PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1065
KORI CIOCA; MARY GALLAGHER, Massachusetts; REBEKAH
HAVRILLA, South Carolina; MYLA HAIDER, Washington; SARAH
ALBERTSON, Montana; GREG JELOVDOU, New York; AMBER DE
ROCHE, Washington; PANAYIOTA BERTZIKIS, Massachusetts;
KATELYN BOATMAN, Oklahoma; ANDREW SCHMIDT, California;
NICOLE CURDT, Wyoming; JESSICA KENYON, Pennsylvania; ANDREA
NEUTZLING, Ohio; KRISTEN REUSS, Ohio; JESSICA NICOLE
HINVES; Virginia, STEPHANIE SCHROEDER, Illinois; AMBER
YEAGER, California; AMY LOCKHART, Virginia; BLAKE STEPHENS,
California; CLAUDIO CASTILLO, Texas, TOBEY THACHER,
Arizona; INA CHILDRESS, Tennessee; ELIZABETH LYMAN, Texas;
SANDRA SAMPSON, New Jersey; HANNAH SEWELL, Kentucky;
LATOYIA WILLIAMS, Texas; TINA WILSON, Oklahoma; VALORIE
DESAUTEL, Rhode Island,
Plaintiffs − Appellants,
and
COURTNEY HURD,
Plaintiff,
v.
DONALD RUMSFELD, Former Secretary of Defense; ROBERT GATES,
Former Secretary of Defense,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:11-cv-00151-LO-TCB)
Argued: May 17, 2013 Decided: July 23, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion in
which Judge Niemeyer and Judge Thacker joined.
ARGUED: Susan L. Burke, BURKE PLLC, Washington, D.C., for
Appellants. Lowell Vernon Sturgill, Jr., UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Susan M. Sajadi, BURKE PLLC, Washington, D.C., for
Appellants. Neal H. MacBride, United States Attorney,
Alexandria, Virginia, Stuart F. Delery, Acting Assistant
Attorney General, Barbara L. Herwig, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
2
AGEE, Circuit Judge:
Twenty-eight current and former members of the United
States armed forces (“Plaintiffs”), who allege they were victims
of rape and sexual misconduct by fellow servicemembers during
their military careers, brought suit against two former
Secretaries of Defense, Donald Rumsfeld and Robert Gates
(“Defendants”) in the United States District Court for the
Eastern District of Virginia. Alleging that Defendants’ acts
and omissions in their official capacities contributed to a
military culture of tolerance for the sexual crimes perpetrated
against them, Plaintiffs sought money damages pursuant to Bivens
v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Based on controlling Supreme Court precedent, the
district court dismissed the Complaint, concluding that judicial
abstention was required. For the reasons explained below, we
affirm the judgment of the district court.
I.
BACKGROUND AND PROCEEDINGS BELOW
Plaintiffs are twenty-five women and three men who are all
veterans of or currently serving in the United States Army,
3
Navy, Marine Corps, or Coast Guard. 1 In their Bivens Complaint
(“the Complaint”), Plaintiffs describe acts of sexual assault
committed against them by other armed forces personnel, and
detail their often unsuccessful attempts to prosecute those
responsible. 2 Plaintiffs allege that their reports of serious
crimes were met with skepticism, hostility, and retaliation by
military authorities. The accused assailants, according to the
Complaint, often received only minimal punishment for the crimes
alleged. In essence, the Complaint describes a culture of
sexual predation in the military fostered by the acts of
Defendants, which Plaintiffs allege to be the cause of the rape
and sexual assault committed against them.
Plaintiffs further allege in the Complaint that the
Defendants violated their constitutional rights by, inter alia,
“fail[ing] to (1) investigate rapes and sexual assaults, (2)
prosecute perpetrators, (3) provide an adequate judicial system
as required by the Uniform Military Justice Act, and (4) abide
1
Because this appeal arises out of the grant of a motion to
dismiss, we “accept[] all well-pled facts as true and construe[]
these facts in the light most favorable to the plaintiff in
weighing the legal sufficiency of the complaint.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
2
Plaintiffs solely plead a direct constitutional cause of
action under Bivens as the only basis of their Complaint and
bring no other claim, statutory or otherwise.
4
by Congressional deadlines to implement Congressionally-ordered
institutional reforms to stop rapes and other sexual assaults.”
(J.A. 4.)
The Complaint also alleges, inter alia, that Secretary
Rumsfeld “expressed scorn and derision towards Congressional
efforts to eradicate sexual assault in the military,” “permitted
military Command to interfere with the impartiality of criminal
investigations,” ignored Congressional commands to take certain
actions, and “did not make any efforts to eliminate retaliation
against servicemembers who reported being raped, assaulted and
harassed.” (J.A. 53-54.)
As to Secretary Gates, the Plaintiffs pled that he “failed
to take reasonable steps to prevent Plaintiffs from being
repeatedly raped, sexually assaulted and sexually harassed,”
“permitted military Command to use nonjudicial punishment for”
such conduct, “permitted military Command to retaliate against
those servicemembers who reported being raped, assaulted, and
harassed,” and “interfered with and opposed Congressional
directives designed to eliminate rape and sexual assault in the
military.” (J.A. 55.)
As a consequence of the foregoing allegations, Plaintiffs
assert that the Defendants violated their Fifth Amendment rights
to due process and equal protection, their First Amendment
5
rights to free speech, and their Seventh Amendment rights to
trial by jury.
Defendants moved to dismiss the Complaint for failure to
state a claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Before the district court, they argued that
the Supreme Court has declined to extend Bivens to permit suits
for money damages against government officials in general, but
particularly not to permit suits for alleged torts that arise
out of military service. 3
After hearing argument, the district court issued an order
granting Defendants’ Rule 12(b)(6) motion and dismissing the
Complaint. Relying heavily on Chappell v. Wallace, 462 U.S. 296
(1983), and United States v. Stanley, 483 U.S. 669 (1987), the
district court observed that a Bivens-type remedy is “not
available when ‘special factors counseling hesitation’ are
present.” (J.A. 62.) Noting that “the unique disciplinary
structure of the military establishment is a special factor that
counsels against judicial intrusion,” J.A. 62, the court
concluded that “[i]n the present case, the Plaintiffs sue the
3
Defendants argued, in the alternative, that they are
entitled to qualified immunity. The district court did not
address this defense once it concluded that Bivens relief was
unavailable to Plaintiffs. Because we affirm the district
court’s judgment on that ground, we similarly do not address any
issue of qualified immunity.
6
Defendants for their alleged failures with regard to oversight
and policy setting within the military disciplinary structure.
This is precisely the forum in which the Supreme Court has
counseled against the exercise of judicial authority.” (J.A.
62.) Although the court observed that the allegations raised in
the complaint were “egregious,” it reiterated that the Supreme
Court has “strongly advised against judicial involvement.”
(J.A. 62.)
Plaintiffs noted a timely appeal of the district court’s
judgment, and we have jurisdiction pursuant to 28 U.S.C. § 1291. 4
4
Two Plaintiffs, Kori Cioca and Panayiota Bertzikis, allege
injuries arising out of their service while members of the
United States Coast Guard. In the absence of specific
circumstances not present here, the Coast Guard operates as a
service within the Department of Homeland Security, not the
Department of Defense. See 14 U.S.C. § (3). We therefore
directed the parties to provide supplemental briefing on the
issue of whether those Plaintiffs who served in the Coast Guard
have standing to bring suit against Defendants, two former
Secretaries of Defense. Although we have serious doubts that
Cioca and Bertzikis possess such standing in this action, we do
not decide that issue because we conclude that judicial
abstention is appropriate in this case. See, e.g., Tenet v.
Doe, 544 U.S. 1, 6 n.4 (2005) (observing that prudential bars,
such as abstention, “represent[] the sort of threshold question
we have recognized may be resolved before addressing
jurisdiction”) (internal quotation marks omitted).
7
II.
STANDARD OF REVIEW
“We review de novo the grant of a Rule 12(b)(6) motion to
dismiss for failure to state a claim.” Epps v. JP Morgan Chase
Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012). “To survive a
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
III.
THE CONSTITUTIONAL BASIS OF A BIVENS ACTION
Plaintiffs raise one assignment of error on appeal: that
the district court erred in concluding that a Bivens remedy does
not lie for the constitutional violations they allege in their
Complaint. In Bivens, the Supreme Court held that “violation of
[the Fourth Amendment] by a federal agent acting under color of
his authority gives rise to a cause of action for damages,”
despite the absence of any federal statute creating liability.
403 U.S. at 389. The Court explained that even without an
explicit congressional authorization for a monetary remedy at
law, “[t]he very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the
8
laws, whenever he receives an injury.” Id. at 397 (quoting
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)).
Notwithstanding the breadth of that phrase, the Court
placed an important qualifier on the availability of an implied
right of action against a government official, foreshadowing the
extremely narrow reach established in post-Bivens cases. The
Court limited a Bivens right of action by stating that “the
present case involves no special factors counselling hesitation
in the absence of affirmative action by Congress.” Id. at 396.5
As the Court would later explain, “[t]he special factors
counselling hesitation in the creation of a new remedy . . .
relate[] to the question of who should decide whether such a
remedy should be provided,” rather than “the merits of the
particular remedy that was sought.” Bush v. Lucas, 462 U.S.
367, 380 (1983).
We recently examined the basis and application of Bivens,
particularly in a military setting, in Lebron v. Rumsfeld, 670
F.3d 540 (4th Cir. 2012). Our explanation recognized the
5
The Court in Stanley described the “special factors
counselling hesitation” language in Bivens as mere dictum. 483
U.S. at 678 (“We suggested in dictum that inferring such an
action directly from the Constitution might not be appropriate
when there are ‘special factors counselling hesitation in the
absence of affirmative action by Congress.’”). Regardless,
“[i]n [the subsequent Supreme Court decision] Chappell, . . .
that dictum became holding.” Id. at 678-79.
9
Supreme Court’s strict limits on a Bivens proceeding exist in
part because “the Supreme Court has long counselled restraint in
implying new remedies at law.” Lebron, 670 F.3d at 547. Such
restraint counsels that we review a plaintiff’s “invitation to
imply a Bivens action . . . with skepticism.” Id. at 548.
As we emphasized in Lebron, judicial abstention from
sanctioning a Bivens claim in the military context is, at its
essence, a function of the separation of powers under the
Constitution which “delegates authority over military affairs to
Congress and to the President as Commander in Chief. It
contemplates no comparable role for the judiciary.” Id.
Preserving the constitutionally prescribed balance of
powers is thus the first special factor counseling
hesitation in the recognition of [the plaintiff’s]
Bivens claim. The “Constitution contemplated that the
Legislative Branch [have] plenary control over rights,
duties, and responsibilities in the framework of the
military establishment, including regulations,
procedures, and remedies.” Chappell v. Wallace, 462
U.S. 296, 301 (1983). Indeed, that control is
explicit and not merely derivative of other powers:
Congress has the enumerated powers to declare war, see
U.S. Const., art. I, § 8, cl. 11; establish the armed
forces, see id. cl. 12–13; and “make Rules for the
Government and Regulation of the land and naval
Forces,” id. cl. 14. As the Supreme Court has noted,
“What is distinctive here is the specificity of that
technically superfluous grant of power . . . Had the
power to make rules for the military not been spelled
out, it would in any event have been provided by the
Necessary and Proper Clause—as is, for example, the
power to make rules for the government and regulation
of the Postal Service.” United States v. Stanley, 483
U.S. 669, 682 (1987) (internal citation omitted). As
a consequence, “in no other area has the Court
10
accorded Congress greater deference.” Rostker v.
Goldberg, 453 U.S. 57, 64–65 (1981).
Id. at 548-49.
As a consequence of the Constitution’s specific delineation
of the powers allotted among the branches of government in
military affairs,
whenever the Supreme Court has considered a Bivens
case involving the military, it has concluded that
“the insistence . . . with which the Constitution
confers authority over the Army, Navy, and militia
upon the political branches . . . counsels hesitation
in our creation of damages remedies in this field.”
Stanley, 483 U.S. at 682. Put simply, “such a remedy
would be plainly inconsistent with Congress’
authority” in military affairs. Chappell, 462 U.S. at
304.
Id. at 550.
Against that backdrop, the Supreme Court has only twice, in
the more than forty years since deciding Bivens, recognized a
new implied monetary remedy against federal officials, and it
has never done so in the military context. In Davis v. Passman,
442 U.S. 228 (1979), the Court allowed a congressional staffer
to sue a congressman for alleged violations of the Due Process
Clause of the Fifth Amendment. And in Carlson v. Green, 446
U.S. 14 (1980), the Court permitted a suit to go forward against
federal prison officials for an alleged violation of the Cruel
and Unusual Punishments Clause of the Eighth Amendment.
It is clear that expansion of a Bivens-based cause of
action, such as Davis and Carlson, is the exception, not the
11
rule. The Supreme Court has further acknowledged that since
those cases were decided it has “responded cautiously to
suggestions that Bivens remedies be extended into new contexts.”
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also Wilkie
v. Robbins, 551 U.S. 537, 550 (2007) (A Bivens suit “is not an
automatic entitlement.”). Indeed, since Davis and Carlson, the
Court has consistently turned away plaintiffs seeking to avail
themselves of novel applications of Bivens. See e.g., Minneci
v. Pollard, 565 U.S. ---, ---, 132 S. Ct. 617, 626 (2012) (no
Bivens claim against employees of privately run federal prison);
Wilkie, 551 U.S. at 550 (no Bivens action lies against Bureau of
Land Management employees accused of retaliating against a
landowner); Correctional Servs. Corp. v. Malesko, 534 U.S. 61,
74 (2001) (no Bivens remedy against corporate operator of
private prison); FDIC v. Meyer, 510 U.S. 471, 486 (1994) (no
Bivens cause of action against federal agencies); Schweiker, 487
U.S. at 420 (Bivens suit not permitted for due process
violations alleged against government employees in their
handling of Social Security applications); Stanley, 483 U.S. at
683 (no Bivens suits when injuries are sustained incident to
military service); Bush, 462 U.S. at 390 (no Bivens remedy for a
federal employee against a supervisor who has allegedly violated
employee’s First Amendment rights); Chappell, 462 U.S. at 305
(military personnel may not sue superior officers in a Bivens
12
action). In light of this unbroken line of judicial abstention,
we have emphasized that “[t]he Bivens cause of action is not
amenable to casual extension.” Lebron, 670 F.3d at 548 (quoting
Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006)).
Moreover, the Supreme Court has recognized that implied
causes of action for money damages are uniquely problematic in
the context of claims against the military. In Chappell, the
Court concluded that no Bivens cause of action could lie against
certain Naval officers alleged to have engaged in racial
discrimination against the plaintiffs, a group of enlisted
sailors. Chief Justice Burger, writing for the Court,
explained:
[t]he special status of the military has required, the
Constitution has contemplated, Congress has created,
and this Court has long recognized two systems of
justice, to some extent parallel: one for civilians
and one for military personnel. The special nature of
military life—the need for unhesitating and decisive
action by military officers and equally disciplined
responses by enlisted personnel—would be undermined by
a judicially created remedy exposing officers to
personal liability at the hands of those they are
charged to command.
Id. at 303-04 (internal citation omitted); see also id. at 301
(“Judges are not given the task of running the Army.”) (quoting
Orloff v. Willoughby, 345 U.S. 83 (1953)). It is for that
reason, Chief Justice Burger noted, “[c]ivilian courts must, at
the very least, hesitate long before entertaining a suit to
tamper with the established relationship between enlisted
13
military personnel and their superior officers; that
relationship is at the heart of the necessarily unique structure
of the Military Establishment.” Id. at 300. Accordingly, the
Court determined that “the unique disciplinary structure of the
Military Establishment and Congress’ activity in the field
constitute ‘special factors’ which dictate that it would be
inappropriate to provide enlisted military personnel a Bivens-
type remedy against their superior officers.” Id. at 304.
In concluding that a Bivens claim was unavailable to the
plaintiffs in Chappell, the Court drew guidance from Feres v.
United States, 340 U.S. 135 (1950). 6 In Feres, the Court
analyzed “whether the [Federal] Tort Claims Act [“FTCA”] extends
its remedy to one sustaining ‘incident to [military] service’
what under other circumstances would be an actionable wrong.”
340 U.S. at 138. Answering that question in the negative, the
Feres Court concluded that “the Government is not liable under
the [FTCA] for injuries to servicemen where the injuries arise
out of or are in the course of activity incident to service.”
Id. at 146. Drawing on that precedent, the Court in Chappell
then observed, “[h]ere, as in Feres, we must be concerned with
6
Over a dissenting opinion from Justice Thomas, the Supreme
Court recently declined to revisit its holding in Feres. See
Lanus v. United States, No. 12-862, --- S. Ct. --- (June 27,
2013) (order denying cert.).
14
the disruption of the peculiar and special relationship of the
soldier to his superiors that might result if the soldier were
allowed to hale his superiors into court.” 462 U.S. at 304
(internal quotation marks and alterations omitted).
Four years after Chappell, the Supreme Court reaffirmed and
clarified the Chappell holding in Stanley, wherein a former
servicemember brought actions pursuant to the FTCA and Bivens
alleging that he was the involuntary victim of Army LSD
experiments during his military service. 483 U.S. at 671-72.
The Stanley plaintiff argued that because he was not suing
persons directly in his chain of command, the concerns
articulated in Chappell were inapplicable. Id. at 679. In
holding that the plaintiff could not pursue a Bivens action, the
Court explicitly adopted the “incident to service” test
articulated in Feres and Chappell for application in a Bivens
proceeding.
Today, no more than when we wrote Chappell, do we see
any reason why our judgment in the Bivens context
should be any less protective of military concerns
than it has been with respect to FTCA suits, where we
adopted an “incident to service” rule. In fact, if
anything we might have felt freer to compromise
military concerns in the latter context, since we were
confronted with an explicit congressional
authorization for judicial involvement that was, on
its face, unqualified; whereas here we are confronted
with an explicit constitutional authorization for
Congress “[t]o make Rules for the Government and
Regulation of the land and naval Forces,” U.S. Const.
Art. I, § 8, cl. 14, and rely upon inference for our
own authority to allow money damages. This is not to
15
say, . . . that all matters within congressional power
are exempt from Bivens. What is distinctive here is
the specificity of that technically superfluous grant
of power, and the insistence (evident from the number
of Clauses devoted to the subject) with which the
Constitution confers authority over the Army, Navy,
and militia upon the political branches. All this
counsels hesitation in our creation of damages
remedies in this field.
Id. at 681-82 (footnotes omitted). The Court also emphasized
the importance of the “incident to service” test insofar as it
minimized the “degree of disruption” that a judicial inquiry
would create:
A test for liability that depends on the extent to
which particular suits would call into question
military discipline and decisionmaking would itself
require judicial inquiry into, and hence intrusion
upon, military matters. Whether a case implicates
those concerns would often be problematic, raising the
prospect of compelled depositions and trial testimony
by military officers concerning the details of their
military commands. Even putting aside the risk of
erroneous judicial conclusions (which would becloud
military decisionmaking), the mere process of arriving
at correct conclusions would disrupt the military
regime. The “incident to service” test, by contrast,
provides a line that is relatively clear and that can
be discerned with less extensive inquiry into military
matters.
Id. at 682-83 (emphasis added). The Court “reaffirm[ed] the
reasoning of Chappell that the ‘special factors counselling
hesitation’-‘the unique disciplinary structure of the Military
Establishment and Congress’ activity in the field,’. . . require
abstention in the inferring of Bivens actions as extensive as
16
the exception to the FTCA established by Feres[.]” Id. at 683-
84.
Distilling these cases to their core holdings, we restate
the principles guiding our analysis in the case at bar: no
Bivens action will lie where special factors counsel hesitation
in creating an implied right of action and special factors
clearly counsel hesitation in implying a cause of action for
injuries arising out of military service. The Supreme Court
holding in Stanley left no doubt as to this principle: “We hold
that no Bivens remedy is available for injuries that ‘arise out
of or are in the course of activity incident to service.’” 483
U.S. at 684. As one treatise has succinctly explained: “The law
is now settled that Bivens suits are never permitted for
constitutional violations arising from military service, no
matter how severe the injury or how egregious the rights
infringement.” Erwin Chemerinsky, Federal Jurisdiction 621-22
(5th ed. 2007).
As we now explain, the injuries alleged by Plaintiffs in
their Complaint, clearly “arise out of or are in the course of
activity incident to service.” Cf. Stanley, 483 U.S. at 684.
17
IV.
INCIDENT TO SERVICE
The “incident to service” test, as articulated in Feres,
“cannot be reduced to a few bright line rules.” United States
v. Shearer, 473 U.S. 52, 57 (1985). Nonetheless, the Court’s
concerns in Feres are implicated where a suit “requires the
civilian court to second-guess military decisions,” or raises an
allegation that “goes directly to the management of the
military[,] [calling] into question basic choices about the
discipline, supervision, and control of a serviceman.” Id. at
57-58. Shearer is particularly instructive for the case at bar.
Private Vernon Shearer was off duty and away from his duty
station at Fort Bliss, New Mexico, when he was kidnapped and
murdered by Private Andrew Heard, a fellow serviceman. Id. at
53. Private Heard had previously been convicted of manslaughter
by a court in Germany, and then assigned by the Army to Fort
Bliss upon his release from German prison. Id. at 54. Private
Shearer’s mother, the administratrix of his estate, brought a
FTCA action against the Army, claiming that the Army
“negligently and carelessly failed to exert a reasonably
sufficient control” over Private Heard, resulting in her son’s
wrongful death. Id.
The Supreme Court ultimately held that Feres barred the
suit. In addition to implicating military management and
18
calling into question the decisions of military commanders about
the discipline, supervision, and control of servicemembers, the
Court opined that
[t]o permit this type of suit would mean that
commanding officers would have to stand prepared to
convince a civilian court of the wisdom of a wide
range of military and disciplinary decisions; for
example, whether to overlook a particular incident or
episode, whether to discharge a serviceman, and
whether and how to place restraints on a soldier's
off-base conduct. But as we noted in Chappell v.
Wallace, such “complex, subtle, and professional
decisions as to the composition, training, . . . and
control of a military force are essentially
professional military judgments.”
Id. at 58 (quoting Chappell, 462 U.S. at 302).
Applying the “incident to service” test in the case at bar,
it is clear that the allegations raised by Plaintiffs’ Complaint
are either incident to, or arise out of, their service in the
military.
The Complaint alleged that Secretary Rumsfeld, inter alia,
• Failed to appoint any members to a commission to
investigate policies and procedures with respect to the
military investigation of reports of sexual misconduct, as
required by Congress;
• “repeatedly permitted military Command to rely on the
Article 15 (nonjudicial punishment) process for allegations
involving rapes, sexual assaults, and sexual harassment,”
(J.A. 53);
19
• “repeatedly permitted military Command to interfere with
the impartiality of criminal investigations,” (J.A. 53);
• “repeatedly permitted the military Command to charge those
alleged to have raped or sexually assaulted a co-worke[r]
under [Uniform Code of Military Justice (“UCMJ”)] Article
134 (adultery) rather than under Article 120 (rape),” (J.A.
53);
• “repeatedly ensured that the military, not the civilian
authorities, investigated and prosecuted charges of rape
and sexual assault,” (J.A. 53);
• “repeatedly permitted eighty percent of those military
personnel convicted of sex crimes to be honorably
discharged from the military and receive their full
retirement benefits,” (J.A. 53);
• “permitted military Command to retaliate against those
service members who reported being raped, assaulted and
harassed,” (J.A. 54);
• “granted ‘waivers’ that permitted individuals convicted of
domestic violence-related offenses to join the services and
carry weapons,” (J.A. 54); and
• “permitted military personnel on duty to ridicule both male
and female subordinates by using sexually-charged and
offensive terms,” (J.A. 54.)
20
The allegations against Secretary Rumsfeld, though
obviously troubling if true, fall within the heartland of the
concerns identified in Chappell, Stanley, and Feres. The
Plaintiffs’ allegations directly challenge the “wisdom of a wide
range of military and disciplinary decisions,” cf. Shearer, 473
U.S. at 58, and each directly challenge the decisions made
within the ultimate chain of military command. Allowing the
suit against Secretary Rumsfeld to go forward would “require[]
the civilian court to second-guess military decisions,” because
the complaint raises allegations that “go[] directly to the
management of the military[,] [calling] into question basic
choices about the discipline, supervision, and control of
service[members].” Shearer, 473 U.S. at 58.
But apart from the separation of powers infringement that
such a course of judicial second guessing of military command
decisions would encompass, the Stanley court was equally
concerned with the occurrence of a judicial inquiry at all.
Such an inquiry would “rais[e] the prospect of compelled
depositions and trial testimony by military officers concerning
the details of their military commands. Even putting aside the
risk of erroneous judicial conclusions (which would becloud
military decisionmaking), the mere process of arriving at
correct conclusions would disrupt the military regime.”
21
Stanley, 483 U.S. at 682-83. Consequently, both rationales
compel judicial abstention.
The same is true of the Plaintiffs’ allegations lodged
against Secretary Gates. In addition to raising similar
allegations to those brought against Secretary Rumsfeld, the
Plaintiffs contend that Secretary Gates permitted command to use
nonjudicial punishment for sexual crimes and permitted
retaliation against reporters of sexual crimes. Further, the
Complaint alleges that Secretary Gates
• directed the director of the Sexual Assault Prevention and
Response Office to ignore a congressional subpoena,
• “failed to ensure that the Department [of Defense] met its
statutorily-mandated deadline of January 2010 for
implementing the [sexual assault report] database
prescribed by the National Defense Act for Fiscal Year
2009,” (J.A. 56); and
• “selected an inexperienced and tiny firm . . . to receive
the $250 million contract designed to implement the Army’s
obligations to prevent sexual assault and harassment.”
(J.A. 56.)
Once again, though the allegations raised are serious
matters, the Chappell, Stanley, Feres and Shearer precedents
mandate that courts not permit a Bivens action that challenges
military decisionmaking. See Stanley, 183 U.S. at 684 (“We hold
22
that no Bivens remedy is available for injuries that ‘arise out
of or are in the course of activity incident to service.’”); see
also Chemerinksy, supra, at 17.
Plaintiffs argue, however, that the injuries they allege
did not “arise out of” and were not “incident to” military
service. Specifically, they assert that “Defendants have not
made any evidentiary showing that rape and sexual assault, and
the resultant failures to punish the perpetrators, served a
military mission.” (Appellants’ Opening Br. 28; see also id.
(“In order to fall within the scope of the ‘incident to service’
[test], the injury must actually arise from conduct done to
further a military mission.”)).
Plaintiffs fundamentally misapprehend the nature of the
“incident to service” rule, which does not inquire whether the
discrete injuries to the victim were committed “in support of
the military mission.” Rather, the “incident to service” test
asks, in relevant part, whether “particular suits would call
into question military discipline and decisionmaking [and would]
require judicial inquiry into, and hence intrusion upon,
military matters.” Stanley, 483 U.S. at 682. Put another way,
where a complaint asserts injuries that stem from the
relationship between the plaintiff and the plaintiff’s service
in the military, the “incident to service” test is implicated.
23
The Complaint clearly alleges injuries that stem solely
from Plaintiffs’ military service. 7 Indeed, the Plaintiffs
allege that the Defendants’ command and management, or
mismanagement, of the military is the ultimate cause of their
injuries. For that reason, the Complaint states a claim for
injuries that are “incident to military service” as the Supreme
Court has applied that concept.
In the alternative, Plaintiffs argue that the facts of this
case are more closely aligned with Brooks v. United States, 337
U.S. 49 (1949), in which the Supreme Court allowed a suit
brought by servicemen to go forward against the government for
injuries sustained in a motor vehicle accident involving an Army
truck driven by a civilian. Id. at 918-21. But as the Court
explained in Feres, Brooks is of no assistance to the
Plaintiffs.
The actual holding in the Brooks case can support
liability . . . only by ignoring the vital distinction
there stated. The injury to Brooks did not arise out
of or in the course of military duty. Brooks was on
furlough, driving along the highway, under compulsion
of no orders or duty and on no military mission. A
Government owned and operated vehicle collided with
him. Brooks’ father, riding in the same car,
recovered for his injuries and the Government did not
further contest the judgment but contended that there
7
Without question, sexual assault does not support a proper
military mission. However, Plaintiffs’ claims in the Complaint
are not against the perpetrators of such acts, but only to the
command and management of the military.
24
could be no liability to the sons, solely because they
were in the Army. This Court rejected the contention,
primarily because Brooks’ relationship while on leave
was not analogous to that of a soldier injured while
performing duties under orders.
Feres, 340 U.S. at 146.
Resolution of the cause of action in Brooks was simply a
garden variety automobile personal injury claim which did not
“require judicial inquiry into, and hence intrusion upon,
military matters.” Stanley, 483 U.S. at 683. The plaintiffs’
military service in Brooks had no nexus to the claim for injury.
Put simply, none of the concerns articulated in Stanley,
Chappell, and Feres, were implicated in the resolution of the
personal injury claim alleged in Brooks.
Here, by contrast, for the reasons already explained, all
the injuries alleged relate directly to the fact that Plaintiffs
served in the military and challenge “military discipline and
decisionmaking” as the cause of their injury. Cf. id. at 682.
Brooks’ injuries “had nothing to do with Brooks’ army careers,
[and the] injuries [were] not caused by their service except in
the sense that all human events depend on what has already
transpired.” 337 U.S. at 52 (emphasis added). No question of
“military discipline and decisionmaking” could have been
involved in Brooks; the case is therefore inapposite.
Plaintiffs additionally argue that “permitting the federal
courts to adjudicate instances when Executive Branch officials
25
violate Congressional mandates on military discipline furthers
the goal of military discipline.” Br. of Appellants at 10.
However, we rejected a similar argument in Lebron, in which
certain retired military officers argued that judicial
involvement in adjudicating claims arising from the detention of
enemy combatants “will cause no interference with the legitimate
mission of our military forces.” Lebron, 670 F.3d at 550 n.3.
Following the clear Supreme Court precedent, we reasoned that
argument missed the mark because
[w]e do not address the merits of whether a damages
remedy would interfere with the military or not.
Rather, we defer to Congress as the branch
constitutionally charged with addressing that
question, and we will not readily displace the
legislative role by concluding on our own authority
that damages are appropriate.
Id.
Here, we similarly do not pass on the question of whether
permitting a Bivens action would help or hinder military
decision-making or discipline: an issue beyond our judicial
cognizance. Instead, we observe from the Complaint that
resolution of Plaintiffs’ claims would force us to pass judgment
on the merits of the Defendants’ military decisions, which
Supreme Court precedent has concluded is not within the realm of
our judicial branch function. Congress, not the courts, is in
the proper constitutional position to conduct such an inquiry
26
and provide a statutory remedy should it determine that action
is warranted.
Plaintiffs also argue that they should be accorded a Bivens
right based on certain language from Chappell stating that the
Supreme Court “has never held, nor do we now hold, that military
personnel are barred from all redress in civilian courts for
constitutional wrongs suffered in the course of military
service.” 462 U.S. at 304. But as the Supreme Court explained
in Stanley, Plaintiffs take this isolated phrase out of context
and ignore the Court’s actual holding.
Similarly irrelevant is the statement in Chappell,
erroneously relied upon by Stanley and the lower
courts, that we have “never held, nor do we now hold,
that military personnel are barred from all redress in
civilian courts for constitutional wrongs suffered in
the course of military service.” 462 U.S. at 304. As
the citations immediately following that statement
suggest, it referred to redress designed to halt or
prevent the constitutional violation rather than the
award of money damages. See Brown v. Glines, 444 U.S.
348 (1980); Parker v. Levy, 417 U.S. 733 (1974);
Frontiero v. Richardson, 411 U.S. 677 (1973). Such
suits, like the case of Wilkes v. Dinsman, 7 How. 89
(1849), distinguished in Chappell, 462 U.S., at 305,
n. 2, sought traditional forms of relief, and “did not
ask the Court to imply a new kind of cause of action.”
Ibid.
Stanley, 483 U.S. at 683.
All the cited cases brought causes of action abjuring money
damages and seeking some other form of relief. It was solely in
the context of referencing non-money-damages cases that Chappell
made the statement Plaintiffs’ cite. In fact, no case has
27
permitted a Bivens action for money damages in the military
setting. And, as Plaintiffs’ Complaint seeks only money
damages, it cannot proceed. (See J.A. 4. (“This action seeks
money damages under Bivens . . . .”).) 8
8
Indeed, the only case we can identify where the Supreme
Court did not dismiss a suit brought by a servicemember against
a commanding officer is the pre-Civil War case of Wilkes v.
Dinsman, 48 U.S. (7 How.) 89 (1849), which is of no aid to the
Plaintiffs. Wilkes arose as an action for common law trespass
for assault and battery and false imprisonment, brought by
Dinsman, a U.S. marine, against his commanding officer. Dinsman
alleged that after his term of enlistment had expired, he was
wrongly detained by his commander and forced to continue his
military service involuntarily. The Supreme Court reversed a
verdict for Dinsman and remanded for a new trial, but without an
analysis of the court’s jurisdiction to consider such a
complaint. Id. In determining that Wilkes, the commanding
officer, was entitled to a new trial as a matter of law, its
language seemed to foreshadow the later holdings in Feres,
Chappell, and Stanley.
The Wilkes Court affirmed the proposition that
a public officer, invested with certain discretionary
powers, never has been and never should be, made
answerable for an injury, when acting within the scope
of his authority, and not influence by malice,
corruption, or cruelty. . . .
No review of his decisions, if within his
jurisdiction, is conferred by law on either courts, or
juries[.]
48 U.S. (7 How.) at 129. Further, as the Chappell court
recognized, Wilkes “involved a well-recognized common law cause
of action . . . and did not ask the Court to imply a new kind of
cause of action.” 462 U.S. at 305 n.2. Moreover, any
precedential value of Wilkes is dubious, because, “since the
time of Wilkes, significant changes have been made establishing
a comprehensive system of military justice.” Id.
28
We must also reject Plaintiffs’ argument that their suit
should go forward because “[s]ervicemembers must be permitted to
seek redress in the federal courts when their Constitutional
rights are violated.” Appellants’ Opening Br. 14. In essence,
Plaintiffs seem to argue that a Bivens remedy is their only
avenue for such redress. The Supreme Court has clearly rejected
that argument as well.
[I]t is irrelevant to a “special factors” analysis
whether the laws currently on the books afford
Stanley, or any other particular serviceman, an
“adequate” federal remedy for his injuries. The
“special factor” that “counsels hesitation” is not the
fact that Congress has chosen to afford some manner of
relief in the particular case, but the fact that
congressionally uninvited intrusion into military
affairs by the judiciary is inappropriate.
Stanley, 483 U.S. at 683 (alterations omitted).
V.
CONCLUSION
In the more than twenty-five years since the Supreme Court
pronounced in Stanley that servicemembers will not have an
implied cause of action against the government for injuries
arising out of or incident to their military service under
Bivens, Congress has never created an express cause of action as
a remedy for the type of claim that Plaintiffs allege here. And
29
it is Congress, not the courts, that the Constitution has
charged with that responsibility. 9
In concluding that Plaintiffs lack a Bivens cause of action
in this case, we do not downplay the severity of Plaintiffs’
allegations or otherwise imply that the conduct alleged in
Plaintiffs’ Complaint is permissible or acceptable. Rather, our
decision reflects the judicial deference to Congress and the
Executive Branch in matters of military oversight required by
the Constitution and our fidelity to the Supreme Court’s
consistent refusal to create new implied causes of action in
this context. Those principles, as clearly expressed in
Chappell, Stanley, and Feres, counsel that judicial abstention
is the proper course in this case.
For all the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
9
Although we are the first Court of Appeals to encounter
precisely this issue, we observe that our holding is consistent
with the holding of the District Court for the District of
Columbia, deciding a nearly identical case earlier this year.
See Klay v. Panetta, --- F. Supp. 2d ---, Case No. 12-0350 (ABJ)
2013 WL 458318 (D.D.C. Feb. 7, 2013).
30