Thomas Pans West Point Immunity on Rape Claim

The justice argued Monday that an ex-cadet’s Fifth Amendment suit was the ideal vehicle for the Supreme Court to fix a 70-year-old mistake.

The West Point Museum houses artifacts from the U.S. military academy of the same name, as well as the U.S. Army and the Profession of Arms. (Image courtesy of U.S. Military via Courthouse News)

WASHINGTON (CN) — Justice Clarence Thomas balked Monday as the U.S. Supreme Court declined to consider whether the prestigious military academy West Point negligently handled a cadet’s rape claim.

The cadet filed her suit anonymously in 2013, three years after she says a fellow student raped her and she dropped out of the program, overwhelmed by the stress of trying to hold her assailant accountable through West Point’s disciplinary channels. Blaming her superior officers for having created a misogynistic and sexually aggressive culture at the school, Jane Doe said that they not only “discriminated against female cadets” but “put female cadets at risk of violent harm.”

Doe’s equal-protection claim had been the only one to survive the school’s motion to dismiss, but the Second Circuit ruled in 2017 that it, too, must fail under the doctrine of immunity. The federal appeals court in Manhattan and another in Washington ruled against Doe three more times, culminating with her petitioning the Supreme Court for a writ of certiorari last year.

After the court turned her down this morning, Thomas called it a missed opportunity to correct wrongly decided precedent: the 1950 case Feres v. United States, in which the court held that members of the U.S. military could not sue for injuries related to their service under the Federal Tort Claims Act, but that the same bar did not extend to civilian contractors.

Thomas called this an unjustifiably confusing distinction, posing a hypothetical where Feres would allow only a civilian Pentagon employee and not one in the service to sue if both were hit by a bus in the Pentagon parking lot.

“Nothing in the text of the act requires this disparate treatment,” his dissent states. “Nor is there any background rule that federal bus drivers owe a greater duty of care toward workers who are civilian than those who are military.”

Thomas said the court has a duty to clarify the scope of the immunity that Feres created.

“One might be surprised to learn, for example, that Feres sometimes bars claims of a drunken servicemember who drowns, except when it does not,” Thomas wrote. “Or, to discover that Feres apparently forecloses a claim for a servicemember’s injury while waterskiing because the recreational boat belonged to the military, but not for an injury while attending a rugby event caused by a servicemember’s negligent operation of an Army van.

“And like Judge Chin in dissent, one might be concerned to find out that a student’s rape is considered an injury incident to military service,” Thomas concluded, referring to a Second Circuit jurist who dissented to the court’s 2017 reversal.

Thomas has previously voiced interest in the court’s review of Feres, writing in 2019 the court should have granted a challenge from a husband of a Navy lieutenant who died at a military hospital during childbirth. Thomas wrote then that the repercussions of the denial of relief to military personnel “will continue to ripple through our jurisprudence as long as the court refuses to reconsider Feres.”

Coincidentally, across the street from the Supreme Court on Monday, lawmakers on the House Armed Services subcommittee are considering the Feres doctrine in the context of what the U.S. Marine Corps has described as the “deadliest” accident in history: the death of nine service members aboard an amphibious assault vehicle that sank last year off California’s San Clemente Island.

Democratic Congresswoman Jackie Speier of the Golden State highlighted the challenges with Feres to two grieving fathers who offered their recommendations to Congress about who should be held accountable for equipment that malfunctioned and led to the drownings.

“To your point, the Feres doctrine is not law, it is a Supreme Court decision on which we have relied on,” she said. “We should do more than we have done. Although we have provided, over the course of 10 years, $400 million to deal with claims by servicemembers who are victims of medical malpractice at medical facilities, we need to expand that to deal with gross negligence in situations like this.”

The Feres-linked case was one of dozens that the Supreme Court rejected in Monday’s order list, which did not include any grants.

Among the denied cases, the justices also declined to hear a challenge to Maryland’s ban of bump stocks, firearm stocks that enable semiautomatic weapons to fire rounds faster. The state outlawed the stocks in October 2018 — responding to the mass shooting in Las Vegas a year earlier in which the shooter has used bump stocks.

The gun rights advocacy organization Maryland Shall Issue claimed in the underlying lawsuit that Maryland’s ban violated the 14th Amendment. A federal judge wasted little time dispatching with the suit in November that year.

Per their custom, the justices of the Supreme Court did not comment closing the book on the case Monday.

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