                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-1065


KORI   CIOCA;   MARY    GALLAGHER,    Massachusetts;   REBEKAH
HAVRILLA, South Carolina; MYLA HAIDER, Washington; SARAH
ALBERTSON, Montana; GREG JELOVDOU, New York; AMBER DE
ROCHE,   Washington;  PANAYIOTA    BERTZIKIS,   Massachusetts;
KATELYN BOATMAN, Oklahoma; ANDREW SCHMIDT, California;
NICOLE CURDT, Wyoming; JESSICA KENYON, Pennsylvania; ANDREA
NEUTZLING, Ohio; KRISTEN REUSS, Ohio; JESSICA NICOLE
HINVES; Virginia, STEPHANIE SCHROEDER, Illinois; AMBER
YEAGER, California; AMY LOCKHART, Virginia; BLAKE STEPHENS,
California;   CLAUDIO    CASTILLO,   Texas,   TOBEY   THACHER,
Arizona; INA CHILDRESS, Tennessee; ELIZABETH LYMAN, Texas;
SANDRA SAMPSON, New Jersey; HANNAH SEWELL, Kentucky;
LATOYIA WILLIAMS, Texas; TINA WILSON, Oklahoma; VALORIE
DESAUTEL, Rhode Island,

                 Plaintiffs − Appellants,

and

COURTNEY HURD,

                 Plaintiff,


          v.

DONALD RUMSFELD, Former Secretary of Defense; ROBERT GATES,
Former Secretary of Defense,

                 Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:11-cv-00151-LO-TCB)
Argued:   May 17, 2013                    Decided:    July 23, 2013


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion in
which Judge Niemeyer and Judge Thacker joined.


ARGUED:    Susan L. Burke, BURKE PLLC, Washington, D.C., for
Appellants.     Lowell Vernon Sturgill, Jr., UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.       ON
BRIEF: Susan M. Sajadi, BURKE PLLC, Washington, D.C., for
Appellants.      Neal   H.   MacBride,  United States  Attorney,
Alexandria,   Virginia,    Stuart  F.  Delery, Acting  Assistant
Attorney General, Barbara L. Herwig, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.




                                2
AGEE, Circuit Judge:

        Twenty-eight       current     and    former    members       of    the     United

States armed forces (“Plaintiffs”), who allege they were victims

of rape and sexual misconduct by fellow servicemembers during

their     military        careers,     brought       suit     against       two     former

Secretaries     of        Defense,    Donald       Rumsfeld     and     Robert      Gates

(“Defendants”)       in     the    United    States     District      Court       for    the

Eastern District of Virginia.                    Alleging that Defendants’ acts

and   omissions      in    their     official      capacities    contributed            to   a

military culture of tolerance for the sexual crimes perpetrated

against them, Plaintiffs sought money damages pursuant to Bivens

v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971).       Based on controlling Supreme Court precedent, the

district court dismissed the Complaint, concluding that judicial

abstention was required.              For the reasons explained below, we

affirm the judgment of the district court.



                                             I.

                      BACKGROUND AND PROCEEDINGS BELOW

        Plaintiffs are twenty-five women and three men who are all

veterans of     or     currently      serving      in   the   United       States    Army,




                                             3
Navy, Marine Corps, or Coast Guard. 1                In their Bivens Complaint

(“the Complaint”), Plaintiffs describe acts of sexual assault

committed    against     them    by    other   armed       forces      personnel,     and

detail   their     often     unsuccessful      attempts      to     prosecute        those

responsible. 2     Plaintiffs allege that their reports of serious

crimes were met with skepticism, hostility, and retaliation by

military authorities.           The accused assailants, according to the

Complaint, often received only minimal punishment for the crimes

alleged.      In   essence,      the   Complaint      describes         a   culture     of

sexual     predation    in    the     military      fostered      by    the    acts     of

Defendants, which Plaintiffs allege to be the cause of the rape

and sexual assault committed against them.

     Plaintiffs        further      allege     in    the    Complaint         that    the

Defendants violated their constitutional rights by, inter alia,

“fail[ing] to (1) investigate rapes and sexual assaults, (2)

prosecute perpetrators, (3) provide an adequate judicial system

as required by the Uniform Military Justice Act, and (4) abide



     1
       Because this appeal arises out of the grant of a motion to
dismiss, we “accept[] all well-pled facts as true and construe[]
these facts in the light most favorable to the plaintiff in
weighing the legal sufficiency of the complaint.”           Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
     2
       Plaintiffs solely plead a direct constitutional cause of
action under Bivens as the only basis of their Complaint and
bring no other claim, statutory or otherwise.



                                          4
by Congressional deadlines to implement Congressionally-ordered

institutional reforms to stop rapes and other sexual assaults.”

(J.A. 4.)

      The    Complaint      also   alleges,       inter    alia,    that    Secretary

Rumsfeld     “expressed     scorn    and       derision    towards   Congressional

efforts to eradicate sexual assault in the military,” “permitted

military Command to interfere with the impartiality of criminal

investigations,” ignored Congressional commands to take certain

actions, and “did not make any efforts to eliminate retaliation

against servicemembers who reported being raped, assaulted and

harassed.”     (J.A. 53-54.)

      As to Secretary Gates, the Plaintiffs pled that he “failed

to   take    reasonable      steps   to    prevent        Plaintiffs    from   being

repeatedly     raped,    sexually     assaulted       and    sexually      harassed,”

“permitted military Command to use nonjudicial punishment for”

such conduct, “permitted military Command to retaliate against

those servicemembers who reported being raped, assaulted, and

harassed,”     and    “interfered         with     and    opposed      Congressional

directives designed to eliminate rape and sexual assault in the

military.”     (J.A. 55.)

      As a consequence of the foregoing allegations, Plaintiffs

assert that the Defendants violated their Fifth Amendment rights

to   due    process   and    equal   protection,          their    First    Amendment



                                           5
rights to free speech, and their Seventh Amendment rights to

trial by jury.

     Defendants moved to dismiss the Complaint for failure to

state a claim pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure.         Before the district court, they argued that

the Supreme Court has declined to extend Bivens to permit suits

for money damages against government officials in general, but

particularly not to permit suits for alleged torts that arise

out of military service. 3

     After hearing argument, the district court issued an order

granting    Defendants’     Rule    12(b)(6)      motion     and    dismissing     the

Complaint.    Relying heavily on Chappell v. Wallace, 462 U.S. 296

(1983), and United States v. Stanley, 483 U.S. 669 (1987), the

district    court   observed       that    a    Bivens-type        remedy   is    “not

available    when      ‘special    factors       counseling        hesitation’     are

present.”      (J.A.    62.)      Noting       that   “the   unique      disciplinary

structure of the military establishment is a special factor that

counsels     against     judicial    intrusion,”         J.A.      62,    the    court

concluded that “[i]n the present case, the Plaintiffs sue the


     3
       Defendants argued, in the alternative, that they are
entitled to qualified immunity.     The district court did not
address this defense once it concluded that Bivens relief was
unavailable to Plaintiffs.     Because we affirm the district
court’s judgment on that ground, we similarly do not address any
issue of qualified immunity.



                                          6
Defendants for their alleged failures with regard to oversight

and policy setting within the military disciplinary structure.

This       is   precisely   the    forum    in   which   the   Supreme   Court   has

counseled against the exercise of judicial authority.”                       (J.A.

62.)       Although the court observed that the allegations raised in

the complaint were “egregious,” it reiterated that the Supreme

Court       has   “strongly       advised    against     judicial   involvement.”

(J.A. 62.)

       Plaintiffs noted a timely appeal of the district court’s

judgment, and we have jurisdiction pursuant to 28 U.S.C. § 1291. 4




       4
       Two Plaintiffs, Kori Cioca and Panayiota Bertzikis, allege
injuries arising out of their service while members of the
United States Coast Guard.        In the absence of specific
circumstances not present here, the Coast Guard operates as a
service within the Department of Homeland Security, not the
Department of Defense.     See 14 U.S.C. § (3).       We therefore
directed the parties to provide supplemental briefing on the
issue of whether those Plaintiffs who served in the Coast Guard
have standing to bring suit against Defendants, two former
Secretaries of Defense.    Although we have serious doubts that
Cioca and Bertzikis possess such standing in this action, we do
not decide that issue because we conclude that judicial
abstention is appropriate in this case.      See, e.g., Tenet v.
Doe, 544 U.S. 1, 6 n.4 (2005) (observing that prudential bars,
such as abstention, “represent[] the sort of threshold question
we   have   recognized   may   be  resolved    before   addressing
jurisdiction”) (internal quotation marks omitted).



                                            7
                                 II.

                         STANDARD OF REVIEW

     “We review de novo the grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim.”     Epps v. JP Morgan Chase

Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012). “To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’”     Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).



                                III.

             THE CONSTITUTIONAL BASIS OF A BIVENS ACTION

     Plaintiffs raise one assignment of error on appeal: that

the district court erred in concluding that a Bivens remedy does

not lie for the constitutional violations they allege in their

Complaint.    In Bivens, the Supreme Court held that “violation of

[the Fourth Amendment] by a federal agent acting under color of

his authority gives rise to a cause of action for damages,”

despite the absence of any federal statute creating liability.

403 U.S. at 389.       The Court explained that even without an

explicit congressional authorization for a monetary remedy at

law, “[t]he very essence of civil liberty certainly consists in

the right of every individual to claim the protection of the

                                  8
laws, whenever he receives an injury.”                         Id. at 397 (quoting

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)).

       Notwithstanding           the   breadth    of    that    phrase,     the    Court

placed an important qualifier on the availability of an implied

right of action against a government official, foreshadowing the

extremely narrow reach established in post-Bivens cases.                               The

Court limited a Bivens right of action by stating that “the

present case involves no special factors counselling hesitation

in the absence of affirmative action by Congress.”                        Id. at 396.5

As     the       Court   would    later    explain,     “[t]he        special   factors

counselling hesitation in the creation of a new remedy . . .

relate[] to the question of who should decide whether such a

remedy       should      be   provided,”   rather      than    “the    merits     of   the

particular remedy that was sought.”                     Bush v. Lucas, 462 U.S.

367, 380 (1983).

       We recently examined the basis and application of Bivens,

particularly in a military setting, in Lebron v. Rumsfeld, 670

F.3d       540    (4th    Cir.   2012).     Our     explanation        recognized      the


       5
        The Court in Stanley described the “special factors
counselling hesitation” language in Bivens as mere dictum. 483
U.S. at 678 (“We suggested in dictum that inferring such an
action directly from the Constitution might not be appropriate
when there are ‘special factors counselling hesitation in the
absence of affirmative action by Congress.’”).      Regardless,
“[i]n [the subsequent Supreme Court decision] Chappell, . . .
that dictum became holding.” Id. at 678-79.



                                            9
Supreme Court’s strict limits on a Bivens proceeding exist in

part because “the Supreme Court has long counselled restraint in

implying new remedies at law.”              Lebron, 670 F.3d at 547.            Such

restraint counsels that we review a plaintiff’s “invitation to

imply a Bivens action . . . with skepticism.”                  Id. at 548.

     As    we    emphasized       in     Lebron,    judicial    abstention      from

sanctioning a Bivens claim in the military context is, at its

essence,   a    function     of    the    separation    of     powers   under    the

Constitution which “delegates authority over military affairs to

Congress   and    to   the    President        as   Commander    in   Chief.      It

contemplates no comparable role for the judiciary.”                   Id.

     Preserving the constitutionally prescribed balance of
     powers is thus the first special factor counseling
     hesitation in the recognition of [the plaintiff’s]
     Bivens claim. The “Constitution contemplated that the
     Legislative Branch [have] plenary control over rights,
     duties, and responsibilities in the framework of the
     military    establishment,    including   regulations,
     procedures, and remedies.”   Chappell v. Wallace, 462
     U.S. 296, 301 (1983).       Indeed, that control is
     explicit and not merely derivative of other powers:
     Congress has the enumerated powers to declare war, see
     U.S. Const., art. I, § 8, cl. 11; establish the armed
     forces, see id. cl. 12–13; and “make Rules for the
     Government and Regulation of the land and naval
     Forces,” id. cl. 14. As the Supreme Court has noted,
     “What is distinctive here is the specificity of that
     technically superfluous grant of power . . . Had the
     power to make rules for the military not been spelled
     out, it would in any event have been provided by the
     Necessary and Proper Clause—as is, for example, the
     power to make rules for the government and regulation
     of the Postal Service.” United States v. Stanley, 483
     U.S. 669, 682 (1987) (internal citation omitted).   As
     a consequence, “in no other area has the Court


                                          10
      accorded Congress greater deference.”                  Rostker    v.
      Goldberg, 453 U.S. 57, 64–65 (1981).

Id. at 548-49.

      As a consequence of the Constitution’s specific delineation

of   the   powers   allotted   among    the    branches     of   government    in

military affairs,

      whenever the Supreme Court has considered a Bivens
      case involving the military, it has concluded that
      “the insistence . . . with which the Constitution
      confers authority over the Army, Navy, and militia
      upon the political branches . . . counsels hesitation
      in our creation of damages remedies in this field.”
      Stanley, 483 U.S. at 682. Put simply, “such a remedy
      would   be   plainly   inconsistent  with   Congress’
      authority” in military affairs. Chappell, 462 U.S. at
      304.

Id. at 550.

      Against that backdrop, the Supreme Court has only twice, in

the more than forty years since deciding Bivens, recognized a

new implied monetary remedy against federal officials, and it

has never done so in the military context.               In Davis v. Passman,

442 U.S. 228 (1979), the Court allowed a congressional staffer

to sue a congressman for alleged violations of the Due Process

Clause of the Fifth Amendment.              And in Carlson v. Green, 446

U.S. 14 (1980), the Court permitted a suit to go forward against

federal prison officials for an alleged violation of the Cruel

and Unusual Punishments Clause of the Eighth Amendment.

      It   is   clear   that   expansion      of   a   Bivens-based    cause   of

action, such as Davis and Carlson, is the exception, not the

                                       11
rule.     The Supreme Court has further acknowledged that since

those    cases      were   decided    it        has   “responded      cautiously    to

suggestions that Bivens remedies be extended into new contexts.”

Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also Wilkie

v. Robbins, 551 U.S. 537, 550 (2007) (A Bivens suit “is not an

automatic entitlement.”).            Indeed, since Davis and Carlson, the

Court has consistently turned away plaintiffs seeking to avail

themselves of novel applications of Bivens.                     See e.g., Minneci

v. Pollard, 565 U.S. ---, ---,                  132 S. Ct. 617, 626 (2012) (no

Bivens claim against employees of privately run federal prison);

Wilkie, 551 U.S. at 550 (no Bivens action lies against Bureau of

Land    Management     employees      accused         of   retaliating    against    a

landowner); Correctional Servs. Corp. v. Malesko, 534 U.S. 61,

74   (2001)    (no    Bivens   remedy       against        corporate     operator   of

private prison); FDIC v. Meyer, 510 U.S. 471, 486 (1994) (no

Bivens cause of action against federal agencies); Schweiker, 487

U.S.    at    420    (Bivens   suit     not       permitted     for    due      process

violations       alleged    against        government        employees     in    their

handling of Social Security applications); Stanley, 483 U.S. at

683 (no Bivens suits when injuries are sustained incident to

military service); Bush, 462 U.S. at 390 (no Bivens remedy for a

federal employee against a supervisor who has allegedly violated

employee’s First Amendment rights); Chappell, 462 U.S. at 305

(military personnel may not sue superior officers in a Bivens

                                           12
action).      In light of this unbroken line of judicial abstention,

we have emphasized that “[t]he Bivens cause of action is not

amenable to casual extension.”                Lebron, 670 F.3d at 548 (quoting

Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006)).

      Moreover,       the    Supreme    Court    has    recognized       that     implied

causes of action for money damages are uniquely problematic in

the context of claims against the military.                        In Chappell, the

Court concluded that no Bivens cause of action could lie against

certain      Naval    officers        alleged   to     have    engaged      in    racial

discrimination        against     the    plaintiffs,       a     group   of      enlisted

sailors.          Chief      Justice     Burger,       writing     for    the     Court,

explained:

      [t]he special status of the military has required, the
      Constitution has 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. The special nature of
      military life—the need for unhesitating and decisive
      action by military officers and equally disciplined
      responses by enlisted personnel—would be undermined by
      a judicially created remedy exposing officers to
      personal liability at the hands of those they are
      charged to command.

Id. at 303-04 (internal citation omitted); see also id. at 301

(“Judges are not given the task of running the Army.”) (quoting

Orloff v. Willoughby, 345 U.S. 83 (1953)).                          It is for that

reason, Chief Justice Burger noted, “[c]ivilian courts must, at

the   very    least,       hesitate    long   before     entertaining      a     suit   to

tamper     with      the     established      relationship        between        enlisted

                                           13
military     personnel     and      their      superior     officers;        that

relationship is at the heart of the necessarily unique structure

of the Military Establishment.”             Id. at 300.    Accordingly, the

Court determined that “the unique disciplinary structure of the

Military   Establishment    and     Congress’      activity      in    the   field

constitute    ‘special   factors’      which   dictate    that    it    would   be

inappropriate to provide enlisted military personnel a Bivens-

type remedy against their superior officers.”             Id. at 304.

     In concluding that a Bivens claim was unavailable to the

plaintiffs in Chappell, the Court drew guidance from Feres v.

United   States,   340   U.S.    135   (1950). 6     In   Feres,       the   Court

analyzed “whether the [Federal] Tort Claims Act [“FTCA”] extends

its remedy to one sustaining ‘incident to [military] service’

what under other circumstances would be an actionable wrong.”

340 U.S. at 138.     Answering that question in the negative, the

Feres Court concluded that “the 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.”

Id. at 146.     Drawing on that precedent, the Court in Chappell

then observed, “[h]ere, as in Feres, we must be concerned with


     6
       Over a dissenting opinion from Justice Thomas, the Supreme
Court recently declined to revisit its holding in Feres.      See
Lanus v. United States, No. 12-862, --- S. Ct. --- (June 27,
2013) (order denying cert.).



                                       14
the disruption of the peculiar and special relationship of the

soldier to his superiors that might result if the soldier were

allowed to hale his superiors into court.”                       462 U.S. at 304

(internal quotation marks and alterations omitted).

      Four years after Chappell, the Supreme Court reaffirmed and

clarified    the   Chappell    holding      in   Stanley,    wherein      a    former

servicemember brought actions pursuant to the FTCA and Bivens

alleging    that   he   was    the     involuntary      victim      of   Army     LSD

experiments during his military service.                 483 U.S. at 671-72.

The   Stanley   plaintiff     argued    that      because   he    was    not    suing

persons     directly    in    his    chain       of   command,     the    concerns

articulated in Chappell were inapplicable.                   Id. at 679.          In

holding that the plaintiff could not pursue a Bivens action, the

Court     explicitly    adopted      the     “incident      to    service”      test

articulated in Feres and Chappell for application in a Bivens

proceeding.

      Today, no more than when we wrote Chappell, do we see
      any reason why our judgment in the Bivens context
      should be any less protective of military concerns
      than it has been with respect to FTCA suits, where we
      adopted an “incident to service” rule.    In fact, if
      anything we might have felt freer to compromise
      military concerns in the latter context, since we were
      confronted    with     an    explicit    congressional
      authorization for judicial involvement that was, on
      its face, unqualified; whereas here we are confronted
      with an explicit constitutional authorization for
      Congress “[t]o make Rules for the Government and
      Regulation of the land and naval Forces,” U.S. Const.
      Art. I, § 8, cl. 14, and rely upon inference for our
      own authority to allow money damages. This is not to

                                       15
     say, . . . that all matters within congressional power
     are exempt from Bivens.   What is distinctive here is
     the specificity of that technically superfluous grant
     of power, and the insistence (evident from the number
     of Clauses devoted to the subject) with which the
     Constitution confers authority over the Army, Navy,
     and militia upon the political branches.      All this
     counsels   hesitation in   our  creation   of   damages
     remedies in this field.

Id. at 681-82 (footnotes omitted).          The Court also emphasized

the importance of the “incident to service” test insofar as it

minimized the “degree of disruption” that a judicial inquiry

would create:

     A test for liability that depends on the extent to
     which particular suits would call into question
     military discipline and decisionmaking would itself
     require judicial inquiry into, and hence intrusion
     upon, military matters.     Whether a case implicates
     those concerns would often be problematic, raising the
     prospect of compelled depositions and trial testimony
     by military officers concerning the details of their
     military commands.    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.  The “incident to service” test, by contrast,
     provides a line that is relatively clear and that can
     be discerned with less extensive inquiry into military
     matters.

Id. at 682-83 (emphasis added).           The Court “reaffirm[ed] the

reasoning   of   Chappell   that   the   ‘special   factors   counselling

hesitation’-‘the unique disciplinary structure of the Military

Establishment and Congress’ activity in the field,’. . . require

abstention in the inferring of Bivens actions as extensive as




                                    16
the exception to the FTCA established by Feres[.]”                           Id. at 683-

84.

       Distilling these cases to their core holdings, we restate

the   principles       guiding    our   analysis        in     the    case   at    bar:    no

Bivens action will lie where special factors counsel hesitation

in    creating    an    implied     right    of       action    and     special    factors

clearly counsel hesitation in implying a cause of action for

injuries arising out of military service.                            The Supreme Court

holding in Stanley left no doubt as to this principle: “We hold

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.       As one treatise has succinctly explained: “The law

is    now    settled    that     Bivens     suits       are     never    permitted        for

constitutional         violations    arising          from     military      service,      no

matter      how   severe    the    injury        or    how     egregious     the    rights

infringement.”          Erwin Chemerinsky, Federal Jurisdiction 621-22

(5th ed. 2007).

       As we now explain, the injuries alleged by Plaintiffs in

their Complaint, clearly “arise out of or are in the course of

activity incident to service.”              Cf. Stanley, 483 U.S. at 684.




                                            17
                                            IV.

                                    INCIDENT TO SERVICE

       The “incident to service” test, as articulated in Feres,

“cannot be reduced to a few bright line rules.”                             United States

v. Shearer, 473 U.S. 52, 57 (1985).                       Nonetheless, the Court’s

concerns    in    Feres       are    implicated    where       a    suit    “requires    the

civilian court to second-guess military decisions,” or raises an

allegation       that     “goes       directly     to     the       management    of     the

military[,]       [calling]         into   question      basic      choices     about    the

discipline, supervision, and control of a serviceman.”                                Id. at

57-58.    Shearer is particularly instructive for the case at bar.

       Private Vernon Shearer was off duty and away from his duty

station at Fort Bliss, New Mexico, when he was kidnapped and

murdered by Private Andrew Heard, a fellow serviceman.                                Id. at

53.     Private Heard had previously been convicted of manslaughter

by a court in Germany, and then assigned by the Army to Fort

Bliss upon his release from German prison.                         Id. at 54.      Private

Shearer’s mother, the administratrix of his estate, brought a

FTCA     action     against          the   Army,        claiming       that     the     Army

“negligently       and     carelessly        failed       to       exert    a   reasonably

sufficient control” over Private Heard, resulting in her son’s

wrongful death.         Id.

       The Supreme Court ultimately held that Feres barred the

suit.      In     addition      to     implicating       military          management    and

                                            18
calling into question the decisions of military commanders about

the discipline, supervision, and control of servicemembers, the

Court opined that

      [t]o 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 (quoting Chappell, 462 U.S. at 302).

      Applying the “incident to service” test in the case at bar,

it is clear that the allegations raised by Plaintiffs’ Complaint

are either incident to, or arise out of, their service in the

military.

      The Complaint alleged that Secretary Rumsfeld, inter alia,

  •   Failed   to   appoint     any    members     to   a       commission    to

      investigate   policies    and   procedures    with    respect     to   the

      military investigation of reports of sexual misconduct, as

      required by Congress;

  •   “repeatedly   permitted    military   Command        to    rely   on   the

      Article 15 (nonjudicial punishment) process for allegations

      involving rapes, sexual assaults, and sexual harassment,”

      (J.A. 53);


                                      19
•   “repeatedly      permitted     military         Command    to   interfere        with

    the impartiality of criminal investigations,” (J.A. 53);

•   “repeatedly permitted the military Command to charge those

    alleged to have raped or sexually assaulted a co-worke[r]

    under [Uniform Code of Military Justice (“UCMJ”)] Article

    134 (adultery) rather than under Article 120 (rape),” (J.A.

    53);

•   “repeatedly      ensured     that   the    military,        not    the     civilian

    authorities,      investigated      and     prosecuted         charges     of    rape

    and sexual assault,” (J.A. 53);

•   “repeatedly      permitted      eighty      percent       of    those      military

    personnel       convicted      of    sex        crimes     to      be     honorably

    discharged      from    the    military          and     receive        their   full

    retirement benefits,” (J.A. 53);

•   “permitted      military      Command      to    retaliate        against       those

    service   members      who    reported     being       raped,     assaulted       and

    harassed,” (J.A. 54);

•   “granted ‘waivers’ that permitted individuals convicted of

    domestic violence-related offenses to join the services and

    carry weapons,” (J.A. 54); and

•   “permitted military personnel on duty to ridicule both male

    and    female    subordinates       by     using       sexually-charged           and

    offensive terms,” (J.A. 54.)


                                        20
       The    allegations            against        Secretary        Rumsfeld,           though

obviously troubling if true, fall within the heartland of the

concerns     identified        in     Chappell,       Stanley,       and       Feres.          The

Plaintiffs’ allegations directly challenge the “wisdom of a wide

range of military and disciplinary decisions,” cf. Shearer, 473

U.S.    at   58,     and    each     directly      challenge       the     decisions          made

within the ultimate chain of military command.                                 Allowing the

suit against Secretary Rumsfeld to go forward would “require[]

the civilian court to second-guess military decisions,” because

the    complaint      raises       allegations       that    “go[]       directly       to     the

management     of     the     military[,]       [calling]         into     question         basic

choices      about    the      discipline,         supervision,          and        control     of

service[members].”           Shearer, 473 U.S. at 58.

       But apart from the separation of powers infringement that

such a course of judicial second guessing of military command

decisions      would       encompass,      the       Stanley       court       was      equally

concerned     with     the    occurrence       of    a   judicial        inquiry       at     all.

Such    an    inquiry        would    “rais[e]       the     prospect          of     compelled

depositions and trial testimony by military officers concerning

the details of their military commands.                      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.”



                                              21
Stanley,     483    U.S.          at    682-83.           Consequently,            both    rationales

compel judicial abstention.

      The    same       is    true      of    the        Plaintiffs’         allegations          lodged

against      Secretary            Gates.           In     addition          to     raising     similar

allegations        to   those          brought      against       Secretary             Rumsfeld,    the

Plaintiffs contend that Secretary Gates permitted command to use

nonjudicial         punishment             for          sexual     crimes           and      permitted

retaliation against reporters of sexual crimes.                                          Further, the

Complaint alleges that Secretary Gates

  •   directed the director of the Sexual Assault Prevention and

      Response Office to ignore a congressional subpoena,

  •   “failed to ensure that the Department [of Defense] met its

      statutorily-mandated                    deadline           of         January        2010     for

      implementing                the      [sexual          assault              report]       database

      prescribed         by       the    National         Defense       Act       for     Fiscal    Year

      2009,” (J.A. 56); and

  •   “selected an inexperienced and tiny firm . . . to receive

      the $250 million contract designed to implement the Army’s

      obligations            to    prevent         sexual        assault          and    harassment.”

      (J.A. 56.)

      Once    again,          though         the    allegations             raised       are    serious

matters,     the    Chappell,            Stanley,         Feres       and    Shearer       precedents

mandate that courts not permit a Bivens action that challenges

military decisionmaking.                   See Stanley, 183 U.S. at 684 (“We hold

                                                    22
that no Bivens remedy is available for injuries that ‘arise out

of or are in the course of activity incident to service.’”); see

also Chemerinksy, supra, at 17.

      Plaintiffs argue, however, that the injuries they allege

did   not     “arise    out    of”    and   were   not     “incident    to”    military

service.        Specifically, they assert that “Defendants have not

made any evidentiary showing that rape and sexual assault, and

the   resultant        failures      to   punish   the     perpetrators,       served    a

military mission.”            (Appellants’ Opening Br. 28; see also id.

(“In order to fall within the scope of the ‘incident to service’

[test],       the   injury    must     actually    arise    from     conduct    done    to

further a military mission.”)).

      Plaintiffs        fundamentally       misapprehend       the    nature     of    the

“incident to service” rule, which does not inquire whether the

discrete injuries to the victim were committed “in support of

the military mission.”               Rather, the “incident to service” test

asks, in relevant part, whether “particular suits would call

into question military discipline and decisionmaking [and would]

require       judicial       inquiry      into,    and     hence     intrusion       upon,

military matters.”            Stanley, 483 U.S. at 682.              Put another way,

where     a     complaint      asserts       injuries       that     stem     from     the

relationship between the plaintiff and the plaintiff’s service

in the military, the “incident to service” test is implicated.



                                            23
       The       Complaint        clearly   alleges      injuries        that    stem    solely

from       Plaintiffs’       military       service. 7        Indeed,      the    Plaintiffs

allege          that   the        Defendants’       command        and    management,          or

mismanagement, of the military is the ultimate cause of their

injuries.          For that reason, the Complaint states a claim for

injuries that are “incident to military service” as the Supreme

Court has applied that concept.

       In the alternative, Plaintiffs argue that the facts of this

case are more closely aligned with Brooks v. United States, 337

U.S.       49    (1949),     in    which    the     Supreme    Court      allowed       a    suit

brought by servicemen to go forward against the government for

injuries sustained in a motor vehicle accident involving an Army

truck driven by a civilian.                   Id. at 918-21.             But as the Court

explained         in   Feres,        Brooks       is   of     no    assistance          to   the

Plaintiffs.

       The actual holding in the Brooks case can support
       liability . . . only by ignoring the vital distinction
       there stated. The injury to Brooks did not arise out
       of or in the course of military duty.    Brooks was on
       furlough, driving along the highway, under compulsion
       of no orders or duty and on no military mission.     A
       Government owned and operated vehicle collided with
       him.     Brooks’ father, riding in the same car,
       recovered for his injuries and the Government did not
       further contest the judgment but contended that there

       7
       Without question, sexual assault does not support a proper
military mission.   However, Plaintiffs’ claims in the Complaint
are not against the perpetrators of such acts, but only to the
command and management of the military.



                                               24
      could be no liability to the sons, solely because they
      were in the Army. This Court rejected the contention,
      primarily because Brooks’ relationship while on leave
      was not analogous to that of a soldier injured while
      performing duties under orders.

Feres, 340 U.S. at 146.

      Resolution of the cause of action in Brooks was simply a

garden variety automobile personal injury claim which did not

“require      judicial      inquiry    into,    and    hence    intrusion       upon,

military matters.”          Stanley, 483 U.S. at 683.            The plaintiffs’

military service in Brooks had no nexus to the claim for injury.

Put   simply,     none      of   the    concerns      articulated      in    Stanley,

Chappell, and Feres, were implicated in the resolution of the

personal injury claim alleged in Brooks.

      Here, by contrast, for the reasons already explained, all

the injuries alleged relate directly to the fact that Plaintiffs

served in the military and challenge “military discipline and

decisionmaking” as the cause of their injury.                    Cf. id. at 682.

Brooks’ injuries “had nothing to do with Brooks’ army careers,

[and the] injuries [were] not caused by their service except in

the   sense    that   all    human     events   depend    on   what    has    already

transpired.”      337 U.S. at 52 (emphasis added).                No question of

“military      discipline        and    decisionmaking”        could    have     been

involved in Brooks; the case is therefore inapposite.

      Plaintiffs additionally argue that “permitting the federal

courts to adjudicate instances when Executive Branch officials

                                          25
violate Congressional mandates on military discipline furthers

the goal of military discipline.”                       Br. of Appellants at 10.

However,    we       rejected   a   similar      argument      in   Lebron,    in   which

certain      retired         military      officers        argued      that    judicial

involvement in adjudicating claims arising from the detention of

enemy combatants “will cause no interference with the legitimate

mission of our military forces.”                      Lebron, 670 F.3d at 550 n.3.

Following the clear Supreme Court precedent, we reasoned that

argument missed the mark because

       [w]e do not address the merits of whether a damages
       remedy would interfere with the military or not.
       Rather,   we   defer   to   Congress  as   the  branch
       constitutionally    charged    with  addressing   that
       question, and we will not readily displace the
       legislative role by concluding on our own authority
       that damages are appropriate.

Id.

       Here, we similarly do not pass on the question of whether

permitting       a    Bivens     action    would        help   or    hinder    military

decision-making         or    discipline:        an    issue   beyond    our   judicial

cognizance.           Instead,      we    observe       from   the    Complaint     that

resolution of Plaintiffs’ claims would force us to pass judgment

on    the   merits      of   the    Defendants’         military     decisions,     which

Supreme Court precedent has concluded is not within the realm of

our judicial branch function.                Congress, not the courts, is in

the proper constitutional position to conduct such an inquiry



                                            26
and provide a statutory remedy should it determine that action

is warranted.

       Plaintiffs also argue that they should be accorded a Bivens

right based on certain language from Chappell stating that the

Supreme 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.”    462 U.S. at 304.     But as the Supreme Court explained

in Stanley, Plaintiffs take this isolated phrase out of context

and ignore the Court’s actual holding.

       Similarly irrelevant is the statement in Chappell,
       erroneously relied upon by Stanley and the lower
       courts, that we have “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.” 462 U.S. at 304. 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. See Brown v. Glines, 444 U.S.
       348 (1980); Parker v. Levy, 417 U.S. 733 (1974);
       Frontiero v. Richardson, 411 U.S. 677 (1973). Such
       suits, like the case of Wilkes v. Dinsman, 7 How. 89
       (1849), distinguished in Chappell, 462 U.S., at 305,
       n. 2, sought traditional forms of relief, and “did not
       ask the Court to imply a new kind of cause of action.”
       Ibid.

Stanley, 483 U.S. at 683.

       All the cited cases brought causes of action abjuring money

damages and seeking some other form of relief.                 It was solely in

the context of referencing non-money-damages cases that Chappell

made   the   statement   Plaintiffs’    cite.         In    fact,   no   case   has

                                   27
permitted   a    Bivens     action   for   money   damages   in   the   military

setting.        And,   as    Plaintiffs’     Complaint   seeks     only   money

damages, it cannot proceed.            (See J.A. 4. (“This action seeks

money damages under Bivens . . . .”).) 8



     8
       Indeed, the only case we can identify where the Supreme
Court did not dismiss a suit brought by a servicemember against
a commanding officer is the pre-Civil War case of Wilkes v.
Dinsman, 48 U.S. (7 How.) 89 (1849), which is of no aid to the
Plaintiffs.   Wilkes arose as an action for common law trespass
for assault and battery and false imprisonment, brought by
Dinsman, a U.S. marine, against his commanding officer. Dinsman
alleged that after his term of enlistment had expired, he was
wrongly detained by his commander and forced to continue his
military service involuntarily.    The Supreme Court reversed a
verdict for Dinsman and remanded for a new trial, but without an
analysis of the court’s jurisdiction to consider such a
complaint.   Id.    In determining that Wilkes, the commanding
officer, was entitled to a new trial as a matter of law, its
language seemed to foreshadow the later holdings in Feres,
Chappell, and Stanley.

     The Wilkes Court affirmed the proposition that

     a public officer, invested with certain discretionary
     powers, never has been and never should be, made
     answerable for an injury, when acting within the scope
     of his authority, and not influence by malice,
     corruption, or cruelty. . . .

     No   review   of   his   decisions,  if   within   his
     jurisdiction, is conferred by law on either courts, or
     juries[.]

48 U.S. (7 How.) at 129. Further, as the Chappell court
recognized, Wilkes “involved a well-recognized common law cause
of action . . . and did not ask the Court to imply a new kind of
cause of action.”      462 U.S. at 305 n.2.       Moreover, any
precedential value of Wilkes is dubious, because, “since the
time of Wilkes, significant changes have been made establishing
a comprehensive system of military justice.” Id.



                                       28
     We must also reject Plaintiffs’ argument that their suit

should go forward because “[s]ervicemembers must be permitted to

seek redress in the federal courts when their Constitutional

rights are violated.”           Appellants’ Opening Br. 14.         In essence,

Plaintiffs seem to argue that a Bivens remedy is their only

avenue for such redress.           The Supreme Court has clearly rejected

that argument as well.

     [I]t is irrelevant to a “special factors” analysis
     whether the laws currently on the books afford
     Stanley, or any other particular serviceman, an
     “adequate” federal remedy for his injuries.        The
     “special factor” that “counsels hesitation” is not the
     fact that Congress has chosen to afford some manner of
     relief in the particular case, but the fact that
     congressionally   uninvited  intrusion   into military
     affairs by the judiciary is inappropriate.

Stanley, 483 U.S. at 683 (alterations omitted).



                                        V.

                                   CONCLUSION

     In the more than twenty-five years since the Supreme Court

pronounced      in    Stanley   that   servicemembers     will     not   have   an

implied   cause      of   action   against    the    government    for   injuries

arising   out    of    or   incident   to    their   military     service   under

Bivens, Congress has never created an express cause of action as

a remedy for the type of claim that Plaintiffs allege here.                     And




                                        29
it    is    Congress,   not     the   courts,   that      the     Constitution    has

charged with that responsibility. 9

       In concluding that Plaintiffs lack a Bivens cause of action

in this case, we do not downplay the severity of Plaintiffs’

allegations      or   otherwise       imply   that    the    conduct    alleged    in

Plaintiffs’ Complaint is permissible or acceptable.                    Rather, our

decision 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.     Those    principles,         as   clearly    expressed    in

Chappell, Stanley, and Feres, counsel that judicial abstention

is the proper course in this case.

       For all the foregoing reasons, the judgment of the district

court is affirmed.

                                                                            AFFIRMED




       9
       Although we are the first Court of Appeals to encounter
precisely this issue, we observe that our holding is consistent
with the holding of the District Court for the District of
Columbia, deciding a nearly identical case earlier this year.
See Klay v. Panetta, --- F. Supp. 2d ---, Case No. 12-0350 (ABJ)
2013 WL 458318 (D.D.C. Feb. 7, 2013).



                                         30
