LANCE M. AFRICK, District Judge.
The Court has before it a motion
Plaintiff, Luke T. West ("West"), was at all times relevant to the pending motion a service member in the United States Marine Corps.
According to the complaint, Cuevas was the "Sexual Assault Response Coordinator for Marine Forces Reserves," and Bartucco and Stucker were "civilian victim advocates for Marine Forces Reserves."
Investigations of Rieth's and Parrott's allegations ensued. Plaintiff alleges that Cuevas, Bartucco, and Stucker "exerted significant improper influence over Naval Criminal Investigative Services (NCIS), the civilian law enforcement agency of the United States Navy," by "prevent[ing] NCIS from investigating evidence and information exculpatory to plaintiff" and "caus[ing] NCIS to attempt to improperly intimidate plaintiff and plaintiff's witnesses, with threats of obstructing justice investigations."
Ultimately, West was court-martialed in November 2014 with respect to the allegations lodged by Rieth, Parrott, and Rachel Allen ("Allen"), a previously dismissed defendant. At the general court-martial in November 2014, Rieth and Parrott, among others, testified under oath against plaintiff, which testimony plaintiff alleges was false. Plaintiff was found not guilty of the charges arising out of the alleged sexual assault and harassment directed towards Rieth and Parrott.
West filed this lawsuit against Rieth, Parrott, and two other accusers on July 9, 2015, invoking the Court's diversity jurisdiction and asserting state-law causes of action.
A district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted if the plaintiff has not set forth a factual allegation in support of his claim that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). As the U.S. Court of Appeals for the Fifth Circuit explained in Gonzalez v. Kay:
"Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court recently expounded upon the Twombly standard, explaining that "[t]o 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 Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. It follows that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]'-`that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). "Dismissal is appropriate when the complaint `on its face show[s] a bar to relief.'" Cutrer v. McMillan, 308 F. App'x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
Plaintiff alleges that movants violated his Fifth Amendment substantive due process rights. Both plaintiff and defendants analyze these claims through the framework of the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which "established that, in certain circumstances, the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." De La Paz v. Coy, 786 F.3d 367, 372 (5th Cir. 2015) (internal quotation marks omitted). "A Bivens action is analogous to a § 1983 action; the only difference is that § 1983 claims apply to constitutional violations by state actors and Bivens claims apply to actions by federal officials." Espinal v. Bemis, 464 F. App'x 250, 251 (5th Cir. 2012) (citing Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005)). The Fifth Circuit "does not distinguish between Bivens claims and § 1983 claims." Id.
To state a Bivens claim, a plaintiff first must allege a constitutional violation. Abate v. S. Pac. Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993) ("To recover damages under Bivens, the injured party must show the existence of a valid constitutional violation."). Then, the Court must decide whether the Fifth Circuit "has already extended Bivens" to include plaintiff's claims or, if not, whether "the Supreme Court's reasoning in the Bivens line of cases, taken as a whole," warrants extension of the Bivens remedy to this context. See De La Paz, 786 F.3d at 373.
Defendants contend that (1) plaintiff has not stated a claim for a substantive due process violation, (2) special factors counsel against extending the Bivens remedy to this context, and (3) in the alternative, defendants are entitled to qualified immunity.
"[S]ubsequent holdings of the Supreme Court . . . have narrowed and reframed Bivens in the course of rejecting nearly all other claims for an implied damage remedy against federal officers or agents." De La Paz, 786 F.3d at 372. Accordingly, the Supreme Court has "disavowed that a Bivens suit is an automatic entitlement; in fact, it is disfavored." Id. (internal quotation marks omitted). "Moreover, because Bivens suits implicate grave separation of powers concerns, a decision to create a private right of action is one better left to legislative judgment in the great majority of cases." Id. at 372-73 (internal quotation marks omitted).
When deciding whether to extend the Bivens remedy, "[i]nstead of an amendment-byamendment ratification of Bivens actions, courts must examine each new context—that is, each new potentially recurring scenario that has similar legal and factual components." Id. at 372 (internal quotation marks omitted). Accordingly, the initial question is whether the Supreme Court or the Fifth Circuit "has already extended Bivens" to include plaintiffs' claims. See id. 373. Plaintiff does not cite such a case or contend that a Bivens remedy already exists for his claims against these defendants.
Deciding whether to extend Bivens requires a two-prong analysis. First, the Court "may not step in to create a Bivens cause of action if any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Id. at 375. Second, "[e]ven if no such alternative process exists . . . a court must make the kind of remedial determination that is appropriate for a commonlaw tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation." Id.
Defendants base their argument on the second prong and articulate several "special factors counselling hesitation." The Court agrees with defendants that the military context in which this matter arose conclusively counsels against extending the Bivens remedy into this context.
The Supreme Court has held that "congressionally uninvited intrusion into military affairs by the judiciary is inappropriate." United States v. Stanley, 483 U.S. 669, 683 (1987). Accordingly, "the unique disciplinary structure of the Military Establishment and Congress' activity in the field . . . require abstention in the inferring of Bivens actions" to the same extent that the Feres doctrine prohibits claims against the government pursuant to the Federal Tort Claims Act.
Pursuant to Stanley, the Court must assess a proposed Bivens claim in the military context by applying the Feres test, which requires a "three-factor analysis for whether a service member's injury was incident to military service: (1) duty status, (2) site of injury, and (3) activity being performed." Regan v. Starcraft Marine, LLC, 524 F.3d 627, 637 (5th Cir. 2008). Assessed through these three factors, plaintiff's allegations self-evidently are "incident to military service."
Plaintiff alleges that at all relevant times, he (as well as Rieth, Parrott, Cuevas, Bartucco, and Stucker) were employed by the Marines, and plaintiff does not allege that he or any other party was on extended leave. Accordingly, all interested parties are at the very least in the middle of the "continuum between performing the tasks of an assigned mission to being on extended leave from duty." Regan, 524 F.3d at 637. To the extent that there is a "place" where plaintiff's alleged constitutional injury occurred, that "place" was within the framework of his military employment and the military disciplinary process, including the formal reporting, investigation, and prosecution of the allegations against him. See id. at 640. Likewise, the "activity being performed at the time of the injury" was the activity surrounding the formal court-martial, which undoubtedly "served some military function." See id. at 640. The facts plaintiff alleges are squarely incident to military service and military discipline, unlike the recreational rental boat accident in Regan. See, e.g., id. at 637-42.
Plaintiff's contention that his claims did not arise "incident to military service" is not convincing. He asserts that "the allegations of sexual assault and sexual harassment took place outside of the office;"
Furthermore, the case to which plaintiff analogizes, Lutz v. Secretary of Air Force, 944 F.2d 1477 (9th Cir. 1991), is distinguishable. In Lutz, the Ninth Circuit held that defendants who allegedly "broke into [plaintiff's] office, took personal papers and disseminated them to other military personnel with the intent to injure [plaintiff's] reputation and career" were not acting "incident to military service." See id. at 1478-79. Notwithstanding some broad language in the Ninth Circuit's opinion, that court addressed "only the narrow question of whether injuries sustained by Lutz as a result of the sergeants entering her office after hours, opening her personal mail, and disseminating it to others in an attempt to cause harm to her reputation, are injuries which arise out of or are in the course of activity incident to service." See id. at 1485. On the facts of that case, the Lutz court found that "[i]ntentional tortious and unconstitutional acts directed by one servicemember against another which further no conceivable military purpose and are not perpetrated during the course of a military activity surely are past the reach of Feres" and Stanley. Id. at 1487.
Lutz is distinguishable because the alleged unconstitutional action in this case is much more closely intertwined with the parties' military service and the military disciplinary framework. According to plaintiff, defendants lodged or facilitated the lodging of accusations against him, which accusations were investigated and proceeded to a general court-martial. Taking plaintiff's allegations to be true, defendants' alleged manipulation or abuse of the military disciplinary framework is more connected to "the course of a military activity" than the after-hours burglary at issue in Lutz. Furthermore, plaintiff's allegations in this case inherently involve collateral review of the basis for the underlying investigation and court-martial, which factor was also missing in Lutz. See id. at 1485 & n.8 (noting that claims "challenging disciplinary decisions" "have been found to fall squarely within the prohibited zone protected by Feres"). Accordingly, the constitutional violations alleged by plaintiff necessarily implicate "the unique disciplinary structure of the Military Establishment and Congress' activity in the field," which counsels against extending the Bivens remedy.
In sum, Bivens remedies are disfavored, De La Paz, 786 F.3d at 372, and the military disciplinary context of this matter particularly counsels against extending Bivens. Stanley, 483 U.S. at 683. Plaintiff's claims, as stated in his complaint, arise out of allegations by fellow Marines that he sexually assaulted and sexually harassed them, which allegations were allegedly facilitated by civilian marine employees, and resulted in plaintiff's court-martial. His claims, taken as true, are sufficiently "incident to military service" such that the military context of this matter is a "special factor" which counsels against extending the Bivens remedy to this factual and legal context. To conclude otherwise would be to open the floodgates to a post-court-martial Bivens claims. Plaintiff has therefore failed to state a viable Bivens claim; defendants' motion should be granted and plaintiff's claims against them should be dismissed.
The Court previously granted an earlier motion to dismiss and substituted the United States of America as defendant with respect to plaintiff's state-law claims as to Rieth, Parrott, Allen, and Johnson.
"Federal courts have jurisdiction to hear suits against the government only with a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver." Young v. United States, 727 F.3d 444, 447 (5th Cir. 2013) (internal quotation marks omitted). The Federal Tort Claims Act is a limited waiver of sovereign immunity, but such waiver does not extend to "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h); see also White v. United States, 419 F. App'x 439, 441-42 (5th Cir. 2011) (affirming substitution of the United States as defendant with respect to defamation claim and subsequent dismissal of that defamation claim on sovereign immunity grounds). Accordingly, the Court's subject matter jurisdiction over the only remaining claims is questioned.
In previous briefing, the government has indicated its intent to assert sovereign immunity,
