Klay v. Panetta

• Citation: 758 F.3d 369
• Decision Date: 18 July 2014
• Docket Number: No. 13–5081.,13–5081.
• Parties: Ariana KLAY, et al., Appellants v. Leon E. PANETTA, Former Secretary of Defense, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

758 F.3d 369

Ariana KLAY, et al., Appellants

v.Leon E. PANETTA, Former Secretary of Defense, et al., Appellees.

No. 13–5081.

United States Court of Appeals,District of Columbia Circuit.

Argued Feb. 18, 2014.

Decided July 18, 2014.

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.

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 underthe 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).

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 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. 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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, 107 S.Ct. 3054, 97 L.Ed.2d 550 (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.

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, 91 S.Ct. 1999. 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, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (congressional employee's employment discrimination claim under the Fifth Amendment); Carlson v. Green, 446 U.S. 14, 18–23, 100 S.Ct. 1468, 64 L.Ed.2d 15 (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, ––– U.S. ––––, 132 S.Ct. 617, 622–23, 181 L.Ed.2d 606 (2012) (collecting cases), expressing its “reluctan[ce] to extend Bivens liability to ‘to any new context or new category of defendants,’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)); see also Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (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, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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...