Propping Open the Courthouse Door: Why Service Members Should Be Able to Bring Sexual Harassment Suits Under the Feres Doctrine

Author:Jeffrey A. Critchlow
Position:J.D. Candidate, The University of Iowa College of Law, 2019; B.S. United States Air Force Academy, 2016
Pages:855-889
SUMMARY

Most people would be stunned if they were told that their employer could discriminate against them and they would have no form of civil recourse. However, this is the situation that exists every day for the military personnel serving their country. This is because of a little-known strand of case law, referred to as the Feres Doctrine. Shortly after World War II, Congress waived its right to... (see full summary)

 
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Propping Open the Courthouse Door:
Why Service Members Should Be Able to
Bring Sexual Harassment Suits Under
the Feres Doctrine
Jeffrey A. Critchlow*
ABSTRACT: Most people would be stunned if they were told that their
employer could discriminate against them and they would have no form of
civil recourse. However, this is the situation that exists every day for the
military personnel serving their country. This is because of a little-known
strand of case law, referred to as the Feres Doctrine. Shortly after World War
II, Congress waived its right to sovereign immunity, with some exceptions,
through the Federal Tort Claims Act (“FTCA”). In reading through the
FTCA, the Supreme Court created an “incident to service” test, called the
Feres Doctrine, to determine whether a service member can sue the federal
government. Since Feres, lower courts have struggled to apply the new
doctrine to new cases, which has led them to decry it. Despite these reservations,
the courts have vastly expanded Feres. The primary reasons courts have used
for barring recovery to service members are the fear of double compensation
under the Veterans’ Benefits Act (“VBA”) and an unwillingness to encroach
on the military decision-making process. However, these concerns ignore the
fact that some service members do not receive anything under the VBA and
civil actions do not unduly burden the military. In response to the ever-
expanding Feres Doctrine, this Note seeks to strike a balance between
respecting the need for military discipline and permitting injured service
members to obtain a recovery. As such, this Note advocates that Congress
should amend the FTCA to recognize intentional torts, not explicitly excluded
under the FTCA, are viable actions. In addition, Congress should intervene
and statutorily permit service members to sue under a Title VII regime for
harassment. These tweaks will help the military while also helping victims.
*
J.D. Candidate, The University of Iowa College of Law, 2019; B.S. United States Air
Force Academy, 2016. The views expressed in this Note are those of the author and do not
necessarily reflect the official policy or position of the Air Force, the Department of Defense, or
the U.S. Government. I would like to extend my deepest appreciation to my wife, Maria Critchlow,
and my family for their support throughout the Note-writing process. Additionally, I would like
to thank the members of the Iowa Law Review for their invaluable edits to my Note.
856 IOWA LAW REVIEW [Vol. 104:855
I. INTRODUCTION ............................................................................. 856
II.DECIPHERING THE CREATION AND EVOLUTION OF THE
FERES DOCTRINE ........................................................................... 859
A.THE FTCA’S CREATION ........................................................... 859
B.CREATING THE FERES DOCTRINE ............................................. 860
C.EXPANDING FERES .................................................................. 863
D.CIRCUIT SPLIT ON INTENTIONAL TORTS ................................... 864
E.CRITICISMS OF THE FERES DOCTRINE ....................................... 868
F.CONCERNS SURROUNDING SEXUAL HARASSMENT
AND FERES .............................................................................. 869
III.FAULTY RATIONALE LEADING TO MAJOR CIRCUIT
CONFUSION ................................................................................... 870
A.MILITARY DISCIPLINE RATIONALE ........................................... 870
1.“Good Order and Discipline’s” Historical
Underpinnings .............................................................. 870
2.Feress Negative Impact on “Good Order
and Discipline” .............................................................. 873
B.COMPENSATION RATIONALE .................................................... 875
C.EQUITY RATIONALE ................................................................. 877
D.PLAIN MEANING AND CIRCUIT CONFUSION ............................... 880
IV. RECTIFYING FERES: INCENTIVIZING THE MILITARY TO FIX
ITS PROBLEMS ............................................................................... 882
A.AMENDING THE FERES DOCTRINE ............................................ 883
B.APPLYING TITLE VII ................................................................ 884
C.AN ALTERNATIVE TITLE VII APPROACH ................................... 887
V.CONCLUSION ................................................................................ 889
I. INTRODUCTION
In Fiscal Year 2016, service members brought 601 complaints of sexual
harassment to the military’s attention.1 Four hundred and fifteen individuals
1. DEPT OF DEF., SEXUAL ASSAULT PREVENTION & RESPONSE OFFICE, DEPARTMENT OF
DEFENSE FISCAL YEAR 2016 ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: APPENDIX H:
SEXUAL HARASSMENT DATA 1 (2017), http://sapr.mil/public/docs/reports/FY16_Annual/
Appendix_H_Sexual_Harassment_Data.pdf [hereinafter SEXUAL HARASSM ENT DATA]. This Note
focuses exclusively on sexual harassment rather than sexual assault, because there are currently
others writing on sexual assault and the Feres Doctrine; however, sexual harassment has been
overlooked.
2019] SEXUAL HARASSMENT SUITS UNDER THE FERES DOCTRINE 857
were reported for sexual harassment.2 Furthermore, 88% “of substantiated
incidents occurred on duty.”3 Congress created Title VII to help victims of
sexual harassment and other forms of discrimination obtain relief in the
corporate context.4 However, most people do not realize that the Supreme
Court intervened in Title VII’s application to the military and held that the
Feres Doctrine bars service members from recovering if their injury5 is
“incidental to service,”6 which means the Feres Doctrine will bar any civil claims
sexually harassed service members try to bring against the military.7
Within the military, the Feres Doctrine prevents service members from
suing for injuries “where the injuries arise out of or are in the course of activity
incident to service.”8 Loosely based on the Federal Tort Claims Act (“FTCA”),
the Feres Doctrine started as an effort to keep civilians from interfering with
military decisions and prevent service members from obtaining a double
recovery under what is now known as the Veterans’ Benefits Act (“VBA”) and
through a civil suit;9 however, the circuit courts have gradually expanded the
doctrine to bar an array of claims, from recreational activities10 to intentional
2. Id. at 2.
3. Id.
4. See 42 U.S.C. § 2000e–2 (2012) (prohibiting employment discrimination based on an
“individual’s race, color, religion, sex, or national origin”).
5. Traditionally, courts have considered cases dealing with physical injuries. See generally
Feres v. United States, 340 U.S. 135 (1950) (analyzing three cases which led to the creation of
the Feres Doctrine). However, lower courts have also barred individuals from suing for non-
physical injuries, such as sexual harassment or intentional infliction of emotional distress
(“IIED”). See, e.g., Mackey v. United States, 226 F.3d 773, 776–77 (6th Cir. 2000) (holding that
Feres Doctrine barred plaintiff any chance of recovering for sexual harassment claim).
6. Rachel Natelson, The Unfairness of the Feres Doctrine, TIME (Feb. 25, 2013), http://
nation.time.com/2013/02/25/the-unfairness-of-the-feres-doctrine (“[T]he ‘incident to service’
provision routinely cited as an impediment best fixed by Congress is nowhere to be found in
federal statute, making legislative reform something of an existential puzzle.”).
7. Id.
8. Feres, 340 U.S. at 146.
9. 38 U.S.C. ch. 12 (1950) (codified as amended at 38 U.S.C. Part II (2012)); Feres, 340
U.S. at 143–44 (describing the Court’s concerns that people may obtain a double recovery and
the uniquely federal nature of service member’s claims).
10. See, e.g., McConnell v. United States, 478 F.3d 1092, 1098 (9th Cir. 2007) (describing
how the Feres doctrine barred the service member’s claim for an injury sustained while using a
government owned motorboat). The court stressed “we remain constrained to follow our ‘well-
worn path’ of interpreting the Feres doctrine ‘to include military-sponsored recreational
programs.’” Id. (quoting Costo v. United States, 248 F.3d 863, 869 (9th Cir. 2001)); see also Walls
v. United States, 832 F.2d 93, 94–95 (7th Cir. 1987) (explaining that the Feres doctrine barred
the service member’s claim because the airplane which crashed was owned by the rec reational
Aero Club thus making the sustained injuries incidental to the line of duty); Hass ex rel. United
States v. United States, 518 F.2d 1138, 1141 (4th Cir. 1975) (stating that the Feres doctrine barred
the service member’s claim because the hors e-riding injury stemmed from renting a horse from
the Marine-Corps operated stables). The court noted that the “[r]ecreational activity provided by
the military can reinforce both morale and health and thus serve the overall military purpose.” Id.

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