Torts; Feres; cadets; armed forces; service members; Title IX; FTCA


Sixty-seven years ago, Feres v. United States foreclosed service members from pursuing claims under the Federal Tort Claims Act (FTCA) for “injuries incident to their service.” The progeny of case law that has since developed, the basis for what is known as the Feres doctrine, expanded the scope of what the Feres Court originally articulated as an injury incident to service. Now, cadets and midshipmen of military-service academies who allege that the government (i.e., the administration of military-service academies) was negligent in handling their sexual assaults are precluded from bringing an FTCA claim because their injuries are classified as “incident to their service” under Feres. Cadets and midshipmen occupy an ambiguous status as both service members and students of military-service academies. Although cadets and midshipmen are considered service members under the law, they are also students of military-service academies where they will graduate with a bachelor’s degree and incur an active-duty obligation to serve in the officer corps of the U.S. Armed Forces after they graduate. This Note focuses on the ambiguous status of cadets and midshipmen and argues that they are more akin to students of civilian colleges than active- duty service members. Unlike cadets and midshipmen, civilian students can raise Title IX claims against their universities for student-on-student sexual harassment or assault. By comparing how claims fare for cadets and midshipmen under Feres to the same claims by civilian students under Title IX, this Note argues that cadets and midshipmen do not have the same opportunity to achieve justice as civilian students in like circumstances. This Note additionally examines the legal and policy arguments against extending the Feres doctrine to cadets and midshipmen. Considering the evidence that suggests when superiors allow sexual harassment it may lead to higher instances of sexual harassment and assault in the military ranks, this Note urges Congress to reexamine the FTCA to limit the scope of the judicially made Feres doctrine to exclude cadets and midshipmen from bringing FTCA claims for the negligent mismanagement of their sexual assaults by academy administration.