The United States Supreme Court is poised to consider several lawsuits concerning the extent and nature of governmental immunity. As it relates to military service, the Court will consider whether the intra-military immunity doctrine established by the Court in Feres v United States, should be overruled or limited. In Doe v Hagenback, the plaintiff was sexually assaulted by a fellow cadet while attending West Point. She sued her commanders alleging several tort theories of liability.
The federal district court dismissed the claimant’s tort claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and tort liability under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against West Point leadership on the basis of the Feres doctrine. As the Court noted, Feres requires dismissal of suits in which commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions; for example, whether to overlook a particular incident or episode, whether to discharge a servicemember, and whether and how to place restraints on the member’s off-base conduct. Doe v. United States, 815 F. App’x 592, 593 (2d Cir. 2020).
The doctrine of intra-military immunity established by Feres broadly precludes claims for personal injuries by military servicemembers which are incurred “incident to service.” The primary basis for Feres and the “immunity” principles arising out of that decision are rooted in the concept of deference to military training and command decisions. While traditional tort claims and immunity principles might be considered in similar cases in the civilian context, there is an overarching principle in military environments which historically prompted courts to shy away from imposing predicate risk mitigation constructs in the context of military education and training. For obvious reasons commanders and commands, even in training and/or academic or educational environments, must maintain a different level of discipline and require a different level of respect for the unique purposes served by the military. Therefore, it is beyond the subject-matter jurisdiction of civilian courts to consider claims for damages.
This is an important case to test the continuing viability or limits of the Feres doctrine; the case does not involve a traditional personal injury claim, but rather, it seeks to impose liability against the principals (the commander and command) on the basis of an intentional criminal sexual assault committed against the claimant by another cadet while both were attending West Point.
The petition filed in October, asks the Court to overrule the doctrine or limit it so as not to bar tort claims brought by servicemembers injured by violations of military regulations during recreational activities or while attending a service academy. No less than 5 amicus curiae briefs have been filed in the case, each of which support the Petitioner’s request for the Court to revisit intra-military immunity in the context of tort liability cases filed by members of the military against their commanding officers and units. See Supreme Court Docket No. 20-559.
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