 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 18, 2014               Decided July 18, 2014

                        No. 13-5081

                   ARIANA KLAY, ET AL.,
                       APPELLANTS

                              v.

 LEON E. PANETTA, FORMER SECRETARY OF DEFENSE, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:12-cv-00350)


    Susan L. Burke argued the cause and filed the brief for
appellants.

     Lowell V. Sturgill Jr., Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Stuart F. Delery, Assistant Attorney General, Ronald C.
Machen Jr., U.S. Attorney, and Barbara L. Herwig, Attorney.

    Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge GRIFFITH.

    Concurring Opinion filed by Circuit Judge GRIFFITH.
                                2
     GRIFFITH, Circuit Judge: Plaintiffs are current or former
members of the United States Navy and Marine Corps who
allege that they were raped, sexually assaulted, or sexually
harassed by their fellow Sailors and Marines, only to suffer
retaliation from their superiors for reporting their plight. Their
appeal is both difficult and easy. Difficult, because it involves
shocking allegations that members of this nation’s armed
forces who put themselves at risk to protect our liberties were
abused in such a vile and callous manner. Easy, because
plaintiffs seek relief under a legal theory that is patently
deficient.

     Plaintiffs have not sued their attackers or those who
retaliated against them for reporting their abuse. Rather,
plaintiffs have sought money damages directly under the
Constitution from senior officials in the military and
Department of Defense who, plaintiffs allege, could have put
in place policies to prevent their injuries but failed to do so.
The Supreme Court has held that military officials are not
subject to personal liability under the Constitution for their
management decisions, including the choices they make about
the discipline, supervision, and control of servicemembers.
Because adjudication of plaintiffs’ claims would require
judicial intrusion upon such military matters, we affirm the
district court’s dismissal of their suit.

                                I

    Because this appeal arises from the defendants’
successful motion to dismiss, we presume the allegations in
the complaint are true and view the facts in the light most
favorable to plaintiffs. See Autor v. Pritzker, 740 F.3d 176,
179 (D.C. Cir. 2014).
                               3
     Plaintiffs are twelve current and former sailors and
Marines. During their service, eleven were either raped or
sexually assaulted by fellow members of the armed forces.
One was the target of severe sexual harassment by Marines
and a fellow Navy Corpsman with whom she deployed. The
attacks and harassment left plaintiffs with a range of serious
physical and psychological injuries. In each case the injury
was compounded by the retaliation plaintiffs suffered when
they reported what had happened to their superiors.

     Though the experience of each plaintiff is unique, that of
Janet Galla provides an example of the kind of harm plaintiffs
endured. See First Am. Compl. ¶¶ 144-164. Galla served in
the Navy from 1999 to 2005 as a Hospital Corpsman. On June
11, 2004, after having dinner with a group of friends, Galla
returned to her ship. While she was checking her email in the
ship’s Medical Department, a fellow Corpsman asked if he
could show her something in one of the Department’s
operating rooms. She followed him into an operating room,
where he tried to kiss her. She resisted, asked him to stop, and
tried to leave the room, but he prevented her from escaping,
then raped her. Galla immediately reported the rape. Although
her attacker was ultimately convicted and sent to prison, Galla
faced retaliation from her chain of command. She was not
allowed to work in enclosed spaces with male colleagues, a
restriction her superiors claimed was for her own protection.
This limitation not only made it difficult for her to do her job,
but left her feeling ostracized from her shipmates. Galla began
to receive negative performance evaluations and was
eventually told by her commander that it would be best for
“morale” if she left the ship. She transferred to a duty station
on land, but the retaliation continued when her new chain of
command learned about the rape and the ongoing
investigation. Suffering from post-traumatic stress disorder,
Galla was singled out for drug and alcohol tests and was
                               4
accused of using her rape as an excuse for poor job
performance. One member of her new command told her that
the rape was only “five minutes of her life” and she needed to
“get over it already.” In the face of such harassment and
ostracism, Galla accepted her superiors’ offer of immediate
separation from the Navy in 2005.

     In 2012, Galla and the other plaintiffs filed suit in the
district court against nine defendants: the three most recent
Secretaries of Defense, Secretaries of the Navy, and
Commandants of the Marine Corps. Id. ¶¶ 181-189. Plaintiffs
alleged that their injuries resulted from the acts and omissions
of these defendants who were fully aware of the prevalence of
sexual misconduct and retaliation in the Navy and Marine
Corps, had the power to eliminate it, and yet failed to take
effective steps to do so. See id. ¶¶ 190-206. Plaintiffs
identified a variety of practices the defendants allegedly
authorized or oversaw that contributed to this hostile
environment. For instance, the defendants granted “moral
waivers” that let recruits with criminal convictions serve in
the military; they allowed commanders to interfere with the
impartiality of criminal investigations into sexual assaults;
and they permitted perpetrators to receive nonjudicial
punishment and to be honorably discharged. See id. ¶¶ 200,
207-222. In addition, plaintiffs alleged that the three
defendant Secretaries of Defense flatly ignored statutory
mandates from Congress requiring the establishment of a
commission to investigate the military’s treatment of sexual
misconduct allegations and the creation of a centralized
database of sexual assault incidents. See id. ¶¶ 216-217, 219,
222.

    Plaintiffs did not, however, claim that this alleged
misconduct ran afoul of any federal statute that would
authorize them to recover damages from the defendants.
                                5
Instead, plaintiffs argued that the defendants’ actions and
inactions violated a variety of plaintiffs’ constitutional rights:
Fifth Amendment rights to bodily integrity, due process, and
equal protection; a First Amendment right to speak about their
assaults without retaliation; and a Seventh Amendment right
to have juries try their assailants. See id. ¶¶ 223-240. Citing
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), plaintiffs argued that the
cause of action for damages they sought could be implied
directly under these constitutional provisions. See First Am.
Compl. ¶ 2.

     The defendants moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, and the
district court granted their motion. Klay v. Panetta, 924 F.
Supp. 2d 8 (D.D.C. 2013). Acknowledging that the “factual
recitations . . . describe brutal and criminal assaults,
compounded by a degrading and humiliating institutional
response,” the court nonetheless concluded that it lacked “the
power to provide the particular sort of remedy sought here for
the specific injustices alleged in the complaint.” Id. at 12.
According to the district court, plaintiffs’ suit for damages
under Bivens was foreclosed by Supreme Court precedent
disallowing such a remedy “‘for injuries that arise out of or
are in the course of activity incident to [military] service.’” Id.
at 13 (quoting United States v. Stanley, 483 U.S. 669, 684
(1987)).

    Plaintiffs appealed. We have jurisdiction under 28 U.S.C.
§ 1291 and review the district court’s dismissal de novo.
Autor, 740 F.3d at 179.
                              6
                              II

     Plaintiffs’ theory of liability is based upon the Supreme
Court’s decision in Bivens, which recognized an implied
private cause of action for damages against federal officials
who violate the Fourth Amendment. 403 U.S. at 395-97. But
while Bivens could have ushered in a new era of broad
constitutional tort liability, history has taken a different
course. Only twice has the Supreme Court approved the
application of Bivens’s reasoning to new classes of cases, and
never in the past thirty years. See Davis v. Passman, 442 U.S.
228, 230-31, 234 (1979) (congressional employee’s
employment discrimination claim under the Fifth
Amendment); Carlson v. Green, 446 U.S. 14, 18-23 (1980)
(prisoner’s cruel and unusual punishment claim against prison
officials under the Eighth Amendment). In numerous other
cases, by contrast, the Court has found extension of Bivens
unwarranted, see Minneci v. Pollard, 132 S. Ct. 617, 622-23
(2012) (collecting cases), expressing its “reluctan[ce] to
extend Bivens liability to ‘to any new context or new category
of defendants,’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
68 (2001)); see also Wilkie v. Robbins, 551 U.S. 537, 550
(2007) (noting that “in most instances we have found a Bivens
remedy unjustified”). This unwillingness to extend Bivens
derives from the Court’s shift toward disfavoring judicially
implied causes of action generally. See Iqbal, 129 S. Ct. at
1948; see also Alexander v. Sandoval, 532 U.S. 275, 286
(2001) (“Like substantive federal law itself, private rights of
action to enforce federal law must be created by Congress.”).

     In recent years, the Court has prescribed a two-step
approach for determining whether a Bivens remedy is
available. First, a court should ask “whether any alternative,
existing process for protecting the interest amounts to a
                                 7
convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.”
Wilkie, 551 U.S. at 550. “[E]ven in the absence of an
alternative,” however, “a Bivens remedy is a subject of
judgment: ‘the federal courts must make the kind of remedial
determination that is appropriate for a common-law tribunal,
paying particular heed, however, to any special factors
counselling hesitation before authorizing a new kind of
federal litigation.’” Id. (quoting Bush v. Lucas, 462 U.S. 367,
378 (1983)).

     Assuming (without deciding) there is no alternative
remedy here, we conclude plaintiffs’ would-be Bivens action
nonetheless fails at the second step of this analysis. As we
will explain, both the military context of plaintiffs’ claims and
Congress’s extensive legislation on this specific issue are
special factors that counsel decisively against authorizing a
Bivens remedy. 1

                                A

    The Supreme Court first addressed the availability of a
Bivens action in the military context in Chappell v. Wallace,
462 U.S. 296 (1983), a case in which enlisted Navy sailors
sued superior officers who had allegedly mistreated them on
the basis of race. The Court held that the plaintiffs could not

    1
       Given our conclusion that special factors preclude a Bivens
remedy, we need not address whether plaintiffs have adequately
alleged violations of the various constitutional provisions cited in
their complaint. See Ali v. Rumsfeld, 649 F.3d 762, 772-74 (D.C.
Cir. 2011) (declining to decide whether plaintiffs had adequately
alleged constitutional violations where special factors
independently foreclosed Bivens claims). For the same reason, we
need not address whether the defendants are protected by qualified
immunity.
                               8
seek damages under Bivens because “the unique disciplinary
structure of the Military Establishment and Congress’ activity
in the field” were “special factors” that cut squarely against
such liability. Id. at 304. “[T]he need for unhesitating and
decisive action by military officers and equally disciplined
responses by enlisted personnel,” the Court explained, “would
be undermined by a judicially created remedy exposing
officers to personal liability at the hands of those they are
charged to command.” Id. Moreover, Congress had “exercised
its plenary constitutional authority over the military” to
regulate military life and military justice in numerous
respects, but notably had “not provided a damages remedy for
claims by military personnel that constitutional rights have
been violated by superior officers.” Id. at 302, 304. For the
judiciary to imply such a remedy would therefore “be plainly
inconsistent with Congress’ authority in this field.” Id. at 304.

     The Court clarified just how little room Chappell left for
Bivens actions in the military context in United States v.
Stanley, 483 U.S. 669 (1987). Stanley, a former soldier,
alleged that the Army had surreptitiously given him doses of
LSD to study its effects on humans. Id. at 671. Rejecting
Stanley’s argument that Chappell should be limited to suits by
subordinates against superior officers in their direct chain of
command, the Court ruled that he could not bring a Bivens
action against the various federal officials involved in the
testing, both military and civilian. Id. at 679-84. Chappell, the
Court noted, had drawn support from a line of case law
precluding liability under the Federal Tort Claims Act
(FTCA) for injuries suffered in the course of military service.
Id. at 681-82; see also Feres v. United States, 340 U.S. 135,
146 (1950) (establishing the military exception to the FTCA).
Failing to 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,” the Court
                                  9
concluded that the same test should apply in both contexts.
Stanley, 483 U.S. at 681. Accordingly, it held “that no Bivens
remedy is available for injuries that ‘arise out of or are in the
course of activity incident to service.’” Id. at 684 (quoting
Feres, 340 U.S. at 146). 2

     Stanley thus frames the central inquiry in this case: Did
plaintiffs’ injuries arise out of activity incident to service?
Despite having been active-duty servicemembers at the time
of the attacks and retaliation, plaintiffs contend that their
injuries were not “incident to service.” According to
plaintiffs, “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.” Appellants’ Br. 25. And,
they say, it is inconceivable that they “were raped to advance
a military mission.” Id. at 27. The latter point is surely
correct, but the former—for which plaintiffs tellingly offer no
citation of supporting authority—is not, as United States v.
Shearer, 473 U.S. 52 (1985), illustrates.

     The plaintiff in Shearer was the mother of an Army
private who, while off-duty and off-base, was kidnapped and
murdered by another soldier. Id. at 53. Private Shearer’s
mother sued the United States under the FTCA, alleging that
the Army had known that the murderer was dangerous and yet
had negligently failed to exert proper control over him or to
warn others of the danger he posed. Id. at 53-54. Although the
murder of Private Shearer plainly did not advance any
military mission, the Supreme Court nonetheless held the
     2
      The Supreme Court did not itself apply this test to the facts of
Stanley’s suit. Instead, the Court noted that the Ninth Circuit had
already decided “[t]he issue of service incidence” against Stanley in
the course of dismissing the FTCA claim that he brought alongside
his Bivens claim, and that that ruling was not properly before the
Court. See Stanley, 483 U.S. at 680.
                               10
claim barred under the “incident to service” test. See id. at 57,
59. In so deciding, the key questions the Court asked were
“whether the suit requires the civilian court to second-guess
military decisions, and whether the suit might impair essential
military discipline.” Id. at 57 (citations omitted). Because the
plaintiff’s claim was framed in terms of the Army’s failure to
supervise and control the perpetrator, it “str[uck] at the core
of these concerns.” Id. at 58; see also id. (“This allegation
goes directly to the ‘management’ of the military; it calls into
question basic choices about the discipline, supervision, and
control of a serviceman.”).

     Shearer reveals that in deciding whether an injury is
“incident to service,” a court cannot focus narrowly on the
conduct that proximately caused the harm. Instead, the court
must take a broader view and examine the plaintiff’s theory of
the case. If adjudicating the case would require military
leaders to defend their professional management choices—“to
convince a civilian court of the wisdom of a wide range of
military and disciplinary decisions,” id.—then the claim is
barred by the “incident to service” test. Or, as the Fourth
Circuit recently put it in a case nearly identical to this one,
“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.’” Cioca v.
Rumsfeld, 720 F.3d 505, 515 (4th Cir. 2013) (alteration in
original) (quoting Stanley, 483 U.S. at 682).

    The district court ably explained how this proper
understanding of the test applies to plaintiffs’ case:

    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
                               11
    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. 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, plaintiffs have asked the
    Court to review a decade’s worth of military management
    decisions . . . .

Klay, 924 F. Supp. 2d at 18-19 (citations omitted). Plaintiffs’
suit invites a civilian court to adjudicate, for example,
whether it was proper for the defendants to permit felons to
serve in the military, commanders to use nonjudicial
punishment on offenders, offenders to be honorably
discharged, and military (rather than civilian) authorities to
investigate and prosecute sexual assaults. This is precisely the
kind of “judicial inquiry into, and hence intrusion upon,
military matters” that the Supreme Court disavowed in
Stanley. 483 U.S. at 682.

                               B

     Plaintiffs contend that at least some of the misconduct
they allege falls outside the logic of Stanley and Shearer:
namely, that the defendant Secretaries of Defense ignored
congressional mandates requiring the creation of a
commission to examine the military’s procedures for
investigating allegations of sexual misconduct and the
establishment of a centralized database of reported sexual
assaults in the military. Plaintiffs argue that adjudicating this
aspect of their suit would not entail impermissible judicial
intrusion upon the management of the military because
military leaders simply have no authority to violate statutory
directives. The court would not, in other words, be requiring
                              12
the defendants “to convince a civilian court of the wisdom” of
their decision, Shearer, 473 U.S. at 58, because no amount of
military wisdom can justify ignoring a valid congressional
mandate. Even if plaintiffs’ reasoning about the limits of
Stanley and Shearer has some force, we conclude nonetheless
that authorizing this Bivens action would be inappropriate.

     As we noted above, one of the special factors underlying
Chappell’s holding was “Congress’ activity in the field.” 462
U.S. at 304. If Congress has legislated pervasively on a
particular topic but has not authorized the sort of suit that a
plaintiff seeks to bring under Bivens, respect for the
separation of powers demands that courts hesitate to imply a
remedy. See id. at 302-04; Schweiker v. Chilicky, 487 U.S.
412, 423 (1988) (“[T]he concept of special factors . . . has
proved to include an appropriate judicial deference to
indications that congressional inaction has not been
inadvertent.” (internal quotation marks omitted)). Thus, in
Doe v. Rumsfeld, this court’s conclusion that the plaintiff
could not seek a Bivens remedy for alleged mistreatment
while in military detention rested in part on the fact that
recent relevant legislation, the Detainee Treatment Act of
2005, did not create a cause of action for injured detainees.
See 683 F.3d 390, 396-97 (D.C. Cir. 2012); see also Vance v.
Rumsfeld, 701 F.3d 193, 200-01 (7th Cir. 2012) (en banc)
(similar); Lebron v. Rumsfeld, 670 F.3d 540, 551-52 (4th Cir.
2012) (similar).

    The same separation-of-powers principle applies here.
Congress has been “no idle bystander to th[e] debate” about
sexual assault in the military. Lebron, 670 F.3d at 551. The
four most recent National Defense Authorization Acts have
each included numerous provisions aimed at combating this
scourge. See Pub. L. No. 113-66, §§ 1701-1753, 127 Stat.
672, 950-85 (2013); Pub. L. No. 112-239, §§ 570-579, 126
                               13
Stat. 1632, 1752-64 (2013); Pub. L. No. 112-81, §§ 581-586,
125 Stat. 1298, 1430-36 (2011); Pub. L. No. 111-383,
§§ 1601-1632, 124 Stat. 4137, 4429-36 (2011). The
Consolidated Appropriations Act of 2014 appropriated $25
million for the Department of Defense to implement a Sexual
Assault Special Victims Program. See Pub. L. No. 113-76,
§§ 8124-8125, 128 Stat. 5, 133-34 (2014). And Congress is
currently debating further legislation on the issue. See Victims
Protection Act of 2014, S. 1917, 113th Cong. (2014); Ed
O’Keefe, Senate Easily Passes McCaskill’s Military Sexual
Assault Bill, WASH. POST, 2014 WLNR 6542224 (Mar. 10,
2014). Crucially, none of these statutes—nor those the
defendants allegedly violated—authorizes a damages action
against the defendants. Cf. Vance, 701 F.3d at 201 (“These
statutes have one thing in common: none provides for
damages against military personnel or their civilian
superiors.”). Given that Congress is extensively engaged with
the problem of sexual assault in the military but has chosen
not to create such a cause of action, we decline to imply a
Bivens remedy here, even in the face of plaintiffs’ allegations
of statutory violations.

     Plaintiffs flip this separation-of-powers logic on its head,
contending that respect for Congress requires us to adjudicate
their claims. “[I]f the judiciary refuses to adjudicate any
claims alleging that the military ignored Congressional
mandates, the military enjoys the very type of power not
subject to checks and balances that the drafters of the
Constitution feared.” Appellants’ Br. 14. But our decision that
a Bivens action will not lie here hardly puts the military
beyond the reach of Congress. Plaintiffs are forced to rely on
Bivens because Congress has not authorized a cause of action
against these defendants for this alleged misconduct, not
because Congress cannot. Congress remains free to authorize
a damages action of the sort plaintiffs wish to pursue; if it
                               14
does, courts will be duty-bound to adjudicate those claims.
And contrary to plaintiffs’ counsel’s suggestion at oral
argument, see Oral Arg. Recording at 2:50-3:05, Congress
could even permit plaintiffs to sue in connection with their
past injuries. See INS v. St. Cyr, 533 U.S. 289, 316 (2001)
(“[I]t is beyond dispute that, within constitutional limits,
Congress has the power to enact laws with retrospective
effect.”); Landgraf v. USI Film Prods., 511 U.S. 244, 280
(1994) (contemplating statutes that “increase a party’s
liability for past conduct”). Far from requiring us to recognize
a Bivens remedy here, the separation of powers supports our
determination not to. See Stanley, 483 U.S. at 682 (“[T]he
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.”).

                               III

     In affirming the district court’s dismissal, we do not take
lightly the severity of plaintiffs’ suffering or the harm done by
sexual assault and retaliation in our military. But the existence
of grievous wrongs does not free the judiciary to authorize
any and all suits that might seem just. Our authority to permit
Bivens actions is narrow to start, and narrower in the military
context. We therefore join the Fourth Circuit in concluding
that no Bivens remedy is available here. See Cioca v.
Rumsfeld, 720 F.3d 505 (4th Cir. 2013). The judgment of the
district court is affirmed.
                               1

     GRIFFITH, Circuit Judge, concurring: I write separately to
address one of plaintiffs’ allegations that I believe warrants
brief discussion. Although we must generally assume the truth
of plaintiffs’ allegations given the procedural posture of this
case, we need not “accept as true the complaint’s factual
allegations insofar as they contradict exhibits to the complaint
or matters subject to judicial notice.” Kaempe v. Myers, 367
F.3d 958, 963 (D.C. Cir. 2004); see also Earle v. District of
Columbia, 707 F.3d 299, 308 n.10 (D.C. Cir. 2012)
(recognizing that “we may take judicial notice of statutes”).
Among other things, plaintiffs allege that defendant Donald
Rumsfeld “ignor[ed] Public Law 105-85, which required the
Secretary of Defense to establish a commission to investigate
policies and procedures with respect to the military
investigation of reports of sexual misconduct. Defendant
Rumsfeld . . . failed to appoint any members of the
commission.” First Am. Compl. ¶ 219.

     Public Law 105-85 was the National Defense
Authorization Act for Fiscal Year 1998, passed more than
three years before Rumsfeld became Secretary of Defense.
See Pub. L. No. 105-85, 111 Stat. 1629 (1997); First Am.
Compl. ¶ 183. Although the act could in theory have imposed
duties that eventually fell on Rumsfeld, I am unable to locate
any provision that meets the complaint’s description of the
obligation allegedly violated. (A more precise citation would
have been useful: Public Law 105-85 is 450 pages long.) The
provision that comes closest to fitting the complaint’s
description did not require the establishment (or staffing) of a
commission, but instead required the Secretary of Defense to
procure within one year, from a specified nonprofit
organization     (the    National    Academy       of    Public
Administration), an “independent study of the policies,
procedures, and practices of the military criminal
investigative organizations for the conduct of investigations
                                2
of complaints of sex crimes and other criminal sexual
misconduct arising in the Armed Forces.” Pub. L. No. 105-85,
§ 1072, 111 Stat. at 1898-99. Then-Secretary of Defense
William Cohen appears to have complied fully with this
directive. See NAT’L ACAD. OF PUB. ADMIN., ADAPTING
MILITARY SEX CRIME INVESTIGATIONS TO CHANGING TIMES
(1999) (resulting report). It is no small thing to allege that the
Secretary of Defense ignored an act of Congress, and I am
troubled by the possibility that plaintiffs’ counsel leveled this
charge without first carefully reading the act in question.
