale to guide the doctrine’s application, the result

has been confusion and conflicting rulings among

courts across the country.

For these reasons,

respected jurists from various jurisprudential

backgrounds agree: Feres should be overturned.

To be sure, this is not the first petition asking this

Court to overturn Feres. But that is a reason to grant

the petition—not to reject it.

Litigants have

repeatedly asked this Court to reconsider Feres

because the lower courts have repeatedly struggled

with the arbitrary and unfair outcomes that result

from its application. And litigants will continue to ask

this Court to bring sense and reason to such an

“exceedingly willful” reading of the FTCA until it does

so. Taber v. Maine, 67 F.3d 1029, 1038 (2d Cir. 1995).

The Government will no doubt argue that because

petitions seeking to overrule Feres have been “often

and recently denied,” this Court should deny this

petition, too. But the mere fact that the Court has

previously refused to reconsider Feres is not in and of

4

itself a reason to deny certiorari. To argue otherwise

urges this Court to abdicate its role to critically

consider whether a problematic doctrine should be

retained. As Justice Frankfurter so aptly put it,

“Wisdom too often never comes, and so one ought not

to reject it merely because it comes late.” Henslee v.

Union Planters Nat’l Bank & Tr. Co., 335 U.S. 595,

600 (1949) (Frankfurter, J., dissenting).

For seventy years, the judge-made Feres doctrine

has denied relief to those who make the greatest

sacrifices for our country. It is time for this Court to

correct its error by overturning Feres or, at the very

least, by narrowing the meaning of “incident to

service.”

ARGUMENT

I.

THE COURT SHOULD OVERTURN FERES.

For the past seventy years, “the Feres doctrine has

been criticized by countless courts and commentators

across the jurisprudential spectrum.” Ritchie v.

United States, 733 F.3d 871, 874 (9th Cir. 2013)

(internal quotation marks omitted). Justice Thomas

agrees, as did Justices Ginsburg, Scalia, and Stevens:

Feres should be overturned. See Daniel v. United

States, 139 S. Ct. 1713, 1713 (2019) (Thomas, J.,

dissenting from denial of cert.); Id. (Ginsburg, J.)

(voting to grant certiorari in a petition seeking to

overrule Feres); Johnson, 481 U.S. at 692 (Scalia, J.,

dissenting, joined by Brennan, Marshall, Stevens,

J.J.); see also Lombard v. United States, 690 F.2d 215,

233 (D.C. Cir. 1982) (Ginsburg, J., concurring in part

and dissenting in part) (describing Feres as “a

problematic court precedent”).

5

Every Court of Appeals has openly criticized Feres

when applying it. See, e.g., Day v. Mass. Air Nat’l

Guard, 167 F.3d 678, 683 (1st Cir. 1999) (“Possibly

Feres itself deserves reexamination by the Supreme

Court.”); Taber, 67 F.3d at 1038 (“[Feres’] reading of

the FTCA was exceedingly willful, and flew directly in

the face of a relatively recent statute’s language and

legislative history.”); Richards v. United States, 176

F.3d 652, 657 (3d Cir. 1999) (“It is because Feres too

often produces such curious results that members of

this court repeatedly have expressed misgivings about

it.”); Appelhans v. United States, 877 F.2d 309, 313

(4th Cir. 1989) (criticizing Feres but concluding that

the “undeniably harsh results [of Feres do] not relieve

this court of its obligation to apply precedent”); Scales

v. United States, 685 F.2d 970, 974 (5th Cir. 1982)

(“Though the rationale underlying Feres has been

criticized by courts and commentators it remains the

law to which we must adhere.” (internal citations

omitted)); France v. United States, 225 F.3d 658 (6th

Cir. 2000) (per curiam) (“[M]any courts and

commentators have strongly criticized the Feres

decision.”); Selbe v. United States, 130 F.3d 1265, 1268

(7th Cir. 1997) (reluctantly applying Feres despite the

“tenuous link” between the Feres rationales and the

servicemember’s injuries); Laswell v. Brown, 683 F.2d

261, 265 (8th Cir. 1982) (“Feres doctrine has long been

criticized by courts and commentators”); Costo v.

United States, 248 F.3d 863, 869 (9th Cir. 2001)

(“reluctantly” applying Feres to bar the plaintiff’s

lawsuit and “join[ing] the many panels of this Court

that have criticized the inequitable extension of this

doctrine to a range of situations that seem far

removed from the doctrine’s original purposes”); Ortiz

6

v. United States ex rel. Evans Army Cmty. Hosp., 786

F.3d 817, 818 (10th Cir. 2015) (“[T]he facts here

exemplify the overbreadth (and unfairness) of the

doctrine, but Feres is not ours to overrule.”); McMahon

v. Presidential Airways, Inc., 502 F.3d 1331, 1341–42

(11th Cir. 2007) (“The Feres doctrine has been

controversial … [but] remains the law”); Lombard,

690 F.2d at 227 (expressing “considerable sympathy”

for plaintiff, but explaining that it “must adhere to

Feres”); Hercules Inc. v. United States, 24 F.3d 188,

207 (Fed. Cir. 1994) (Plager, J., dissenting) (noting the

Court has struggled to find a “reasoned basis” for

Feres).

This near-universal criticism is well-deserved.

See Johnson, 481 U.S. at 700 (Scalia, J., dissenting).

Feres lacks any basis in the text of the FTCA, the

rationales that originally justified the decision have

been abandoned, and lower courts struggle to apply it

in a consistent and logical way, without either a

textual or a policy rudder. Stare decisis should not

save a decision like Feres that is both wrong and

unworkable. The time has come for this Court to

overrule—or at the very least to narrow—its decision

resulting from the “too-common practice of reading

extra immunity into statutes where it does not

belong.” Malwarebytes, Inc. v. Enigma Software Grp.

USA, LLC, No. 19-1284, 2020 WL 6037214, at *2

(U.S. Oct. 13, 2020) (Thomas, J., statement respecting

denial of certiorari).

A. There Is No Textual Support For The

Feres Doctrine.

When the Court in Feres decided that the FTCA

did not cover servicemember’s tort claims that arose

incident to service, it made no effort to root this

7

exception in the text of the FTCA. Nor could it. The

Feres doctrine has no support in the text, structure, or

history of the FTCA. To the contrary, all of the

foregoing suggest that the FTCA does not exclude

servicemembers’ claims for injuries sustained

“incident to service.”

The FTCA broadly waives the federal

government’s sovereign immunity from tort liability

for the acts of federal employees. Specifically, it

provides that “[t]he United States shall be liable,

respecting the provisions of this title relating to tort

claims, in the same manner and to the same extent as

a private individual under like circumstances.” 28

U.S.C. § 2674. Nothing in the language of this

provision suggests that servicemembers cannot bring

claims against the United States. “Read as it is

written” the FTCA “renders the United States liable

to all persons, including servicemen, injured by the

negligence of Government employees.” Johnson, 481

U.S. at 693 (Scalia, J., dissenting). Indeed, when, in

Brooks v. United States, 337 U.S. 49 (1949), the Court

held that an off-duty serviceman could sue the

government for injuries sustained in a collision with

an Army truck, this Court acknowledged that the

FTCA’s

plain

language

does

not

exclude

servicemembers’ claims. As the Court explained in

that case, the FTCA gave federal courts jurisdiction

over “any claim founded on negligence brought

against the United States,” and “any claim” does not

mean “any claim but that of servicemen.” Id. at 51

(emphasis added).

None of the FTCA’s thirteen enumerated

exceptions bars servicemembers from bringing claims

that arise incident to their service either. Instead, the

8

text of the FTCA contains a far narrower exception for

“claim[s] arising out of the combatant activities of the

military ... during time of war.” 28 U.S.C. § 2680(j).

The fact that Congress enumerated “lengthy” and

“specific” exceptions to the FTCA, including an

exception specifically targeted at military conduct,

shows that Congress contemplated liability to

servicemen and decided not to exclude most of their

claims from the FTCA. Brooks, 337 U.S. at 51. As the

Court stated in Brooks, “[i]t would be absurd to believe

that Congress did not have the servicemen in mind in

1946, when this statute was passed.” Id. It clearly

“specifically considered, and provided what it thought

needful for, the special requirements of the military.”

Johnson, 481 U.S. at 693 (Scalia, J., dissenting).

Those “needful” exceptions did not include one for any

injury that a servicemember suffered incident to

service.

Indeed, before enacting the FTCA, Congress

specifically considered precluding all lawsuits by

servicemembers, but ultimately decided against that

approach. Feres, 340 U.S. at 139. “[E]ighteen tort

claims bills were introduced in Congress between

1925 and 1935 and all but two expressly denied

recovery to members of the armed forces; but the bill

enacted ... made no exception.” Id. (citing Brooks, 337

U.S. at 51). Instead, Congress chose to include a much

more limited exception for combat injuries. 28 U.S.C.

§ 2680.

All of this evidence shows that the FTCA does not

exclude servicemember’s claims that arise incident to

service. Rather, the incident-to-service exception

resulted from this Court engaging in judicial policymaking that contradicted the statute’s text, structure,

9

and history. See Johnson, 481 U.S. at 694 (Scalia, J.,

dissenting).

B. The Rationales Underpinning Feres

Have Eroded.

Having no basis in the FTCA’s text, Feres and its

progeny proffer four policy rationales to justify the

incident-to-service exception. But those rationales all

have been abandoned or discredited and no longer can

justify the arbitrary and unfair outcomes Feres

produces.

1. Parallel Liability. The only rationale for Feres

that even refers to the FTCA’s text relies on the

FTCA’s waiver of the government’s sovereign

immunity “in the same manner and to the same

extent as a private individual under like

circumstances.” 28 U.S.C. § 2674; Feres, 340 U.S. at

141–42. Since private individuals cannot raise armies,

the argument goes, the FTCA did not waive the

government’s immunity with respect to soldiers who

are injured on active duty. Feres, 340 U.S. at 141–42.

But this rationale would render many of the Act’s

exceptions superfluous “since private individuals

typically do not, for example, transmit postal matter,

collect taxes or customs duties, impose quarantines,

or regulate the monetary system.” Johnson, 481 U.S.

at 694 (Scalia, J., dissenting) (citing 28 U.S.C.

§ 2680(b), (c), (f), (i)). And many claims barred by

Feres involve conduct that is not uniquely

governmental—like serving alcohol, recreational river

rafting, or protecting college students from sexual

assault. Bozeman v. United States, 780 F.2d 198 (2d

Cir. 1985) (serving alcohol); Costo, 248 F.3d at 867–68

(recreational river rafting); Pet.App.4a–7a (sexual

assault). This rationale was thus quickly abandoned.

10

Rayonier Inc. v. United States, 352 U.S. 315, 319 (1957)

(recognizing that “the very purpose of the [FTCA] was

to

…

establish

novel

and

unprecedented

governmental liability”).

2. Uniform Treatment Under Federal Law.

Feres also reasoned that the incident-to-service

exception was necessary to avoid unfairly subjecting

servicemembers to the vagaries of the tort law of the

state where the military happened to assign them.

Feres, 340 U.S. at 142–43. As Justice Scalia noted,

“[t]he unfairness to servicemen of geographically

varied recovery is, to speak bluntly, an absurd

justification given that ... nonuniform recovery cannot

possibly be worse than (what Feres provides) uniform

nonrecovery.” Johnson, 481 U.S. at 695–96 (Scalia, J.,

dissenting).

Perhaps because Feres’ original

justification is so absurd, subsequent decisions have

shifted the focus to the military’s need for uniform

standards. See, e.g., Stencel Aero Eng’g Corp. v.

United States, 431 U.S. 666, 672 (1977). But this

rationale is likewise unpersuasive: The FTCA allows

civilians and servicemembers who are not acting

incident to service to recover against the military,

even though this too requires application of

nonuniform state tort law. Brooks, 337 U.S. 49

(liability to servicemembers not acting incident to

service); Indian Towing Co. v. United States, 350 U.S.

61, 69 (1955) (liability to civilians). Thus, it is

unsurprising that this Court has deemed this

rationale “no longer controlling.” United States v.

Shearer, 473 U.S. 52, 58, n.4 (1985).

3. Military Benefits. The Feres Court further

reasoned that the incident-to-service exception made

sense because Congress had already provided a

11

“system[] of simple, certain, and uniform

compensation” for servicemembers killed or injured in

the line of duty through the Veterans’ Benefit Act

(“VBA”), 38 U.S.C. § 101 et seq., making it unlikely

that Congress meant to permit additional recovery

under the FTCA. Feres, 340 U.S. at 144. Specifically,

the Court reasoned that “[i]f Congress had

contemplated that [the FTCA] would be held to apply

[here] it is difficult to see why it should have omitted

any provision to adjust these two types of remedy to

each other.” Id. Accordingly, the Court reasoned that

the VBA provided the “sole remedy for serviceconnected injuries.” Hatzlachh Supply Co. v. United

States, 444 U.S. 460, 464 (1980) (per curiam).

But this rationale does not justify Feres either.

The availability or unavailability of VBA benefits does

not influence the application of the Feres doctrine at

all. To the contrary, applying Feres, courts have both

permitted servicemen to raise FTCA claims where

they could collect VBA benefits and refused to permit

servicemen to raise FTCA claims where they could not

collect VBA benefits. In Brooks, for instance, the fact

that the serviceman had “already received VBA

benefits troubled [this Court] little,” because nothing

in the FTCA or the VBA stated that their remedies

were exclusive, and the Court “refused to ‘call either

remedy … exclusive … when Congress ha[d] not done

so.’” Johnson, 481 U.S. at 697 (Scalia, J., dissenting)

(quoting Brooks, 337 U.S. at 53). The Court repeated

this reasoning in a case decided after Feres, noting

that “the receipt of disability payments under the

[VBA] ... did not preclude recovery under the [FTCA]

but only reduced the amount of any judgment under

the latter Act.” United States v. Brown, 348 U.S. 110,

12

113 (1954). On the flip side, courts have applied Feres

to bar recovery even when VBA benefits were not

available. As one court explained, “[w]hile the

existence of an alternate compensation system, such

as the VBA, makes the sometimes harsh effect of the

Feres doctrine more palatable, the denial or

unavailability of these benefits does not affect the

applicability of the Feres doctrine.” Sidley v. U.S.

Dep’t of Navy, 861 F.2d 988, 991 (6th Cir. 1988).

Because this rationale has no relation to the Feres

doctrine’s application, this Court has determined that

it too is “no longer controlling.” Shearer, 473 U.S. at

58 n.4.

Military Discipline. Given the weakness of

the three original Feres rationales, the Court

subsequently added a fourth. See id. at 57; Johnson,

481 U.S. at 698–99 (Scalia, J., dissenting). The Court

reasoned that claims raised by soldiers to redress

injuries are “the type of claims that, if generally

permitted, would involve the judiciary in sensitive

military affairs at the expense of military discipline

and effectiveness.” Shearer, 473 U.S. at 59.

4.

Like the other Feres rationales, this post-hoc

rationalization falls apart on closer review. To start,

this Court has not shied away from reviewing claims

merely because they involve sensitive military

judgments. This Court, for instance, accepts review of

military court martial decisions that implicate the

military’s discipline of its own ranks. See Ortiz v.

United States, 138 S. Ct. 2165, 2173–80 (2018). And

it scrutinizes the military’s decisions regarding the

detention of both civilian and foreign enemy

combatants, despite the government’s assertion that

permitting judicial review would result in “discovery

13

into military operations [that] would … intrude on the

sensitive secrets of national defense.” See Hamdi v.

Rumsfeld, 542 U.S. 507, 531–32, 535 (2004) (plurality

opinion) (concluding that “it does not infringe on the

core role of the military for the courts to exercise their

own time-honored and constitutionally mandated

roles of reviewing and resolving claims like those

presented here”); see also Boumediene v. Bush, 553

U.S. 723, 795 (2008) (permitting judicial review of the

detention of foreign enemy combatants even though it

might “burden” the military). It is hard to see how

judicial review of negligence claims relating to things

like recreational boating accidents, serving too much

alcohol, and handling sexual assault claims of college

students could possibly pose more of a risk of

involving the judiciary in sensitive military affairs

than the types of cases this Court already allows. See

supra at 8.

In addition, “the argument that judicial scrutiny

of military orders [under the FTCA] would adversely

affect discipline proves too much, for it would preclude

any civilian FTCA claim for damages resulting from

military exercises.” Lombard, 690 F.2d at 233

(Ginsburg, J., dissenting). Yet the Feres doctrine

allows civilian claims to proceed. Indeed, in some

cases, injury to both a servicemember and a civilian

arises from the same act of negligence, and will

require inquiry into exactly the same military

decisions, but Feres bars only the servicemember’s

claim. See, e.g., Shaw v. United States, 854 F.2d 360,

363–65 (10th Cir. 1988) (barring claims of serviceman

under Feres to avoid sensitive inquiry into military

affairs even though his wife’s claims arising from the

same car accident would not be barred). This makes

14

no sense. If courts can assess military conduct under

the FTCA in the context of civilian suits without

impermissibly intruding on military affairs, then they

can do the same for servicemembers.

Nor would elimination of the Feres doctrine

overwhelm the courts with claims requiring judicial

scrutiny of sensitive military decisions. Congress

crafted express textual exceptions to address “those

suits most threatening to military discipline”—that is,

claims arising from conduct in foreign countries,

combat activities, intentional torts, “discretionary”

functions, or the execution of statutory or regulatory

duties. See Johnson, 481 U.S. at 699–700 (Scalia, J.

dissenting) (citing 28 U.S.C. § 2680(a), (h), (j), (k)).

For those claims that the FTCA’s textual exceptions

do not cover, but Feres does—like the handling of a

college student’s sexual assault claim at issue here—

it is doubtful that tort liability would have any

adverse impact on military decision-making or

discipline. See id. at 699 (questioning whether “the

effect upon military discipline is so certain”). To the

contrary, denying servicemembers relief might

negatively impact military discipline and morale. See

id. at 700. In short, judicial speculation about “the

effect upon military discipline is [not] so certain …

that [this Court is] justified in holding … that

Congress did not mean what it plainly said in the

[FTCA].” Id. at 699; see also United States v. Muniz,

374 U.S. 150, 163 (1963) (refusing to exempt federal

prisoners’ claims from the FTCA based on speculation

about the effect on prison discipline).

For these reasons, this post-hoc rationalization

cannot sustain Feres either.

15

C. Stare Decisis Should Not Save Feres.

Without text or policy to support it, Feres can be

defended

only

on

stare

decisis

grounds.

Unsurprisingly, in recent petitions seeking to overrule

Feres, the Government has heavily relied on stare

decisis to defend the decision. See, e.g., Resp’t Br. at

4–5, Daniel, 139 S. Ct. 1713 (No. 18-460). But stare

decisis is “not an inexorable command,” as this Court

has repeatedly recognized. See, e.g., Pearson v.

Callahan, 555 U.S. 223, 233 (2009).

When a

precedent of this Court is not only wrong, but also

poorly reasoned or unworkable, stare decisis should

not save it. Payne v. Tennessee, 501 U.S. 808, 827

(1991). Feres fits that description to a tee.

1. The Feres doctrine is unworkable.

Nearly universally, courts and commentators

agree that Feres was wrongly decided, for the reasons

already explained. But Feres is more than wrong; it

lacks any grounding in text and sound reasoning, and

thus has proven unworkable in practice. Courts

struggle to apply Feres in a logical and consistent

manner to the many different tort claims that

servicemembers bring against the United States.

Despite seventy years’ worth of attempts, courts have

been unable to craft a consistent definition for Feres’

incident-to-service requirement. And this Court’s own

efforts to solidify Feres in Johnson left “the lower

courts [only] more at loose ends than ever.” Taber, 67

F.3d at 1043. “[T]he Feres doctrine has gone off in so

many different directions that it is difficult to know

precisely what the doctrine means today.” Id. at 1032.

It is a “confusing area of law,” id. at 1038, that has led

to “inconsistent results that have no relation to the

16

original purpose of Feres,” Costo, 248 F.3d at 875

(Ferguson, J., dissenting).

A review of some of the decisions applying Feres

in the lower courts demonstrates just how “confusing”

and “inconsistent” the doctrine has become. Applying

Feres, courts have held that the United States retains

immunity if a drunken, off-duty serviceman drowns

when falling off a pier, but not if he drowns when

falling into an on-base drainage channel. Compare,

e.g., Morey v. United States, 903 F.2d 880, 881 (1st Cir.

1990) (Feres barred claims of drunken serviceman

who drowned after falling off a pier), with, e.g., Dreier

v. United States, 106 F.3d 844, 845–46 (9th Cir. 1996)

(Feres did not bar claims of drunken serviceman who

drowned after falling into on-base drainage channel).

Likewise, courts have held that the United States

retains immunity when its negligent upkeep of a

home results in a servicemember dying in a fire, but

not when the death results from carbon monoxide

poisoning. Compare, e.g., Lanus v. United States, 492

F. App’x 66, 68–69 (11th Cir. 2012) (Feres barred

claims of a serviceman killed in a fire in his home),

with, e.g., Hall v. United States, 130 F. Supp. 2d 825,

826–29 (S.D. Miss. 2000) (Feres did not bar claims of

a serviceman killed by carbon monoxide poisoning in

his home). And courts have held that the United

States retains immunity when a servicemember is

injured during a recreational water-skiing trip, but

not during a recreational rugby event. Compare, e.g.,

McConnell v. United States, 478 F.3d 1092, 1093–94

(9th Cir. 2007) (Feres barred claims of serviceman

killed while waterskiing), with, e.g., Whitley v. United

States, 170 F.3d 1061, 1068–70 (11th Cir. 1999) (Feres

17

did not bar claims of serviceman killed while

attending rugby event).

Indeed, whether a particular claim falls within

the Feres doctrine often turns on random details that

have no apparent relationship with Feres’ stated

purposes. Take a hypothetical car accident as an

example. Suppose a serviceman driving around base

suddenly loses control and causes a number of

accidents. He hits an off-duty servicewoman and her

child having a picnic at an on-base park. Then he

crashes into two privately-owned vehicles: one driven

on a base-owned road by a serviceman who obtained a

pass to leave the base and the other driven on a stateowned highway by a serviceman who obtained

permission (but no formal pass) to leave to the base to

help his pregnant wife. Applying the Feres doctrine,

courts would likely bar the claims of the

servicewoman at the picnic and the serviceman

driving on the state-owned highway to meet his wife,

but not the servicewoman’s child or the serviceman

driving on the base road with a pass. See, e.g., Millang

v. United States, 817 F.2d 533, 534–35 (9th Cir. 1987)

(Feres barred claims of off-duty serviceman injured by

a military truck while attending a family picnic on

base); Richards, 176 F.3d at 653–54 (Feres barred

claims of serviceman killed while driving home on a

state-owned highway to meet his pregnant wife

because he had only permission to leave and not a

formal pass); Downes v. United States, 249 F. Supp.

626, 627–28 (E.D.N.C. 1965) (Feres did not bar claims

of serviceman injured while driving on base to meet

movers at his home because he obtained a pass). It is

hard to see how this incoherent set of holdings

concerning liability furthers the rationales of uniform

18

application of law, avoiding double recovery of

veteran’s benefits, or respecting military discipline.

And it is harder still to justify these arbitrary

outcomes when they have no basis in the choices

Congress made but are instead based on

“unauthorized rationalization [of this Court] gone

wrong.”

Johnson, 481 U.S. at 702 (Scalia, J.,

dissenting).

These examples show just some of the confusion

that Feres has sown in the circuit courts.

Disagreements between and among the circuit courts

abound on Feres questions. See Pet. 25–28.

2. Neither reliance interests nor

congressional inaction justify retaining

Feres.

The government may argue that Feres should be

retained—even if it is wrong and even if it is

unworkable—because Feres is a longstanding

precedent that has engendered reliance and because

Congress could overturn it, if it saw fit. But neither

argument warrants refusing to reconsider this

problematic decision.

Although in some circumstances, reliance

interests weigh against overturning a precedent that

has been on the books for so long—even if it is wrong—

this is not one of them. Overruling Feres will not open

the floodgates to claims against the military.

Congress provided a number of express exemptions in

the FTCA that preclude liability in cases where

judicial scrutiny poses any real risk of interfering with

military operations. See supra at 11–12. Where Feres

reaches broader than these textual exemptions, it has

not engendered reliance, but rather confusion and

19

uncertainty as circuits apply different tests to reach

different results on essentially the same claims. See

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2098

(2018) (reliance does not weigh in favor of retaining a

precedent where it “no longer [offers] a clear or easily

applicable standard”). Moreover, to the extent the

government asserts that it relies on this Court’s

mistaken decision in Feres to escape liability for its

negligence in providing servicemembers with

domestic housing, medical care, education, or

recreational activities, it is claiming a reliance

interest that is simply not worth protecting. Id.

(noting that stare decisis does not protect illegitimate

reliance interests like avoiding taxes).

That Congress could amend the FTCA to

eliminate the Feres doctrine should not dissuade this

Court from overruling Feres. Congress’ inaction does

not indicate that it agrees with Feres. This Court can

discern little from the “unlegislated desires of later

Congresses with regard to one thread in the fabric of

the FTCA.” Johnson, 481 U.S. at 702–03 (Scalia, J.,

dissenting). Nor is Feres the type of case where judges

simply misread statutory text. Feres was a bald act of

judicial policymaking made without reference to

statutory text. Indeed, lower courts describe the Feres

doctrine as “a judicially created exception to the

federal government’s waiver of sovereign immunity.”

McMahon, 502 F.3d at 1341 (emphasis added). This

Court cannot “properly place on the shoulders of

Congress the burden of the Court’s own error.”

Girouard v. United States, 328 U.S. 61, 69–70 (1946).

Moreover, Feres is no longer a single mistaken

decision—it is a jurisprudential cancer. The confusion

and unpredictability that Feres initially created in

20

FTCA cases has metastasized over the years to other

statutes and distorted other areas of law. See, e.g.,

Daniel, 139 S. Ct. at 1714 (noting that the Feres

doctrine creates “distortions of other areas of law”)

(Thomas, J., dissenting from denial of cert.); Aikens v.

Ingram, 811 F.3d 643, 648–49 (4th Cir. 2016) (noting

the Feres doctrine now applies beyond the FTCA to

Bivens actions and claims brought under 42 U.S.C. §

1983). Given this, the onus should not be on Congress

to try to untangle the confusion this Court created.

See Exxon Shipping Co. v. Baker, 554 U.S. 471, 507

(2008) (“[I]t is hard to see how the judiciary can wash

its hands of a problem it created.”).

In short, applying stare decisis to a doctrine like

Feres will not further the principles of “stability and

repose,” but will instead allow Feres’ error to continue

to “metastasize[] …, thereby distorting the law.”

CBOCS W., Inc. v. Humphries, 553 U.S. 442, 470

(2008) (Thomas, J., dissenting).

Stare decisis,

therefore, should not stop this Court from

reconsidering and overruling this problematic

decision.

II. AT THE LEAST, THIS CASE PRESENTS

THE OPPORTUNITY TO LIMIT FERES.

If the Court is not inclined to overturn Feres, it

should still grant certiorari to limit Feres. This case

demonstrates the unfairness and absurdity of an

overly broad application of the Feres doctrine. Being

raped by a college classmate should not be regarded

as an activity that is incident to service, even if the

rape occurs at a military academy.

The Feres doctrine as originally conceived would

not have barred a claim relating to a cadet’s off-duty

21

rape. When this Court originally decided Feres, it

viewed the doctrine as an analogy to newly emerging

workers’ compensation statutes. Feres, 340 U.S. at

143 (discussing emerging worker’s compensation

laws). Feres, thus, can be “understood as an attempt

to preclude suits by servicemembers against the

government because, as military employees, they

received government disability and death benefits—

benefits that the Court observed were similar to (and

if anything more generous than) most civilian

workers’ compensation awards.” Taber, 67 F.3d at

1038. If it is retained, Feres should be limited to this

original purpose, barring only injuries sustained,

“where compensation [would be] given under a

military analogue to workers’ compensation,” id. at

1045—that is, where the servicemember was injured

“while performing duties under orders,” see Feres, 340

U.S. at 146.

As it stands now, Feres applies in circumstances

that are remote from this worker’s compensation

analogy. Under current jurisprudence, Feres denies

servicemembers relief for any injury inflicted by any

government entity, based on the mere happenstance

of the servicemember’s active duty status. This

includes claims that have no discernable relationship

with the military’s unique mission or the

servicemembers’ actions taken in the line of duty—

claims about bars serving too much alcohol, hospitals

providing negligent medical care during childbirth,

recreational outfits improperly maintaining their

equipment, or colleges mishandling sexual assaults.

Bozeman, 780 F.2d at 198–99 (serving alcohol); Daniel

v. United States, 889 F.3d 978, 980 (9th Cir. 2018)

(care during childbirth); McConnell, 478 F.3d at 1093–

22

94 (waterskiing); Pet.App.4a–7a (sexual assault).

Feres even precludes servicemember claims against

government entities other than the military. Johnson,

481 U.S. at 686–88 & nn.7–8 (Feres barred

servicemember’s claim against the Federal Aviation

Administration); see also Fleming v. U.S. Postal Serv.,

186 F.3d 697, 699–701 (6th Cir. 1999) (Feres did not

bar claim against the postal service only because the

servicemember was not acting incident to service).

And Feres further precludes family members’ claims

that derive from the servicemembers’ injuries. See,

e.g., Ortiz, 786 F.3d at 818 (Feres barred child’s claim

because her injury derived from negligent medical

care of the servicemember mother during birth).

Feres

requires

these

“counter-intuitive

and

inequitable result[s] simply because of [the

servicemember’s] military status.” Richards, 176

F.3d at 657.

Applying Feres to bar Ms. Doe’s claim

demonstrates how far Feres has departed from its

initial underpinnings. Ms. Doe was taking a walk

with a classmate on her college campus after hours,

and that classmate raped her. Her college created the

atmosphere of sexual harassment that led to the rape

and that prevented her from obtaining help

afterwards. She is not eligible for “any benefits akin

to workers’ compensation benefits for [her] injuries.”

Pet.App.61a–62a (Chin, J., dissenting). She was

doing “nothing characteristically military” when she

was injured. Id. at 59a. And if she were attending a

“private college receiving federal funding or another

public educational institution ... she could seek

recourse for her injuries.” Id. at 43a. But because Ms.

Doe dreamed of devoting her life to military service—

23

and chose to go to a military academy for college in

pursuit of that dream—Feres denies her recovery. See

Johnson, 481 U.S. at 703 (Scalia, J., dissenting). In

sum, the Feres doctrine has become far more than a

workers’ compensation analogue and now functions as

a declaration that, “members of the United States

military are not equal citizens, as their rights against

their government are less than the rights of their

fellow Americans.” Costo, 248 F.3d at 870 (Ferguson,

J., dissenting).

Neither the text of the FTCA nor the Feres Court’s

original rationales justify the Feres doctrine, and the

doctrine should not exist. To the extent it must be

retained, it certainly should not operate to make

servicemembers second-class citizens, subject to

government negligence without recompense. Thus, at

minimum, this Court should grant certiorari to limit

Feres to those injuries that are truly “incident to

service”—that is, those injuries suffered while

performing duties under orders.

CONCLUSION

After seventy years of growing confusion, the time

has come to overturn—or at least rein in—Feres. For

these reasons, and those advanced by the Petitioner,

the Court should grant the petition for a writ of

certiorari.

24

Respectfully submitted,

RASHA GERGES SHIELDS

Counsel of Record

BRITTNEY LANE KUBISCH

JONES DAY

555 South Flower Street

50th Floor

Los Angeles, CA 90071

(213) 243-2719

rgergesshields@jonesday.com

Counsel for Amici Curiae

November 30, 2020

APPENDIX

1a

APPENDIX — LIST OF SIGNATORIES†

Janet Cooper Alexander

Frederick I. Richman Professor of Law, Emerita

Stanford Law School

Michael Asimow

Senior Fellow

Santa Clara University School of Law

Professor of Law Emeritus

UCLA Law

Nikolas Bowie

Assistant Professor of Law

Harvard Law School

Helen Hershkoff

Herbert M. and Svetlana Wachtell Professor of

Constitutional Law and Civil Liberties

Co-Director, Arthur Garfield Hays Civil Liberties

Program

New York University School of Law

Sylvia A. Law

Elizabeth K. Dollard Professor of Law, Medicine

and Psychiatry Emerita

Co-Director, Arthur Garfield Hays Civil Liberties

Program

New York University School of Law

†

Affiliations of Amici Curiae are listed for identification

purposes only and not to imply any endorsement of the views

expressed herein by Amici’s respective institutions.

2a

Nancy Levit

Associate Dean for Faculty

Curators’ Professor and Edward D. Ellison

Professor of Law

UMKC School of Law

Stephen Loffredo

Professor of Law

CUNY School of Law

Jerry L. Mashaw

Sterling Professor Emeritus of Law and

Professorial Lecturer in Law

Yale University

Aziz F. Rana

Richard and Lois Cole Professor of Law

Cornell Law School

Kermit Roosevelt

Professor of Law

University of Pennsylvania Carey Law School

George Rutherglen

John Barbee Minor Distinguished Professor of

Law

Earle K. Shawe Professor of Employment Law

University of Virginia School of Law

3a

Joan E. Steinman

University Distinguished Professor Emerita

Professor of Law Emerita

Chicago-Kent College of Law

Illinois Institute of Technology

Laurence H. Tribe

Carl M. Loeb University Professor, Emeritus

Harvard Law School

Stephen I. Vladeck

Charles Alan Wright Chair in Federal Courts

University of Texas School of Law

Adam Zimmerman

Professor of Law

Gerald Rosen Fellow

Loyola Law School