                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
ARIANA KLAY, et al.,                )
                                    )
                  Plaintiffs,       )
                                    )
      v.                            )                Civil Action No. 12-0350 (ABJ)
                                    )
LEON PANETTA, Secretary of
Defense, et al.,                    )
                                    )
                  Defendants.       )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiffs Ariana Klay, Elle Helmer, Nicole McCoy, Robin Kahle, Lamanda Cummings,

Rebecca Blumer, Erica Dorn, Mariel Marmol, Christian Everage, Eric Pratt, Janet Galla, and

Carla Butcher have filed this action against defendants Leon Panetta, Secretary of Defense;

Robert M. Gates and Donald Rumsfeld, former Secretaries of Defense; James F. Amos,

Commandant of the Marine Corps; James T. Conway and Michael W. Hagee, former

Commandants of the Marine Corps; Ray Mabus, Secretary of the Navy; and Donald C. Winter

and Gordon England, former Secretaries of the Navy, under Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of their First,

Fifth, and Seventh Amendment rights. Defendants have moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim.   The Court will grant defendants’ motion

because Supreme Court precedent requires it to abstain from inferring a Bivens remedy for

plaintiffs, and because defendants are entitled to qualified immunity.
                                       BACKGROUND

       Plaintiffs are eleven women and one man who allege that while serving in the U.S.

Armed Forces, they were “raped, sexually assaulted, stalked, . . . and severely harassed” and then

victimized again when they were humiliated and retaliated against for reporting the offenses

perpetrated against them. Am. Compl. [Dkt. # 3] ¶¶ 6–180. All plaintiffs were on active duty

when they suffered these sexual assaults and retaliatory actions at the hands of other service

members. Id. Most of the attacks detailed in the complaint took place on military bases, military

ships, or during foreign deployment. Id. ¶¶ 32–33, 40, 51, 75–76, 86, 97, 109–10, 146. Others

occurred at private residences that were located off-base or in connection with social events with

other service members. Am. Compl. ¶¶ 10, 63–64, 134, 168.

       Plaintiffs have brought a Bivens suit for monetary damages against the current Secretary

of Defense and two who came before him, the Commandant of the Marine Corps and his two

predecessors, and the Secretary of the Navy and his two predecessors, alleging that they caused

plaintiffs’ injuries by creating and maintaining a hostile military environment that permitted

sexual assault and retaliation to continue unabated. Am. Compl. ¶ 5. Specifically, plaintiffs

contend that defendants:

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

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

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

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

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


                                                2
            allowed military Command to interfere with the impartiality of criminal
            investigations, Am. Compl. ¶ 207;

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

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

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

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

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

            permitted the destruction of forensic evidence, Am. Compl. ¶ 214.
       Plaintiffs claim that these alleged acts and omissions directly resulted in a series of

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

       (1) a substantive due process “right to bodily integrity” under the Fifth Amendment, Am.
           Compl. ¶¶ 223–26;
       (2) a procedural due process right to “justice” and to be free from unfair termination and
           mistreatment under the Fifth Amendment, Am. Compl. ¶¶ 227–30;
       (3) an equal protection “right to be free from rape, sexual assault and sexual harassment
           under the Fifth Amendment,” Am. Compl. ¶¶ 231–34;
       (4) a First Amendment right to report sexual assault, sexual harassment and rape without
           suffering retaliation and adverse employment actions, Am. Compl. ¶¶ 235–37; and
       (5) a claimed Seventh Amendment right to have a jury decide the fate of those who
           victimized them, Am. Compl. ¶¶ 238–40.
       Defendants have moved to dismiss the case under Fed. R. Civ. P. 12(b)(6) on the grounds

that Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for

plaintiffs injured in the course of activities incident to military service, and that defendants are

entitled to qualified immunity. Defs.’ Mot. to Dismiss [Dkt. # 4] at 1–2. Plaintiffs maintain that

their case is not barred by the abstention doctrine and that they have pled sufficient facts to

overcome defendants’ entitlement to qualified immunity. Pls.’ Opp. to Defs.’ Mot to Dismiss

                                                 3
[Dkt. # 7] (“Pls.’ Opp.”). On November 5, 2012, the Court held a hearing on defendants’

motion.

                                    STANDARD OF REVIEW

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles

underlying its decision in Twombly: “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” 556 U.S. at 678. And

“[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.”

Id. at 679.

        A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

        When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept



                                                   4
plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider

only “the facts alleged in the complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

                                           ANALYSIS

       This case raises many important public policy issues. But the issue before the Court is

not whether the culture described in the complaint exists, whether it is deplorable, or whether

plaintiffs suffered harm at the hands of the perpetrators of these criminal acts and those who

sheltered them from justice or further victimized plaintiffs. The factual recitations, which the

Court must accept as true at this juncture, describe brutal and criminal assaults, compounded by

a degrading and humiliating institutional response, and they depict an unacceptable environment

in need of repair from the top down. But the question posed by the defense motion is whether a

court has the power to provide the particular sort of remedy sought here for the specific injustices

alleged in the complaint. That is a purely legal question, and its answer is no.

       A Bivens cause of action allows a plaintiff to recover damages from a federal official who

violates his or her constitutional rights, even in the absence of a federal statute authorizing such




                                                 5
relief.1 A plaintiff may not recover under Bivens, though, if there are “special factors counseling

hesitation in the absence of affirmative action by Congress,” or if the defendant is entitled to

qualified immunity. United States v. Stanley, 483 U.S. 669, 678 (1987), quoting Bivens, 403

U.S. at 396; see also Iqbal, 556 U.S. at 677. Defendants contend that plaintiffs’ claims are

barred by both the “special factors counseling hesitation” when a Bivens action is brought against

military officials and qualified immunity. Defs.’ Mem. In Supp. of Mot. to Dismiss [Dkt. # 4]

(“Defs.’ Mem.”) at 3. Even assuming the veracity of all of plaintiffs’ allegations, after reviewing

the relevant legal precedent, the Court concludes that this complaint must be dismissed. As the

Supreme Court has made clear: “judges are not given the task of running the Army.” Chappell

v. Wallace, 462 U.S. 296, 301 (1983), citing Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953);

see also Cioca v. Rumsfeld, No. 1:11-cv-151, appeal docketed, No. 12-1065 (4th Cir. Jan. 13,

2012).

I. Abstention

         In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that “the

Government is not liable under the Federal Tort Claims Act [“FTCA”] for injuries to servicemen

where the injuries arise out of or are in the course of activity incident to service.” Id. at 146.



1       The Supreme Court has authorized suits for damages against federal officials for
violations of an individual’s rights under the Fourth Amendment, Bivens, 403 U.S. at 396, the
Fifth Amendment, Davis v. Passman, 442 U.S. 228, 248–49 (1979), and the Eighth Amendment,
Carlson v. Green, 446 U.S. 14, 17–18 (1980). “Because implied causes of action are disfavored,
the Court has been reluctant to extend Bivens liability ‘to any new context or new category of
defendants.’” Iqbal, 556 U.S. at 675, quoting Correctional Servs. Corp. v. Malesko, 534 U.S.
61, 66 (2001); see also Bush v. Lucas, 462 U.S. 367 (1983) (declining to extend Bivens to a
claim based on a violation of the plaintiff’s First Amendment rights). Defendants have not
challenged whether the alleged violations of plaintiffs’ First and Seventh Amendment are
actionable under Bivens, so the Court will assume without deciding that Bivens extends to those
violations. See Iqbal, 556 U.S. at 675 (assuming without deciding that the respondent’s First
Amendment claim was actionable under Bivens where the petitioners did not raise the issue of
whether a Bivens remedy was available for such violations).
                                                6
“The Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in

light of the statute as it has been construed in Feres and subsequent cases.” United States v.

Shearer, 473 U.S. 52, 57 (1985). After Feres, the Supreme Court extended the doctrine to the

Bivens context. It held that the “unique disciplinary structure of the Military Establishment and

Congress’s activity in the field” are “special factors” that require courts to abstain from inferring

a Bivens remedy “for injuries that ‘arise out of or are in the course of activity incident to

service.’” Stanley, 483 U.S. at 683–84 (citations omitted); see also Chappell, 462 U.S. at 299.

Thus, the question presented by this case is whether the “injuries” for which plaintiffs seek to

hold defendants responsible arose out of, or occurred in the course of, “activity incident to”

military service.

       Plaintiffs oppose the motion to dismiss, and they protest that being victimized by a sexual

assault cannot possibly be considered to be an “activity” incident to military service. Pls.’ Opp.

at 1, 17. But whether being raped is an “activity” incident to military service is not the relevant

inquiry; the question is: what is the source of the alleged injury? The complaint specifically

asks that plaintiffs be compensated for the harm they suffered – including the assaults themselves

– which they claim flowed from the defendants’ alleged mismanagement of the military. In

other words, the assaults are the alleged “injury,” not the “activity.” Moreover, plaintiffs’

opposition is not supported by the applicable authorities.

   A. Plaintiffs’ Injuries Arose Out Of Or Were In The Course Of Activity Incident To Service

       How should a court go about deciding whether a plaintiff’s injuries occurred in the course

of activities incident to his or her military service? In applying the “incident to service” test after

Feres, courts have considered the service member’s “[1] duty status, [2] the site of the injury and

[3] the nature of the activity engaged in by the service member at the time of his injury.”



                                                  7
Schnitzer v. Harvey, 389 F.3d 200, 203 (D.C. Cir. 2004) (citations omitted). No one factor is

dispositive; the court “must consider the totality of the circumstances surrounding the injury and

distinguish between those cases involving activities arising from life on the military reservation

and those in which the presence on the base has little to do with the soldier’s military service.”

Stanley v. CIA, 639 F.2d 1146, 1151 (5th Cir. Mar. 1981) (internal quotation marks and citation

omitted) (the Supreme Court declined to reexamine the Fifth Circuit’s ruling on the service

incidence issue in a subsequent appeal, Stanley, 483 U.S. at 680). Here, the plaintiffs’ injuries

had everything to do with their military service, and at bottom, the case is about nothing else but

“life on the military reservation.” But in order to rule on defendants’ motion more fully, it is

useful to survey the development of the Feres doctrine and to review how it has been applied in

the Bivens context.

       In Brooks v. United States, 337 U.S. 49, 51–53 (1949), two soldiers who were on

furlough were riding in their car along a public highway when they were struck by a United

States Army truck driven by a civilian employee of the Army. The injured soldier and the estate

of the soldier who died in the accident sued the United States under the FTCA alleging

negligence on the part of the driver. Id. at 50. The Supreme Court held that the soldiers could

recover under the FTCA because the accident was not “incident to” the soldiers’ military service:

the accident “had nothing to do with the Brooks’ army careers, [and the] injuries [were] not

caused by their service except in the sense that all human events depend upon what has already

transpired.” Id. at 52.

         Subsequently, in Feres, the Supreme Court addressed three more FTCA cases involving

the military, and it distinguished them from Brooks. In the first case, the estate of a soldier who

died in a fire in the barracks sued the government for negligence. It alleged that the government



                                                8
quartered the soldier in barracks it knew or should have known were unsafe because of a

defective heating plant, and that it failed to maintain an adequate fire watch. Feres, 340 U.S. at

136–37. The second and third cases involved suits for injuries incurred by service members as a

result of negligent medical treatment by army surgeons. Id. at 137. The Supreme Court held that

all of the soldiers’ injuries arose from activity incident to service because they were all “on

active duty and not on furlough [and] sustained injury due to negligence of others in the armed

forces.” Id. at 138–39.

       In United States v. Brown, 348 U.S. 110, 110 (1954), a serviceman was honorably

discharged after suffering a knee injury while on active duty. After his discharge, he sought

treatment for his knee at a Veterans Administration hospital. Id. During an operation, the VA

hospital allegedly used a defective tourniquet and permanently injured the knee. Id. at 110–11.

The veteran brought a FTCA suit against the government for the injury suffered at the VA

hospital. Id. at 111. The Supreme Court held that the former serviceman’s suit was governed by

Brooks and not Feres because he was suing for injuries “not incurred while [he] was on active

duty or subject to military discipline.” Id. at 112. It noted that “the injury occurred after [the

planitiff’s] discharge, while he enjoyed civilian status.” Id. at 112. Thus, that plaintiff was

allowed to recover under the FTCA. Id. at 112–13.

       The Supreme Court went on to apply the Feres doctrine in the Bivens context in Chappell

and Stanley. In Chappell, enlisted men brought a constitutional claim under Bivens against their

superior officers, alleging that the superiors had discriminated against them on the basis of race

when making duty assignments, evaluating their performance, and imposing penalties. 462 U.S.

at 297. Looking to Feres for guidance, the Court found that the case presented the “special

factors counseling hesitation” before fashioning a Bivens remedy, id. at 298–99, and it held that



                                                9
“enlisted military personnel may not maintain a suit to recover damages from a superior officer

for alleged constitutional violations.” Id. at 305. The Court explained:

               The need for special regulations in relation to military discipline, and the
               consequent need and justification for a special and exclusive system of
               military justice, is too obvious to require extensive discussion; no military
               organization can function without strict discipline and regulation that
               would be unacceptable in a civilian setting . . . . The Court has often noted
               “the peculiar and special relationship of the soldier to his superiors,” . . .
               and has acknowledged that “the rights of men in the armed forces must
               perforce be conditioned to meet certain overriding demands of discipline
               and duty . . . .”
                                                     ***
               Civilian courts must, at the very least, hesitate long before entertaining a
               suit which asks the court to tamper with the established relationship
               between enlisted military personnel and their superior officers; that
               relationship is at the heart of the necessarily unique structure of the
               military establishment.

Id. at 300 (citations omitted).
       In Stanley, a soldier volunteered for what was ostensibly to be a chemical warfare testing

program, but in which he was secretly administered lysergic acid diethylamide (“LSD”) as part

of an Army plan to test the effects of the drug on human subjects. 483 U.S. at 671. The soldier

suffered severe side effects which led to his discharge and the dissolution of his marriage. Id.

Upon learning that he had been given LSD, he sued the U.S. government under the FTCA

“alleging negligence in the administration, supervision, and subsequent monitoring of the drug

testing program.” Id. at 672. He also brought a Bivens suit against unknown federal officers for

violations of his constitutional rights. See id. However, the Supreme Court refused to infer a

Bivens remedy for the service member because the issue of whether the injuries were incident to




                                                10
his service had been decided against him by the Fifth Circuit years before. Id. at 680.2 In his

case before the Court of Appeals, the veteran had argued that his participation in the medical

experiment should not be considered “‘activity incident to service’ because he was a volunteer

and had been given a release from his regular duties in order to participate in the program . . .

[and] the Government’s activity . . . was illegal and thus should not be covered by the Feres

doctrine.” Stanley, 639 F.2d at 1150. The Fifth Circuit rejected these arguments and held that

the plaintiff’s injuries were incident to military service because “the relationship between Stanley

and the allegedly negligent individuals stemmed from their official military relationship,” he was

subject to military control throughout the duration of his participation in the program, he was

receiving military pay, and he was promised a letter of commendation for his participation in the

program. Id. at 1150–52. The court was not swayed by the fact that the activity that directly

caused the harm was illegal.

       Plaintiffs assert that their case is similar to Brooks and Brown and unlike Feres and

Stanley. However, just as the Supreme Court observed in Feres, the “actual holding in the

Brooks case can support liability here only by ignoring the vital distinction” between that case

and the case at hand, 340 U.S. at 146, and the same can be said of Brown. In Brooks and Brown,

the plaintiffs incurred their injuries while on furlough or after discharge. That is not the case

here. Rather, like the plaintiffs in Feres and Stanley, plaintiffs in this case were all on active

duty, under compulsion of orders, subject to military control and discipline, and receiving


2       Plaintiffs’ assertion that the “Supreme Court [in Stanley] noted that – if it were to review
the issue de novo – Plaintiff Stanley may be able to show that the Constitutional deprivation was
not incident to service. (Stanley argued that no military purpose had been shown.)” is erroneous.
See Pls.’ Opp. at 16. The Stanley Court did not state that a de novo review might allow Stanley
to show that his injuries were not “incident to service.” Rather, it said that the “issue of service
incidence, as that term is used in Feres, was decided adversely to [the serviceman] by the Court
of Appeals . . . and there is no warrant for reexamining that ruling here.” Stanley, 483 U.S. at
680 (citations omitted).
                                                11
military pay when they incurred their injuries. Most important, the connection between plaintiffs

and those who they claim caused their injuries stemmed from their military relationship and the

military system of justice, and plaintiffs expressly attribute their injuries to the manner in which

the military leaders executed their responsibilities. Am. Compl. ¶¶ 194, 199, 200, 202, 207–214,

216–22. The fact that a couple of the plaintiffs were “off-duty” at the time of the actual assaults

is not determinative because “[t]he relevant distinction . . . runs between service-persons who are

on ‘active duty’ and those who have been discharged or are on furlough, not between ‘off-duty’

and ‘on-duty’ service-persons.” Schnitzer, 389 F.3d at 204, quoting Persons v. United States,

925 F.2d 292, 296 n.6 (9th Cir. 1991). Additionally, the fact that most of the alleged acts of

retaliation and the sexual assaults themselves occurred on military bases or ships, during a

foreign deployment, or in connection with social events with other service members further

distinguishes this case from Brooks and Brown, where the injuries arose when plaintiffs were

off-base engaged in wholly personal business.3

       Plaintiffs also insist that rape and retaliation cannot be found to be incident to military

service because those are “illegal” acts that further no military function or purpose. Pl.’s Opp. at

14–18, 20. But the Fifth Circuit was not persuaded by that contention in Stanley. 639 F.2d at

1152 (barring the service member’s claims based on the Feres doctrine despite the argument that

the activity in question was “patently illegal”). And Feres held that the servicemen’s injuries in

the three cases involved there were “incident to service” even though the harmful conduct at



3      The fact that two of the sexual assaults occurred off-base at a private residence, Am.
Compl. ¶¶ 10, 133–34, is not determinative. See Shearer, 473 U.S. at 57 (holding that recovery
for a murder that occurred while the victim was “was off duty and away from the base” was
barred by the Feres doctrine because the case struck at the core of the concerns underlying the
Feres doctrine). Even the plaintiffs who were assaulted beyond the boundaries of the base were
on active duty at the time. And, as is the case with the other plaintiffs, their case directly
implicates the concerns underlying the Feres doctrine.
                                                 12
issue – medical malpractice and negligence in fire prevention – certainly furthered no military

purpose or function. See Feres, 340 U.S. at 136–38. Plaintiffs also argue that “a constitutional

right violation is never within the discretion of a military officer.”       Pls.’ Opp. at 19–20.

Therefore, “judicial inquiry into constitutional rights violations occurring in the military can

never intrude on a matter that is purely within the military affairs.” Id. at 20. But the Supreme

Court’s decision to apply the abstention doctrine in Chappell and Stanley is at odds with that

assertion.

       Plaintiffs attempt to differentiate their case from Chappell by arguing that their claims

against top defense department officials do not directly raise military discipline or chain of

command issues, but the Supreme Court has already rejected a similar argument. In Stanley, the

plaintiff attempted to distinguish his case from Chappell by asserting that the “defendants in [his]

case were not [his] superior military officers, and indeed may well have been civilian personnel,

and that the chain-of-command concerns at the heart of Chappell . . . [were] thus not implicated.”

483 U.S. at 679. The Court responded that to give controlling weight to those specific facts

would ignore the Chappell Court’s reliance on Feres, where the officer-subordinate relationship

was not crucial to the decision. Id. at 680. But more important, even if one reads Chappell to

require some sort of chain of command allegations before a case will be dismissed, it is hard to

read this complaint without noting the numerous claims related to plaintiffs’ treatment at the

hands of their superiors, Am. Compl. ¶¶ 17, 31–32, 119, 196, and the allegations that specifically

question how military justice is dispensed and military discipline is imposed, Am. Compl. ¶¶

199, 208–09, 211.

       Plaintiffs quote Chappell for the proposition that the Supreme Court “has never held . . .

that military personnel are barred from all redress in civilian courts for constitutional wrongs



                                                13
suffered in the course of military service.” Chappell, 462 U.S. at 304. But that statement in

Chappell does not alter the analysis here. First, the Court itself has placed the statement in

context: “As the citations immediately following that statement suggest, it referred to redress

designed to halt or prevent the constitutional violation rather than the award of money damages,”

which is the remedy that plaintiffs seek. Stanley, 483 U.S. at 683. Second, defendants here are

not arguing that plaintiffs’ case is barred by the Feres doctrine “merely because [plaintiffs] were

servicemembers when they were raped and retaliated against for reporting rape.” Pls.’ Opp. at

10. Instead, defendants contend that plaintiffs’ injuries were incident to their military service

because those injuries are inextricably tied to their employment in the military. Defs.’ Mem. at

9; Defs.’ Reply at 4.

       Indeed, plaintiffs expressly allege that their injuries were caused by a culture and hostile

environment that was fostered by defendants. Am. Compl. ¶¶ 5, 194–97, 203, 206, 225, 233.

This case is nothing like Brooks where men who happened to be soldiers happened to be

involved in an accident that had nothing to do with their Army careers. Moreover, plaintiffs

have not distinguished their case from those cases cited by defendants where courts have applied

the Feres doctrine to bar claims based on sexual assault in the military nor have they provided

examples of cases where such claims have been allowed to proceed. See Defs.’ Mem. at 10–11,

citing Cioca v. Rumsfeld, No. 1:11-cv-151, appeal docketed, No. 12-1065 (4th Cir. Jan. 13,

2012) (dismissing a case virtually identical to the case at hand based on the Supreme Court’s

decisions in Chappell and Stanley); Matreale v. New Jersey Dep’t of Military & Veterans Affairs,

487 F.3d 150, 152–54 (3d Cir. 2007) (holding that a FTCA claim that superiors retaliated against

the plaintiff for supporting a sexual assault claim by a fellow soldier was barred by Feres);

Mackey v. United States, 226 F.3d 773, 774–77 (6th Cir. 2000) (finding that a FTCA claim that



                                                14
superior officers sexually harassed the plaintiff was barred by Feres); Smith v. United States, 196

F.3d 774, 776–78 (7th Cir. 1999) (concluding that a FTCA claim that superiors negligently

supervised a sergeant who allegedly raped the plaintiff was barred by Feres); Davis v. Marsh,

876 F.2d 1446, 1450 (9th Cir. 1989) (finding that a Bivens claim alleging sexual harassment by

superior officers was barred by Chappell); Bartley v. Dep’t of the Army, 221 F. Supp. 2d 934,

936, 948–49, 955–56 (C.D. Ill. 2002) (holding that FTCA and Bivens claims that superiors

sexually assaulted and harassed the plaintiffs were barred by Feres and Chappell); Morse v.

West, 975 F. Supp. 1379, 1380–82 (D. Colo. 1997) (holding that FTCA and Bivens claims

alleging sexual harassment by ROTC personnel were barred by Feres).

       Accordingly, the Court finds that plaintiffs’ injuries arose out of, or were in the course of

activity incident to, their military service. Therefore, binding precedent applying the Feres

doctrine bars the creation of a Bivens remedy here.

   B. This Case Implicates The Public Policy Considerations Underlying The Abstention
      Doctrine
       Plaintiffs argue nonetheless that the Court should not dismiss their case because doing so

would not serve the purposes behind the Feres doctrine. Pls.’ Opp. at 19–21. But as in the

Shearer case, 473 U.S. at 57, that argument is unavailing here.

       In Shearer, a soldier who was off duty and away from base was kidnapped and murdered

by another serviceman. 473 U.S. at 53. The soldier’s mother sued the government under the

FTCA alleging that the Army: knew that the murderer had been convicted of and sentenced for

manslaughter years before; knew that he was dangerous; “negligently and carelessly failed to

exert a reasonably sufficient control over” the murderer; and “failed to warn other persons that

he was at large.” Id. at 54 (internal quotation marks omitted). The Court of Appeals held that

the murder was not incident to military service because the victim was “was off duty and away


                                                15
from the base when he was murdered.” Id. at 57. The Supreme Court reversed, stating that “the

situs of the murder is not nearly as important as whether the suit requires the civilian court to

second-guess military decisions, and whether the suit might impair essential military discipline.”

Id. (citations omitted). In applying this standard, the Shearer Court explained that:

               [The] complaint strikes at the core of these concerns . . . [and] goes
               directly to the “management” of the military; it calls into question basic
               choices about the discipline, supervision, and control of a serviceman.
               Respondent’s case is therefore quite different from Brooks v. United States
               . . . where the Court allowed recovery under the Tort Claims Act for
               injuries caused by a negligent driver of a military truck. Unlike the
               negligence alleged in the operation of a vehicle, the claim here would
               require Army officers “to testify in court as to each other’s decisions and
               actions.” To permit this type of suit would mean that commanding
               officers would have to stand prepared to convince a civilian court of the
               wisdom of a wide range of military and disciplinary decisions; for
               example, whether to overlook a particular incident or episode, whether to
               discharge a serviceman, and whether and how to place restraints on a
               soldier’s off-base conduct. But as we noted in Chappell v. Wallace, such
               “‘complex, subtle, and professional decisions as to the composition,
               training, . . . and control of a military force are essentially professional
               military judgments.’”
Id. at 58 (citations omitted).    The Supreme Court also rejected the plaintiff’s attempt to

characterize the case as a “straightforward personnel decision,” pointing out that “[b]y whatever

name it is called, it is a decision of command.” Id. at 59.

       As in Shearer, plaintiffs’ case strikes at the heart of the public policy considerations

underlying Feres, Chappell, and Stanley. Despite plaintiffs’ efforts to characterize this case as a

suit about rape and retaliation, that is not the basis of their legal claims. Plaintiffs have not

sought damages from any of the service members who allegedly raped or retaliated against them,

and they do not allege that defendants personally participated in the alleged sexual assaults or

retaliatory actions. See Defs.’ Reply at 1. Rather, by alleging that the wrongdoing arose out of a

hostile climate created – or at least, not effectively addressed and therefore, tacitly sanctioned –

by defendants, Am. Compl. ¶ 5, plaintiffs have asked the Court to review a decade’s worth of

                                                 16
military management decisions, including: allowing individuals with criminal convictions to

enlist in the military; refusing or delaying compliance with congressional mandates; ensuring

that military, not civilian, authorities investigate and prosecute rapes; allowing convicted rapists

and sexual assailants to be honorably discharged; permitting destruction of forensic evidence;

and allowing military Command to rely on a nonjudicial punishment process for allegations of

rape, sexual assault, and sexual harassment and to charge alleged rapists and sexual assailants

with adultery instead of rape. See Am. Compl. ¶¶ 200–222.

        During the motion hearing, plaintiffs focused particularly on defendants’ alleged failure

to comply with congressional and statutory mandates. Tr. of Mot. Hr’g at 23–35 (“Tr.”). They

argued that redressing these failures and violations would not intrude into military decision-

making because Congress made the decision in question, the Pentagon has refused to comply,

and the lawsuit is simply seeking to hold the defendants responsible for that. Tr. at 25–28. But

this distinction does not help plaintiffs’ case.

        First of all, the lawsuit is not crafted as plaintiffs now try to describe it. This is not a

challenge to executive action brought under the Administrative Procedure Act; this is a suit for

damages in which the Court is being asked to create a remedy under Bivens. Second, even if it

could be shown that defendants intentionally refused to comply with congressional directives,

reviewing this refusal would require the Court to analyze why military management decided to

ignore the directives and whether those decisions were justified. Under Shearer, the Court must

decline to adjudicate a case where commanding officers “would have to stand prepared to

convince a civilian court of the wisdom” of their decisions. 473 U.S. at 58. The Supreme Court

has rejected a “test for liability that depends on the extent to which particular suits would call

into question military discipline and decisionmaking [because such a test] would itself require



                                                   17
judicial inquiry into, and hence intrusion upon, military matters. . . . Even putting aside the risk

of erroneous judicial conclusions (which would becloud military decisionmaking), the mere

process of arriving at correct conclusions would disrupt the military regime.” Stanley, 483 U.S.

at 682–83.4

       Plaintiffs point out that the “military and its leadership need to remain subject to civilian

control.” Pls.’ Opp. at 20. But that civilian control is constitutionally vested in the legislative

and executive branches, the “branches of the government which are periodically subject to

electoral accountability.” Chappell, 462 U.S. at 302. As plaintiffs have noted, Congress has

held numerous hearings on and issued mandates regarding the issue of sexual assault in the

military. Am. Compl. ¶¶ 213, 216, 219–22. Thus, as the Supreme Court said in Chappell:

“Taken together, the unique disciplinary structure of the military establishment and [this

congressional] activity in the field constitute ‘special factors’ which dictate that it would be

inappropriate to provide” plaintiffs a Bivens remedy in this circumstance. 462 U.S. at 304.

       Therefore, the Court finds that a Bivens remedy is unavailable to plaintiffs both because

their injuries arose from, or were suffered in the course of activity incident to, their military

service, and because their particular claims raise the very public policy considerations underlying

the abstention doctrine. This decision is not meant to question in any way the seriousness of the

alleged sexual assaults and retaliation, to minimize plaintiffs’ suffering, or to express any doubts

about the allegations that the culture and management of the military has allowed this kind of



4       Plaintiffs assert that their case is distinguishable from a virtually identical case that was
dismissed by the District Court for the Eastern District of Virginia in 2011 on the grounds that
the suit was barred by Chappell and Stanley. See Cioca v. Rumsfeld, No. 1:11-cv-151, appeal
docketed, No. 12-1065 (4th Cir. Jan. 13, 2012). They explain that since Cioca, they have
supplemented their pleading with allegations more sharply focused on defendants’ failure to
comply with congressional mandates. See Tr. at 36. But that does not save their case from
dismissal.
                                                 18
harassment and retaliation to persist. All parties agree that “[t]here is no question that allegations

of rape and sexual assault by service-members should be investigated and, if appropriate,

prosecuted, and that victims of any such assaults should be treated with care and compassion,

and receive the full range of available support services and medical treatment to address their

needs.” Defs.’ Mem at 1. But the fact remains, as plaintiffs recognized in open court, that “the

constitution vests the ultimate power to decide how the military should run itself in Congress.”

Tr. at 17. Notwithstanding the deeply troubling nature of the allegations in plaintiffs’ complaint,

the Court is not free to infer a Bivens remedy under these circumstances. “The special status of

the military has required, the Constitution contemplated, Congress has created, and this Court

has long recognized two systems of justice, to some extent parallel: one for civilians and one for

military personnel.” Chappell, 462 U.S. at 303–04. As the Fifth Circuit reluctantly observed in

Stanley, “[d]espite the apparent harshness of the application of Feres to the facts before us, we

are compelled to conclude” that a Bivens remedy is unavailable to plaintiffs. 639 F.2d at 1153.5

II. Qualified Immunity

       Qualified immunity protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of



5       After the hearing, plaintiffs submitted a forthcoming law review article as supplemental
authority for their argument that the Feres doctrine should not bar their case. See Francine
Banner, Immoral Waiver: Judicial Review of Intra-Military Sexual Assault Claims, Lewis &
Clark L. Rev. (forthcoming 2013), Ex. A to Pls.’ Notice of Supplemental Auth. [Dkt. # 12]. The
article urges the Supreme Court to revisit the Feres doctrine, especially as it has been applied to
claims of sexual assault and harassment, and suggests how the “Don’t Ask, Don’t Tell” cases can
be used to effectuate this revision. Id. at 7, 39-49. However, as the article notes, the Supreme
Court has recently denied this request. See id. at 38 n. 262 (explaining that the plaintiff in Witt
ex rel. Estate of Witt v. United States, 379 Fed.App’x. 559 (9th Cir. 2010), cert. denied, 131 S.
Ct. 3058 (2011), “petitioned the Supreme Court for certiorari, urging the Court to revisit Feres.
Certiorari was denied without comment.”). Therefore, since this article focuses on what the law
should be and not what the law currently is, it does not alter the Court’s abstention analysis.


                                                 19
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).6 “Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior” or vicarious liability; rather “a plaintiff must

plead that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676.

       To overcome defendants’ claim to qualified immunity, plaintiffs’ complaint must contain

sufficient factual matter, accepted as true, to support that conclusion. See Iqbal, 556 U.S. at 673

(“the sufficiency of [the] pleadings is both inextricably intertwined with and directly implicated

by the qualified immunity defense”) (internal quotation marks and citations omitted). They must

plead their case based on factual allegations; the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id., quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). And, the factual allegations must allow “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678.

       Plaintiffs contend that defendants are not entitled to qualified immunity because they

knowingly violated plaintiffs’ clearly established rights, and they violated their duty to protect

plaintiffs from sexual assault and retaliation. They note that federal officials in charge of



6       In their pleadings, defendants did not challenge whether plaintiffs have a clearly
established constitutional (1) “right to bodily integrity” under the Fifth Amendment, Am. Compl.
¶¶ 223–26; (2) right to “justice” and to be free from unfair termination and mistreatment under
the Fifth Amendment, Am. Compl. ¶¶ 227–30; (3) right “to be free from rape, sexual assault and
sexual harassment under the Fifth Amendment,” Am. Compl. ¶¶ 231–34; (4) right to report
sexual assault, sexual harassment and rape without suffering retaliation and adverse employment
actions under the freedom of speech clause of the First Amendment, Am. Compl. ¶¶ 235–37; or
(5) right to have a jury determine the fate of perpetrators of sexual assault and retaliatory acts
under the Seventh Amendment, Am. Compl. ¶¶ 238–40. And, for example, it is certainly not
clear to the Court that the Seventh Amendment accords jury trial rights to the victim. But it was
not necessary to reach these questions in order to decide the motion on the grounds that were
presented, and therefore the Court has only assumed, without deciding, that these rights are
clearly established.
                                                20
prisoners and involuntarily committed mental patients have a constitutional duty to protect them

and ensure “reasonable safety” from themselves and others. See DeShaney v. Winnebago Cnty.

Dept. of Soc. Servs., 489 U.S. 189, 199–200. But they have not met the Iqbal requirements.

   A. Plaintiffs Have Failed To Allege That Defendants Purposefully Violated Their Clearly
      Established Constitutional Rights
       Even if one accepts plaintiffs’ representation that they are alleging individual

misfeasance on the part of defendants as opposed to mere vicarious liability for the acts of those

under their supervision, plaintiffs have failed to plead enough facts to overcome defendants’

qualified immunity. Plaintiffs acknowledged at oral argument that their complaint must include

factual allegations sufficient to plausibly suggest that defendants acted with purposeful intent, Tr.

at 34, and that is the teaching of Iqbal. 556 U.S. at 677 (stating that to determine “whether there

is a violation of clearly established right to overcome qualified immunity, purpose rather than

knowledge is required”).

       In Iqbal, a Pakistani Muslim who was arrested and detained by federal officials filed a

Bivens suit against a number of government officials including the former Attorney General and

the Director of the FBI. Id. at 668. He alleged that in contravention of the First and Fifth

Amendments, the officials “knew of, condoned, and willfully and maliciously agreed to subject

him to harsh conditions of confinement as a matter of policy, solely on account of his religion,

race, and/or national origin and for no legitimate penological interest . . . that [the former

Attorney General] was the principal architect of this invidious policy, and that [the then Director

of the FBI] was instrumental in adopting and executing it.” Id. at 680–81 (internal quotation

marks and citations omitted). The Court held that the prisoner’s pleadings failed to state a claim

because some of his allegations were conclusory and not entitled to be accepted as true, and the




                                                 21
allegations that were factual in nature did not plausibly suggest that the defendants purposefully

violated his clearly established constitutional rights. Id. at 680–82.

       As Iqbal, requires, the Court will consider the factual allegations in plaintiffs’ complaint

to determine if they plausibly suggest that defendants acted with purposeful intent. When asked

to point to the specific factual allegations in the complaint that suggest defendants purposefully

violated plaintiffs’ constitution rights, plaintiffs referred to defendants’ failure to implement and

comply with congressional mandates, Am. Compl. ¶¶ 219–222. Tr. at 35. Plaintiffs explained at

the motions hearing that their contention is that defendants “knowingly and intentionally ignored

the will of Congress . . . . They knew when they were ignoring what Congress directed them to

do, they knew that the victims of that conduct were going to be the rape victims . . . they knew

by not doing what they’d been told to do by Congress, that additional service members would be

raped, additional servicemembers would be retaliated against.” Tr. at 35–36; see also Am.

Compl. ¶¶ 204–06, 212, 216, 219, 221–22; Pls.’ Opp. at 22–26. Accepting the truth of these

allegations, they do not show, or even intimate that defendants purposefully deprived plaintiffs

of their constitutional rights or “acted on account of a constitutionally protected characteristic.”

Iqbal, 556 U.S. at 683. At most, plaintiffs only allege that defendants “knew that their inaction

and refusal to abide by Congressional mandates would result in ongoing Constitutional

deprivations.” Pls.’ Opp. at 23. However, as the Supreme Court said in Iqbal, “purpose rather

than knowledge is required to impose Bivens liability” on a government official otherwise

entitled to qualified immunity, and plaintiffs have not alleged the purposeful intent necessary to

overcome defendants’ entitlement to qualified immunity. Iqbal, 556 U.S. at 677.




                                                 22
   B. Plaintiffs Have Failed To Show That Defendants Had A Duty To Protect Them From
      Their Injuries
       Plaintiffs also assert that defendants had a duty to protect them from sexual assault and

retaliation. They submit that qualified immunity is therefore not available because

“servicemembers are more akin to prisoners than to civilians in terms of their ability to engage in

self-help against Constitutional deprivations.” Pls.’ Opp. at 23.

       The law regarding prisoners is not in dispute. “[W]hen the State takes a person into its

custody and holds him there against his will, the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and general well-being. . . . The affirmative

duty to protect arises . . . from the limitation which [the State] has imposed on [the individual’s]

freedom to act on his own behalf.” DeShaney, 489 U.S. at 199–200, citing Estelle v. Gamble,

429 U.S. 97 (1976) and Youngberg v. Romeo, 457 U.S. 307 (1982). In Estelle, the Supreme

Court held that the Eighth Amendment’s prohibition against cruel and unusual punishment, made

applicable to the states through the Fourteenth Amendment’s Due Process Clause, required the

state to provide adequate medical care to incarcerated prisoners. 429 U.S. at 103–04. Since the

prisoner is unable “by reason of the deprivation of his liberty to care for himself, it is only just

that the State be required to care for him.” Id. The Court in Youngberg extended this analysis

and held that “the substantive component of the Fourteenth Amendment’s Due Process Clause

requires the State to provide involuntarily committed mental patients with such services as are

necessary to ensure their ‘reasonable safety’ from themselves and others.” DeShaney, 489 U.S.

at 198, citing Youngberg, 457 U.S. at 314–25.

       But plaintiffs’ assertion that service members should be viewed as prisoners is at odds

with the facts and the law. First and foremost, service members choose to enter the military.

They may be limited in their ability to freely move, and to resist authority, but they enter into the


                                                 23
arrangement knowingly giving up some of these rights. Further, plaintiffs do not provide any

legal support for the analogy they ask the Court to draw, and they do not distinguish the circuit

decisions that have rejected a similar argument, made in the common law tort context, that the

government has a duty to protect others from harm inflicted by service members because of the

control the government exercises over military personnel. See Defs.’ Mem. at 12–13 and Defs.’

Reply at 7–8, citing Hallett v. U.S. Dep’t. of Navy, 850 F. Supp. 874, 879 (D. Nev. 1994),

quoting Doggett v. United States, 875 F.2d 684, 693 (9th Cir. 1989) (“The Ninth Circuit,

however, has made clear that ‘the military relationship does not constitute a special relationship

merely because of the military command’s general right to control the conduct of military

personnel.’”); Wise v. United States, 8 F. Supp. 2d 535, 549 (E.D. Va. 1998) (rejecting the

argument that under tort law principles, soldiers have a “special relationship” with the

government sufficient to impose a duty on the government to control the off-duty conduct of

soldiers).

        Therefore, the Court finds that defendants are entitled to qualified immunity because

plaintiffs have not provided factual allegations sufficient to plausibly suggest that any of these

defendants purposefully violated the plaintiffs’ clearly established constitutional rights.7

Additionally, they have not demonstrated that defendants had a constitutional duty to protect

them from sexual assault and retaliation committed by other service members.


7       In a footnote to the one sentence conclusion found on the last page of defendants’
memorandum in support of their motion to dismiss, defendants assert that the claims of all but
four plaintiffs (Klay, McCoy, Blumer, and Everage) are barred by the District of Columbia’s
statute of limitations. Defs.’ Mem. at 16 n.6. In another footnote at the end of their reply brief,
defendants contend that since plaintiffs did not respond to this statute of limitations argument in
their opposition to the motion, the Court should consider the point to be conceded. Defs.’ Reply
at 8 n.6. Since it can hardly be said that the issue was advanced or briefed in any substantive
way as part of the defendants’ motion to dismiss, the Court will decline to deem plaintiffs’
silence on that point to be a concession.


                                                24
                                        CONCLUSION

       Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court

precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these

circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: February 7, 2013




8       While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32,
they have never filed a motion to amend attaching any amended complaint, much less one that
could – after the several chances they have had already – cure the problems at the heart of this
action.
                                                25
