Supreme Court Justice Clarence Thomas strongly dissented to a decision filed Monday not to hear the case of a former United States Military Academy cadet who alleges the government failed to adequately prevent and respond to her rape on campus.

As the lower courts did, the majority deferred to the Feres doctrine, a 1950 decision that ruled service members cannot sue the federal government for injuries sustained while serving. That includes not only combat or training injuries, but preventable damage caused by fellow troops or government employees ― to include, until last year, medical malpractice.

“Under our precedent, if two Pentagon employees — one civilian and one a servicemember — are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim on the merits,” Thomas wrote in his dissent.

Legal experts have debated for decades whether the original Feres decision was meant to cover only injuries incidental to combat, and perhaps inherently dangerous military training, or whether it should apply to any accident or assault endured while in uniform.

“Nothing in the text of the Act requires this disparate treatment,” Thomas wrote of the Federal Tort Claims Act, which governs liability lawsuits against the federal government. “Nor is there any background rule that federal bus drivers owe a greater duty of care toward workers who are civilian than those who are military.”

The anonymous woman, identified as Jane Doe, was raped by a fellow cadet while walking on campus one evening, according to court documents, and later dropped out of West Point altogether.

“When she reported the assault, West Point failed to adhere to mandatory Department of Defense (“DOD”) regulations governing sexual violence response,” according to the petition to the court, though it does not go into detail.

Not coincidentally, both Congress and DoD are considering removing prosecution authority for sexual harassment and assault out of the chain of command, in an effort to ensure special victims experts have the lead in decision making.

Sexual harassment and assault are among several offenses that civilians and contractors can sue DoD for, though not service members.

A long history of malpractice in military medicine finally came to a head in 2019, when Congress incorporated parts of the SFC Richard Stayskal Military Medical Accountability Act into the 2020 National Defense Authorization Act.

The bill was named for a Special Forces soldier with stage-four lung cancer that went undiagnosed for years despite a distinct mass on scans of his chest.

The law did not override Feres in general, however, and so service members injured in other ways still have no legal recourse outside of a command’s decision to prosecute its own members. So while service members are free to petition courts, judges lean heavily on Feres as precedent.

Those opposed to doing away with Feres argue that it’s a slippery slope, wasting time and resources if commanders were forced to testify in every negligence case brought before a federal court.

Congress could continue to take a piecemeal approach to the types of allowance claims, or as Thomas wrote, the Supreme Court could create a new, more specific precedent by hearing Doe’s case.

“At a minimum, we should take up this case to clarify the scope of the immunity we have created,” Thomas wrote. “Without any statutory text to serve as a guide, lower courts are understandably confused about what counts as an injury ‘incident’ to military service.”

The court’s reluctance to hear these cases speaks volumes, he added.

“Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong,” he wrote. “But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell.”

Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.

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