Cioca v. Rumsfeld

• Decision Date: 23 July 2013
• Docket Number: No. 12–1065.,12–1065.
• Citation: 720 F.3d 505
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

720 F.3d 505

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,andCourtney Hurd, Plaintiff,

v.Donald RUMSFELD, Former Secretary of Defense; Robert Gates, Former Secretary of Defense, Defendants–Appellees.

No. 12–1065.

United States Court of Appeals, Fourth Circuit.

July 23, 2013.

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.

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge AGEE wrote the opinion in which Judge NIEMEYER and Judge THACKER joined.

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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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, 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 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 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, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (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 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

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 91 S.Ct. 1999. 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 laws, whenever he receives an injury.” Id. at 397, 91 S.Ct. 1999 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (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, 91 S.Ct. 1999.⁵ 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, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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 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...