Workers and students who experience civil rights violations have a plethora of legal tools at their disposal to seek accountability and relief—ranging from constitutional, to statutory, to tort claims. But the courthouse doors have long been closed to one group, whose exclusion from remedies by the government which they defend is particularly jarring: members of the military.
Federal civil rights statutes often exclude uniformed members of the military. See, e.g., 20 U.S.C. 1681(a)(4) (excepting from Title IX’s coverage an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine”); 29 C.F.R. § 1614.103(d)(1) (noting that various civil rights statutes only apply to non-uniformed members of military departments); Jackson v. Modly, 949 F.3d 763, 772 (D.C. Cir. 2020) (“[E]very circuit court of appeals to address this issue since 1978 has held that uniformed members of the armed forces are not included within the protections of Title VII . . . .”).
But Congress had already provided service members a legal remedy through tort law. The Federal Torts Claims Act (FTCA), passed in the first half of the 20th Century, allowed military members to sue the United States for their injuries—except for those “arising out of . . . combatant activities . . . during time of war.” 28 U.S.C. § 2680(j).
Yet in Feres v. United States, 340 U.S. 135 (1950), the Supreme Court flouted the original congressional intent of the clear statutory text by holding that the government is not liable for any injuries sustained “incident to service.” Id. at 146. By judicial fiat, the Court overread the “arising out of . . . combatant activities” language and read the “during time of war” qualifier out of the law entirely.
Rather than fix this judicial invention, courts doubled down on the “Feres doctrine,” extending the bar to service members’ constitutional (Bivens) claims for damages against the federal government. See, e.g., United States v. Stanley, 483 U.S. 669 (1987). This misguided expansion has resulted in service members who suffered civil rights violations, such as race discrimination and rape, leaving court empty-handed, with no opportunity to air the merits of their cases. See, e.g., Chappell v. Wallace, 462 U.S. 296 (1983); Klay v. Panetta, 758 F.3d 369 (D.C. Cir. 2014).
Over time, courts have expanded the definition of an injury deemed “incident to service” to the point that the term has lost virtually all meaning. The doctrine, boiled down to the simplest possible form, is now a legal rights-stripping membership test: service members struggle to monetarily recover from the government for wrongs experienced in and out of uniform. Meanwhile, their civilian counterparts can recover for the same harms, even if committed by the same bad actors. See Doe v. United States, No. 20-559, 593 U.S. ___, slip op. at 2 (May 3, 2021) (Thomas, J., dissenting from the denial of cert.) (“Under our precedent, if two Pentagon employees—one civilian and one a servicemember—are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim on the merits.”).
Jurists of all ideological stripes have found themselves as strange bedfellows decrying the Feres doctrine and its absurd results. See, e.g., Daniel v. United States, 139 S. Ct. 1713, 1713–14 (2019) (Thomas, J., dissenting from the denial of cert.); United States v. Johnson, 481 U.S. 681, 692–703 (1987) (Scalia, J., dissenting); Doe v. Hagenbeck, 870 F.3d 36, 50–62 (2d Cir. 2017) (Chin, J., dissenting); Lombard v. United States, 690 F.2d 215, 228–33 (D.C. Cir. 1982) (Ginsburg, J., concurring in part and dissenting in part).
The Supreme Court recently squandered another opportunity to correct course when it declined to hear the claims of Jane Doe,[*] who suffered an explosively hostile educational environment, culminating in her sexual assault, while a student at West Point. Doe v. United States, No. 20-559, 593 U.S. ___ (May 3, 2021).[†] Justice Thomas, in an uncharacteristic role of defender of civil rights, dissented from that decision.
That Jane Doe has no legal recourse because of an anti-textual, judicially created exception is shameful. Given many of the Court’s recent rulings, respect for precedent or congressional authority ring hollow as possible justifications for the Court’s abdication here. See, e.g., Jones v. Mississippi, No. 18-1259, 593 U.S. ___, slip op. at 16 (Apr. 22, 2021) (Sotomayor, J., dissenting); Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2033–35 (2020); Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1147–48 & n.7 (2018) (Ginsburg, J., dissenting). So why deny Jane Doe her day in court? What explains the Supreme Court and Congress’s disregard for veterans, a group often the focus of strenuous bipartisan praise but whose legal needs—in this and many other contexts—often go ignored? The U.S. government does not blink at spending astronomical amounts to maintain the institution of the military. But will it continue to force service members, particularly those most marginalized, to forfeit their civil rights?
Although only the Supreme Court can walk back its harmful Bivens jurisprudence, Congress can step up and protect the legal rights of our Armed Forces by overriding Feres with new legislation. In recent years, thanks to significant advocacy by veterans service organizations and individuals, a limited administrative carveout from the Feres doctrine was put into place for certain medical malpractice claims. See 10 U.S.C. § 2733a. The time is overdue to pass a judicial carveout for, at least, claims related to harassment and discrimination. Forfeiting the right to an education or job free from such social ills should not be one of the sacrifices required upon enlisting.
[*] I previously represented Jane Doe when this litigation was pending before lower courts.
[†] Ironically, at multiple levels, then-Senator Al Franken cited the case of a military contractor’s rape to pass an amendment making mandatory arbitration requirements disqualifying to receive government contracts. See Andrew McWhorter, Note, A Congressional Edifice: Reexamining the Statutory Landscape of Mandatory Arbitration, 52 Colum. J.L. & Soc. Probs. 521, 548–50 (2019).