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 NATIONAL VETERANS LEGAL

SERVICES PROGRAM AND PARALYZED

VETERANS OF AMERICA AS AMICI CURIAE

IN SUPPORT OF PETITIONER

________________________________________________________________________________________

Barton Stichman

Rochelle Bobroff

David Sonenshine

NATIONAL VETERANS

LEGAL SERVICES

PROGRAM

1600 K Street, NW

Suite 500

Washington, DC 20006

Leonard J. Selfon

Linda E. Blauhut

PARALYZED VETERANS OF

AMERICA

801 18th Street, NW

Washington, DC 20006

Melanie L. Bostwick

Counsel of Record

Melanie R. Hallums

Katherine M. Kopp

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

(202) 339-8400

mbostwick@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT ............................................................. 3

I.

Feres Should Be Overruled. ............................... 3

II. The Role Of The Military Has

Fundamentally Changed And Eclipsed

Any Surviving Rationale Supporting

Feres. ................................................................... 8

A. Education..................................................... 11

B. Military Healthcare .................................... 14

C. Housing........................................................ 16

D. Recreation.................................................... 17

III. Military Benefits Do Not Justify

Retaining The Feres Doctrine. ......................... 19

CONCLUSION ........................................................ 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Appelhans v. United States,

877 F.2d 309 (4th Cir. 1989)................................15

Bozeman v. United States,

780 F.2d 198 (2d Cir. 1985) .................................18

In re Camp Lejeune N.C. Water

Contamination Litig.,

263 F. Supp. 3d 1318 (N.D. Ga. 2016) ................17

Chambers v. United States,

357 F.2d 224 (8th Cir. 1966)................................18

Chandler v. United States,

713 F. App’x 251 (5th Cir. 2017) .........................18

Costo v. United States,

248 F.3d 863 (9th Cir. 2001)............................7, 18

Daniel v. United States,

889 F.3d 978 (9th Cir. 2018)............................6, 15

Daniel v. United States,

139 S. Ct. 1713 (2019)............................................5

Doe v. Hagenbeck,

870 F.3d 36 (2d Cir. 2017) .....................................8

FDIC v. Meyer,

510 U.S. 471 (1994) ................................................4

iii

Feres v. United States,

340 U.S. 135 (1950) ............ 2, 4, 5, 8, 14, 17, 19, 22

Hass v. United States,

518 F.2d 1138 (4th Cir. 1975)..............................18

Hinkie v. United States,

715 F.2d 96 (3d Cir. 1983) .....................................6

Hurst v. Florida,

577 U.S. 92 (2016) ..................................................8

Janus v. Am. Fed’n of State, Cnty., &

Mun. Emps.,

138 S. Ct. 2448 (2018)............................................8

Jones v. United States,

112 F.3d 299 (7th Cir. 1997)................................18

Klay v. Panetta,

758 F.3d 369 (D.C. Cir. 2014) ................................7

Major v. United States,

835 F.2d 641 (6th Cir. 1987)................................18

Martin v. O’Rourke,

891 F.3d 1338 (Fed. Cir. 2018) ............................22

Millang v. United States,

817 F.2d 533 (9th Cir. 1987)................................18

Ortiz v. U.S. ex rel. Evans Army Cmty.

Hosp.,

786 F.3d 817 (10th Cir. 2015)............................6, 7

iv

Parker v. United States,

611 F.2d 1007 (5th Cir. 1980)................................6

Pringle v. United States,

208 F.3d 1220 (10th Cir. 2000)......................18, 19

Purcell v. United States,

656 F.3d 463 (7th Cir. 2011)............................7, 20

Rayonier Inc. v. United States,

352 U.S. 315 (1957) ................................................5

Richards v. United States,

176 F.3d 652 (3d Cir. 1999) ...................................7

Ritchie v. United States,

733 F.3d 871 (9th Cir. 2013)..................................6

Romanowsky v. Shinseki,

26 Vet. App. 289 (2013) .......................................20

Siddiqui v. United States,

783 F. App’x 484 (6th Cir. 2019) .........................21

Sidley v. United States,

861 F.2d 988 (6th Cir. 1988)................................20

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

431 U.S. 666 (1977) ......................................5, 6, 22

Taber v. Maine,

67 F.3d 1029 (2d Cir. 1995) ...................................6

United States v. Johnson,

481 U.S. 681 (1987) .................................... 5, 20, 22

v

United States v. Muniz,

374 U.S. 150 (1963) ................................................8

United States v. Standard Oil Co.,

332 U.S. 301 (1947) ................................................8

Veillette v. United States,

615 F.2d 505 (9th Cir. 1980)..................................6

Williams v. Bd. of Regents of the Univ.

Sys. of Ga.,

477 F.3d 1282 (11th Cir. 2007)............................13

Woodside v. United States,

606 F.2d 134 (6th Cir. 1979)................................18

Statutes

10 U.S.C. § 1450 ........................................................21

10 U.S.C. § 1475 ........................................................21

28 U.S.C. § 1346(b)......................................................4

28 U.S.C. § 2671 ..........................................................4

28 U.S.C. § 2680(j)................................... 4, 5, 8, 10, 14

38 U.S.C. § 1310 ........................................................21

38 U.S.C. § 1967 ........................................................21

Women’s Armed Services Integration

Act of 1948, Pub. L. No. 80-625, 62

Stat. 356 .................................................................9

vi

Other Authorities

Agency for Toxic Substances and

Disease Registry, Health effects

linked with trichloroethylene (TCE),

tetrachloroethylene (PCE), benzene,

and vinyl chloride exposure (Apr. 11,

2017), https://tinyurl.com/y29wvagk ...................17

Andrew F. Popper, Rethinking Feres:

Granting Access to Justice for

Service Members, 60 B.C. L. Rev.

1491 (2019) ...................................................7, 8, 24

Andrew Glass, House Votes to Create

West Point Military Academy, Jan.

21, 1802, Politico (Jan. 21, 2010),

https://tinyurl.com/yxqhkp6q ..............................11

Benjamin Nathan Cardozo, The Growth

of the Law (1924)..................................................19

Brian Scott Yablonski, Marching to the

Beat of A Different Drummer: The

Case of the Virginia Military

Institute, 47 U. Miami L. Rev. 1449

(1993) ....................................................................11

Bruce Keith, The Transformation of

West Point as a Liberal Arts College,

96 Liberal Educ. 6 (2010)

https://tinyurl.com/y2nkqkl8 ...............................12

vii

Charles C. Moskos & John Sibley

Butler, All That We Can Be: Black

Leadership and Racial Integration

the Army Way (1996) .............................................9

Congressional Research Service,

Defense Primer: Military Health

System (Dec. 18, 2019),

https://tinyurl.com/y6cfjrfq ..................................15

Council on Foreign Relations,

Demographics of the U.S. Military,

(July 13, 2020),

https://tinyurl.com/y7t2ggp4 .................................9

Courtney Kube, Navy To Deny All Civil

Claims Related To Camp Lejeune

Water Contamination, NBC News (Jan.

24, 2019), https://tinyurl.com/yarbpy3k ........16, 17

David R. Segal & Mady Wechsler Segal,

America’s Military Population, 59

Population Bulletin, no. 4, Dec. 2004..............9, 10

Dep’t of Defense, A New Social

Compact: A Reciprocal Partnership

Between the Department of Defense,

Service Members and Families

(2002) ....................................................................18

Dep’t of Defense, Department of Defense

Annual Report on Sexual Assault in

the Military (Apr. 2020),

https://tinyurl.com/yxsgnjxz ..........................22, 23

viii

Dep’t of Defense, Family Housing, DefenseWide, https://tinyurl.com/yyldo9tn (last

visited Nov. 30, 2020) ..........................................16

Dep’t of Defense, Military Health

System Review (2014),

https://tinyurl.com/y5ls3f3d ................................15

Dep’t of Defense, Modernized Social

Compact: Report of the First

Quadrennial Quality of Life Review

(2004), https://tinyurl.com/y59ofu6v ...................10

Dep’t of Hous. and Urban Dev.,

Community Housing Impacts of the

Military Housing Privatization

Initiative (Oct. 2015),

https://tinyurl.com/yys8kxt2 ...............................16

Dep’t of Veterans Affairs, Veterans

Benefits Admin. Reports,

https://tinyurl.com/y47mlrzl (last

updated Nov. 30, 2020) ........................................22

Donald H. Rumsfeld, The Annual

Defense Report: 2004 Report to the

President and to the Congress

(Cosimo ed., 2005) ................................................10

Gregory C. Sisk, Holding the Federal

Government Accountable for Sexual

Assault, 104 Iowa L. Rev. 731 (2019) ..................23

ix

Gregory C. Sisk, The Peculiar Obstacles

to Justice Facing Federal Employees

Who Survive Sexual Violence, 2019

U. Ill. L. Rev. 269 (2019)......................................20

Jennifer Arlen, Contracting Over

Liability: Medical Malpractice and

the Cost of Choice, 158 U. Pa. L. Rev.

957 (2010) .............................................................24

Jon Marcus, The Unexpected Schools

Championing the Liberal Arts, The

Atlantic (Oct. 15, 2015),

https://tinyurl.com/y32eo6jk ................................12

Jonathan Turley, Pax Militaris: The

Feres Doctrine And The Retention Of

Sovereign Immunity In The Military

System Of Governance, 71 Geo. W. L.

Rev. 1 (2003) ............................................ 10, 15, 16

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 (2018) ..............................................13, 14

Kathleen Gray, Most of $600 Million

Settlement in Flint Water Crisis Will

Go to Children, N.Y. Times (Aug. 20,

2020) .....................................................................17

x

Kirsten M. Keller et al., The Mix of

Military and Civilian Faculty at the

United States Air Force Academy:

Finding a Sustainable Balance for

Enduring Success (2013),

https://tinyurl.com/yxslgoq5 ..........................12, 13

Lori Lou Freshwater, What Happened

at Camp Lejeune, Pacific Standard

(Aug. 21, 2018),

https://tinyurl.com/y882jja9 ................................16

Maxwell J. Mehlman et al.,

Compensating Persons Injured by

Medical Malpractice and Other

Tortious Behavior for Future

Medical Expenses Under the

Affordable Care Act, 25 Annals

Health L. 35 (2016) ..............................................24

Myriam E. Gilles, In Defense of Making

Government Pay: The Deterrent

Effect of Constitutional Tort

Remedies, 35 Ga. L. Rev. 845 (2001) ...................23

National WWII Museum, Research

Starters: US Military by the Numbers,

https://tinyurl.com/ycskvmm8 (last

visited Nov. 30, 2020) ............................................9

OED Online (Oxford Univ. Press Sept.

2020), https://tinyurl.com/y38p7plv ......................4

Shorter Oxford English Dictionary (3d

ed. 1944) .................................................................4

xi

The White House, National Security

Presidential Directive (NSPD-2)

(Feb. 15, 2001),

https://tinyurl.com/y2kvk3cw ..............................10

U.S. Mil. Acad., A Brief History of West

Point, https://tinyurl.com/y6azylgg

(last visited Nov. 30, 2020) ..................................11

U.S. Mil. Acad., Curriculum,

https://tinyurl.com/y62f84z3 (last

visited Nov. 30, 2020) ..........................................12

U.S. Mil. Acad., USMA Admissions,

https://tinyurl.com/y43s4kgd (last

visited Nov. 30, 2020) ..........................................12

U.S. Naval Acad., Academics,

https://tinyurl.com/y8uhothu (last

visited Nov. 30, 2020) ..........................................12

U.S. Naval Acad., Midshipman Interests,

https://tinyurl.com/yyosg8cv (last

visited Nov. 30, 2020) ..........................................12

U.S.A.F. Acad., Academics at a Different

Altitude, https://tinyurl.com/y2sqtjsk

(last visited Nov. 30, 2020) ..................................12

1

INTEREST OF AMICI CURIAE1

The National Veterans Legal Services Program

(NVLSP) is an independent, nonprofit organization

that has worked since 1981 to ensure that the United

States government provides our nation’s 25 million

veterans and active duty personnel with the federal

benefits that they have earned through service to our

country. NVLSP advocates before Congress, federal

agencies, and courts to protect servicemembers and

veterans. When, as here, an Article III court’s ruling

would deprive large groups of our nation’s servicemembers, veterans, or their families of rights granted

by Congress, NVLSP authors amicus curiae briefs

supporting appellate review and reversal. NVLSP’s

interest is particularly acute in cases where allegations are as troubling and important as Ms. Doe’s.

Paralyzed Veterans of America (PVA) is a national, congressionally chartered veterans service organization headquartered in Washington, D.C. PVA’s

mission is to employ its expertise, developed since its

founding in 1946, on behalf of veterans of the armed

forces who have experienced spinal cord injury or a

disorder (SCI/D). PVA seeks to improve the quality of

life for veterans and all people with SCI/D through its

medical services, benefits, legal, advocacy, sports and

recreation, architecture, and other programs. PVA advocates for quality health care, research and

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the brief.

2

education addressing SCI/D, benefits based on its

members’ military service, and for civil rights, accessibility, and opportunities that maximize independence for its members and all veterans and nonveterans with disabilities. PVA has nearly 16,000

members, all of whom are military veterans living

with catastrophic disabilities. To ensure the ability of

its members to participate in their communities, PVA

strongly supports the opportunities created by and

the protections available through the Americans with

Disabilities Act, the Federal Tort Claims Act, the Fair

H ousing Act, and other federal and state disability

and civil rights laws.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The much-criticized Feres doctrine prevents servicemembers from suing the federal government under the Federal Tort Claims Act for injuries sustained

“incident to service.” Feres v. United States, 340 U.S.

135, 146 (1950). This judicially created exception to

federal liability reflects an unjustified reluctance by

the judiciary to interfere in any military matters, as

well as an outdated view that the military’s relationship with servicemembers is fundamentally different

from other societal relationships that can give rise to

legal liabilities, such as those of doctor-patient, landlord-tenant, and educator-student. Whatever validity

the Feres doctrine might have had in 1950, it cannot

be defended today.

The stated rationales for the Feres doctrine can no

longer withstand scrutiny. The military has changed

dramatically since 1950 and is now a smaller, more

3

diverse, and family-focused all-volunteer institution.

Beyond training soldiers, today’s military provides

education, housing, healthcare, and entertainment to

its servicemembers and their families—not only to

maintain an effective fighting force but also to attract

and recruit new volunteers. As the reach of the military has expanded into more areas of soldiers’ lives,

so too has the potential for mistakes and misconduct.

Because of the Feres doctrine, however, soldiers and

their families often fail to receive fair and adequate

compensation for their injuries, especially as compared to their civilian counterparts.

Congress expressly allowed soldiers and their

families to bring tort claims against the United States

for non-combat injuries, but the Feres Court contravened clear statutory text and legislative intent to

preclude such claims. As a result, the Feres doctrine

has unjustly deprived servicemembers and their families of legal remedies based on an outdated and

flawed understanding of what conduct is “incident to

military service.” Sexual assault certainly should not

be considered incident to military service, and immunity for sexual assault cases at military academies

is particularly unwarranted. NVLSP agrees with Petitioner that this case presents an excellent opportunity for this Court to revisit the Feres doctrine.

ARGUMENT

I.

Feres Should Be Overruled.

The clear text of the Federal Tort Claims Act

(“FTCA”) allows servicemembers and their families to

bring tort claims against the United States “for injury

4

or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any

employee of the Government while acting within the

scope of his office or employment.” 28 U.S.C.

§ 1346(b). The Act defines “employee of the government” to include “members of the military or naval

forces of the United States.” 28 U.S.C. § 2671.

Congress included a list of exceptions to liability

under the FTCA, including any 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) (emphasis added). “Combatant activities” are not defined. “In the absence of such a definition, we construe a statutory term in accordance with

its ordinary or natural meaning.” FDIC v. Meyer, 510

U.S. 471, 476 (1994). The ordinary meaning of the adjective “combatant” in 1946 was: “Fighting, ready to

fight.” Combatant, Shorter Oxford English Dictionary

(3d ed. 1944). It means the same thing today:

“Fighting, contending in fight, ready to fight.” Combatant, OED Online (Oxford Univ. Press Sept. 2020),

https://tinyurl.com/y38p7plv.

Despite this plain statutory language, the Supreme Court created an additional, extra-statutory

exception to government liability. It held that “the

Government is not liable under the Federal Tort

Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident

to service.” Feres v. United States, 340 U.S. 135, 146

(1950) (emphasis added). In other words, rather than

limiting liability for “combatant activities … during

time of war,” the Feres Court limited liability for all

5

activities “incident to service.” Compare 28 U.S.C.

§ 2680(j), with Feres, 340 U.S. at 146.

The Court’s atextual and incorrect interpretation

of the FTCA has been resoundingly criticized by individual justices and lower courts alike. As Justice

Scalia explained, the Feres Court had “‘no justification … to read exemptions into the [FTCA] beyond

those provided by Congress. If the [FTCA] is to be altered that is a function for the same body that adopted

it.’” United States v. Johnson, 481 U.S. 681, 702 (1987)

(Scalia, J., dissenting) (quoting Rayonier Inc. v.

United States, 352 U.S. 315, 320 (1957)). “Feres was

wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.”

Id. at 700 (citation omitted).

Justice Thomas expressed similar concerns as recently as last year: “Had Congress itself determined

that servicemembers cannot recover for the negligence of the country they serve, the dismissal of their

suits ‘would (insofar as we are permitted to inquire

into such things) be just.’ But it did not.” Daniel v.

United States, 139 S. Ct. 1713, 1714 (2019) (Thomas,

J., dissenting from denial of certiorari) (citation omitted). Justice Ginsburg did as well. Id. at 1713 (noting

that Justice Ginsburg “would grant the petition for a

writ of certiorari”).

Decades earlier, Justice Marshall criticized “the

theory that in any case involving a member of the military on active duty, Feres … displaces the plain language of the Tort Claims Act.” Stencel Aero Eng’g

Corp. v. United States, 431 U.S. 666, 674 (1977) (Marshall, J., dissenting). “I cannot agree that that

6

narrow, judicially created exception to the waiver of

sovereign immunity contained in the Act should be

extended to any category of litigation other than suits

against the Government by active-duty servicemen

based on injuries incurred while on duty.” Id.

The courts of appeals likewise have recognized

the lack of textual support for the Feres doctrine and

its resulting ambiguities. See, e.g., Taber v. Maine, 67

F.3d 1029, 1038 (2d Cir. 1995); Veillette v. United

States, 615 F.2d 505, 506-07 (9th Cir. 1980); Parker v.

United States, 611 F.2d 1007, 1009 (5th Cir. 1980).

They also have expressed frustration at the doctrine’s

harsh and unjust results. For instance, in a case applying the Feres doctrine to the injuries of a servicemember’s child, the Tenth Circuit explained: “In the

many decades since its inception, criticism of the socalled Feres doctrine has become endemic. That criticism is at its zenith in a case like this one—where a

civilian third-party child is injured during childbirth,

and suffers permanent disabilities.” Ortiz v. U.S. ex

rel. Evans Army Cmty. Hosp., 786 F.3d 817, 818 (10th

Cir. 2015) (Tymkovich, J.). Another court opined,

“[w]e can think of no other judicially-created doctrine

which has been criticized so stridently, by so many jurists, for so long.” Ritchie v. United States, 733 F.3d

871, 878 (9th Cir. 2013); see also Daniel v. United

States, 889 F.3d 978, 982 (9th Cir. 2018), cert. denied,

139 S. Ct. 1713 (2019) (“If ever there were a case to

carve out an exception to the Feres doctrine, this is it.

But only the Supreme Court has the tools to do so.”);

Hinkie v. United States, 715 F.2d 96, 97 (3d Cir.

1983) (“We are forced once again to decide a case

where we sense the injustice of the result but where

nevertheless we have no legal authority, as an

7

intermediate appellate court, to decide the case differently.”) (cleaned up).

Courts have similarly expressed concern about

“the doctrine’s ever-expanding reach,” and “the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine’s

original purposes.” Costo v. United States, 248 F.3d

863, 864, 869 (9th Cir. 2001); see also Purcell v. United

States, 656 F.3d 463, 465-66 (7th Cir. 2011); Richards

v. United States, 176 F.3d 652, 656-58 (3d Cir. 1999).

Indeed, as in Doe’s case, the Feres doctrine bars

relief in circumstances that were never contemplated

by Congress when it added the combat exception to

the FTCA in 1946. These include rapes and assaults

by fellow soldiers, Klay v. Panetta, 758 F.3d 369 (D.C.

Cir. 2014), and personal injuries or deaths caused by

medical malpractice, Ortiz, 786 F.3d 817. None of

these are “combatant activities” or even the type of

activities that Feres considered “incident to service.”

“Members of the armed forces take an oath to

‘support and defend the Constitution of the United

States against all enemies, foreign and domestic.’ …

The oath includes an implicit recognition that defense

of our country may entail engagement in combat, in

armed conflict, where the gravest of injuries are a

possibility for all and an inevitability for some.”

Andrew F. Popper, Rethinking Feres: Granting Access

to Justice for Service Members, 60 B.C. L. Rev. 1491,

1497 (2019). But that oath “does not include the

concession that service members would be without

recourse should they be injured by egregious and

8

impermissible misconduct that advances no policy or

goal of our armed forces.” Id.

This Court should overrule Feres and prohibit

only the claims exempted by Congress, such as claims

“arising out of the combatant activities … during time

of war.” 28 U.S.C. § 2680(j). See Janus v. Am. Fed’n of

State, Cnty., & Mun. Emps., 138 S. Ct. 2448, 2460,

2486 (2018) (overruling precedent where prior

decision “was poorly reasoned,” “has led to practical

problems and abuse,” and “subsequent developments

have eroded its underpinnings”); Hurst v. Florida, 577

U.S. 92, 102 (2016).

In particular, the Feres doctrine should not bar

relief for Doe’s injuries. As Judge Chin explained in

dissent: “Doe’s injuries did not arise ‘incident to

military service.’ When she was subjected to a pattern

of discrimination, and when she was raped, she was

not in military combat or acting as a soldier or

performing military service. Rather, she was simply a

student, and her injuries were incident only to her

status as a student.” Pet. App. 43a.

II. The

Role

Of

The

Military

Has

Fundamentally Changed And Eclipsed Any

Surviving Rationale Supporting Feres.

The Feres Court justified its decision in part based

on its belief that the relationship between servicemembers and the government was unique and “‘distinctively federal in character.’” Feres, 340 U.S. at 143

(quoting United States v. Standard Oil Co., 332 U.S.

301, 305 (1947)); see also United States v. Muniz, 374

U.S. 150, 162 (1963) (Feres doctrine “best explained”

9

by special relationship between soldiers and their superiors). But the modern military is vastly different

from the military that shaped the thinking of the 1950

Feres Court, and the expansion of military-provided,

non-combat-related services has blurred that distinction.

During World War II, “about 12 percent of the

population” served in the military, including, remarkably, “56 percent of the men eligible for military service.” David R. Segal & Mady Wechsler Segal,

America’s Military Population, 59 Population Bulletin, no. 4, Dec. 2004 at 4. Warfare was different, requiring more troops than are required for

contemporary warfare, and the military relied on conscription to meet its needs. Id. at 3. In fact, more than

60% of World War II servicemembers were draftees.

National WWII Museum, Research Starters: US Military by the Numbers, https://tinyurl.com/ycskvmm8

(last visited Nov. 30, 2020). And neither women nor

minorities were integrated into the armed forces until

1948, just two years before Feres was decided. Charles

C. Moskos & John Sibley Butler, All That We Can Be:

Black Leadership and Racial Integration the Army

Way 30-31 (1996); Women’s Armed Services Integration Act of 1948, Pub. L. No. 80-625, 62 Stat. 356.

But in 1973, the United States converted to an allvolunteer force, today comprising only 0.5% of the

general population. Council on Foreign Relations, Demographics of the U.S. Military (July 13, 2020),

https://tinyurl.com/y7t2ggp4. And it is different in

kind. “The all-volunteer military is more educated,

more married, more female, and less white than the

draft-era military.” Segal & Segal, supra, at 3. This

10

“new generation of military recruits has aspirations

and expectations for quality of life services and access

to health care, education, and living conditions that

are” consistent “with the American standard of living.” Donald H . Rumsfeld, The Annual Defense Report: 2004 Report to the President and to the Congress

19 (Cosimo ed., 2005). Meeting those expectations is

necessary to assure our “continued readiness to fight

and win the Nation’s wars.” Dep’t of Defense, Modernized Social Compact: Report of the First Quadrennial

Q uality of Life Review at ii (2004), https://tinyurl.com/y59ofu6v.

Today’s military focuses not just on servicemembers but on the families they bring with them. Today

1.4 million active duty servicemembers come with 1.9

million family members. Segal & Segal, supra, at 31.

In 2001, President Bush issued a directive creating a

“new social compact” between the Department of Defense (DoD) and military families, recognizing that attention to families, not just individuals, was needed

to meet the recruitment and retention needs of the

armed services. The White House, National Security

Presidential Directive (NSPD-2) (Feb. 15, 2001),

https://tinyurl.com/y2kvk3cw. The President’s directive required DoD to reconfigure its support services appropriately, including increased pay,

improved housing and healthcare, and strengthened

family support networks. Id.

This expansion of benefits and services has led to

a collateral expansion of activities considered “incident to service” under Feres, despite being wholly unrelated to “combatant activities … during time of

war.” 28 U.S.C. § 2680(j). See Jonathan Turley, Pax

11

Militaris: The Feres Doctrine And The Retention Of

Sovereign Immunity In The Military System Of Governance, 71 Geo. W. L. Rev. 1, 34, 40-46 (2003). In particular, servicemembers have been denied recovery

for injuries sustained as students at the service academies; patients under military medical care; residents

of military housing; and participants in militarysponsored recreational activities. But each of those

benefits would be unrecognizable to the legislature

that drafted the narrow “combatant activities” exception to the FTCA, or even to the Court that decided

Feres in the first instance.

A. Education

Military training schools have existed in some

form almost since the nation’s inception: West Point

opened in 1802, just fifteen years after the conclusion

of the Revolutionary War. “The mission of [the service

academies] is to prepare cadets for career service in

the armed forces.” Brian Scott Yablonski, Marching to

the Beat of a Different Drummer: The Case of the Virginia Military Institute, 47 U. Miami L. Rev. 1449,

1468 (1993). That mission hasn’t changed over the

years, but the method certainly has.

West Point was founded by Congress for the purpose of educating and training young men in military

science. See Andrew Glass, House Votes to Create West

Point Military Academy, Jan. 21, 1802, Politico (Jan.

21, 2010), https://tinyurl.com/yxqhkp6q. From 1802

through 1960, West Point offered students a prescribed curriculum: All students completed the same

set of courses that initially focused on the “arts and

sciences of warfare.” U.S. Mil. Acad., A Brief History

12

of West Point, https://tinyurl.com/y6azylgg. But as it

became apparent that good military leadership required “the ability to think broadly, to operate in the

context of other societies and become agile and adaptive thinkers,” Jon Marcus, The Unexpected Schools

Championing the Liberal Arts, The Atlantic (Oct. 15,

2015), https://tinyurl.com/y32eo6jk, the service academies broadened their academic offerings. Now cadets and midshipmen “are required to take

humanities and social-sciences courses such as history, composition, psychology, literature, and languages,” id., and they have a choice of majors in more

than a dozen fields, see U.S. Naval Acad., Academics,

https://tinyurl.com/y8uhothu;

U.S.A.F.

Acad.,

Academics

at

a

Different

Altitude,

https://tinyurl.com/y2sqtjsk;

U.S.

Mil.

Acad.,

Curriculum, https://tinyurl.com/y62f84z3.

The service academies are now academically comparable to civilian liberal arts colleges and universities. They are accredited universities that grant

bachelor’s degrees upon graduation. Courses are

taught by a mix of civilian and military faculty,

Kirsten M. Keller et al., The Mix of Military and Civilian Faculty at the United States Air Force Academy: Finding a Sustainable Balance for Enduring

Success at 1 (2013), https://tinyurl.com/yxslgoq5, and

cadets and midshipmen may participate in a variety

of extracurricular activities during their four years in

school, see e.g. U.S. Naval Acad., Midshipman

Interests, https://tinyurl.com/yyosg8cv. And they

compete with elite civilian colleges for the best students; West Point, for example, advertises itself as a

“nationally ranked, top-tier institution.” U.S. Mil.

Acad.,

USMA

Admissions,

13

https://tinyurl.com/y43s4kgd. See also Bruce Keith,

The Transformation of West Point as a Liberal Arts

College, 96 Liberal Educ. 6 (2010), https://tinyurl.com/y2nkqkl8.

Thus, the service academies provide “a four-year

college education similar to that offered at other civilian institutions.” Keller, supra, at 1. But cadets and

midshipmen, unlike their civilian counterparts, cannot pursue tort claims based on injuries that occur on

campus. The simple fact of being a student at a service academy renders those injuries “incident to service” under Feres. Here, Ms. Doe was not on duty, in

training, or otherwise engaged in any activity related

to her military service other than being on campus

when she was assaulted. Pet. App. 21a. H er “night

[was] no different than what any young person might

encounter as part of the typical U.S. college experience.” 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, 769 (2018). See also Pet. App.

43a, 59a (Chin, J., dissenting).

But the Second Circuit rejected Ms. Doe’s claims

because she “was a member of the military … subject

to military command at all times, … who was at West

Point for the purpose of military instruction.” Pet.

App. 6a-7a (citations omitted). The court determined

that her education, therefore, “was inextricably

intertwined with her military pursuits.” Pet. App. 7a

(quotation marks omitted). But a civilian student in

Ms. Doe’s circumstances may file suit against her university. See, e.g., Williams v. Bd. of Regents of the

Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007). “Due

14

to their status as servicemembers while attending

their respective academies,” then, “cadets and midshipmen are denied the due process civilian college

students would receive in similar situations.” Shin,

supra, at 772; Pet. App. 43a, 59a (Chin, J., dissenting). Feres held that no private injury could be “remotely analogous” to an injury caused by military

negligence. 340 U.S. at 141-42. But if Ms. Doe’s “military pursuits” are so “intertwined” with her education, Pet. App. 7a, it is “puzzling” to conclude that a

sexual assault on a cadet at a service academy is not

analogous to one incurred by a civilian student at a

public university. Shin, supra, at 772. See also Pet.

App. 43a, 59a (Chin, J., dissenting). That is especially

true given that the service academies market themselves as competitive alternatives to elite civilian colleges, Shin, supra, at 772, rather than as pure

“military training” institutions that would align more

closely with Congress’s intent to grant immunity for

claims arising out of combat activities. See 28 U.S.C.

2680(j).

B. Military Healthcare

Another significant post-Feres change to military

governance is the expansion of military healthcare.

Unlike when Feres was decided, combat care, or operational care, is only a small portion of military medicine. The DoD now operates a comprehensive

healthcare system with a mission of providing quality

non-combat-related healthcare to active duty servicemembers and their dependents, as well as retirees

and their dependents, at military healthcare facilities. Beginning with the 1956 Dependents’ Medical

Care Act, the non-combat component of the military

15

health system has grown enormously. Active duty servicemembers now represent only 15% of the persons

eligible for treatment in the Military Health System.

Congressional Research Service, Defense Primer: Military Health System 1 (Dec. 18, 2019), https://tinyurl.com/y6cfjrfq (hereinafter Defense Primer).

This system does not exist in isolation from civilian healthcare. “[A]s a comprehensive health system,

it is influenced by, and must be responsive to, improvements in the civilian health care sector.” Dep’t

of Defense, Military Health System Review at 23

(2014), https://tinyurl.com/y5ls3f3d. Military studies

compare this system to large civilian healthcare systems, such as Geisinger H ealth System, Intermountain H ealthcare, and Kaiser Permanente. Id. at 16.

For many servicemembers, the use of the Military

H ealth System is involuntary. Turley, supra, at 58;

see also Defense Primer at 1-2. Yet, because medical

care is a benefit of military service, courts have considered malpractice claims stemming from treatment

at military treatment facilities to be “incident to military service” and thereby ineligible for FTCA recovery

under Feres. See, e.g., Appelhans v. United States, 877

F.2d 309, 311-12 (4th Cir. 1989); Daniel, 889 F.3d at

981.

Military medical care is no different from

healthcare coverage by private employers. The military decided to introduce a comprehensive medical

system rather than maintaining a smaller combat

medical staff and allowing servicemembers to enroll

in private healthcare systems during peacetime. By

doing so, it moved entire areas of injury outside of the

conventional legal system and—in light of Feres—

16

potentially increased the likelihood of negligent

healthcare or conditions for servicemembers. See

Turley, supra, at 57-67 (theorizing that reduced liability has resulted in increased occurrence of medical

malpractice).

C. Housing

Housing is another key service offered to military

personnel, civilian staff, and their families. The DoD

manages more than 300,000 family housing units,

and approximately one-third of military families live

in on-base housing, with the remainder living in the

surrounding communities. U.S. Dep’t of H ous. and

Urban Dev., Community Housing Impacts of the Military Housing Privatization Initiative, at 1 (Oct.

2015), https://tinyurl.com/yys8kxt2. The DoD budgeted more than $60 million for operation and maintenance, leasing, and improvements to existing military

housing in 2020. Dep’t of Defense, Family Housing,

Defense-Wide, at FH -5, https://tinyurl.com/yyldo9tn

(last visited Nov. 30, 2020).

The choice between on-base and off-base housing

is not without consequence, however. From the 1950s

until at least 1985, for example, the drinking water at

Camp Lejeune, North Carolina, was contaminated

with toxic chemicals at levels 240 to 3400 times

higher than what is permitted by safety standards.

Lori Lou Freshwater, What Happened at Camp

Lejeune, Pacific Standard (Aug. 21, 2018), https://tinyurl.com/y882jja9. During that period, an estimated

900,000 servicemembers (plus resident family members and civilian personnel), were exposed to contaminants in the drinking water. Courtney Kube, Navy to

17

Deny All Civil Claims Related to Camp Lejeune Water

Contamination, NBC News (Jan. 24, 2019), https://tinyurl.com/yarbpy3k. The Centers for Disease Control

has identified nearly 30 diseases that can be positively linked to exposure to the contaminants found at

Camp Lejeune, including multiple cancers, various

adverse birth outcomes, and neurological effects.

Agency for Toxic Substances and Disease Registry,

Health effects linked with trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, and vinyl chloride

exposure

(Apr.

11,

2017),

https://tinyurl.com/y29wvagk.

“[R]oughly 4,500 plaintiffs” filed claims in federal

court seeking damages for injuries caused by water

contamination at Camp Lejeune, Kube, supra, but

those claims were barred by Feres. In re Camp

Lejeune N.C. Water Contamination Litig., 263 F.

Supp. 3d 1318 (N.D. Ga. 2016). The court found that,

for servicemembers who were on active duty during

the alleged period of contamination, “Feres applies

virtually as a matter of law. … [S]leeping while stationed on active duty at a military base is an activity

‘incident to service.’” Id. at 1341-42 (citing Feres, 340

U.S. at 135). But civilians recover damages for these

types of harms all the time. See, e.g., Kathleen Gray,

Most of $600 Million Settlement in Flint Water Crisis

Will Go to Children, N.Y. Times (Aug. 20, 2020),

https://tinyurl.com/y5o35hsu.

D. Recreation

As part of the “new social compact,” the military

also began subsidizing entertainment and recreational activities, much like private employers often

18

support recreational trips, health clubs, and other after-hours activities. See Dep’t of Defense, A New Social Compact: A Reciprocal Partnership Between the

Department of Defense, Service Members and Families

70 (2002). But since military regulations cite “morale”

as a military concern, virtually any activity on a base

or supported by the military is considered “incident to

service” under Feres. Hass v. United States, 518 F.2d

1138, 1141 (4th Cir. 1975) (“Recreational activity

provided by the military can reinforce both morale

and health and thus serve the overall military

purpose.”). Feres thus reaches beyond subsidized benefits and bars recovery for activities that servicemembers engage in when they are decidedly off duty,

including injuries or deaths that result from “fun day”

activities, Chandler v. United States, 713 F. App’x 251

(5th Cir. 2017); rafting, Costo v. United States, 248

F.3d 863 (9th Cir. 2001); Olympic training, Jones v.

United States, 112 F.3d 299 (7th Cir. 1997); picnicking, Millang v. United States, 817 F.2d 533 (9th Cir.

1987); nightclubs, Bozeman v. United States, 780 F.2d

198 (2d Cir. 1985); “aero clubs,” Woodside v. United

States, 606 F.2d 134 (6th Cir. 1979); horseback riding,

Hass, 518 F.2d at 1141; swimming pools, Chambers v.

United States, 357 F.2d 224 (8th Cir. 1966); or simply

socializing, Major v. United States, 835 F.2d 641 (6th

Cir. 1987).

In many cases, the military operates establishments in direct competition with civilian businesses

and actively markets them to both civilians and military personnel. For example, in Pringle v. United

States, 208 F.3d 1220 (10th Cir. 2000), the Army operated a bar called Club Troopers that served military

personnel and civilians alike, and was frequented by

19

a local Kansas gang. When a serviceman exchanged

words with gang members, bar employees threw the

serviceman out of the bar into the parking lot filled

with gang members, where he was beaten so severely

that he suffered permanent brain damage. The Tenth

Circuit held that the bar staff’s decisions were part of

a “morale” program that could not be reviewed by the

courts without interfering with the military’s unique

command system, and it dismissed the servicemember’s claim as inimical to military discipline and

therefore barred by the Feres doctrine. Id.

***

Given the dramatic changes in the military since

1950, Feres should be overruled. “A rule which in its

origins was the creation of the courts themselves, and

was supposed in the making to express the mores of

the day, may be abrogated by the courts when the mores have so changed that perpetuation of the rule

would do violence to the social conscience.” Benjamin

Nathan Cardozo, The Growth of the Law 136-37

(1924).

III. Military Benefits Do Not Justify Retaining

The Feres Doctrine.

Another main rationale behind the Feres doctrine

was the availability of military benefits for injuries or

deaths that occurred during active duty. This compensation system was considered a viable alternative,

and even superior, to the remedies available under

the FTCA. See Feres, 340 U.S. at 145 (explaining that

military recoveries for injuries “compare extremely

favorably with those provided by most workman’s

20

compensation statutes”); see also Johnson, 481 U.S. at

689 (“[T]he existence of these generous statutory disability and death benefits is an independent reason

why the Feres doctrine bars suit for service-related injuries.”).

Since 1950, however, the military benefits system

often has failed to adequately compensate servicemembers for their injuries, especially in cases of sexual assault and medical malpractice, and has not been

an adequate alternative to civil tort liability. Indeed,

this case highlights why the military-benefits rationale of Feres is outdated and harmful to servicemembers.

First, it is unlikely that Doe or others like her

could receive any compensation for their injuries at

all. “Survivors of sexual violence in the military will

receive little or no benefit from the [Veterans’ Benefits Act] unless they suffered a physical injury or have

become psychologically disabled as a result.” Gregory

C. Sisk, The Peculiar Obstacles to Justice Facing Federal Employees Who Survive Sexual Violence, 2019 U.

Ill. L. Rev. 269, 280-81 (2019); see Romanowsky v.

Shinseki, 26 Vet. App. 289, 293 (2013) (noting that a

veteran “must have a current disability at the time he

or she filed his or her claim” to obtain benefits); see

generally 38 U.S.C. §§ 101-4335 (2018) (Veterans’

Benefits Act). Indeed, there are situations where

Feres bars suit even though no benefits are awarded.

See, e.g., Purcell v. United States, 656 F.3d 463, 467

(7th Cir. 2011) (applying Feres even though estate of

active duty serviceman who died by suicide received

no benefits); Sidley v. United States, 861 F.2d 988, 991

(6th Cir. 1988) (“While the existence of an alternate

21

compensation system, such as the [Veterans’ Benefits

Act], 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.”).

Second, even where benefits are available, the

military compensation system is not comparable to

the civil justice system in terms of the amount of individual judgments or the deterrent effect of litigation. Military benefits are neither adequate nor

reliable enough to cover the harms that servicemembers and their families experience.

In wrongful death cases, for example, benefits

provided to servicemembers and their families pale in

comparison to possible recoveries under the FTCA.

Compare 38 U.S.C. § 1310 (dependency and indemnity compensation); 10 U.S.C. § 1475 (death gratuity);

38 U.S.C. § 1967 (servicemembers’ group life insurance); and 10 U.S.C. § 1450 (survivor benefit plan),

with FTCA recoveries (averaging $1,746,075 based on

a Westlaw verdict search from 2010 to 2020). As the

Sixth Circuit recently explained: “[T]he Feres doctrine’s reliance on ‘generous’ military no-fault compensation has not withstood the test of time. A

$100,000 death benefit and $400,000 in a group life

insurance payout are mere fractions of most wrongful

death awards.” Siddiqui v. United States, 783 F.

App’x 484, 489 (6th Cir. 2019).

Moreover, recovery of benefits under the Veterans’ Benefits Act is neither speedy nor efficient. Central to the Court’s holding in Feres was the

assumption that compensation for injuries or deaths

22

of servicemembers was “simple, certain, and uniform.” Feres, 340 U.S. at 144. The Court reiterated

that assumption in Johnson, stating that “the recovery of benefits is ‘swift [and] efficient’” under the Veterans’ Benefits Act. 481 U.S. at 690 (quoting Stencel

Aero Eng’g, 431 U.S. at 673).

Although that may have been the case decades

ago, it is no longer so. The Department of Veterans

Affairs (VA) is currently working under a substantial

backlog, and veterans and their families face significant delays at both the initial and appeal levels. As of

November 28, 2020, the VA had more than 470,000

claims pending, with more than 200,000 of those

pending for more than 125 days. See Dep’t of Veterans

Affairs, Veterans Benefits Administration Reports,

https://tinyurl.com/y47mlrzl (last updated Nov. 30,

2020). Nor does the VA compensation system resemble the simple process noted in Feres 70 years ago. See

Martin v. O’Rourke, 891 F.3d 1338, 1341-42 (Fed. Cir.

2018) (describing complicated process of seeking VA

benefits, including “often-significant periods of delay”).

Finally, the military compensation system does

not hold tortfeasors accountable or adequately deter

future misconduct, as the prevalence of sexual assaults and medical malpractice in the military

demonstrates. A recent DoD report, for example,

shows that the number of sexual assault and sexual

harassment reports increased from 2018 to 2019. See

Dep’t of Defense, Department of Defense Annual Report on Sexual Assault in the Military, at 6 (Apr.

2020), https://tinyurl.com/yxsgnjxz. The report notes:

“The Department works to prevent sexual assault to

23

reduce the crime’s toll on human lives, improve mission readiness, enhance recruitment and retention,

and strengthen international alliances.” Id. at 8. Nevertheless, “[s]exual harassment and other misconduct

remain a persistent challenge.” Id.2

“The two leading rationales for tort liability

remain compensation for the injured and deterrence

of the tortfeasor.” Gregory C. Sisk, Holding the

Federal Government Accountable for Sexual Assault,

104 Iowa L. Rev. 731, 781 (2019). Although the

economic deterrent effect of tort liability against the

federal government may be blunted somewhat, given

that compensation is paid by the public treasury

rather than by individual tortfeasors, litigating

sexual assault claims in a public forum nevertheless

has its own deterrent effect. “[A] court ruling that the

federal government is liable for sexual violence

committed by one of its agents is more likely to draw

media and other public attention.” Id. at 784. “And

the prospect of reputational damage to an agency (or

its leading officers) for failing to take appropriate

measures to prevent sexual violence may undermine

the agency’s political agenda or provoke negative

responses by law or reduced appropriations from

Congress.” Id.; see Myriam E. Gilles, In Defense of

Making Government Pay: The Deterrent Effect of

Constitutional Tort Remedies, 35 Ga. L. Rev. 845, 849,

880 (2001) (arguing “that constitutional tort damage

remedies levied against municipalities do, in fact,

2 Of course, victim compensation is just one part of deterrence. Both the military and civilian criminal justice systems

also have critical roles to play in deterring sexual assaults.

24

alter the behavior of government policymakers in

desirable ways”).

Just as tort liability would be the only form of recourse for many victims of military sexual trauma, it

often provides the only reliable tool to expose and address medical errors. See Maxwell J. Mehlman et al.,

Compensating Persons Injured by Medical Malpractice and Other Tortious Behavior for Future Medical

Expenses Under the Affordable Care Act, 25 Annals

H ealth L. 35, 56 (2016). “Malpractice liability is potentially one of the most effective mechanisms for reducing medical error.” Jennifer Arlen, Contracting

Over Liability: Medical Malpractice and the Cost of

Choice, 158 U. Pa. L. Rev. 957, 959 (2010). “Well-designed malpractice liability can optimally deter error

by giving medical providers direct financial incentives

to make cost-effective investments in patient safety.”

Id.

Because of the Feres doctrine, however, “[m]isconduct that forever changes the lives of so many of our

fellow citizen soldiers was and is undeterred by civil

tort sanction.” Popper, supra, at 1496. “A vast array

of actions ordinarily addressed and resolved in Article

III courts for citizens in the private sector go unpunished and undeterred when the victim (or in some instances only the perpetrator) is a service member and

the misconduct is, broadly defined, ‘incident to service.’” Id. It is past time to overrule Feres.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

25

Respectfully submitted,

Barton Stichman

Rochelle Bobroff

David Sonenshine

NATIONAL VETERANS

LEGAL SERVICES

PROGRAM

1600 K Street, NW

Suite 500

Washington, DC 20006

Leonard J. Selfon

Linda E. Blauhut

PARALYZED VETERANS OF

AMERICA

801 18th Street, NW

Washington, DC 20006

Melanie L. Bostwick

Counsel of Record

Melanie R. Hallums

Katherine M. Kopp

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

(202) 339-8400

mbostwick@orrick.com

Counsel for Amici Curiae

November 30, 2020