Court Rejects Suit From Military Rape Victims

     (CN) – Survivors of rape in the military cannot sue the former Defense Department secretaries for contributing to “a military culture of tolerance for the sexual crimes,” the 4th Circuit ruled.
     Kori Cioca had led 27 other service members, both men and women, in a complaint against Donald Rumsfeld and Robert Gates that detailed their sexual assaults at the hands of other military personnel and their “often unsuccessful attempts to prosecute those responsible,” according to the ruling.
     The plaintiffs alleged violations of due process, equal protection and free speech. They sought money damages pursuant to the Supreme Court’s 1971 decision in Bivens v. Six Unknown Agents of Federal Bureau of Narcotics.
     Their complaint, which was brought by 17 veterans in 2011, accused the former Defense secretaries of having failed “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 by Congressional deadlines to implement Congressionally-ordered institutional reforms to stop rapes and other sexual assaults.”
     U.S. District Judge Liam O’Grady dismissed the case, however, noting that “this is precisely the forum in which the Supreme Court has counseled against the exercise of judicial authority.”
     A three-judge panel of the 4th Circuit affirmed Tuesday.
     “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,” Judge Steven Agee wrote for the Richmond, Va.-based panel.
     Bivens remedies have been made available only for violations of the Fourth Amendment by law-enforcement officers, a congressman’s due-process violations, and the Eighth Amendment violations of prison officials.
     The Supreme Court has explicitly declined to extend Bivens to military cases, the appellate panel noted.
     In Chappell v. Wallace, the Supreme 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,'” Appel wrote.
     Reaffirming Chappell in 1987 in Stanley v. United States, the high court denied relief to a man who was the involuntary victim of Army LSD experiments.
     Appel summarized the Supreme Court’s holdings: “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.”
     Because the injuries alleged “clearly ‘arise out of or are in the course of activity incident to service,” the case should be dismissed, according to the 30-page opinion.
     The 4th Circuit noted that almost any injuries “that stem from the relationship between the plaintiff and the plaintiff’s service in the military” are incident to military service.
     “Plaintiffs’ allegations directly challenge the ‘wisdom of a wide range of military and disciplinary decisions,’ and each directly challenge the decisions made within the ultimate chain of military command,” Appel wrote.
     “Allowing the suit … 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 member.'”
     Congress, rather than the courts, must make the decision to create a cause of action for injuries arising out of military service, the judges added.
     “We do not downplay the severity of plaintiffs’ allegations or otherwise imply that the conduct alleged in plaintiffs’ complaint is permissible or acceptable,” Appel wrote. “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.”
     In a footnote, the 4th Circuit also expressed “serious doubts” about the standing of two of the plaintiffs who allege injuries arising out of their service with the Coast Guard. Because the Coast Guard is a service within the Department of Homeland Security, the plaintiffs may be unable to sue the Department of Defense.
     A federal judge in Washington, D.C., dismissed a similar complaint brought by allegedly sexually abused veterans earlier this year. Similar claims are also pending in San Francisco and other jurisdictions across the nation.

%d bloggers like this: