Jane Doe v. United States

After years of deliberation, in 1946 Congress waived the United States’ sovereign immunity from tort liability through the Federal Tort Claims Act (“FTCA”), including for injuries involving “members of the military or naval forces.” 28 U.S.C. §§ 1346(b), 2671. Congress limited that waiver with enumerated exceptions, for instance preserving sovereign immunity against claims arising from “combatant activities . . . during time of war.” Id. § 2680(k). Despite the plain text of the statute, just four years later this Court held that the FTCA broadly precludes claims for injuries “incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950). For seventy years, Feres has deprived servicemembers of the statutory remedy Congress provided. Members of this Court have criticized this radical departure from statutory text, see United States v. Johnson, 481 U.S. 681, 702-03 (1987) (Scalia, J., dissenting) (Feres “ignor[ed] what Congress wrote and imagin[ed] what it should have written”), and voted to grant certiorari in cases seeking to correct this error. See, e.g., Daniel v. United States, 139 S. Ct. 1713, 1713 (2019) (Mem.) (“Justice Ginsburg would grant the petition for a writ of certiorari”); id. (Thomas, J., dissenting from denial of certiorari). While a cadet at the United States Military Academy, Petitioner Jane Doe was subject to pervasive sexual harassment and raped by a fellow cadet. Later, she brought tort claims under the FTCA. The Second Circuit, applying Feres, held that her claims were “incident to service” and therefore barred. The questions presented are:

1. Was Feres wrongly decided and should it be overruled?

2. Alternatively, should Feres be limited 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? (i)