Argued: June 16, 2016
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.
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.
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.
Curiae: Caitlin J. Halligan, Joel M. Cohen, Casey K.
Kathryn M. Cherry, Gibson, Dunn & Crutcher LLP, New York,
NY, for Amici Curiae Federal Courts and Constitutional Law
Professors, in support of Jane Doe.
W. Hughes, Travis Crum, Mayer Brown LLP, Washington, D.C.,
for Amici Curiae University Administrators, in support of
Penelope A. Preovolos, Ben Patterson, Morrison & Foerster
LLP, San Francisco, CA, for Amici Curiae Former Military
Officers, in support of Jane Doe.
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.
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.
ANN LIVINGSTON, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
April 26, 2013, Doe filed a complaint in the United States
District Court for the Southern District of New York
(Hellerstein, J.). 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
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
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.
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.
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).
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.
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.
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." 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,  and it has otherwise consistently declined
to broaden Bivens to permit new
claims. 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.
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.
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).
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. 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.
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.
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).
in considering whether Doe's injuries occurred
"incident to service, " we examine the specific
factual allegations that underlie her equal protection
claim.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 ...