Klay v. Panetta, Civil Action No. 12–0350 (ABJ).

• Decision Date: 07 February 2013
• Docket Number: Civil Action No. 12–0350 (ABJ).
• Citation: 924 F.Supp.2d 8
• Parties: Ariana KLAY, et al., Plaintiffs, v. Leon PANETTA, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Columbia

924 F.Supp.2d 8

Ariana KLAY, et al., Plaintiffs,
v.
Leon PANETTA, Secretary of Defense, et al., Defendants.

Civil Action No. 12–0350 (ABJ).

United States District Court,
District of Columbia.

Feb. 7, 2013.

[924 F.Supp.2d 9]

Susan L. Burke, Burke PLLC, Washington, DC, for Plaintiffs.

Edward Martin, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION
AMY BERMAN JACKSON, District Judge.

Plaintiffs Ariana Klay, Elle Helmer, Nicole McCoy, Robin Kahle, Lamanda Cummings, Rebecca Blumer, Erica Dorn, Mariel Marmol, Christian Everage, Eric Pratt, Janet Galla, and Carla Butcher have filed this action against defendants Leon Panetta, Secretary of Defense; Robert M. Gates and Donald Rumsfeld, former Secretaries of Defense; James F. Amos, Commandant of the Marine Corps; James T. Conway and Michael W. Hagee, former Commandants of the Marine Corps; Ray Mabus, Secretary of the Navy; and Donald C. Winter and Gordon England, former Secretaries of the Navy, under

[924 F.Supp.2d 10]

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging violations of their First, Fifth, and Seventh Amendment rights. Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court will grant defendants' motion because Supreme Court precedent requires it to abstain from inferring a Bivens remedy for plaintiffs, and because defendants are entitled to qualified immunity.

BACKGROUND

Plaintiffs are eleven women and one man who allege that while serving in the U.S. Armed Forces, they were “raped, sexually assaulted, stalked, ... and severely harassed” and then victimized again when they were humiliated and retaliated against for reporting the offenses perpetrated against them. Am. Compl. [Dkt. # 3] ¶¶ 6–180. All plaintiffs were on active duty when they suffered these sexual assaults and retaliatory actions at the hands of other service members. Id. Most of the attacks detailed in the complaint took place on military bases, military ships, or during foreign deployment. Id. ¶¶ 32–33, 40, 51, 75–76, 86, 97, 109–10, 146. Others occurred at private residences that were located off-base or in connection with social events with other service members. Am. Compl. ¶¶ 10, 63–64, 134, 168.

Plaintiffs have brought a Bivens suit for monetary damages against the current Secretary of Defense and two who came before him, the Commandant of the Marine Corps and his two predecessors, and the Secretary of the Navy and his two predecessors, alleging that they caused plaintiffs' injuries by creating and maintaining a hostile military environment that permitted sexual assault and retaliation to continue unabated. Am. Compl. ¶ 5. Specifically, plaintiffs contend that defendants:

• failed to implement certain congressional and statutory mandates designed to reduce sexual assault in the military, Am. Compl. ¶¶ 212, 216–22;

• “lack[ed] ... leadership” in the face of a known climate that condoned and perpetuated violence and retaliation against service members, Am. Compl. ¶ 194;

• failed to take “ any steps, let alone systemic and effective steps, to identify and punish the personnel who retaliated against those courageous enough to report rape and sexual assault,” Am. Compl. ¶ 199;

• granted moral waivers that permit felons to serve in the military, Am. Compl. ¶ 200;

• “presided over a dysfunctional system that permits all but a small handful of rapists to evade any form of incarceration,” Am. Compl. ¶ 202;

• allowed military Command to interfere with the impartiality of criminal investigations, Am. Compl. ¶ 207;

• accepted nonjudicial punishment of alleged violators, Am. Compl. ¶ 208;

• allowed alleged rapists to be charged with adultery instead of rape, Am. Compl. ¶ 209;

• ensured that military (not civilian) authorities investigated and prosecuted rape and sexual assault charges, Am. Compl. ¶ 210;

• permitted accused rapists and sexual assailants to be honorably discharged, Am. Compl. ¶ 211;

• failed to accurately report the conviction rates of rape in the military, Am. Compl. ¶ 213; and

• permitted the destruction of forensic evidence, Am. Compl. ¶ 214.

Plaintiffs claim that these alleged acts and omissions directly resulted in a series

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of constitutional deprivations, and they allege violations of the following rights:

(1) a substantive due process “right to bodily integrity” under the Fifth Amendment, Am. Compl. ¶¶ 223–26;

(2) a procedural due process right to “justice” and to be free from unfair termination and mistreatment under the Fifth Amendment, Am. Compl. ¶¶ 227–30;

(3) an equal protection “right to be free from rape, sexual assault and sexual harassment under the Fifth Amendment,” Am. Compl. ¶¶ 231–34;

(4) a First Amendment right to report sexual assault, sexual harassment and rape without suffering retaliation and adverse employment actions, Am. Compl. ¶ ¶ 235–37; and

(5) a claimed Seventh Amendment right to have a jury decide the fate of those who victimized them, Am. Compl. ¶¶ 238–40.

Defendants have moved to dismiss the case under Fed.R.Civ.P. 12(b)(6) on the grounds that Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs injured in the course of activities incident to military service, and that defendants are entitled to qualified immunity. Defs.' Mot. to Dismiss [Dkt. # 4] at 1–2. Plaintiffs maintain that their case is not barred by the abstention doctrine and that they have pled sufficient facts to overcome defendants' entitlement to qualified immunity. Pls.' Opp. to Defs.' Mot to Dismiss [Dkt. # 7] (“Pls.' Opp.”). On November 5, 2012, the Court held a hearing on defendants' motion.

STANDARD OF REVIEW

“To survive a [Rule 12(b)(6) ] 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) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” 556 U.S. at 678, 129 S.Ct. 1937. And “[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679, 129 S.Ct. 1937.

A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See id.;Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). In ruling upon a motion to dismiss for failure to state a claim,

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a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave–Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citations omitted).

ANALYSIS

This case raises many important public policy issues. But the issue before the Court is not whether the culture described in the complaint exists, whether it is deplorable, or whether plaintiffs suffered harm at the hands of the perpetrators of these criminal acts and those who sheltered them from justice or further victimized plaintiffs. The factual recitations, which the Court must accept as true at this juncture, describe brutal and criminal assaults, compounded by a degrading and humiliating institutional response, and they depict an unacceptable environment in need of repair from the top down. But the question posed by the defense motion is whether a court has the power to provide the particular sort of remedy sought here for the specific injustices alleged in the complaint. That is a purely legal question, and its answer is no.

A Bivens cause of action allows a plaintiff to recover damages from a federal official who violates his or her constitutional rights, even in the absence of a federal statute authorizing such relief.¹ A plaintiff may not recover under Bivens, though, if there are “special factors counseling hesitation in the absence of affirmative action by Congress,” or if the defendant is entitled to qualified immunity. United States v. Stanley, 483 U.S. 669, 678, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), quoting Bivens, 403 U.S. at 396, 91 S.Ct. 1999;see also Iqbal, 556 U.S. at 677, 129 S.Ct. 1937. Defendants contend that plaintiffs' claims are barred by both the “special factors counseling hesitation” when a Bivens action is brought against military officials and qualified immunity. Defs.' Mem. In Supp. of Mot. to Dismiss [Dkt. # 4] (“Defs.' Mem.”) at 3. Even assuming the veracity of all of plaintiffs' allegations, after reviewing the relevant legal precedent, the Court concludes...