Justice Thomas Pushes for Service Members’ Right to Sue the Military

It is a longstanding doctrine that military members do not have the right to sue the federal government. The Feres Doctrine has been in place for 70 years, and it says that service members and their families cannot file a lawsuit under the Federal Tort Claims Act. Often, it results in decisions that seem extremely unfair. This is exactly what Justice Clarence Thomas was arguing when he dissented in a case and urged that the Feres Doctrine be struck down.

A Rape Victim Was Denied the Right to Sue

In this particular case, a female service member, referred to as “Jane Doe,” was raped at West Point. She was one of the more than 20,000 service members who are sexually assaulted each year. The military has admittedly mishandled sexual assault in the ranks and has been slow to change rules to protect people from being attacked. 

Nonetheless, while the military’s inaction has produced some horrifying cases, it is not responsible to victims for the harm that they suffered. There is a near-ironclad doctrine that does not allow lawsuits against the military. This is applied whenever a service member suffers a personal injury, including:

• Car accidents
• Medical malpractice
• Sexual assault

However, there was a powerful voice speaking up in dissent this time. Justice Thomas passionately argued that the Feres Doctrine should finally be revisited. The Supreme Court is usually very deferential to its prior case law to give people a consistent sense of the law. That said, the Court will overrule cases now and then when they feel that a prior result is incorrect or does not reflect the current state of legal interpretation.

Thomas Believes that the Military Has Too Much Immunity

Justice Thomas argues that the Feres Doctrine is wrongfully interpreted to give the military too much immunity. He said that it should only apply to “combatant activities” in a time of war. Instead, it is used now to give the military almost complete immunity from any lawsuit brought by a service member.

In general, Congress and civilian advocates are working to change how the military deals with sexual assault. The number of victims remains high, and the service branches have not made much headway towards protecting soldiers. In the meantime, some judges have been speaking out, arguing that the doctrine should be limited or overruled. 

This is not the first time that Thomas has spoken out against Feres. In 2019, he also argued that a man should have a right to sue when his child died in a military hospital. He was joined by the late Justice Ginsburg, who said that the case should have been heard from the Court. It is almost undeniable that the application of this doctrine seems unfair, although courts continue to respect it as established precedent. 

Contact a Long Island Personal Injury Lawyer

If you or a loved one have suffered a personal injury, contact the Law Office of David M. Kaufman at 631-761-6400 or contact us online to schedule your free consultation.