Attorneys for two soldiers who allege a military doctor sexually abused them have filed two administrative complaints — the first stage in the process of filing a lawsuit — accusing the Army and the Department of Defense of negligence, but the case faces a murky fate given a decades-old Supreme Court precedent.

Service officials brought criminal charges related to the sexual abuse of at least 23 victims against Army doctor Maj. Michael Stockin on Aug. 30. Two soldiers alleged nearly identical instances of sexual abuse. Stockin served as a pain management doctor at a medical center at Joint Base Lewis-McChord, Washington. After the patients took off their robes, Stockin with bare hands fondled the patients’ genitals, lawyers for the two patients alleged.

“My clients went to this doctor because they were in pain,” Christine Dunn, an attorney with Sanford, Heisler and Sharp who is representing the two soldiers, said in a statement announcing the Sept. 14 claims filing. “The Army had a duty to take reasonable measures to protect patients in its care. The fact that Dr. Stockin was able to abuse so many patients is compelling evidence that the Army was negligent in supervising Dr. Stockin.”

Administrative complaints from the two instances said there was no medical necessity for Stockin to touch their genitals in such a manner. The claims also argue that the Army is liable, and accused the service of negligence in hiring, supervising and failing to put in place protocols to prevent the sexual abuse of patients.

The plaintiffs are seeking $5 million each for the government’s alleged negligence, Dunn told Army Times. The Army has six months to investigate the claim.

When reached for comment on the allegations of negligence, a spokesman for the Army, Bryce Dubee, said that “as a matter of policy, the Army does not comment on ongoing litigation.”

Neither soldier was named in the claim filing, but one is currently on active duty in the Army, Dunn said. The other has retired from the service, but the alleged abuse took place while they were both in the military. The fact that both individuals were in uniform at the time of the alleged abuse may jeopardize their chances of ever having their case argued inside a courtroom.

The Feres Doctrine, established by the U.S. Supreme Court in 1950, essentially creates two sets of rules when it comes to accusations of negligence and who can sue for damages: one for civilians, one for service members. (Staff Sgt. Joshua Magbanua/Air Force)

The complaints, and any future lawsuits that would result from them, hinge on combating an obscure legal doctrine that first entered the legal fray in 1950, altering the basic legal rights of service members. Army Lt. Rudolph Feres’ widow brought a case before the U.S. Supreme Court after her husband died in a fire in a New York military barracks. She alleged the government bore some responsibility for quartering Feres in a building with a faulty heating system.

Feres’ wife sued the government under the Federal Torts Claim Act, the law that sets out guidelines for citizens suing the government for wrong-doing or negligence. The Supreme Court ruled, though, that the federal government cannot be held liable “for injuries to members of the armed forces sustained while on active duty,” according to the court’s majority opinion.

The Feres doctrine was born, initially with the intention of protecting the military and government from lawsuits stemming from military operations, whether in training or combat. The court noted the availability of veterans benefits to compensate for injuries suffered on the job. And, when it reaffirmed its ruling in 1954, the court decided that allowing such suits would harm discipline.

But in the years that have followed, the Feres doctrine has been applied broadly to everything from medical malpractice to workplace violence and sexual assault.

Critics of the precedent argue the Feres doctrine created two sets of rules related to negligence or wrongdoing: one for civilians, and another for those in the military. If two people suffer the same injuries as a result of the same act of negligence, the civilian could sue, but the service member could not.

In 2020, Congress passed the Stayskal Act — named after an Army Green Beret whose lung cancer was misdiagnosed by military doctors — giving service members an avenue to file medical malpractice administrative claims.

But the lawyers for the two soldiers alleging Army negligence said they won’t be pursuing that avenue, and argued that it does not apply in this case.

“We do not believe that there was any medical reason for what happened here, so we would not classify it as medical malpractice,” Dunn said, by way of explaining why the law firm is pursuing a federal tort claim.

Dunn would not tell Army Times what specific guidelines the government violated when Stockin allegedly abused nearly two dozen victims, though she argued that the service should have had certain protocols in place to prevent such an incident.

“The risk that a patient might be sexually assaulted at this Army facility was foreseeable,” Dunn said. “It was really incumbent upon the Army to put in place protocols to minimize the risk of physician sexual assault, maybe insisting there always needs to be a chaperone or various other kinds of protocols they could have put in place and there weren’t.”

When asked about the likelihood that the Army would invoke the Feres doctrine to see the claim dismissed, Dunn pointed to the 9th Circuit Court of Appeals, arguing that a recent ruling there presents an opportunity to challenge the Feres doctrine.

In 2022, the 9th Circuit heard another case dealing with sexual assault in the military as it relates to suing the federal government for negligence. Then-Army Col. Kathryn Spletstoser served as an aid to Air Force Gen. John Hyten, commander of U.S. Strategic Command.

While attending the Reagan National Defense Forum, Spletstoser had gone back to her hotel room across the hall from Hyten. Late in the evening, Spletstoser said Hyten knocked on her door and grabbed her buttocks, kissed her against her will and rubbed his genitals against her. She said she repeatedly pushed him away and told him to stop, and that he then tried to derail her military career after she rebuffed him.

Spletstoser went public with her allegations when Hyten was nominated to serve as vice chairman of the Joint Chiefs of Staff. It was briefly investigated, but Hyten was confirmed and went on to serve in that role for two years until 2021. In July, Spletstoser was awarded $975,000 in a settlement.

“We are confident in our determination that this act of alleged sexual assault was not incident to military service, and Spletstoser’s action is not barred by the Feres doctrine,” the 9th Circuit ruled. “Such an egregious intentional tort creates circumstances that are far different from Feres cases.”

Some legal experts believe that applying Feres in this case would be legally — and morally — dubious.

Dwight Stirling, a National Guard lawyer and founder of the Center for Law and Military Policy, said a judge’s decision to use the doctrine in the case would call their “moral decency” into doubt. He added that ruling against the plaintiffs on those grounds would be a “gross distortion of the doctrine” and tell people that “experiencing sexual abuse is a fundamental aspect of what service members enlisted to do.”

“This is a textbook example of harm that is unrelated to a service member’s military duties,” he said. “The Feres doctrine only prohibits civil suits by service members when the harm sustained is closely related to the member’s job. No part of a member’s job involves him or her being sexually abused by their physician.”

The U.S Capitol is seen on Tuesday, July 4, 2023, on Capitol Hill in Washington.

There are two paths to altering the Feres doctrine: Taking the fight to the U.S. Supreme Court, or waging it on Capitol Hill through Congress. (Mariam Zuhaib/AP)

Clashes with the Feres doctrine can be solved by congressional or Supreme Court action — either in the form of passing legislation in Congress that carves out exceptions to the Feres doctrine, or by taking the case all the way to the Supreme Court and overturning the precedent there. It’s just a matter of one making the first move, said Eugene R. Fidell, a visiting lecturer at Yale Law School who teaches military justice. Previously a judge advocate in the Coast Guard, he said there’s been an “impasse” between the two branches of government. The Spletstoser case, he told Army Times, is a sign of cautious hope for military plaintiffs.

“There’s no immediate sign of a breakthrough on that impasse,” he said. “The Spletstoser case obviously is a cause of optimism, but it’s still not clear whether that’s one-off — a rogue wave — or a sign of a sea change. We’re not going to know that until some more cases come up that really call out for a fresh look at the Feres issue. Maybe the claim that’s been filed will be that case.”

Army Times Editor James Clark contributed reporting to this story.

Zamone “Z” Perez is a reporter at Military Times. He previously worked at Foreign Policy and Ufahamu Africa. He is a graduate of Northwestern University, where he researched international ethics and atrocity prevention in his thesis. He can be found on Twitter @zamoneperez.

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