Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doe v. Hagenbeck

United States Court of Appeals, Second Circuit

August 30, 2017

Jane Doe, Plaintiff-Appellee,
v.
Lt. Gen. Franklin Lee Hagenbeck, Brig. Gen. William E. Rapp, Defendants-Appellants, United States of America, Defendant.

          Argued: June 16, 2016

         Appeal from an April 13, 2015 order of the United States District Court for the Southern District of New York (Hellerstein, J.), granting in part and denying in part Defendants' motion to dismiss. Plaintiff-Appellee Jane Doe - a former West Point cadet who alleges that she was sexually assaulted by another cadet - brought a Bivens action against two superior officers at West Point, Defendants-Appellants Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities, for alleged violation of her Fifth Amendment right to equal protection. Because adjudicating Doe's claim would require judicial interference into a wide range of military functions (including the training, supervision, discipline, education, and command of service personnel at West Point), triggering the incident-to-service rule, we conclude that there is no Bivens remedy available in this context. Accordingly, the order of the district court is REVERSED, and the case is REMANDED with instructions to dismiss.

          For Plaintiff-Appellee: Rebecca Ojserkis, Jonas Wang, Erin Baldwin, Kathryn Wynbrandt, Bethany Li, Michael J. Wishnie, Veteran Legal Services Clinic, Jerome M. Frank Legal Services Organization, Yale Law School, New Haven, CT, for Jane Doe.

          For Defendants-Appellants: Christopher Connolly, Benjamin H. Torrance, Assistant United States Attorneys, New York, NY, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, for Lt. Gen. Franklin Lee Hagenbeck and Brig. Gen. William E. Rapp.

          Amici Curiae: Caitlin J. Halligan, Joel M. Cohen, Casey K.

          Lee, Kathryn M. Cherry, Gibson, Dunn & Crutcher LLP, New York, NY, for Amici Curiae Federal Courts and Constitutional Law Professors, in support of Jane Doe.

          Paul W. Hughes, Travis Crum, Mayer Brown LLP, Washington, D.C., for Amici Curiae University Administrators, in support of Jane Doe.

          Penelope A. Preovolos, Ben Patterson, Morrison & Foerster LLP, San Francisco, CA, for Amici Curiae Former Military Officers, in support of Jane Doe.

          John D. Niles, James Anglin Flynn, Covington & Burling LLP, Washington, D.C., for Amici Curiae National Veterans Legal Services Program, Protect Our Defenders, Service Women's Action Network, in support of Jane Doe.

          Sandra S. Park, Steven Watt, Lenora M. Lapidus, American Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union, American Association of University Women, Human Rights and Gender Justice Clinic at the City University of New York School of Law, Human Rights Watch, National Alliance to End Sexual Violence, National Center on Domestic and Sexual Violence, National Women's Law Center, in support of Jane Doe.

          Before: Wesley, Livingston, and Chin, Circuit Judges.

          DEBRA ANN LIVINGSTON, CIRCUIT JUDGE.

         Jane Doe is a former United States Military Academy ("West Point") cadet who alleges that during her second year at West Point, she was sexually assaulted by a fellow cadet. She filed this lawsuit not against the cadet, but against two superior officers, Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities. Lieutenant General Hagenbeck was Superintendent of West Point from approximately July 2006 to July 2010, and in that role he chaired the Sexual Assault Review Board, which is the "primary means of oversight" of the sexual assault prevention and response program at West Point. Joint App'x 12. Brigadier General Rapp was Commandant of Cadets at West Point from 2009 to 2011 and was in charge of the administration and training of cadets. Doe alleges, in substance, that Lieutenant General Hagenbeck and Brigadier General Rapp "perpetrat[ed] a sexually aggressive culture" at West Point that "discriminated against female cadets, " "put female cadets at risk of violent harm, " and resulted, inter alia, in her sexual assault. Id. at 29.

         In 2013, Doe filed suit against the United States, Lieutenant General Hagenbeck, and Brigadier General Rapp. She pleaded four causes of action, but the district court dismissed all but one: a claim against Lieutenant General Hagenbeck and Brigadier General Rapp brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on the basis of their alleged violation of equal protection rights protected by the Fifth Amendment. For the reasons stated below, we conclude that the district court erred in permitting this Bivens claim to proceed. We therefore REVERSE the order of the district court as to this claim and REMAND the case to the district court with instructions to dismiss it.

         BACKGROUND

         I. Factual Allegations[1]

         Doe, who graduated from high school in 2008, received an offer of admission to West Point during her senior year, which she accepted. As a West Point cadet, Doe was a member of the Army. 10 U.S.C. § 3075(b)(2). The expectation upon enrollment was that, following her military training and education at West Point - which, together with room and board, Doe received without charge - she would serve at least five years of active duty. The West Point curriculum, as Doe alleges in her Amended Complaint, "is designed to train 'officer-leaders of character to serve the Army and the Nation.'" Joint App'x 13.

         Upon arrival at West Point, Doe, who was one of about 200 women among the approximately 1, 300 cadets in her class, alleges that she encountered what she describes as a "male" and "misogynistic culture." Id. at 14, 15. Cadets, for example, sang sexually explicit and offensive chants while marching on campus, "in view and earshot of faculty and administrators." Id. at 16. Doe contends that she "observed her cadet classmates making misogynistic and sexually aggressive comments on a regular basis, " while "[t]he West Point administration frequently ignored and sometimes condoned these comments." Id. at 15. Doe does not allege that Lieutenant General Hagenbeck or Brigadier General Rapp engaged in any such conduct, but she does contend that they "created" the culture there, which "marginalized" Doe and other female cadets and "caused them to be subjected to routine harassment, [to] suffer emotional distress and other harms, and [to] be pressured to conform to male norms." Id. Doe also maintains that West Point's training on sexual assault and harassment was inadequate "and did little to combat the overwhelmingly misogynistic culture of the school." Id. at 17.

         In the early morning of May 9, 2010, during her second year at West Point, Doe alleges that she was raped by a fellow cadet with whom she had gone walking after hours. In particular, Doe asserts that after taking a prescribed sedative as she was preparing for bed, she agreed at about 1:00 a.m. to leave her dormitory with this cadet (identified by Doe in her Amended Complaint only as "Mr. Smith" ("Smith")) in violation of West Point rules. Doe alleges that she accepted only a few sips of alcohol from Smith but that, as a result of the combined effects of the sedative and the alcohol, she "began to lose awareness of her surroundings and consciousness of what she was doing." Id. at 22. Doe contends that Smith "was aware that [she] had lost consciousness and took advantage, " attacking her and having "forcible, non-consensual intercourse with her." Id. She also maintains that she does not remember the details of the attack.

         Doe sought care from West Point's cadet health clinic the next day, which provided her with emergency contraception and, on a subsequent visit on or about May 11, tested her for sexually-transmitted diseases. Although the treating nurse allegedly informed Doe that she had signs of vaginal tearing, and the medical record indicates Doe reported that she "was sexually assaulted by a friend, " Doe states that the clinic "did not perform any forensic collection or preservation of evidence of the sexual assault." Id. at 23. During a regular appointment with her psychiatrist that day (a psychiatrist Doe began consulting, she alleges, because of the significant stress she suffered due to West Point's oppressive atmosphere), Doe reported "nonconsensual sexual relations with a friend, " and was referred to West Point's Sexual Assault Response Counselor, Major Maria Burger. Id.

         Doe met only once with Major Burger. During that meeting, the major explained to Doe that she could file either an "unrestricted" or a "restricted" report about the incident. Id. An unrestricted report would have included both Doe's and her alleged assailant's names and would have been given to commanders for potential disciplinary action. A restricted report would preserve their anonymity, but would not result in a referral. Doe filed a restricted report. She alleges in her Amended Complaint that she feared reputational harm or even retaliation from other cadets if she filed an unrestricted report. She also worried that she would be punished for having been out after hours and for consuming alcohol with her alleged assailant, and that an unrestricted report would damage her career prospects because "[i]t was common knowledge among the cadets that successful women in the military did not report incidents of sexual assault." Id.

         Doe contends that in the aftermath of the sexual assault, her anxiety grew intolerable. Doe informed West Point that she would resign, and on August 13, 2010, she was honorably discharged. Doe thereafter enrolled in a civilian college from which she earned a degree.

         II. Procedural History

         On April 26, 2013, Doe filed a complaint in the United States District Court for the Southern District of New York (Hellerstein, J.).[2] On September 4, 2013, she filed an Amended Complaint. Therein, Doe pleaded four independent causes of action: (1) a Bivens claim based on an alleged Fifth Amendment due process violation against Lieutenant General Hagenbeck and Brigadier General Rapp; (2) a Bivens claim premised on an alleged Fifth Amendment equal protection violation against Lieutenant General Hagenbeck and Brigadier General Rapp; (3) a claim for breach of the covenant of good faith and fair dealing under 28 U.S.C. § 1346(a)(2) (the "Little Tucker Act") against the United States; and (4) a Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671- 2680, claim against the United States alleging negligent supervision, negligent training, negligence, negligent infliction of emotional distress, and abuse of process.

         On September 20, 2013, defendants filed a motion to dismiss the Amended Complaint, which Doe opposed. On April 13, 2015, the district court issued an opinion and order granting in part and denying in part defendants' motion. The district court granted defendants' motion as to the two claims against the United States: the Little Tucker Act claim and the FTCA claim. The district court also dismissed Doe's Bivens claim asserting a violation of her due process rights. These claims are not at issue in this interlocutory appeal.

         The district court denied the motion to dismiss as to the Bivens claim in which Doe asserted that Lieutenant General Hagenbeck and Brigadier General Rapp violated her equal protection rights. The district court acknowledged that a Bivens remedy is not available "when 'special factors counselling hesitation' are present, " Chappell v. Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens, 403 U.S. at 396). It recognized that absent Congressional authorization for a money damages claim, "[t]he need to insulate the military's disciplinary structure from judicial inquiry" constitutes a special factor. Doe v. Hagenbeck, 98 F.Supp.3d 672, 684 (S.D.N.Y. 2015). Further, the court acknowledged the Supreme Court's instruction, in United States v. Stanley, that in the military context, the special factors requiring abstention "extend [even] beyond the situation in which an officer-subordinate relationship exists, and require abstention in the inferring of Bivens actions as extensive as the exception to the FTCA" established in Feres v. United States, 340 U.S. 135 (1950), Stanley, 483 U.S. 669, 683-84 (1987). In the district court's view, however, "the primary reason for exercising judicial restraint with cases concerning the military is 'the need to preserve the military disciplinary structure and prevent judicial involvement in sensitive military matters.'" Doe, 98 F.Supp.3d at 688 (quoting Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996)). The district court concluded that Doe's claim, at least at the motion to dismiss stage, did not implicate such concerns.

         Following the district court's opinion, Lieutenant General Hagenbeck and Brigadier General Rapp filed a notice of interlocutory appeal and moved for a stay pending the appeal. In response, Doe argued that any appeal should be pursued in the Federal Circuit instead of in the Second Circuit. The district court granted the stay until August 7, 2015, "and such further period as the U.S. Court of Appeals shall determine." Joint App'x 9. The district court also "note[d] Plaintiff's position that any appeal should be pursued in the Federal Circuit[] instead of the Second Circuit" and "le[ft] that determination for the appellate courts." Id. A panel of this Court thereafter granted defendants' motion to stay the proceedings before the district court and denied Doe's motion to transfer venue.

         DISCUSSION

         Doe's equal protection claim is based on the proposition that Lieutenant General Hagenbeck and Brigadier General Rapp, her superior officers at the time, "knowingly and intentionally created and enforced a policy and practice" at West Point that "discriminated against female cadets, " "tolerated attacks against [them] and discouraged reporting, " and promoted a "sexually aggressive culture" there that caused Doe to suffer, inter alia, a sexual assault. Joint App'x 29. The district court denied defendants' motion to dismiss this claim, concluding it should be permitted to proceed "unless it is evident from the complaint, or shown by an answer and subsequent proofs, that military discipline or its command structure is compromised." Doe, 98 F.Supp.3d at 689. We review the district court's determination de novo. Warney v. Monroe Cty., 587 F.3d 113, 120 (2d Cir. 2009).

         In reviewing the denial of a motion to dismiss, we assume that the allegations in Doe's Amended Complaint are true and draw all reasonable inferences from those allegations in her favor. Starr Int'l Co. v. Fed. Reserve Bank, 742 F.3d 37, 40 (2d Cir. 2014). Assuming their truth, Doe's allegations of harassment and abuse are no credit to West Point, an institution founded, as Doe alleges, "to train 'officer-leaders of character to serve the Army and the Nation.'" Joint App'x 13. But this neither does nor should end the judicial inquiry into whether Doe's Bivens claim may proceed.

         Doe seeks to hold her superior officers personally liable for money damages in connection with their decisions regarding the training, supervision, discipline, education, and command of service personnel at West Point, an officer training school and military base. But Congress, "the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy" for the constitutional claim that Doe asserts. Chappell, 462 U.S. at 304. The Supreme Court, citing the "inescapable demands of military discipline . . . [that] cannot be taught on battlefields, " id. at 300, has held, unanimously, that absent Congressional authorization, "it would be inappropriate [for courts] to provide enlisted military personnel a Bivens-type remedy against their superior officers." Id. at 304; see also id. at 305 (holding that "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations"). We conclude that Chappell and its progeny are dispositive of Doe's Bivens claim and, accordingly, that the district court erred in determining that Doe's Bivens claim may proceed.

         I

         We start with Bivens itself. In Bivens, the Supreme Court permitted the plaintiff, who alleged that he had been subjected to an unlawful, warrantless search of his home and to an unlawful arrest, to proceed with a Fourth Amendment damages claim against allegedly errant federal law enforcement agents, despite the fact that Congress had not provided for such a remedy. 403 U.S. at 389, 395-97. Although the Bivens Court permitted this damages claim to proceed, it signaled, as the Court has repeatedly cautioned since, that "such a remedy will not be available when 'special factors counselling hesitation' are present."[3] Chappell, 462 U.S. at 298 (quoting Bivens, 403 U.S. at 396). The Court has since made clear that it is "reluctant to extend Bivens liability 'to any new context or new category of defendants.'" Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). In the forty-six years since Bivens was decided, the Supreme Court has extended the precedent's reach only twice, [4] and it has otherwise consistently declined to broaden Bivens to permit new claims.[5] See Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (observing that "the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity, " and collecting cases in which the Supreme Court has refused to do so (quoting Iqbal, 556 U.S. at 675)). Indeed, noting that "it is a significant step under separation-of-powers principles for a court to determine that it has the authority, " in effect, "to create and enforce a cause of action for [money] damages against federal officials, " the Court only recently observed that "it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today." Id. at 1856.

         The Supreme Court's separation-of-powers concern with implied causes of action under the Constitution, present in all cases in which plaintiffs have sought to extend Bivens's reach, is particularly acute in the military context. In Chappell, the Supreme Court held that special factors counselled against permitting the plaintiffs - enlisted Navy sailors who alleged that superior officers had discriminated against them on the basis of race - to maintain Bivens money damage claims. 462 U.S. at 297, 304. Referencing the "centuries of experience" reflected in the military's "hierarchical structure of discipline and obedience to command, " a structure "wholly different from civilian patterns, " id. at 300, the Court concluded that civilian courts, not responsible for the lives of soldiers and "ill-equipped to determine the impact upon discipline" of their intrusions, id. at 305 (quoting Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 187 (1962)), must "hesitate long" before entertaining suits which ask courts to "tamper with the established relationship between enlisted military personnel and their superior officers, " id. at 300. Congress, the Court unanimously said, has "plenary control over rights, duties, and responsibilities in the framework of the [m]ilitary [e]stablishment, including regulations, procedures and remedies related to military discipline." Id. at 301. In the absence of Congressional action, the Court concluded, "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations." Id. at 305.

         The Supreme Court was, if anything, even more emphatic in Stanley. The Court ruled there that the plaintiff - a former soldier alleging that the Army had secretly given him doses of LSD to study the drug's effects - could not maintain a Bivens action, even though at least some of the defendants in the case were not Stanley's superior military officers (thus not directly implicating Chappell's chain-of-command concerns) and "may well have been civilian personnel." 483 U.S. at 679; see id. at 671, 680-84. Citing by way of analogy to its decision in Feres, which established that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service, " 340 U.S. at 146, the Stanley Court explained that there is no "reason why [its] judgment in the Bivens context should be any less protective of military concerns than it has been with respect to FTCA suits, where [it] adopted [the] 'incident to service' rule, " 483 U.S. at 681. The Court thus concluded - in sweeping language - that in the military context, even where no "officer-subordinate relationship exists, " the reach of the special factors counselling "abstention in the inferring of Bivens actions" is "as extensive as the exception to the FTCA established by Feres." Id. at 683-84. Accordingly, pursuant to the incident-to-service rule, "no Bivens remedy is available for injuries that 'arise out of or are in the course of activity incident to service.'" Id. at 684 (quoting Feres, 340 U.S. at 146).

         II

         This Supreme Court precedent frames our inquiry and leads ineluctably to the conclusion that Doe cannot maintain her Bivens claim. Doe was a member of the military at the time the events giving rise to her claim occurred, and the claim concerns superior officers. Further, her claim calls into question "basic choices about the discipline, supervision, and control" of service personnel and would "require[ ] the civilian court to second-guess military decisions, " thus triggering the incident-to-service rule.[6] United States v. Shearer, 473 U.S. 52, 57- 58 (1985) (noting that allegations "go[ing] directly to the 'management' of the military" that "might impair essential military discipline" lie at the "core" of rule's concerns). In such circumstances, her Bivens claim must be dismissed.

         At the start, by statute, a West Point cadet is a member of the military. "The Regular Army is [a] component of the Army" and "includes . . . cadets of the United States Military Academy, " 10 U.S.C. § 3075, who swear an oath to "at all times obey the legal orders of [their] superior officers, and the Uniform Code of Military Justice, " id. § 4346(d). For this reason, in the context of the FTCA, courts citing Feres have reliably applied the doctrine of intramilitary immunity to bar suits brought by service academy cadets whenever such suits implicate the incident-to-service rule. See, e.g., Miller v. United States, 42 F.3d 297, 301, 308 (5th Cir. 1995); Collins v. United States, 642 F.2d 217, 218 (7th Cir. 1981). This Circuit, moreover, has recognized that the rule also applies in the context of suits brought by students who are part of the Reserve Officer Training Corps at nonmilitary schools. See Wake, 89 F.3d at 55, 58-59, 62.

         Next, Doe's alleged injuries clearly are covered by the Supreme Court's holding in Stanley that "no Bivens remedy is available for injuries that 'arise out of or are in the course of activity incident to service.'" 483 U.S. at 684 (quoting Feres, 340 U.S. at 146). As the Supreme Court recognized in Shearer when applying the incident-to-service rule, when a claim on its face "requires the civilian court to second-guess military decisions, " and when the complaint, fairly read, calls into question "the 'management' of the military" - that is, "basic choices about the discipline, supervision, and control" of service personnel - we are "at the core" of the rule's concerns. 473 U.S. at 57-58. In such circumstances, we do not inquire into "the extent to which particular suits would call into question military discipline and decisionmaking." Stanley, 483 U.S. at 682. Instead, such cases "require abstention, " id. at 683, so as to avoid interference with "the necessarily unique structure of the military establishment" and to defer to the Framers who, "well aware of the differences between [military] and civilian life" and cognizant of the issues that might in future arise, granted "plenary authority to Congress . . . '[t]o make Rules for the Government and Regulation of the land and naval Forces, '" Chappell, 462 U.S. at 300-01 (emphasis added) (quoting U.S. Const. art. 1, § 8, cl. 14).

         Here, in considering whether Doe's injuries occurred "incident to service, " we examine the specific factual allegations that underlie her equal protection claim.[7]See Klay v. Panetta, 758 F.3d 369, 375 (D.C. Cir. 2014) (noting that the incident-to-service rule bars Bivens claims when litigating "the plaintiff's theory of the case" would, in effect, "require military leaders to defend their professional management choices"). The allegations in Doe's Amended Complaint do not merely invite, but require a most wide-ranging inquiry into the commands of Lieutenant General Hagenbeck and Brigadier General Rapp. Specifically, as they relate to these defendants' conduct, Doe's allegations center on the implementation and supervision of allegedly inadequate and harmful training and education programs relating to sexual assault and harassment; on the alleged failure to provide properly both for the report and investigation of sexual assault claims, and for the support of cadets who are assaulted; on the alleged lack of sufficient numbers of female faculty and administrators at West Point and on the failure to recruit female cadets; on the allegedly inadequate punishment meted out not only to perpetrators of sexual violence but also to those who engage in misogynistic chants, slurs and comments; and, most broadly, on the assertedly culpable tolerance of a hostile culture toward women at West Point. Adjudicating such a money damages claim would require a civilian court to engage in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.