Ariana Klay v. Leon Panetta

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2014 Decided July 18, 2014

No. 13-5081

ARIANA KLAY, ET AL.,

APPELLANTS

v.

LEON E. PANETTA, FORMER SECRETARY OF DEFENSE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00350)

Susan L. Burke argued the cause and filed the brief for

appellants.

Lowell V. Sturgill Jr., Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were Stuart F. Delery, Assistant Attorney General, Ronald C.

Machen Jr., U.S. Attorney, and Barbara L. Herwig, Attorney.

Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring Opinion filed by Circuit Judge GRIFFITH.

2

GRIFFITH, Circuit Judge: Plaintiffs are current or former

members of the United States Navy and Marine Corps who

allege that they were raped, sexually assaulted, or sexually

harassed by their fellow Sailors and Marines, only to suffer

retaliation from their superiors for reporting their plight. Their

appeal is both difficult and easy. Difficult, because it involves

shocking allegations that members of this nation’s armed

forces who put themselves at risk to protect our liberties were

abused in such a vile and callous manner. Easy, because

plaintiffs seek relief under a legal theory that is patently

deficient.

Plaintiffs have not sued their attackers or those who

retaliated against them for reporting their abuse. Rather,

plaintiffs have sought money damages directly under the

Constitution from senior officials in the military and

Department of Defense who, plaintiffs allege, could have put

in place policies to prevent their injuries but failed to do so.

The Supreme Court has held that military officials are not

subject to personal liability under the Constitution for their

management decisions, including the choices they make about

the discipline, supervision, and control of servicemembers.

Because adjudication of plaintiffs’ claims would require

judicial intrusion upon such military matters, we affirm the

district court’s dismissal of their suit.

I

Because this appeal arises from the defendants’

successful motion to dismiss, we presume the allegations in

the complaint are true and view the facts in the light most

favorable to plaintiffs. See Autor v. Pritzker, 740 F.3d 176,

179 (D.C. Cir. 2014).

3

Plaintiffs are twelve current and former sailors and

Marines. During their service, eleven were either raped or

sexually assaulted by fellow members of the armed forces.

One was the target of severe sexual harassment by Marines

and a fellow Navy Corpsman with whom she deployed. The

attacks and harassment left plaintiffs with a range of serious

physical and psychological injuries. In each case the injury

was compounded by the retaliation plaintiffs suffered when

they reported what had happened to their superiors.

Though the experience of each plaintiff is unique, that of

Janet Galla provides an example of the kind of harm plaintiffs

endured. See First Am. Compl. ¶¶ 144-164. Galla served in

the Navy from 1999 to 2005 as a Hospital Corpsman. On June

11, 2004, after having dinner with a group of friends, Galla

returned to her ship. While she was checking her email in the

ship’s Medical Department, a fellow Corpsman asked if he

could show her something in one of the Department’s

operating rooms. She followed him into an operating room,

where he tried to kiss her. She resisted, asked him to stop, and

tried to leave the room, but he prevented her from escaping,

then raped her. Galla immediately reported the rape. Although

her attacker was ultimately convicted and sent to prison, Galla

faced retaliation from her chain of command. She was not

allowed to work in enclosed spaces with male colleagues, a

restriction her superiors claimed was for her own protection.

This limitation not only made it difficult for her to do her job,

but left her feeling ostracized from her shipmates. Galla began

to receive negative performance evaluations and was

eventually told by her commander that it would be best for

“morale” if she left the ship. She transferred to a duty station

on land, but the retaliation continued when her new chain of

command learned about the rape and the ongoing

investigation. Suffering from post-traumatic stress disorder,

Galla was singled out for drug and alcohol tests and was

4

accused of using her rape as an excuse for poor job

performance. One member of her new command told her that

the rape was only “five minutes of her life” and she needed to

“get over it already.” In the face of such harassment and

ostracism, Galla accepted her superiors’ offer of immediate

separation from the Navy in 2005.

In 2012, Galla and the other plaintiffs filed suit in the

district court against nine defendants: the three most recent

Secretaries of Defense, Secretaries of the Navy, and

Commandants of the Marine Corps. Id. ¶¶ 181-189. Plaintiffs

alleged that their injuries resulted from the acts and omissions

of these defendants who were fully aware of the prevalence of

sexual misconduct and retaliation in the Navy and Marine

Corps, had the power to eliminate it, and yet failed to take

effective steps to do so. See id. ¶¶ 190-206. Plaintiffs

identified a variety of practices the defendants allegedly

authorized or oversaw that contributed to this hostile

environment. For instance, the defendants granted “moral

waivers” that let recruits with criminal convictions serve in

the military; they allowed commanders to interfere with the

impartiality of criminal investigations into sexual assaults;

and they permitted perpetrators to receive nonjudicial

punishment and to be honorably discharged. See id. ¶¶ 200,

207-222. In addition, plaintiffs alleged that the three

defendant Secretaries of Defense flatly ignored statutory

mandates from Congress requiring the establishment of a

commission to investigate the military’s treatment of sexual

misconduct allegations and the creation of a centralized

database of sexual assault incidents. See id. ¶¶ 216-217, 219,

222.

Plaintiffs did not, however, claim that this alleged

misconduct ran afoul of any federal statute that would

authorize them to recover damages from the defendants.

5

Instead, plaintiffs argued that the defendants’ actions and

inactions violated a variety of plaintiffs’ constitutional rights:

Fifth Amendment rights to bodily integrity, due process, and

equal protection; a First Amendment right to speak about their

assaults without retaliation; and a Seventh Amendment right

to have juries try their assailants. See id. ¶¶ 223-240. Citing

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), plaintiffs argued that the

cause of action for damages they sought could be implied

directly under these constitutional provisions. See First Am.

Compl. ¶ 2.

The defendants moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim, and the

district court granted their motion. Klay v. Panetta, 924 F.

Supp. 2d 8 (D.D.C. 2013). Acknowledging that the “factual

recitations . . . describe brutal and criminal assaults,

compounded by a degrading and humiliating institutional

response,” the court nonetheless concluded that it lacked “the

power to provide the particular sort of remedy sought here for

the specific injustices alleged in the complaint.” Id. at 12.

According to the district court, plaintiffs’ suit for damages

under Bivens was foreclosed by Supreme Court precedent

disallowing such a remedy “‘for injuries that arise out of or

are in the course of activity incident to [military] service.’” Id.

at 13 (quoting United States v. Stanley, 483 U.S. 669, 684

(1987)).

Plaintiffs appealed. We have jurisdiction under 28 U.S.C.

§ 1291 and review the district court’s dismissal de novo.

Autor, 740 F.3d at 179.

6

II

Plaintiffs’ theory of liability is based upon the Supreme

Court’s decision in Bivens, which recognized an implied

private cause of action for damages against federal officials

who violate the Fourth Amendment. 403 U.S. at 395-97. But

while Bivens could have ushered in a new era of broad

constitutional tort liability, history has taken a different

course. Only twice has the Supreme Court approved the

application of Bivens’s reasoning to new classes of cases, and

never in the past thirty years. See Davis v. Passman, 442 U.S.

228, 230-31, 234 (1979) (congressional employee’s

employment discrimination claim under the Fifth

Amendment); Carlson v. Green, 446 U.S. 14, 18-23 (1980)

(prisoner’s cruel and unusual punishment claim against prison

officials under the Eighth Amendment). In numerous other

cases, by contrast, the Court has found extension of Bivens

unwarranted, see Minneci v. Pollard, 132 S. Ct. 617, 622-23

(2012) (collecting cases), expressing its “reluctan[ce] to

extend Bivens liability to ‘to any new context or new category

of defendants,’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

(2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

68 (2001)); see also Wilkie v. Robbins, 551 U.S. 537, 550

(2007) (noting that “in most instances we have found a Bivens

remedy unjustified”). This unwillingness to extend Bivens

derives from the Court’s shift toward disfavoring judicially

implied causes of action generally. See Iqbal, 129 S. Ct. at

1948; see also Alexander v. Sandoval, 532 U.S. 275, 286

(2001) (“Like substantive federal law itself, private rights of

action to enforce federal law must be created by Congress.”).

In recent years, the Court has prescribed a two-step

approach for determining whether a Bivens remedy is

available. First, a court should ask “whether any alternative,

existing process for protecting the interest amounts to a

7

convincing reason for the Judicial Branch to refrain from

providing a new and freestanding remedy in damages.”

Wilkie, 551 U.S. at 550. “[E]ven in the absence of an

alternative,” however, “a Bivens remedy is a subject of

judgment: ‘the federal courts must make the kind of remedial

determination that is appropriate for a common-law tribunal,

paying particular heed, however, to any special factors

counselling hesitation before authorizing a new kind of

federal litigation.’” Id. (quoting Bush v. Lucas, 462 U.S. 367,

378 (1983)).

Assuming (without deciding) there is no alternative

remedy here, we conclude plaintiffs’ would-be Bivens action

nonetheless fails at the second step of this analysis. As we

will explain, both the military context of plaintiffs’ claims and

Congress’s extensive legislation on this specific issue are

special factors that counsel decisively against authorizing a

Bivens remedy. 1

A

The Supreme Court first addressed the availability of a

Bivens action in the military context in Chappell v. Wallace,

462 U.S. 296 (1983), a case in which enlisted Navy sailors

sued superior officers who had allegedly mistreated them on

the basis of race. The Court held that the plaintiffs could not

1

Given our conclusion that special factors preclude a Bivens

remedy, we need not address whether plaintiffs have adequately

alleged violations of the various constitutional provisions cited in

their complaint. See Ali v. Rumsfeld, 649 F.3d 762, 772-74 (D.C.

Cir. 2011) (declining to decide whether plaintiffs had adequately

alleged constitutional violations where special factors

independently foreclosed Bivens claims). For the same reason, we

need not address whether the defendants are protected by qualified

immunity.

8

seek damages under Bivens because “the unique disciplinary

structure of the Military Establishment and Congress’ activity

in the field” were “special factors” that cut squarely against

such liability. Id. at 304. “[T]he need for unhesitating and

decisive action by military officers and equally disciplined

responses by enlisted personnel,” the Court explained, “would

be undermined by a judicially created remedy exposing

officers to personal liability at the hands of those they are

charged to command.” Id. Moreover, Congress had “exercised

its plenary constitutional authority over the military” to

regulate military life and military justice in numerous

respects, but notably had “not provided a damages remedy for

claims by military personnel that constitutional rights have

been violated by superior officers.” Id. at 302, 304. For the

judiciary to imply such a remedy would therefore “be plainly

inconsistent with Congress’ authority in this field.” Id. at 304.

The Court clarified just how little room Chappell left for

Bivens actions in the military context in United States v.

Stanley, 483 U.S. 669 (1987). Stanley, a former soldier,

alleged that the Army had surreptitiously given him doses of

LSD to study its effects on humans. Id. at 671. Rejecting

Stanley’s argument that Chappell should be limited to suits by

subordinates against superior officers in their direct chain of

command, the Court ruled that he could not bring a Bivens

action against the various federal officials involved in the

testing, both military and civilian. Id. at 679-84. Chappell, the

Court noted, had drawn support from a line of case law

precluding liability under the Federal Tort Claims Act

(FTCA) for injuries suffered in the course of military service.

Id. at 681-82; see also Feres v. United States, 340 U.S. 135,

146 (1950) (establishing the military exception to the FTCA).

Failing to 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,” the Court

9

concluded that the same test should apply in both contexts.

Stanley, 483 U.S. at 681. Accordingly, it held “that no Bivens

remedy is available for injuries that ‘arise out of or are in the

course of activity incident to service.’” Id. at 684 (quoting

Feres, 340 U.S. at 146). 2

Stanley thus frames the central inquiry in this case: Did

plaintiffs’ injuries arise out of activity incident to service?

Despite having been active-duty servicemembers at the time

of the attacks and retaliation, plaintiffs contend that their

injuries were not “incident to service.” According to

plaintiffs, “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.” Appellants’ Br. 25. And,

they say, it is inconceivable that they “were raped to advance

a military mission.” Id. at 27. The latter point is surely

correct, but the former—for which plaintiffs tellingly offer no

citation of supporting authority—is not, as United States v.

Shearer, 473 U.S. 52 (1985), illustrates.

The plaintiff in Shearer was the mother of an Army

private who, while off-duty and off-base, was kidnapped and

murdered by another soldier. Id. at 53. Private Shearer’s

mother sued the United States under the FTCA, alleging that

the Army had known that the murderer was dangerous and yet

had negligently failed to exert proper control over him or to

warn others of the danger he posed. Id. at 53-54. Although the

murder of Private Shearer plainly did not advance any

military mission, the Supreme Court nonetheless held the

2

The Supreme Court did not itself apply this test to the facts of

Stanley’s suit. Instead, the Court noted that the Ninth Circuit had

already decided “[t]he issue of service incidence” against Stanley in

the course of dismissing the FTCA claim that he brought alongside

his Bivens claim, and that that ruling was not properly before the

Court. See Stanley, 483 U.S. at 680.

10

claim barred under the “incident to service” test. See id. at 57,

59. In so deciding, the key questions the Court asked were

“whether the suit requires the civilian court to second-guess

military decisions, and whether the suit might impair essential

military discipline.” Id. at 57 (citations omitted). Because the

plaintiff’s claim was framed in terms of the Army’s failure to

supervise and control the perpetrator, it “str[uck] at the core

of these concerns.” Id. at 58; see also id. (“This allegation

goes directly to the ‘management’ of the military; it calls into

question basic choices about the discipline, supervision, and

control of a serviceman.”).

Shearer reveals that in deciding whether an injury is

“incident to service,” a court cannot focus narrowly on the

conduct that proximately caused the harm. Instead, the court

must take a broader view and examine the plaintiff’s theory of

the case. If adjudicating the case would require military

leaders to defend their professional management choices—“to

convince a civilian court of the wisdom of a wide range of

military and disciplinary decisions,” id.—then the claim is

barred by the “incident to service” test. Or, as the Fourth

Circuit recently put it in a case nearly identical to this one,

“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.’” Cioca v.

Rumsfeld, 720 F.3d 505, 515 (4th Cir. 2013) (alteration in

original) (quoting Stanley, 483 U.S. at 682).

The district court ably explained how this proper

understanding of the test applies to plaintiffs’ case:

Despite plaintiffs’ efforts to characterize this case as a

suit about rape and retaliation, that is not the basis of

their legal claims. Plaintiffs have not sought damages

11

from any of the service members who allegedly raped or

retaliated against them, and they do not allege that

defendants personally participated in the alleged sexual

assaults or retaliatory actions. Rather, by alleging that the

wrongdoing arose out of a hostile climate created—or at

least, not effectively addressed and therefore, tacitly

sanctioned—by defendants, plaintiffs have asked the

Court to review a decade’s worth of military management

decisions . . . .

Klay, 924 F. Supp. 2d at 18-19 (citations omitted). Plaintiffs’

suit invites a civilian court to adjudicate, for example,

whether it was proper for the defendants to permit felons to

serve in the military, commanders to use nonjudicial

punishment on offenders, offenders to be honorably

discharged, and military (rather than civilian) authorities to

investigate and prosecute sexual assaults. This is precisely the

kind of “judicial inquiry into, and hence intrusion upon,

military matters” that the Supreme Court disavowed in

Stanley. 483 U.S. at 682.

B

Plaintiffs contend that at least some of the misconduct

they allege falls outside the logic of Stanley and Shearer:

namely, that the defendant Secretaries of Defense ignored

congressional mandates requiring the creation of a

commission to examine the military’s procedures for

investigating allegations of sexual misconduct and the

establishment of a centralized database of reported sexual

assaults in the military. Plaintiffs argue that adjudicating this

aspect of their suit would not entail impermissible judicial

intrusion upon the management of the military because

military leaders simply have no authority to violate statutory

directives. The court would not, in other words, be requiring

12

the defendants “to convince a civilian court of the wisdom” of

their decision, Shearer, 473 U.S. at 58, because no amount of

military wisdom can justify ignoring a valid congressional

mandate. Even if plaintiffs’ reasoning about the limits of

Stanley and Shearer has some force, we conclude nonetheless

that authorizing this Bivens action would be inappropriate.

As we noted above, one of the special factors underlying

Chappell’s holding was “Congress’ activity in the field.” 462

U.S. at 304. If Congress has legislated pervasively on a

particular topic but has not authorized the sort of suit that a

plaintiff seeks to bring under Bivens, respect for the

separation of powers demands that courts hesitate to imply a

remedy. See id. at 302-04; Schweiker v. Chilicky, 487 U.S.

412, 423 (1988) (“[T]he concept of special factors . . . has

proved to include an appropriate judicial deference to

indications that congressional inaction has not been

inadvertent.” (internal quotation marks omitted)). Thus, in

Doe v. Rumsfeld, this court’s conclusion that the plaintiff

could not seek a Bivens remedy for alleged mistreatment

while in military detention rested in part on the fact that

recent relevant legislation, the Detainee Treatment Act of

2005, did not create a cause of action for injured detainees.

See 683 F.3d 390, 396-97 (D.C. Cir. 2012); see also Vance v.

Rumsfeld, 701 F.3d 193, 200-01 (7th Cir. 2012) (en banc)

(similar); Lebron v. Rumsfeld, 670 F.3d 540, 551-52 (4th Cir.

2012) (similar).

The same separation-of-powers principle applies here.

Congress has been “no idle bystander to th[e] debate” about

sexual assault in the military. Lebron, 670 F.3d at 551. The

four most recent National Defense Authorization Acts have

each included numerous provisions aimed at combating this

scourge. See Pub. L. No. 113-66, §§ 1701-1753, 127 Stat.

672, 950-85 (2013); Pub. L. No. 112-239, §§ 570-579, 126

13

Stat. 1632, 1752-64 (2013); Pub. L. No. 112-81, §§ 581-586,

125 Stat. 1298, 1430-36 (2011); Pub. L. No. 111-383,

§§ 1601-1632, 124 Stat. 4137, 4429-36 (2011). The

Consolidated Appropriations Act of 2014 appropriated $25

million for the Department of Defense to implement a Sexual

Assault Special Victims Program. See Pub. L. No. 113-76,

§§ 8124-8125, 128 Stat. 5, 133-34 (2014). And Congress is

currently debating further legislation on the issue. See Victims

Protection Act of 2014, S. 1917, 113th Cong. (2014); Ed

O’Keefe, Senate Easily Passes McCaskill’s Military Sexual

Assault Bill, WASH. POST, 2014 WLNR 6542224 (Mar. 10,

2014). Crucially, none of these statutes—nor those the

defendants allegedly violated—authorizes a damages action

against the defendants. Cf. Vance, 701 F.3d at 201 (“These

statutes have one thing in common: none provides for

damages against military personnel or their civilian

superiors.”). Given that Congress is extensively engaged with

the problem of sexual assault in the military but has chosen

not to create such a cause of action, we decline to imply a

Bivens remedy here, even in the face of plaintiffs’ allegations

of statutory violations.

Plaintiffs flip this separation-of-powers logic on its head,

contending that respect for Congress requires us to adjudicate

their claims. “[I]f the judiciary refuses to adjudicate any

claims alleging that the military ignored Congressional

mandates, the military enjoys the very type of power not

subject to checks and balances that the drafters of the

Constitution feared.” Appellants’ Br. 14. But our decision that

a Bivens action will not lie here hardly puts the military

beyond the reach of Congress. Plaintiffs are forced to rely on

Bivens because Congress has not authorized a cause of action

against these defendants for this alleged misconduct, not

because Congress cannot. Congress remains free to authorize

a damages action of the sort plaintiffs wish to pursue; if it

14

does, courts will be duty-bound to adjudicate those claims.

And contrary to plaintiffs’ counsel’s suggestion at oral

argument, see Oral Arg. Recording at 2:50-3:05, Congress

could even permit plaintiffs to sue in connection with their

past injuries. See INS v. St. Cyr, 533 U.S. 289, 316 (2001)

(“[I]t is beyond dispute that, within constitutional limits,

Congress has the power to enact laws with retrospective

effect.”); Landgraf v. USI Film Prods., 511 U.S. 244, 280

(1994) (contemplating statutes that “increase a party’s

liability for past conduct”). Far from requiring us to recognize

a Bivens remedy here, the separation of powers supports our

determination not to. See Stanley, 483 U.S. at 682 (“[T]he

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.”).

III

In affirming the district court’s dismissal, we do not take

lightly the severity of plaintiffs’ suffering or the harm done by

sexual assault and retaliation in our military. But the existence

of grievous wrongs does not free the judiciary to authorize

any and all suits that might seem just. Our authority to permit

Bivens actions is narrow to start, and narrower in the military

context. We therefore join the Fourth Circuit in concluding

that no Bivens remedy is available here. See Cioca v.

Rumsfeld, 720 F.3d 505 (4th Cir. 2013). The judgment of the

district court is affirmed.

1

GRIFFITH, Circuit Judge, concurring: I write separately to

address one of plaintiffs’ allegations that I believe warrants

brief discussion. Although we must generally assume the truth

of plaintiffs’ allegations given the procedural posture of this

case, we need not “accept as true the complaint’s factual

allegations insofar as they contradict exhibits to the complaint

or matters subject to judicial notice.” Kaempe v. Myers, 367

F.3d 958, 963 (D.C. Cir. 2004); see also Earle v. District of

Columbia, 707 F.3d 299, 308 n.10 (D.C. Cir. 2012)

(recognizing that “we may take judicial notice of statutes”).

Among other things, plaintiffs allege that defendant Donald

Rumsfeld “ignor[ed] Public Law 105-85, which required the

Secretary of Defense to establish a commission to investigate

policies and procedures with respect to the military

investigation of reports of sexual misconduct. Defendant

Rumsfeld . . . failed to appoint any members of the

commission.” First Am. Compl. ¶ 219.

Public Law 105-85 was the National Defense

Authorization Act for Fiscal Year 1998, passed more than

three years before Rumsfeld became Secretary of Defense.

See Pub. L. No. 105-85, 111 Stat. 1629 (1997); First Am.

Compl. ¶ 183. Although the act could in theory have imposed

duties that eventually fell on Rumsfeld, I am unable to locate

any provision that meets the complaint’s description of the

obligation allegedly violated. (A more precise citation would

have been useful: Public Law 105-85 is 450 pages long.) The

provision that comes closest to fitting the complaint’s

description did not require the establishment (or staffing) of a

commission, but instead required the Secretary of Defense to

procure within one year, from a specified nonprofit

organization (the National Academy of Public

Administration), an “independent study of the policies,

procedures, and practices of the military criminal

investigative organizations for the conduct of investigations

2

of complaints of sex crimes and other criminal sexual

misconduct arising in the Armed Forces.” Pub. L. No. 105-85,

§ 1072, 111 Stat. at 1898-99. Then-Secretary of Defense

William Cohen appears to have complied fully with this

directive. See NAT’L ACAD. OF PUB. ADMIN., ADAPTING

MILITARY SEX CRIME INVESTIGATIONS TO CHANGING TIMES

(1999) (resulting report). It is no small thing to allege that the

Secretary of Defense ignored an act of Congress, and I am

troubled by the possibility that plaintiffs’ counsel leveled this

charge without first carefully reading the act in question.