Filed: Aug. 30, 2017
Latest Update: Mar. 03, 2020
Summary: 15-1890-cv Doe v. Hagenbeck UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2015 (Argued: June 16, 2016 Decided: August 30, 2017) No. 15-1890-cv –––––––––––––––––––––––––––––––––––– JANE DOE, Plaintiff-Appellee, -v.- LT. GEN. FRANKLIN LEE HAGENBECK, BRIG. GEN. WILLIAM E. RAPP, Defendants-Appellants, UNITED STATES OF AMERICA, Defendant. –––––––––––––––––––––––––––––––––––– Before: WESLEY, LIVINGSTON, and CHIN, Circuit Judges. Appeal from an April 13, 2015 order of the United Sta
Summary: 15-1890-cv Doe v. Hagenbeck UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2015 (Argued: June 16, 2016 Decided: August 30, 2017) No. 15-1890-cv –––––––––––––––––––––––––––––––––––– JANE DOE, Plaintiff-Appellee, -v.- LT. GEN. FRANKLIN LEE HAGENBECK, BRIG. GEN. WILLIAM E. RAPP, Defendants-Appellants, UNITED STATES OF AMERICA, Defendant. –––––––––––––––––––––––––––––––––––– Before: WESLEY, LIVINGSTON, and CHIN, Circuit Judges. Appeal from an April 13, 2015 order of the United Stat..
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15‐1890‐cv
Doe v. Hagenbeck
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
(Argued: June 16, 2016 Decided: August 30, 2017)
No. 15‐1890‐cv
––––––––––––––––––––––––––––––––––––
JANE DOE,
Plaintiff‐Appellee,
‐v.‐
LT. GEN. FRANKLIN LEE HAGENBECK,
BRIG. GEN. WILLIAM E. RAPP,
Defendants‐Appellants,
UNITED STATES OF AMERICA,
Defendant.
––––––––––––––––––––––––––––––––––––
Before: WESLEY, LIVINGSTON, and CHIN, Circuit Judges.
Appeal from an April 13, 2015 order of the United States District Court for
the Southern District of New York (Hellerstein, J.), granting in part and denying
in part Defendants’ motion to dismiss. Plaintiff‐Appellee Jane Doe — a former
West Point cadet who alleges that she was sexually assaulted by another
cadet — brought a Bivens action against two superior officers at West Point,
1
Defendants‐Appellants Lieutenant General Franklin Lee Hagenbeck and
Brigadier General William E. Rapp, in their personal capacities, for alleged
violation of her Fifth Amendment right to equal protection. Because
adjudicating Doe’s claim would require judicial interference into a wide range of
military functions (including the training, supervision, discipline, education, and
command of service personnel at West Point), triggering the incident‐to‐service
rule, we conclude that there is no Bivens remedy available in this context.
Accordingly, the order of the district court is REVERSED, and the case is
REMANDED with instructions to dismiss.
JUDGE CHIN dissents in a separate opinion.
FOR PLAINTIFF‐APPELLEE: REBECCA OJSERKIS, JONAS WANG, Erin
Baldwin, Kathryn Wynbrandt, Bethany Li,
Michael J. Wishnie, Veteran Legal Services
Clinic, Jerome M. Frank Legal Services
Organization, Yale Law School, New
Haven, CT, for Jane Doe.
FOR DEFENDANTS‐APPELLANTS: CHRISTOPHER CONNOLLY, Benjamin H.
Torrance, Assistant United States
Attorneys, New York, NY, for Joon H. Kim,
Acting United States Attorney for the
Southern District of New York, for Lt. Gen.
Franklin Lee Hagenbeck and Brig. Gen.
William E. Rapp.
AMICI CURIAE: Caitlin J. Halligan, Joel M. Cohen, Casey K.
Lee, Kathryn M. Cherry, Gibson, Dunn &
Crutcher LLP, New York, NY, for Amici
Curiae Federal Courts and Constitutional
Law Professors, in support of Jane Doe.
Paul W. Hughes, Travis Crum, Mayer
Brown LLP, Washington, D.C., for Amici
2
Curiae University Administrators, in support
of Jane Doe.
Penelope A. Preovolos, Ben Patterson,
Morrison & Foerster LLP, San Francisco,
CA, for Amici Curiae Former Military
Officers, in support of Jane Doe.
John D. Niles, James Anglin Flynn,
Covington & Burling LLP, Washington,
D.C., for Amici Curiae National Veterans
Legal Services Program, Protect Our
Defenders, Service Women’s Action
Network, in support of Jane Doe.
Sandra S. Park, Steven Watt, Lenora M.
Lapidus, American Civil Liberties Union
Foundation, New York, NY, for Amici
Curiae American Civil Liberties Union,
American Association of University
Women, Human Rights and Gender Justice
Clinic at the City University of New York
School of Law, Human Rights Watch,
National Alliance to End Sexual Violence,
National Center on Domestic and Sexual
Violence, National Women’s Law Center,
in support of Jane Doe.
DEBRA ANN LIVINGSTON, Circuit Judge:
Jane Doe is a former United States Military Academy (“West Point”) cadet
who alleges that during her second year at West Point, she was sexually
assaulted by a fellow cadet. She filed this lawsuit not against the cadet, but
3
against two superior officers, Lieutenant General Franklin Lee Hagenbeck and
Brigadier General William E. Rapp, in their personal capacities. Lieutenant
General Hagenbeck was Superintendent of West Point from approximately July
2006 to July 2010, and in that role he chaired the Sexual Assault Review Board,
which is the “primary means of oversight” of the sexual assault prevention and
response program at West Point. Joint App’x 12. Brigadier General Rapp was
Commandant of Cadets at West Point from 2009 to 2011 and was in charge of the
administration and training of cadets. Doe alleges, in substance, that Lieutenant
General Hagenbeck and Brigadier General Rapp “perpetrat[ed] a sexually
aggressive culture” at West Point that “discriminated against female cadets,”
“put female cadets at risk of violent harm,” and resulted, inter alia, in her sexual
assault. Id. at 29.
In 2013, Doe filed suit against the United States, Lieutenant General
Hagenbeck, and Brigadier General Rapp. She pleaded four causes of action, but
the district court dismissed all but one: a claim against Lieutenant General
Hagenbeck and Brigadier General Rapp brought pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on the
basis of their alleged violation of equal protection rights protected by the Fifth
4
Amendment. For the reasons stated below, we conclude that the district court
erred in permitting this Bivens claim to proceed. We therefore REVERSE the
order of the district court as to this claim and REMAND the case to the district
court with instructions to dismiss it.
BACKGROUND
I. Factual Allegations1
Doe, who graduated from high school in 2008, received an offer of
admission to West Point during her senior year, which she accepted. As a West
Point cadet, Doe was a member of the Army. 10 U.S.C. § 3075(b)(2). The
expectation upon enrollment was that, following her military training and
education at West Point — which, together with room and board, Doe received
without charge — she would serve at least five years of active duty. The West
Point curriculum, as Doe alleges in her Amended Complaint, “is designed to
train ‘officer‐leaders of character to serve the Army and the Nation.’” Joint
App’x 13.
1 The factual background presented here is derived from the allegations in Doe’s
Amended Complaint, which we accept as true and view in the light most favorable to
her in reviewing the district court’s decision on the motion to dismiss. See Starr Int’l
Co. v. Fed. Reserve Bank, 742 F.3d 37, 40 (2d Cir. 2014).
5
Upon arrival at West Point, Doe, who was one of about 200 women among
the approximately 1,300 cadets in her class, alleges that she encountered what
she describes as a “male” and “misogynistic culture.” Id. at 14, 15. Cadets, for
example, sang sexually explicit and offensive chants while marching on campus,
“in view and earshot of faculty and administrators.” Id. at 16. Doe contends
that she “observed her cadet classmates making misogynistic and sexually
aggressive comments on a regular basis,” while “[t]he West Point administration
frequently ignored and sometimes condoned these comments.” Id. at 15. Doe
does not allege that Lieutenant General Hagenbeck or Brigadier General Rapp
engaged in any such conduct, but she does contend that they “created” the
culture there, which “marginalized” Doe and other female cadets and “caused
them to be subjected to routine harassment, [to] suffer emotional distress and
other harms, and [to] be pressured to conform to male norms.” Id. Doe also
maintains that West Point’s training on sexual assault and harassment was
inadequate “and did little to combat the overwhelmingly misogynistic culture of
the school.” Id. at 17.
In the early morning of May 9, 2010, during her second year at West Point,
Doe alleges that she was raped by a fellow cadet with whom she had gone
6
walking after hours. In particular, Doe asserts that after taking a prescribed
sedative as she was preparing for bed, she agreed at about 1:00 a.m. to leave her
dormitory with this cadet (identified by Doe in her Amended Complaint only as
“Mr. Smith” (“Smith”)) in violation of West Point rules. Doe alleges that she
accepted only a few sips of alcohol from Smith but that, as a result of the
combined effects of the sedative and the alcohol, she “began to lose awareness of
her surroundings and consciousness of what she was doing.” Id. at 22. Doe
contends that Smith “was aware that [she] had lost consciousness and took
advantage,” attacking her and having “forcible, non‐consensual intercourse with
her.” Id. She also maintains that she does not remember the details of the
attack.
Doe sought care from West Point’s cadet health clinic the next day, which
provided her with emergency contraception and, on a subsequent visit on or
about May 11, tested her for sexually‐transmitted diseases. Although the
treating nurse allegedly informed Doe that she had signs of vaginal tearing, and
the medical record indicates Doe reported that she “was sexually assaulted by a
friend,” Doe states that the clinic “did not perform any forensic collection or
preservation of evidence of the sexual assault.” Id. at 23. During a regular
7
appointment with her psychiatrist that day (a psychiatrist Doe began consulting,
she alleges, because of the significant stress she suffered due to West Point’s
oppressive atmosphere), Doe reported “nonconsensual sexual relations with a
friend,” and was referred to West Point’s Sexual Assault Response Counselor,
Major Maria Burger. Id.
Doe met only once with Major Burger. During that meeting, the major
explained to Doe that she could file either an “unrestricted” or a “restricted”
report about the incident. Id. An unrestricted report would have included
both Doe’s and her alleged assailant’s names and would have been given to
commanders for potential disciplinary action. A restricted report would
preserve their anonymity, but would not result in a referral. Doe filed a
restricted report. She alleges in her Amended Complaint that she feared
reputational harm or even retaliation from other cadets if she filed an
unrestricted report. She also worried that she would be punished for having
been out after hours and for consuming alcohol with her alleged assailant, and
that an unrestricted report would damage her career prospects because “[i]t was
common knowledge among the cadets that successful women in the military did
not report incidents of sexual assault.” Id.
8
Doe contends that in the aftermath of the sexual assault, her anxiety grew
intolerable. Doe informed West Point that she would resign, and on August 13,
2010, she was honorably discharged. Doe thereafter enrolled in a civilian
college from which she earned a degree.
II. Procedural History
On April 26, 2013, Doe filed a complaint in the United States District Court
for the Southern District of New York (Hellerstein, J.).2 On September 4, 2013,
she filed an Amended Complaint. Therein, Doe pleaded four independent
causes of action: (1) a Bivens claim based on an alleged Fifth Amendment due
2 A redacted version of the Complaint was docketed, and an unredacted version
was filed under seal. The district court ordered the parties to show cause why the
Complaint should remain under seal, and Doe then filed a motion to seal the case. At
a hearing, the district court granted the motion in part, and denied it in part. It
granted Doe permission to proceed under a pseudonym, and it also ruled that she could
continue to redact from public filings the name of “Mr. Smith,” the man she alleged had
assaulted her. The district court decided that the names of the individual defendants
and the facts and circumstances of the alleged assault, however, should be disclosed.
No challenge has been presented on appeal to this manner of proceeding and we are
without the benefit of briefing on the question. We assume, arguendo, that the district
court did not abuse its discretion in determining to proceed in this manner and do not
address the matter further. But see, e.g., Doe v. Public Citizen, 749 F.3d 246, 275 (4th Cir.
2014) (holding that the district court’s sealing order “violated the public’s right of access
under the First Amendment and that the [district] court abused its discretion in allowing
Company Doe to proceed under a pseudonym”); Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 189 (2d Cir. 2008) (indicating that “‘[t]he people have a right to know who is
using their courts,’” and describing “the relevant inquiry as a balancing test that weighs
the plaintiff’s need for anonymity against countervailing interests in full disclosure”
(quoting Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997))).
9
process violation against Lieutenant General Hagenbeck and Brigadier General
Rapp; (2) a Bivens claim premised on an alleged Fifth Amendment equal
protection violation against Lieutenant General Hagenbeck and Brigadier
General Rapp; (3) a claim for breach of the covenant of good faith and fair
dealing under 28 U.S.C. § 1346(a)(2) (the “Little Tucker Act”) against the United
States; and (4) a Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–
2680, claim against the United States alleging negligent supervision, negligent
training, negligence, negligent infliction of emotional distress, and abuse of
process.
On September 20, 2013, defendants filed a motion to dismiss the Amended
Complaint, which Doe opposed. On April 13, 2015, the district court issued an
opinion and order granting in part and denying in part defendants’ motion.
The district court granted defendants’ motion as to the two claims against the
United States: the Little Tucker Act claim and the FTCA claim. The district
court also dismissed Doe’s Bivens claim asserting a violation of her due process
rights. These claims are not at issue in this interlocutory appeal.
The district court denied the motion to dismiss as to the Bivens claim in
which Doe asserted that Lieutenant General Hagenbeck and Brigadier General
10
Rapp violated her equal protection rights. The district court acknowledged that
a Bivens remedy is not available “when ‘special factors counselling hesitation’ are
present,” Chappell v. Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens, 403 U.S. at
396). It recognized that absent Congressional authorization for a money
damages claim, “[t]he need to insulate the military’s disciplinary structure from
judicial inquiry” constitutes a special factor. Doe v. Hagenbeck, 98 F. Supp. 3d
672, 684 (S.D.N.Y. 2015). Further, the court acknowledged the Supreme Court’s
instruction, in United States v. Stanley, that in the military context, the special
factors requiring abstention “extend [even] beyond the situation in which an
officer‐subordinate relationship exists, and require abstention in the inferring of
Bivens actions as extensive as the exception to the FTCA” established in Feres v.
United States, 340 U.S. 135 (1950), Stanley, 483 U.S. 669, 683–84 (1987). In the
district court’s view, however, “the primary reason for exercising judicial
restraint with cases concerning the military is ‘the need to preserve the military
disciplinary structure and prevent judicial involvement in sensitive military
matters.’” Doe, 98 F. Supp. 3d at 688 (quoting Wake v. United States, 89 F.3d 53,
57 (2d Cir. 1996)). The district court concluded that Doe’s claim, at least at the
motion to dismiss stage, did not implicate such concerns.
11
Following the district court’s opinion, Lieutenant General Hagenbeck and
Brigadier General Rapp filed a notice of interlocutory appeal and moved for a
stay pending the appeal. In response, Doe argued that any appeal should be
pursued in the Federal Circuit instead of in the Second Circuit. The district
court granted the stay until August 7, 2015, “and such further period as the U.S.
Court of Appeals shall determine.” Joint App’x 9. The district court also
“note[d] Plaintiff’s position that any appeal should be pursued in the Federal
Circuit[] instead of the Second Circuit” and “le[ft] that determination for the
appellate courts.” Id. A panel of this Court thereafter granted defendants’
motion to stay the proceedings before the district court and denied Doe’s motion
to transfer venue.
DISCUSSION
Doe’s equal protection claim is based on the proposition that Lieutenant
General Hagenbeck and Brigadier General Rapp, her superior officers at the
time, “knowingly and intentionally created and enforced a policy and practice”
at West Point that “discriminated against female cadets,” “tolerated attacks
against [them] and discouraged reporting,” and promoted a “sexually aggressive
culture” there that caused Doe to suffer, inter alia, a sexual assault. Joint App’x
12
29. The district court denied defendants’ motion to dismiss this claim,
concluding it should be permitted to proceed “unless it is evident from the
complaint, or shown by an answer and subsequent proofs, that military
discipline or its command structure is compromised.” Doe, 98 F. Supp. 3d at
689. We review the district court’s determination de novo. Warney v. Monroe
Cty., 587 F.3d 113, 120 (2d Cir. 2009).
In reviewing the denial of a motion to dismiss, we assume that the
allegations in Doe’s Amended Complaint are true and draw all reasonable
inferences from those allegations in her favor. Starr Int’l Co. v. Fed. Reserve Bank,
742 F.3d 37, 40 (2d Cir. 2014). Assuming their truth, Doe’s allegations of
harassment and abuse are no credit to West Point, an institution founded, as Doe
alleges, “to train ‘officer‐leaders of character to serve the Army and the Nation.’”
Joint App’x 13. But this neither does nor should end the judicial inquiry into
whether Doe’s Bivens claim may proceed.
Doe seeks to hold her superior officers personally liable for money
damages in connection with their decisions regarding the training, supervision,
discipline, education, and command of service personnel at West Point, an officer
training school and military base. But Congress, “the constitutionally
13
authorized source of authority over the military system of justice, has not
provided a damages remedy” for the constitutional claim that Doe asserts.
Chappell, 462 U.S. at 304. The Supreme Court, citing the “inescapable demands
of military discipline . . . [that] cannot be taught on battlefields,” id. at 300, has
held, unanimously, that absent Congressional authorization, “it would be
inappropriate [for courts] to provide enlisted military personnel a Bivens‐type
remedy against their superior officers.” Id. at 304; see also id. at 305 (holding that
“enlisted military personnel may not maintain a suit to recover damages from a
superior officer for alleged constitutional violations”). We conclude that
Chappell and its progeny are dispositive of Doe’s Bivens claim and, accordingly,
that the district court erred in determining that Doe’s Bivens claim may proceed.
I
We start with Bivens itself. In Bivens, the Supreme Court permitted the
plaintiff, who alleged that he had been subjected to an unlawful, warrantless
search of his home and to an unlawful arrest, to proceed with a Fourth
Amendment damages claim against allegedly errant federal law enforcement
agents, despite the fact that Congress had not provided for such a remedy. 403
U.S. at 389, 395–97. Although the Bivens Court permitted this damages claim to
14
proceed, it signaled, as the Court has repeatedly cautioned since, that “such a
remedy will not be available when ‘special factors counselling hesitation’ are
present.”3 Chappell, 462 U.S. at 298 (quoting Bivens, 403 U.S. at 396). The Court
has since made clear that it is “reluctant to extend Bivens liability ‘to any new
context or new category of defendants.’” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). In the forty‐six years
since Bivens was decided, the Supreme Court has extended the precedent’s reach
only twice, 4 and it has otherwise consistently declined to broaden Bivens to
permit new claims.5 See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (observing
The Court has in recent years prescribed a two‐step process for determining
3
whether a Bivens remedy is available in which we consider, first, whether an alternative
remedial scheme exists. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007). In Stanley, the
Court suggested that traditional forms of redress, “designed to halt or prevent” a
constitutional violation “rather than [for] the award of money damages,” might
sometimes be available in the military context. 483 U.S. at 683. We nonetheless
assume arguendo that there is no alternative remedy here and address our analysis to
the Supreme Court’s admonition that “even in the absence of an alternative,” Wilkie, 551
U.S. at 550, courts must pay “particular heed” to “special factors counselling hesitation
before authorizing a new kind of federal litigation,” id. (quoting Bush v. Lucas, 462 U.S.
367, 378 (1983)); see also Stanley, 483 U.S. at 683 (noting that availability of alternative
remedy is “irrelevant” to special factors analysis).
See Carlson v. Green, 446 U.S. 14, 18–23 (1980) (finding an implied private cause
4
of action for a prisoner’s Eighth Amendment claim); Davis v. Passman, 442 U.S. 228, 230–
34 (1979) (finding an implied private cause of action for a congressional employee’s
employment discrimination claim under the Fifth Amendment).
See Minneci v. Pollard, 565 U.S. 118, 124–25 (2012) (collecting cases); see also, e.g.,
5
Malesko, 534 U.S. at 70–73 (no Bivens action for prisoner’s Eighth Amendment‐based suit
15
that “the Court has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity,” and collecting cases in which the Supreme Court
has refused to do so (quoting Iqbal, 556 U.S. at 675)). Indeed, noting that “it is a
significant step under separation‐of‐powers principles for a court to determine
that it has the authority,” in effect, “to create and enforce a cause of action for
[money] damages against federal officials,” the Court only recently observed that
“it is possible that the analysis in the Court’s three Bivens cases might have been
different if they were decided today.” Id. at 1856.
The Supreme Court’s separation‐of‐powers concern with implied causes of
action under the Constitution, present in all cases in which plaintiffs have sought
to extend Bivens’s reach, is particularly acute in the military context. In Chappell,
the Supreme Court held that special factors counselled against permitting the
plaintiffs — enlisted Navy sailors who alleged that superior officers had
discriminated against them on the basis of race — to maintain Bivens money
damage claims. 462 U.S. at 297, 304. Referencing the “centuries of experience”
reflected in the military’s “hierarchical structure of discipline and obedience to
against a private corporation that managed a federal prison); Schweiker v. Chilicky, 487
U.S. 412, 414, 425–27 (1988) (no Bivens action for claim by recipients of Social Security
disability benefits that benefits had been denied in violation of the Fifth Amendment);
Bush, 462 U.S. at 386–90 (no Bivens action for claim that federal employer demoted
federal employee in violation of the First Amendment).
16
command,” a structure “wholly different from civilian patterns,” id. at 300, the
Court concluded that civilian courts, not responsible for the lives of soldiers and
“ill‐equipped to determine the impact upon discipline” of their intrusions, id. at
305 (quoting Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181,
187 (1962)), must “hesitate long” before entertaining suits which ask courts to
“tamper with the established relationship between enlisted military personnel
and their superior officers,” id. at 300. Congress, the Court unanimously said,
has “plenary control over rights, duties, and responsibilities in the framework of
the [m]ilitary [e]stablishment, including regulations, procedures and remedies
related to military discipline.” Id. at 301. In the absence of Congressional
action, the Court concluded, “enlisted military personnel may not maintain a suit
to recover damages from a superior officer for alleged constitutional violations.”
Id. at 305.
The Supreme Court was, if anything, even more emphatic in Stanley. The
Court ruled there that the plaintiff — a former soldier alleging that the Army had
secretly given him doses of LSD to study the drug’s effects — could not maintain
a Bivens action, even though at least some of the defendants in the case were not
Stanley’s superior military officers (thus not directly implicating Chappell’s
17
chain‐of‐command concerns) and “may well have been civilian personnel.” 483
U.S. at 679; see id. at 671, 680–84. Citing by way of analogy to its decision in
Feres, which established that “the Government is not liable under the Federal
Tort Claims Act for injuries to servicemen where the injuries arise out of or are in
the course of activity incident to service,” 340 U.S. at 146, the Stanley Court
explained that there is no “reason why [its] judgment in the Bivens context
should be any less protective of military concerns than it has been with respect to
FTCA suits, where [it] adopted [the] ‘incident to service’ rule,” 483 U.S. at 681.
The Court thus concluded — in sweeping language — that in the military
context, even where no “officer‐subordinate relationship exists,” the reach of the
special factors counselling “abstention in the inferring of Bivens actions” is “as
extensive as the exception to the FTCA established by Feres.” Id. at 683–84.
Accordingly, pursuant to the incident‐to‐service rule, “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).
18
II
This Supreme Court precedent frames our inquiry and leads ineluctably to
the conclusion that Doe cannot maintain her Bivens claim. Doe was a member
of the military at the time the events giving rise to her claim occurred, and the
claim concerns superior officers. Further, her claim calls into question “basic
choices about the discipline, supervision, and control” of service personnel and
would “require[ ] the civilian court to second‐guess military decisions,” thus
triggering the incident‐to‐service rule.6 United States v. Shearer, 473 U.S. 52, 57–
58 (1985) (noting that allegations “go[ing] directly to the ‘management’ of the
military” that “might impair essential military discipline” lie at the “core” of
rule’s concerns). In such circumstances, her Bivens claim must be dismissed.
At the start, by statute, a West Point cadet is a member of the military.
“The Regular Army is [a] component of the Army” and “includes . . . cadets of
6 Given that the Chappell Court squarely held that “military personnel may not
maintain a suit to recover damages from a superior officer for alleged constitutional
violations” (although the question presented in that case concerned violations “in the
course of military service”), 462 U.S. at 297, 305, and the Stanley Court only broadened
Chappell’s holding, see 483 U.S. at 683 (explaining that Chappell’s reasoning “extend[s]
beyond the situation in which an officer‐subordinate relationship exists”), resolution of
this case may not require an incident‐to‐service inquiry at all. Nonetheless, consistent
with the approach of our sister circuits, see Klay v. Panetta, 758 F.3d 369, 374 (D.C. Cir.
2014); Cioca v. Rumsfeld, 720 F.3d 505, 512–14 (4th Cir. 2013), we apply the
incident‐to‐service rule here and reach the same result we would have reached under
Chappell alone.
19
the United States Military Academy,” 10 U.S.C. § 3075, who swear an oath to “at
all times obey the legal orders of [their] superior officers, and the Uniform Code
of Military Justice,” id. § 4346(d). For this reason, in the context of the FTCA,
courts citing Feres have reliably applied the doctrine of intramilitary immunity to
bar suits brought by service academy cadets whenever such suits implicate the
incident‐to‐service rule. See, e.g., Miller v. United States, 42 F.3d 297, 301, 308 (5th
Cir. 1995); Collins v. United States, 642 F.2d 217, 218 (7th Cir. 1981). This Circuit,
moreover, has recognized that the rule also applies in the context of suits
brought by students who are part of the Reserve Officer Training Corps at
nonmilitary schools. See Wake, 89 F.3d at 55, 58–59, 62.
Next, Doe’s alleged injuries clearly are covered by the Supreme Court’s
holding in Stanley that “no Bivens remedy is available for injuries that ‘arise out
of or are in the course of activity incident to service.’” 483 U.S. at 684 (quoting
Feres, 340 U.S. at 146). As the Supreme Court recognized in Shearer when
applying the incident‐to‐service rule, when a claim on its face “requires the
civilian court to second‐guess military decisions,” and when the complaint, fairly
read, calls into question “the ‘management’ of the military” — that is, “basic
choices about the discipline, supervision, and control” of service personnel — we
20
are “at the core” of the rule’s concerns. 473 U.S. at 57–58. In such
circumstances, we do not inquire into “the extent to which particular suits would
call into question military discipline and decisionmaking.” Stanley, 483 U.S. at
682. Instead, such cases “require abstention,” id. at 683, so as to avoid
interference with “the necessarily unique structure of the military establishment”
and to defer to the Framers who, “well aware of the differences between
[military] and civilian life” and cognizant of the issues that might in future arise,
granted “plenary authority to Congress . . . ‘[t]o make Rules for the Government
and Regulation of the land and naval Forces,’” Chappell, 462 U.S. at 300–01
(emphasis added) (quoting U.S. Const. art. 1, § 8, cl. 14).
Here, in considering whether Doe’s injuries occurred “incident to service,”
we examine the specific factual allegations that underlie her equal protection
claim.7 See Klay v. Panetta, 758 F.3d 369, 375 (D.C. Cir. 2014) (noting that the
7 We have suggested that in some circumstances — for instance, where an issue
exists for FTCA purposes as to whether a given automobile accident occurred “within a
distinctly military sphere of activity,” see Wake, 89 F.3d at 58 — the incident‐to‐service
inquiry may require the analysis of potentially relevant factors, such as the relationship
of the activity at issue to membership in the service or the location of the conduct giving
rise to the tort claim. Id. No such close analysis is necessary here, however, given the
clear relationship between Doe’s Bivens claim and management and discipline at West
Point. In any event, we note that the balance of the relevant factors we identified in
Wake are clearly present here. Doe was a member of the Army; her tuition‐free
presence at West Point (and access to the facilities therein) was a benefit conferred as a
result of that membership; and her constitutional claim arises from her treatment at
21
incident‐to‐service rule bars Bivens claims when litigating “the plaintiff’s theory
of the case” would, in effect, “require military leaders to defend their
professional management choices”). The allegations in Doe’s Amended
Complaint do not merely invite, but require a most wide‐ranging inquiry into the
commands of Lieutenant General Hagenbeck and Brigadier General Rapp.
Specifically, as they relate to these defendants’ conduct, Doe’s allegations center
on the implementation and supervision of allegedly inadequate and harmful
training and education programs relating to sexual assault and harassment; on
the alleged failure to provide properly both for the report and investigation of
sexual assault claims, and for the support of cadets who are assaulted; on the
alleged lack of sufficient numbers of female faculty and administrators at West
Point and on the failure to recruit female cadets; on the allegedly inadequate
punishment meted out not only to perpetrators of sexual violence but also to
those who engage in misogynistic chants, slurs and comments; and, most
broadly, on the assertedly culpable tolerance of a hostile culture toward women
at West Point. Adjudicating such a money damages claim would require a
West Point, where she resided and was training to become an officer. See id. at 57
(identifying “status as a member of the military,” “the location of the conduct giving
rise to the underlying tort claim,” and “whether the service member was taking
advantage of a privilege or enjoying a benefit conferred as a result of military service”
as among relevant factors).
22
civilian court to engage in searching fact‐finding about Lieutenant General
Hagenbeck and Brigadier General Rapp’s “basic choices about the discipline,
supervision, and control” of the cadets that they were responsible for training as
future officers. Shearer, 473 U.S. at 58. In such circumstances, we conclude that
Chappell and Stanley squarely foreclose Doe’s Bivens claim.
This conclusion, we note, is consistent with the recent decisions of at least
two other circuits. The D.C. Circuit rejected as “patently deficient” a Bivens
claim pressed by current and former sailors and Marines who alleged they were
the victims of sexual assault or harassment resulting from a military culture
attributable to their superiors: “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’ — then the claim is barred by the ‘incident to service’ test.” Klay, 758
F.3d at 370, 375 (citation omitted) (quoting Shearer, 473 U.S. at 58). The Fourth
Circuit, addressing a similar claim, was equally clear: “Bivens suits are never
permitted for constitutional violations arising from military service, no matter
how severe the injury or how egregious the rights infringement.” Cioca v.
Rumsfeld, 720 F.3d 505, 512 (4th Cir. 2013) (quoting Erwin Chemerinsky, Federal
23
Jurisdiction 621–22 (5th ed. 2007)). This result, the Fourth Circuit said, implies
no tolerance for the misconduct alleged in a plaintiff’s pleading, but rather
reflects “the judicial deference to Congress and the Executive Branch in matters
of military oversight required by the Constitution and our fidelity to the
Supreme Court’s consistent refusal to create new implied causes of action in this
context.” Id. at 518; see also id. at 514 (noting that “the Chappell, Stanley, Feres and
Shearer precedents mandate that courts not permit a Bivens action that challenges
military decisionmaking”).
Doe argues, relying principally on United States v. Virginia (VMI), 518 U.S.
515 (1996), that the failure to afford her a Bivens claim against Lieutenant General
Hagenbeck and Brigadier General Rapp “contradict[s] VMI,” Doe’s Br. at 15,
specifically the Supreme Court’s merits determination therein that the State of
Virginia could not preclude women from attending the Virginia Military
Institute, a public college that styles itself as providing a military education.8
VMI, 518 U.S. at 519. But this argument misses the point. Lieutenant General
8 The Institute is not affiliated with the U.S. armed forces, nor are its students, by
virtue of their enrollment there, members of the United States military. Cf. id. at 520–
22 (describing the Institute as a state military college both financially supported by, and
subject to control by, the Virginia General Assembly, and noting that it differs from
federal service academies because it prepares students for both military and civilian
life).
24
Hagenbeck and Brigadier General Rapp do not seek dismissal based on the scope
of equal protection guarantees — a subject to which VMI could be pertinent.
Instead, they invoke binding Supreme Court precedent standing for the
proposition that whatever the scope of the particular constitutional rights at
issue, the remedy of money damages is unavailable to members of the armed
services for violations of those rights where Congress has not acted and the
incident‐to‐service rule is satisfied.
Chappell itself involved an equal protection claim by African American
enlisted personnel who alleged that their superior officers “failed to assign them
desirable duties, threatened them, gave them low performance evaluations, and
imposed penalties of unusual severity,” all on account of their race. 462 U.S. at
297; see Wallace v. Chappell, 661 F.2d 729, 730 (9th Cir. 1981). Despite the gravity
of these allegations, and with no disparagement of the right at stake, the Court,
noting that Congress “has established a comprehensive internal system of justice
to regulate military life” and “has not provided a damages remedy for claims by
military personnel that constitutional rights have been violated by superior
officers,” determined that a Bivens remedy was unavailable. Id. at 302–04. As
the Court unanimously recognized, “[j]udges are not given the task of running
25
the Army. The responsibility for setting up channels through which . . .
grievances can be considered and fairly settled rests upon the Congress and
upon the President of the United States and his subordinates.” Id. at 301
(second alteration in original) (quoting Orloff v. Willoughby, 345 U.S. 83, 93–94
(1953)). VMI is simply not germane to the remedial inquiry mandated by
Chappell, Stanley, and other Bivens cases.
Doe next contends, and the dissent agrees, that pursuant to this Court’s
decision in Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995), her injuries did not arise
incident to military service. This is also incorrect. Taber involved an FTCA
claim brought by an off‐duty Navy Seabee who was injured in an automobile
accident by another off‐duty Navy serviceman. Id. at 1032. This Court
concluded in Taber that the question whether Feres barred the plaintiff’s FTCA
claim turned, in the circumstances of that case, on whether a person in Taber’s
position would be entitled to workers’ compensation benefits on the theory that
when injured he was engaged in activities that “fell within the scope of [his]
military employment.” Id. at 1050. Whatever Taber’s significance to this
Circuit’s FTCA case law, the Taber panel had no occasion to address either
Chappell or Stanley, or the scope of “abstention in the inferring of Bivens actions”
26
more generally.9 Stanley, 483 U.S. at 683. Moreover, even in the FTCA context,
Taber itself noted, citing Supreme Court precedent, that the incident‐to‐service
rule (regardless of workers’ compensation considerations) is properly invoked
when adjudicating the claim of a service member would require “‘commanding
officers . . . to stand prepared to convince a civilian court of the wisdom of a wide
range of military and disciplinary decisions.’” 67 F.3d at 1049 (quoting Shearer,
473 U.S. at 58). This is precisely the problem with Doe’s claim here.
Doe attempts to avoid this conclusion by arguing that her damages claim
“does not interfere with military discipline or management . . . because she only
questions school management” — the decisions of Lieutenant General Hagenbeck
and Brigadier General Rapp “made in their roles as school administrators — not
9 As a matter of this Circuit’s FTCA precedent, moreover, it is noteworthy that
only some nine months after the amended decision in Taber, this Court in Wake
suggested that to the extent the appellant there argued that Taber had created a new
“scope of employment” test for determining the applicability of the Feres doctrine, Taber
could not be read to alter the reach of Feres, which was then and remains binding
precedent. 89 F.3d at 61. This Circuit has not relied on Taber’s holding in the
intervening twenty‐plus years, and at least one other circuit has declined to employ its
approach. See Skees v. United States, 107 F.3d 421, 425 n.3 (6th Cir. 1997) (declining to
adopt Taber). In such circumstances, Taber is a thin reed, indeed, to support the
dissent’s position that we may properly entertain a Bivens claim here, despite the broad
inquiry that Doe’s allegations demand into the discipline, supervision, and control of
cadets at West Point, on the theory that Doe, when allegedly assaulted while out after
hours, was not “‘engaged in activities that fell within the scope of [her] military
employment,’” Dissenting Op. at 21 (citing Taber, 67 F.3d at 1050).
27
as military officials.” Doe’s Br. at 36. The dissent, too, takes this tack. 10
Observing, dismissively, that West Point serves a military purpose “to some
extent,” Dissenting Op. at 23 (emphasis added), the dissent claims that the
“incident to service” rule does not apply because at the time that Doe was
allegedly assaulted, she was “out for an evening walk on a college campus,” id.
at 22, and because, more broadly, Doe while at West Point was not a soldier on
the battlefield, but a student attending college. Id. at 22–23. “West Point
functions principally as a school,” the dissent urges, and “Doe was primarily a
student.” Id. at 24.
With respect, this analysis is both contrary to the case law and
unsupported by the factual allegations in Doe’s Amended Complaint. As Doe
10 The dissent in addition urges that defendants allegedly violated military
regulations in connection with Doe’s tenure at West Point and that “[j]udicial review of
. . . allegations that the individual defendants failed to follow mandatory military . . .
regulations would not unduly interfere” with the military’s proper operation.
Dissenting Op. at 27. Suffice it to say that the dissent cites no case law supporting the
proposition that the availability of a Bivens damages suit turns on this contingency, and
unsurprisingly, since such an approach would be inconsistent with courts’ traditional
reluctance “to intrude upon the authority of the Executive in military and national
security affairs’ unless ‘Congress specifically has provided otherwise.’” Ziglar, 137
S. Ct. at 1861 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)); see also id. at 1858
(citing Chappell and Stanley in suggesting that Congress’s exercise of regulatory
authority “in a guarded way” constitutes a special factor counselling against
recognition of a Bivens claim on the ground that it is “less likely that Congress would
want the Judiciary to interfere”).
28
has acknowledged, the United States Military Academy at West Point has a
single, unitary mission: to “train ‘officer‐leaders of character to serve the Army
and the Nation.’” Joint App’x 13. Its cadets swear an oath to “at all times obey
the legal orders of . . . superior officers, and the Uniform Code of Military
Justice,” 10 U.S.C. § 4346(d) (emphasis added), and are subject to military
discipline pursuant to the Code, id. § 802(a)(2). Cadets are divided into
companies, each commanded by an Army officer, “for the purpose of military
instruction,” id. § 4349(a), and are “trained in the duties of members of the
Army,” id. § 4349(e), and even paid as members of the Army, 37 U.S.C. § 203(c).
Doe’s contention that this Court might disaggregate those aspects of cadets’ lives
that concern “education” from those involving their training to be future officers
— a contention entirely unsupported by allegations in the Amended Complaint
— is thus fanciful, at best, because academic and military pursuits are
inextricably intertwined at the United States Military Academy, which exists for
“the instruction and preparation for military service” of Army members.11 10
U.S.C. § 4331(a).
11 Moreover, even assuming such disaggregation could be done, it is directly
contrary to Stanley’s admonition against inquiring whether “particular suits,” examined
case by case, “would call into question military discipline and decisionmaking.” 483
U.S. at 682–83. Such inquiries, the Stanley Court concluded, “raising the prospect of
29
As Chappell recognized, “[t]he inescapable demands of military discipline
and obedience to orders cannot be taught on battlefields,” and “conduct in
combat inevitably reflects the training that precedes combat.” 462 U.S. at 300.
Doe was not “a soldier on a battlefield” at the time of the events challenged here,
as the dissent points out. Dissenting Op. at 23. This observation, however, is
beside the point. As a member of the Army, Doe was training at West Point to
lead battlefield soldiers. Adjudicating the claim she brings against her superior
officers, moreover, which charges them with “creat[ing] a dangerous and
sexually hostile environment,” Joint App’x 28, and challenges matters ranging
from the alleged “underrepresentation of women in the school administration”
and among the cadet classes, id. at 14, to the alleged tolerance of “sexually
aggressive language and conduct by faculty, officials and male cadets,” id. at 28,
would require a civilian court to examine a host of military decisions regarding
aspects of West Point’s culture, as well as the supervision of West Point cadets,
their training and education, and their discipline by superior officers. Doe’s
claim thus “strikes at the core” of the concerns implicated by the
incident‐to‐service rule: that civilian courts are ill‐equipped “to second‐guess
compelled depositions and trial testimony by military officers concerning the details of
their military commands,” would themselves “disrupt the military regime.” Id.
30
military decisions” regarding “basic choices about the discipline, supervision,
and control” of service members, Shearer, 473 U.S. at 57–58, that doing so could
impair “military discipline and effectiveness” in unintended and unforeseen
ways, id. at 59, and that the “explicit constitutional authorization for Congress
‘[t]o make Rules for the Government and Regulation of the land and naval
Forces,’” counsels hesitation as to the wisdom of money damages litigation,
where Congress has not authorized it, Stanley, 483 U.S. at 681–82 (quoting U.S.
Const. art. I, § 8, cl. 14).
In sum, West Point is part of the Department of the Army. Its cadets are
service members. Lieutenant General Hagenbeck was the commanding officer
of a military base during his time at West Point, and Brigadier General Rapp
commanded the cadets. The future officers who study and train at West Point,
like the enlisted men and women they are trained to command, may not invoke
Bivens to recover damages for injuries that “arise out of or are in the course of
activity incident to service.” Stanley, 483 U.S. at 684. Doe’s Bivens claim
against her superior officers, implicating Army training, supervision, discipline,
education, and command, triggers the incident‐to‐service rule and cannot
proceed.
31
CONCLUSION
We note, as did the D.C. Circuit, that Congress “has been ‘no idle
bystander to th[e] debate’ about sexual assault in the military.” Klay, 758 F.3d at
376 (alteration in original) (quoting Lebron v. Rumsfeld, 670 F.3d 540, 551 (4th Cir.
2012)). In reversing the district court’s determination as to the viability of Doe’s
Bivens claim, we do not discount the seriousness of her allegations, nor their
potential significance to West Point’s administration. As the Supreme Court has
made clear, however, it is for Congress to determine whether affording a money
damages remedy is appropriate for a claim of the sort that Doe asserts. We
therefore join the D.C. Circuit and the Fourth Circuit in concluding that no Bivens
remedy is available here. We accordingly need not reach the question whether
Lieutenant General Hagenbeck and Brigadier General Rapp are entitled to
qualified immunity.
For the foregoing reasons, we REVERSE the order of the district court, and
REMAND to the district court with instructions to dismiss Doe’s equal
protection claim.
32
DENNY CHIN, Circuit Judge:
I respectfully dissent.
Assuming, as we must at this juncture of the case, that the
allegations of the amended complaint are true, plaintiff‐appellee Jane Doe was
subjected to pervasive and serious sexual harassment, including rape, at the
United States Military Academy at West Point (ʺWest Pointʺ). The harassment
resulted from practices and policies that the individual defendants permitted to
proliferate and, indeed, implemented or encouraged, depriving Doe of an equal
education because of her gender. The amended complaint alleges that the
individual defendants created, promoted, and tolerated a misogynistic culture,
including by, for example, setting separate curriculum requirements for women
and men (self‐defense for first‐year female cadets and boxing for first‐year male
cadets), requiring sexually transmitted disease testing for female but not male
cadets, warning female cadets that it was their burden to spurn sexual advances
from male cadets while openly speaking to male cadets about sexual exploits and
encouraging them to take advantage of any opportunity to have sex, imposing
inadequate punishment for offenders, and permitting sexually explicit, violent,
and degrading group chants during team building exercises, with verses such as
the following:
I wish that all the ladies / were bricks in a pile / and I
was a mason/ Iʹd lay them all in style. . . .
I wish that all the ladies / were holes in the road / and I
was a dump truck / Iʹd fill ʹem with my load. . . .
I wish that all the ladies / were statues of Venus / and I
was a sculptor / Iʹd break ʹem with my penis.
Appʹx 15.
If West Point were a private college receiving federal funding or
another public educational institution and allegations such as these were proven,
there clearly would be a violation of Doeʹs rights and she could seek recourse for
her injuries. The Government argues, however, that the individual defendants
are immune from suit because they are military officers. And while it
acknowledges that ʺ[s]exual assault in the military and at service academies
cannot be tolerated,ʺ it argues that Doe is a service member and that ʺservice
members may not sue their superiors for injuries that arise incident to military
service,ʺ Appellantsʹ Br. at 2, relying on the concept of intramilitary immunity as
set forth in Feres v. United States, 340 U.S. 135 (1950), and its progeny. The
majority accepts the argument.
2
I do not agree that the Feres doctrine applies, for in my view Doeʹs
injuries did not arise ʺincident to military service.ʺ When she was subjected to a
pattern of discrimination, and when she was raped, she was not in military
combat or acting as a soldier or performing military service. Rather, she was
simply a student, and her injuries were incident only to her status as a student.
When she was raped, she was taking a walk on a college campus with another
student, someone she thought was a friend. The actions and decisions she now
challenges had nothing to do with military discipline and command; instead, she
seeks recourse for injuries caused by purported failures on the part of school
administrators acting in an academic capacity overseeing a learning environment
for students.
While West Point is indeed a military facility, it is quintessentially
an educational institution. As its website proclaims, it is ʺone of the nationʹs top‐
ranked colleges,ʺ and it provides its ʺstudents with a top‐notch education.ʺ1 In
my view, the Feres doctrine does not bar Doeʹs equal protection claims. For these
1 Letter from Col. Deborah J. McDonald, West Point Director of
Admissions, to High School Seniors, http://www.usma.edu/admissions/
Shared%20Documents/COL‐web‐letter.pdf; see also United States Military Academy,
http://www.westpoint.edu/ (last visited Aug. 29, 2017) (ʺThe Academy provides a
superb four‐year education, which focuses on the leader development of cadets in the
academic, military, and physical domains, all underwritten by adherence to a code of
honor.ʺ).
3
and other reasons discussed below, I would affirm the district courtʹs decision
denying the individual defendantsʹ motion to dismiss the equal protection claim.
Accordingly, I dissent.
I.
As alleged in the amended complaint, the facts are summarized as
follows:
Doe is a former cadet who resigned from West Point in 2010 after
completing two years. She grew up in a military family and graduated near the
top of her class in high school. At West Point she ʺthrived academically,
participated in extracurricular activities, and ranked high in her class.ʺ Appʹx 14.
Because she left West Point before the start of her third year, she never assumed
active status and had no obligation to enlist as a soldier. See 32 C.F.R. §
217.6(f)(6)(ii)(A).2 Her obligations to the military did not vest, and she was not
contractually required to repay the cost of her education.
2 ʺFourth and Third Classmen (First and Second Years). A fourth or third
classman disenrolled will retain their MSO [Military Service obligation] in accordance
with 10 U.S.C. chapter 47 and DoD Instruction 1304.25 but have no active duty service
obligation (ADSO).ʺ 32 C.F.R. § 217.6(f)(6)(ii)(A) (emphasis added). See also 32 C.F.R. §
217.4(d) (ʺCadets and midshipmen disenrolling or those disenrolled after the beginning of
the third academic year from a Service academy normally will be called to active duty in
enlisted status, if fit for service.ʺ) (emphasis added).
4
West Point has an enrollment of approximately 4,600 cadets and a
faculty of some 600 individuals, of whom three‐quarters are military personnel
and one‐quarter are civilian employees. Cadets live on‐campus in dormitories all
four years and eat in dining halls. The curriculum ʺis designed to train ʹofficer‐
leaders of character to serve the Army and the Nation,ʹʺ Appʹx 3, and thirty‐six
majors are offered, including Politics, Art, Philosophy and Literature,
Engineering, History, Physics and Sociology.3 West Point is accredited by the
Middle States Commission on Higher Education, the accreditation unit for the
Middle States Association of Colleges and Schools.4 Cadets may participate in
numerous extracurricular activities, including athletics, honor societies, academic
competitions, and musical groups. West Point fields athletic teams in twenty‐
four NCAA Division I sports and twenty‐one club sports. Upon graduation,
West Point cadets earn a Bachelor of Science degree and become commissioned
as second lieutenants in the U.S. Army.
3 West Point Curriculum, http://www.usma.edu/curriculum/SitePages/
Home.aspx.
4 The Middle States Commission on Higher Education conducts
accreditation activities for institutions of higher education in states in the mid‐Atlantic
region, including New York. Middle States Commission on Higher Education,
http://www.msche.org/ (last visited Aug. 29, 2017). West Point is one of many
institutions accredited by the organization. See Institution Directory, Middle States
Commission on Higher Education, http://www.msche.org/institutions_directory.asp
(last visited Aug. 29, 2017).
5
Approximately 200 of the 1,300 cadets in Doeʹs entering class were
women. Doe was often the only woman in a squad of approximately ten cadets.
During her time at West Point, she was subjected to pervasive sexual harassment
and a culture of sexual violence. Her classmates regularly made misogynistic
and sexually aggressive comments, which were frequently ignored and
sometimes condoned by West Point administrators. During team‐building
exercises, cadets would march and sing ʺsexual, misogynistic chants,ʺ such as the
one quoted above, in view and earshot of faculty and administrators. Appʹx 16.
Male cadets often used derogatory terms to describe women and frequently
made contemptuous comments about the physical appearance of women. West
Point officials ignored or endorsed these comments, and openly joked with male
cadets about sexual exploits. Male faculty members routinely expressed
sympathy with male cadets over the lack of opportunities to have sex, and
suggested that they seize any chance they could to do so.
There were other disparities in the treatment of male and female
cadets. West Point officials required mandatory annual sexually transmitted
disease (ʺSTDʺ) testing for female cadets, but not male cadets, explaining that
STDs were more harmful to women than to men and therefore it was the
6
responsibility of women to prevent the spread of these diseases. In the Physical
Education program in the first year at West Point, male cadets were required to
take boxing while female cadets were required to take self‐defense.
While West Point provided training for the prevention of sexual
assault and harassment, the training was inadequate. West Point officials
provided only limited training on the concepts of respect and consent, while
sending the message to female cadets that it was ʺa womanʹs responsibilityʺ to
prevent sexual assault and that ʺit was their job to say ʹno,ʹ when faced with
inevitable advances from their male colleagues.ʺ Appʹx 18. West Point officials
failed to punish cadets who perpetrated sexual assaults and created an
environment in which male cadets understood that they could sexually assault
female colleagues with ʺnear impunity,ʺ while female cadets understood ʺthat
they risked their own reputations and military careersʺ by reporting sexual
assaults against them. Appʹx 18. The vast majority of faculty members and
administrators were male.
A 2010 Department of Defense (ʺDoDʺ) survey found that fifty‐one
percent of female cadets and nine percent of male cadets reported that they had
7
experienced sexual harassment at West Point.5 The survey found that more than
nine percent of the female cadets at West Point experienced unwanted sexual
contact in 2010, and some eighty‐six percent of these women did not report the
incident.6 Of the female cadets who did not report unwanted sexual contact,
seventy‐one percent feared ʺpeople gossiping about themʺ and seventy percent
ʺfelt uncomfortableʺ making a report.7 In 2011, DoD found that West Point was
only ʺpartially in complianceʺ with sexual harassment and assault policies, and
that West Pointʹs prevention training was ʺdeficient,ʺ did not meet the minimum
standard of annual training for cadets, lacked an institutionalized comprehensive
sexual assault prevention and response curriculum, and failed to comply with
DoD directives intended to reduce rape and sexual assault.8
5 See Paul J. Cook & Rachel N. Lipari, Defense Manpower Data Center, 2010
Service Academy Gender Relations Survey, at iv‐v (2010), http://www.sapr.mil/public/
docs/research/FINAL_SAGR_2010_Overview_Report.pdf.
6 Id. at iv‐v.
7 Id. at v. Underreporting of sexual violence on college campuses is a
significant issue. See Laura L. Dunn, Addressing Sexual Violence in Higher Education:
Ensuring Compliance with the Clery Act, Title IX and VAWA, 15 Geo. J. Gender & L. 563,
566 (2014).
8 The statistics at West Point are representative of a large‐scale epidemic of
sexual assault and harassment of women on college campuses around the country. A
2006 study concluded that ʺ[o]ne in five women is sexually assaulted while in college.ʺ
See White House Task Force To Protect Students from Sexual Assault, Not Alone: The
First Report of the White House Task Force to Protect Students from Sexual Assault 6 (2014),
https://www.justice.gov/ovw/page/file/905942/download. A 2015 survey of 27 U.S.
8
Defendants‐appellants Lieutenant General Franklin Lee Hagenbeck,
the Superintendent of West Point from July 2006 to July 2010, and Brigadier
General William E. Rapp, Commander of Cadets at West Point from 2009 to 2011,
were responsible for administering the sexual assault prevention and response
program and the training of cadets on campus during the relevant time period.
According to the amended complaint, however, instead of implementing
programs and policies to educate and protect students, defendants created,
promulgated, implemented, and administered the policies, practices, and
customs at issue. The 2009‐2010 DoD Annual Report on Sexual Harassment and
Violence at Military Service Academies found that trends of unwanted sexual
contact experienced by female cadets increased during the time Hagenbeck and
Rapp were, respectively, Superintendent and Commander of Cadets.
On May 8, 2010, around 1 a.m., a male cadet stopped by Doeʹs
dormitory room and invited her for a walk. It was after curfew, and Doe had
earlier taken a sedative prescribed to help her sleep because she had been
universities by the Association of American Universities found that approximately one‐
third of female undergraduates reported experiencing non‐consensual sexual contact at
least once. David Cantor et al., Westat, Report on the Association of American Universities
Campus Climate Survey on Sexual Assault and Sexual Misconduct, at xi (2015),
http://www.aau.edu/uploadedFiles/AAU_Publications/AAU_Reports/
Sexual_Assault_Campus_Survey/AAU_Campus_Climate_Survey_12_14_15.pdf.
9
suffering from anxiety and stress. Nonetheless, she agreed to go with him. They
eventually walked into an administrative building and the male cadet began
drinking alcohol, offering Doe a few sips. She took them, and then lost
consciousness as the alcohol mixed with her medication. The male cadet then
took advantage, attacking Doe and having ʺforcible, non‐consensual intercourse
with her,ʺ on the concrete floor of a boiler room. Appʹx 22. She woke up in her
own bed a few hours later, with dirt on her clothes and hair, bruises on her lower
back, and blood between her legs. Three days later, when she went for a vaginal
examination at West Pointʹs health clinic, there were signs of vaginal tearing. She
eventually left West Point, enrolling at a four‐year college from which she earned
a degree.
Doe brought this action below against the United States under the
Federal Tort Claims Act (the ʺFTCAʺ), 28 U.S.C. §§ 1346(b), 2671 et seq., and the
Little Tucker Act, 28 U.S.C. § 1346(a)(2), as well as against Hagenbeck and Rapp
in their individual capacities under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), for due process and equal protection
violations. The district court dismissed the claims against the United States as
well as the due process claim, and permitted Doe to pursue only her equal
10
protection claim against the individual defendants. The district court held that
the Feres doctrine did not bar the equal protection claim and that the individual
defendants were not entitled to qualified immunity. Only the district courtʹs
denial of defendantsʹ motion to dismiss the equal protection claim is before us on
this interlocutory appeal.9
II.
A. Equal Protection
Since 1971, the Supreme Court ʺhas repeatedly recognized that
neither federal nor state government acts compatibly with the equal protection
principle when a law or official policy denies to women, simply because they are
women, full citizenship stature ‐‐ equal opportunity to aspire, achieve,
participate in and contribute to society based on their individual talents and
capacities.ʺ United States v. Virginia, 518 U.S. 515, 532 (1996) (ʺVMIʺ) (citing, inter
alia, Reed v. Reed, 404 U.S. 71 (1971)). In VMI, the Court held that Virginiaʹs policy
of excluding women from enrolling in its historically single‐sex military college
violated the Equal Protection Clause of the Fourteenth Amendment. 518 U.S. at
9 Because the majority holds that Doeʹs equal protection claims are barred
by the Feres doctrine, it does not reach the Governmentʹs alternative argument that the
individual defendants are entitled to qualified immunity. Accordingly, I do not discuss
the qualified immunity issue, but simply note that I believe the district court correctly
rejected the defense at the motion‐to‐dismiss stage.
11
534. Similarly, in Mississippi University for Women v. Hogan, 458 U.S. 718, 733
(1982), the Court held that a state universityʹs policy of admitting only women to
its nursing programs violated the Equal Protection Clause.
These principles apply not just to gender discrimination in
admissions to educational institutions but to the continued treatment of students
after they have been admitted. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555
U.S. 246, 258 (2009) (holding plaintiffs could pursue claims against school system
and superintendent for ʺunconstitutional gender discrimination in schoolsʺ
under § 1983, where defendants purportedly failed to address sexually harassing
conduct by another student). Courts have thus recognized equal protection
claims where gender discrimination created a hostile educational environment.
See, e.g., Hayut v. State Univ. of New York, 352 F.3d 733, 743‐46 (2d Cir. 2003)
(allowing § 1983 equal protection claim by student against professor for hostile
educational environment created by ʺderogatory and sexually‐charged
commentsʺ). Moreover, the Supreme Court has recognized a Bivens claim for
gender discrimination, holding that the Equal Protection Clause of the Fifth
Amendment confers ʺa federal constitutional right to be free from gender
discrimination.ʺ Davis v. Passman, 442 U.S. 228, 235 (1979) (holding that former
12
congressional staff member could sue U.S. Congressman for damages under
Fifth Amendment for discriminating against her on basis of sex).
Equal protection and other constitutional principles have been
applied to the military and military institutions. In Frontiero v. Richardson, the
Court held that a statutory scheme for housing allowances and spousal medical
and dental benefits that applied different standards for male and female active
service members was ʺconstitutionally invalid.ʺ 411 U.S. 677, 688 (1973). See also
Fitzgerald, 555 U.S. at 257 (observing that students at ʺmilitary service schools and
traditionally single‐sex public colleges,ʺ which are exempt from Title IX of
Educational Amendments of 1972, 20 U.S.C. § 1681(a), could bring § 1983 claims
for violation of equal protection clause); VMI, 518 U.S. at 535‐36, 547‐54;
Schlesinger v. Ballard, 419 U.S. 498 (1975) (rejecting, but reaching merits, of claim
challenging different discharge policies for male and female officers, based on
then‐existing exclusion of women from combat roles). In Crawford v. Cushman,
we observed that ʺa succession of cases in this circuit and others had reiterated
the proposition that the military is subject to the Bill of Rights and its
constitutional implications.ʺ 531 F.2d 1114, 1120 (2d Cir. 1976); see also Dibble v.
13
Fenimore, 339 F.3d 120, 128 (2d Cir. 2003) (ʺWe decline to adopt a categorical rule
on the justiciability of intramilitary suits.ʺ).
The military has itself adopted regulations to address the issue of
gender discrimination and sexual harassment. Army regulations
unambiguously prohibit sexual harassment, and commanders and supervisors
are obliged to ensure that sexual harassment is not tolerated.10 All military
academies (including West Point) must comply with regulations promulgated by
DoD as part of its Sexual Assault Prevention and Response Program.11
Hence, Doe was entitled, under the Fifth Amendment and the
Armyʹs own regulations, to an environment free from gender discrimination and
sexual harassment.
10 See, e.g., U.S. Army Reg. 600‐20, Ch. 7‐3(a) (Mar. 18, 2008) (ʺThe policy of
the Army is that sexual harassment is unacceptable conduct and will not be tolerated.ʺ);
id. Ch. 7‐3(b) (ʺThe POSH [Prevention of Sexual Harassment] is the responsibility of
every Soldier. . . . Leaders set the standard for Soldiers . . . to follow.ʺ); id. Ch. 7‐2(a)
(ʺCommanders and supervisors will . . . [e]nsure that assigned personnel . . . are familiar
with the Army policy on sexual harassment.ʺ); id. Ch. 7‐2(d) (ʺCommanders and
supervisors will . . . [s]et the standard.ʺ); id. Ch. 7‐4(a) (defining ʺsexual harassmentʺ to
include physical or verbal conduct); id. Ch. 7‐6(b) (ʺA hostile environment occurs when
Soldiers or civilians are subjected to offensive, unwanted and unsolicited comments, or
behaviors of a sexual nature [including] for example, the use of derogatory gender‐
biased terms, comments about body parts, suggestive pictures, explicit jokes, and
unwanted touching.ʺ). Army regulations expressly acknowledge that ʺ[s]exual
harassment is a form of gender discrimination.ʺ Id. Ch. 7‐4.
11 See 32 C.F.R. § 103.5; U.S. Depʹt of Def. Dir. 6495.01 (Jan. 23, 2012),
https://www.hsdl.org/?abstract&did=761622.
14
B. The Feres Doctrine
In 1950, the Supreme Court held in Feres v. United States that ʺthe
Government is not liable under the [FTCA] for injuries to servicemen where the
injuries arise out of or are in the course of activity incident to service.ʺ 340 U.S. at
146. Feres involved three cases, brought by or on behalf of servicemen against
the United States for personal injuries, sustained ʺwhile on active duty and not
on furlough,ʺ purportedly caused by the ʺnegligence of others in the armed
forces.ʺ Id. at 137‐38. In two of the cases, death resulted. Id. at 137. The Court
held that Congress did not intend to subject the Government to tort claims ʺby a
member of the armed services.ʺ Chappell v. Wallace, 462 U.S. 296, 299 (1963)
(interpreting Feres).
The Court later extended the concept of intramilitary immunity to
Bivens claims. A Bivens remedy is not available when ʺspecial factors counseling
hesitationʺ are present. Bivens, 403 U.S. at 396; see Ziglar v. Abbasi, 137 S. Ct. 1843,
1857 (2017) (ʺThe Courtʹs precedents now make clear that a Bivens remedy will
not be available if there are ʹspecial factors counseling hesitation in the absence of
affirmative action by Congress.ʹʺ (citation omitted)). In Chappell, the Court
recognized that ʺthe unique disciplinary structure of the military establishment
15
and Congressʹ activity in the field constitute ʹspecial factorsʹ which dictate that it
would be inappropriate to provide enlisted military personnel a Bivens‐type
remedy against their superior officers.ʺ Chappell, 462 U.S. at 304; see also United
States v. Stanley, 483 U.S. 669, 683‐84 (1987) (recognizing that rationales for
intramilitary immunity as explained in Feres are ʺspecial factorsʺ counseling
against Bivens relief, and ʺholding that no Bivens remedy is available for injuries
that ʹarise out of or are in the course of activity incident to serviceʹʺ) (quoting
Feres, 340 U.S. at 146).
At the same time, however, ʺour citizens in uniform may not be
stripped of basic civil rights simply because they have doffed their civilian
clothes.ʺ Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 188
(1962) (quoted in Chappell, 462 U.S. at 304). As the Court noted in Chappell: ʺThis
Court has never held, nor do we now hold, that military personnel are barred
from all redress in civilian courts for constitutional wrongs suffered in the course
of military service.ʺ 462 U.S. at 304‐05. Indeed, members of the military have
been permitted, after Feres, to bring constitutional challenges against the
Government with respect to matters relating to the military. See Frontiero, 411
U.S. at 688; accord Regan v. Starcraft Marine, LLC, 524 F.3d 627, 640‐41 (5th Cir.
16
2008) (Feres did not bar suit brought by service member ʺengaged in purely
recreational activityʺ ʺnot related to any tactical or field training,ʺ even where
recreational facility was provided ʺto improve the morale and welfareʺ of service
members); Crawford, 531 F.2d at 1125‐27 (holding, where servicewoman was
discharged from Marines because she was pregnant, that her rights to equal
protection and due process were violated, and ordering award of damages). See
also Schlesinger, 419 U.S. at 508‐10; Parker v. Levy, 417 U.S. 733, 758‐60 (1974)
(rejecting, but reaching merits of, First Amendment challenge brought by Army
captain convicted by general court‐martial of violations of Uniform Code of
Military Justice, and observing that ʺthe members of the military are not
excluded from the protection granted by the First Amendmentʺ).
In cases decided after Feres, the Court has explained the ʺbroad
rationalesʺ underlying its determination that soldiers may not maintain tort suits
against the Government or members of the military for injuries arising incident
to military service. United States v. Johnson, 481 U.S. 681, 688 (1987). First, there is
a ʺunique relationship between the Government and military personnel,ʺ
Chappell, 462 U.S. at 299, that is ʺʹdistinctively federal in character.ʹʺ Johnson, 481
U.S. at 689 (quoting Feres, 340 U.S. at 143). The military function is performed ʺin
17
diverse parts of the country and the world,ʺ and when a service member is
injured ʺincident to service ‐‐ that is, because of his military relationship with the
Governmentʺ ‐‐ a uniform federal remedy should be available, and ʺthe fortuity
of the situs of the alleged negligenceʺ should not dictate whether the
Government is liable. Id.
Second, Congress has established alternative, statutory means of
compensation for military personnel injured incident to service. As the Court
observed in Johnson, ʺthe existence of these generous statutory disability and
death benefits is an independent reason why the Feres doctrine bars suit for
service‐related injuries.ʺ Id. It is not likely, the Court has concluded, that
Congress would have created ʺʹsystems of simple, certain, and uniform
compensation for injuries or death of those in the armed servicesʹʺ while
intending at the same time to permit lawsuits for service‐related injuries under
the FTCA. Chappell, 462 U.S. at 299 (quoting Feres, 340 U.S. at 144).12
12 In subsequent cases, the courts have recognized that ʺthe presence of a
compensation system, persuasive in Feres, does not of necessity preclude a suit for
negligence.ʺ United States v. Muniz, 374 U.S. 150, 160 (1963) (citing United States v.
Brown, 348 U.S. 110 (1954)); see also Taber v. Maine, 67 F.3d 1029, 1039 (2d Cir. 1995)
(ʺIndeed, the Supreme Court and several circuit courts (without reproof from the
Supreme Court) have subsequently . . . allowed FTCA claims in a significant number of
cases in which the injured plaintiffs were fully covered by the governmentʹs
compensation scheme.ʺ).
18
Third, suits based upon service‐related activity ʺʹwould involve the
judiciary in sensitive military affairs at the expense of military discipline and
effectiveness.ʹʺ Johnson, 481 U.S. at 691 (quoting Shearer, 473 U.S. at 57). Courts
should not intrude in military matters, the Court has explained, because ʺa suit
based upon service‐related activity necessarily implicates the military judgments
and decisions that are inextricably intertwined with the conduct of the military
mission.ʺ Johnson, 481 U.S. at 691; see United States v. Shearer, 473 U.S. 52, 59
(1985) (ʺFeres seems best explained by the peculiar and special relationship of the
soldier to his superiors, the effect of the maintenance of such suits on discipline,
and the extreme results that might obtain if suits . . . were allowed for negligent
orders given or negligent acts committed in the course of military duty.ʺ)
(internal quotation marks omitted).
In Taber v. Maine, after reviewing the Supreme Court case law, we
summarized the various considerations and held that:
an appropriate test for applying the Feres doctrine must
respect: (1) the Supreme Courtʹs stated concern for
keeping courts away from delicate questions involving
military discipline; (2) Feresʹs clear intention to replace
the contingencies of local tort law with a uniform
federal scheme; and (3) Feresʹs original desire that this
uniformity is to be achieved through exclusive recourse
19
to the federal system of military death and disability
benefits.
67 F.3d 1029, 1049 (2d Cir. 1995).
In Taber, the plaintiff Taber was a Navy ʺSeabeeʺ ‐‐ a construction
worker ‐‐ who was injured in Guam when his car was struck by a car driven by
another Navy serviceman, Maine. Id. Both were on active duty but on liberty,
and the accident occurred on a public road. Id. Taber had spent the day with his
companion and they were driving back to her home for the weekend when the
accident occurred. Id. He sued the United States and Maine for his injuries,
which he alleged were caused by Maineʹs negligent driving. Id. The
Government defended in part by relying on the Feres doctrine, and the district
court agreed, dismissing the claims. Id. at 1033.
On appeal, the Second Circuit reversed, holding that ʺthe link
between Taberʹs activity when he was injured and his military status is too frail
to support a Feres bar.ʺ Id. at 1050. The Court explained that ʺ[t]here is nothing
characteristically military about an employee who, after working‐hours are done,
goes off to spend a romantic weekend with a companion. . . . The accident that
followed, on the open road and on the way to [the companion]ʹs house[,] had
ʹnothing to do withʹ Taberʹs military career and was ʹnot caused by service except
20
in the sense that all human events depend upon what has already transpired.ʹʺ
Id. at 1051 (quoting Brooks v. United States, 337 U.S. 49, 52, 69 (1949)).
Taber teaches us that military status does not automatically trigger
Feres immunity. Rather, we apply the incident to service test by asking whether,
at the time the plaintiff was injured, she was ʺengaged in activities that fell
within the scope of [her] military employment.ʺ 67 F.3d at 1050. In Wake v.
United States, we reiterated that we must look at ʺthe totality of the germane
facts,ʺ and noted that ʺ[i]n examining whether a service memberʹs injuries were
incurred ʹincident to service,ʹ the courts consider various factors, with no single
factor being dispositive.ʺ 89 F.3d at 57‐58. In addition to ʺ[t]he individualʹs
status as a member of the military at the time of the incident,ʺ those factors
include: ʺthe relationship of the activity to the individualʹs membership in the
serviceʺ; ʺthe location of the conduct giving rise to the underlying tort claimʺ;
ʺwhether the activity is limited to military personnel and whether the service
member was taking advantage of a privilege or enjoying a benefit conferred as a
result of military service.ʺ Id. at 58.13
13 In Wake, we applied Feres to bar claims brought by a student in the
Reserve Officers Training Corps at a nonmilitary college. 89 F.3d at 55. The student
was an enlisted inactive member of the Navy Reserves who was assigned to ʺtemporary
dutyʺ to travel to a military clinic for a physical examination required to qualify as a
21
C. Application of the Feres Doctrine to this Case
In my view, the Feres doctrine does not bar Doeʹs Bivens claim that
she was denied her constitutional right to equal access to education, for her
injuries did not arise ʺincident to service.ʺ First, as to the activities immediately
preceding Doeʹs rape, her ultimate injury, she was engaged in purely recreational
activity: she was out for an evening walk on a college campus, after curfew, with
another student who was a friend. Second, as to her broader activities at West
Point, she was a student attending college: she was taking classes, participating
in extracurricular activities, and learning to grow up and to be a self‐sufficient
and healthy individual. She was not a soldier on a battlefield or military base.
She was not traveling in a military car or boat or plane or pursuant to military
orders. She was not being treated by military doctors. She was not on duty or in
active service or on active status, and she was not yet obliged to enter into
flight navigator. Id. at 56. On the way back, while traveling in a military vehicle driven
by a Marine Corps sergeant, she was injured. Id. at 55‐56. We concluded, not
surprisingly, that the studentʹs injuries were sustained incident to service. See id. at 58‐
61. While Wake was indeed a student, she was on a ʺtemporary dutyʺ assignment and
was traveling in a military vehicle driven by an active service member. Moreover, she
received military benefits for her injury ‐‐ she ʺwas assigned a 100% disability rating
from the [Veterans Administration] on January 5, 1993, resulting in monthly VA
service‐connected compensation benefits of approximately $2,000 per month.ʺ Id. at 62.
22
military service. There was ʺnothing characteristically militaryʺ about what she
was doing, and her injuries did not arise out of military employment.
To be sure, West Point serves, to some extent, a military purpose,
and its cadets are indeed being trained to be soldiers and officers. As the
Government and the majority note, West Point cadets are considered members of
the military. Appellantsʹ Br. at 14; Maj. Op. at 18‐19 (citing 10 U.S.C. § 3075(a)‐
(b)(2) (including ʺcadets of the United States Military Academyʺ in the ʺRegular
Army,ʺ ʺa component of the Armyʺ)). But Doeʹs status as a member of the
military is not, by itself, dispositive. See Wake, 89 F.3d at 58‐61 (declining to
attribute dispositive weight to plaintiffʹs status as a cadet but looking at all
germane circumstances); Taber, 67 F.3d at 1053 (holding that Feres was not a bar
where ʺ[o]ther than the naked fact that Taber was in the Navy at the time of his
injury, there is no government/plaintiff relationship of any significance in this
caseʺ). Rather, West Point functions principally as a school and Doe was
primarily a student; the concerns underlying the Supreme Courtʹs decision in
Feres and the ʺspecial factors counseling hesitationʺ in the intramilitary immunity
cases simply are not implicated here.
23
First, Doeʹs claims do not implicate ʺdelicate questions involving
military discipline.ʺ Taber, 67 F.3d at 1049. Her claims do not call into question
ʺthe military judgments and decisions that are inextricably intertwined with the
conduct of the military mission.ʺ Johnson, 481 U.S. at 691. The actions and
decisions of the individual defendants being challenged here do not implicate,
except perhaps in the most abstract sense, military discipline or military
judgment or military preparation.14 Instead, Doeʹs claims challenge academic
decisions and policies, and the individual defendants were acting as educators
and school administrators, tasked with providing their students with a positive
14 The Government argues that Doeʹs claims ʺcall[] into question the
management of the military,ʺ ʺspecifically their decisions concerning the discipline,
supervision, and control of West Point cadets.ʺ Appellantsʹ Br. at 10. I suppose that
may be so to a degree, but our observation in Taber applies here: ʺArguably, there is
some government/tortfeasor relationship that might entail minimal disciplinary
concerns even in this case, but these are both qualitatively and quantitatively different
from those that concerned us in [other cases implicating Feres], let alone those that
troubled the Supreme Court in Shearer.ʺ 67 F.3d at 1053. Moreover, as amici point out,
many graduates of military academies use their degrees to pursue other professional,
non‐military endeavors immediately after meeting minimum service requirements. See
Amicus Br. of Former Military Officers at 10 (citing Government Accountability Office
study reporting that 32% and 38% of academy graduate officers in, respectively, 2001
and 2005 left in their fifth year, the first year officers were eligible to leave military).
While a four‐year college degree is required to be commissioned as an Army officer,
admission to West Point is not; in fact, in Fiscal Year 2011, only 14.6% of Army officers
were commissioned by attending West Point. See Amicus Br. of Former Military
Officers at 11 (citing Table B‐31: Active Component Commissioned Officer Corps, FY
11, http://prhome.defense.gov/Portals/52/Documents/POPREP/poprep2011/appendixb/
b_31.html (last visited Aug. 29, 2017).
24
learning environment, one free from sexual discrimination and harassment. See
VMI, 518 U.S. at 532 (recognizing right to equal protection in education,
including at a military educational institution); Hagopian v. Knowlton, 470 F.2d
201, 210 (2d Cir. 1972) (comparing West Pointʹs responsibility for instilling
discipline in cadets ʺto the responsibilities of public school teachers to educate
their studentsʺ).
Second, the ʺfederal system of military death and disability benefitsʺ
established by Congress for injuries sustained by military personnel incident to
service, Taber, 67 F.3d at 1049, apparently is not available to Doe. Indeed, now
that her claims against the United States have been dismissed, it appears that her
Bivens claim is her only means of seeking relief for her injuries. The Government
has not suggested that Doe is eligible for any benefits akin to workersʹ
compensation benefits for injuries arising out of activities within the scope of her
military duties.
Third, the district courtʹs decision to permit Doe to proceed with her
federal constitutional claim does not implicate the Courtʹs concern that a
ʺuniform federal schemeʺ not be displaced by ʺthe contingencies of local tort
law.ʺ Taber, 67 F.3d at 1049. Federal constitutional rights are at stake, and ʺthe
25
fortuity of the situs of the alleged [wrongdoing]ʺ will not dictate whether the
individual defendants will be liable. Johnson, 481 U.S. at 688. Rather, Doeʹs equal
protection claim is a federal claim, based on federal constitutional law: the Equal
Protection Clause of the Fifth Amendment.
Moreover, there are federal regulations that also apply here, and
Doe alleges that defendants failed to abide by them. The concern identified in
Feres and its progeny that courts not interfere with military discipline and
structure carries little weight when the military is violating its own rules and
regulations. See Crawford, 531 F.2d at 1120 (noting that ʺ[a] line of cases in our
court holds that actions by the armed services that are violative of their own
regulations are within the reach of the courtsʺ) (collecting cases); Hammond v.
Lenfest, 398 F.2d 705, 715 (2d Cir. 1968) (permitting review of petition for writ of
habeas corpus where naval reservist claimed he was denied discharge by Navy
in violation of its own regulations). Judicial review of Doeʹs allegations that the
individual defendants failed to follow mandatory military directives and
regulations would not unduly interfere with ʺthe proper and efficient operation
of our military forces.ʺ Smith v. Resor, 406 F.2d 141, 146 (2d Cir. 1969).
26
The Government cites three cases that have applied the Feres
doctrine to dismiss claims brought by service academy cadets. See Appellantsʹ
Br. at 14 (citing Miller v. United States, 42 F.3d 297, 301 (5th Cir. 1995); Collins v.
United States, 642 F.2d 217, 218 (7th Cir. 1981); Archer v. United States, 217 F.2d
548, 552 (9th Cir. 1954)). These out‐of‐circuit cases, of course, are not controlling,
and they are in any event distinguishable. In Miller, a freshman midshipman at
the Naval Academy was hit in the head by the boom of a sailboat while training
to learn, inter alia, seamanship and the handling of a small vessel. 42 F.3d at 299.
In Collins, an Air Force cadet alleged that he was injured by medical malpractice
on the part of Air Force medical personnel. 642 F.2d at 218. In Archer, a West
Point cadet was aboard a United States Army plane returning to West Point from
a leave. He was being transported as ʺa soldier in military service in line of dutyʺ
and was killed when the plane crashed. His parents brought a wrongful death
action against the United States, alleging negligence in the operation of the plane.
217 F.2d at 549, 551.
These factual scenarios are significantly different from the
circumstances before us now. Injuries resulting from training aboard a Navy
boat or flying on an Army plane or being treated by military doctors clearly are
27
injuries incident to service. None of the cases involved a claim for the violation
of constitutional rights, see Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (damages
suits ʺmay offer the only realistic avenue for vindication of constitutional
guaranteesʺ), and none involved a claim for the deprivation of the opportunity
for an equal education, or a claim of an injury sustained while socializing with a
classmate. Moreover, in all three cases, the armed forces provided disability or
death benefits or other compensation. Miller, 42 F.3d at 299‐300, 306, 307; Collins,
642 F.2d at 221; Archer, 217 F.2d at 550.
Finally, the majority and the Government rely on two recent
decisions of other Circuits rejecting Bivens claims brought by current and former
service members alleging they had been raped and sexually assaulted by other
service members. The plaintiffs in these cases contended that the actions and
omissions of current and former Secretaries of Defense had created a military
culture of tolerance for sexual assault and misconduct. See Klay v. Panetta, 758
F.3d 369, 371‐72 (D.C. Cir. 2014); Cioca v. Rumsfeld, 720 F.3d 505, 513‐14 (4th Cir.
2013). The cases, however, are distinguishable, for they involved active duty
service members who brought broad challenges to policies of high‐ranking
government officials, raising questions as to military discipline and command for
28
those in active duty. The cases did not involve students or an educational
institution or the deprivation of meaningful access to an education because of
discriminatory academic policies or school administrators tasked with running
an educational institution. The Feres concerns ‐‐ particularly the question of
interfering with military command and discipline ‐‐ play out very differently in
this scenario.15 As Justice Brennan wrote in Stanley:
In Chappell, the Court did not create an inflexible
rule, requiring a blind application of Feres in soldiersʹ
cases raising constitutional claims. Given the significant
interests protected by Bivens actions, the Court must
consider a constitutional claim in light of the concerns
underlying Feres. If those concerns are not implicated
by a soldierʹs constitutional claim, Feres should not
thoughtlessly be imposed to prevent redress of an
intentional constitutional violation.
483 U.S. at 705 (Brennan, J., concurring in part and dissenting in part, with
Marshall, J., joining, and Stevens, J., joining in relevant part).
15 Klay and Cioca are also distinguishable because they do not employ the
fact‐specific, totality‐of‐circumstances approach our Circuit applied in Taber and Wake.
Instead, they rely primarily on one consideration: military discipline and decision‐
making. See Klay, 758 F.3d at 374‐75; Cioca, 720 F.3d at 512‐15.
29
III.
The Feres doctrine has been criticized wide and far, and many have
called for the Supreme Court to reconsider it.16 While we do not, of course, have
the authority to overrule Feres, we should not be extending the doctrine. See
Lombard v. United States, 690 F.2d 215, 233 (D.C. Cir. 1982) (Ginsburg, J.,
concurring in part and dissenting in part) (ʺWhile lower courts are bound by the
Supreme Courtʹs decision in Feres, they are hardly obliged to extend the
limitation . . . .ʺ). By holding that Doeʹs injuries sustained as a cadet incident to
being a student are barred as injuries incident to military service, the majority
does precisely that.
16 See, e.g., Lanus v. United States, 133 S. Ct. 2731, 2732 (Thomas, J., dissenting
from denial of certiorari) (ʺI would grant the petition to reconsider Feres . . . .ʺ); Ortiz v.
United States, 786 F.3d 817, 818 (10th Cir. 2015) (ʺ[T]he facts here exemplify the
overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule.ʺ); France
v. United States, 225 F.3d 658, (6th Cir. 2000) (per curiam) (ʺ[M]any courts and
commentators have strongly criticized the Feres decision.ʺ); Day v. Mass. Air. Natʹl
Guard, 167 F.3d 678, 683 (1st Cir. 1999) (ʺPossibly Feres . . . deserves reexamination by
the Supreme Court.ʺ); Bozeman v. United States, 780 F.2d 198, 200 (2d Cir. 1985) (ʺThe
Feres doctrine is a blunt instrument; courts and commentators have often been critical of
it.ʺ); Taber, 67 F.3d at 1044 n.11 (ʺThe fact that the doctrine can be made workable does
not suggest that the Supreme Court ought not abandon the doctrine completely for
reasons akin to those given by Justice Scalia in his Johnson dissent.ʺ); 14 Charles Alan
Wright et al., Federal Practice & Procedure § 3658 (4th ed. 2015) (ʺThe Feres doctrine has
been called ʹmuch‐criticizedʹ and ʹcontroversial.ʹʺ); Erwin Chemerinsky, Federal Courts
Jurisdiction 674 (6th ed. 2012) (noting that many commentators and courts have ʺsharply
criticizedʺ the Feres doctrine for causing ʺmanifest injusticeʺ).
30
I would affirm the district courtʹs determination that the Feres
doctrine does not bar Doeʹs equal protection claim. Accordingly, I dissent.
31
