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

855

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.Feres’s 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. DEP’T 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.