THIS IS AN ADVERTISMENT

Military women sexually assaulted by colleagues find no recourse in civilian court

Affirming the dismissal of Constitutional claims by members of the U.S. Navy and Marine Corps against government officials based on the alleged rape and sexual assault they suffered at the hands of fellow service members, a D.C. Circuit panel concluded that they could not assert a Bivens action because the alleged misconduct was “incident to service,” and because Congress had legislated extensively on the issue but had not authorized this type of lawsuit (Klay v Panetta, July 18, 2014, Griffith). Twelve current and former members of the U.S. Navy and Marine Corps alleged that, during their service, eleven were either raped or sexually assaulted by fellow members of the armed services and another was the target of severe sexual harassment. As a result, the plaintiffs suffered from a range of serious physical and psychological injuries that were allegedly compounded by retaliation suffered when they reported what had happened to their superiors. For example, one plaintiff who served as a hospital corpsman was raped in the operating room. Although the attacker was convicted and sent to prison, the employee was no longer allowed to work in enclosed spaces with male colleagues. This was supposedly for her protection but it left her feeling ostracized by shipmates. She also began receiving negative performance reviews and was eventually told by her commander that it would be best for “morale” if she left the ship. She transferred to another duty station but the retaliation continued when her new chain of command learned about the rape and ongoing investigation. Lawsuit. The plaintiffs filed suit against nine defendants: the three most recent Secretaries of Defense, Secretaries of the Navy, and Commandants of the Marine Corps. They alleged that their injuries resulted from the acts and omissions of these defendants, who were 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 do so. They also identified practices by the defendants that contributed to the hostile environment, including granting “moral waivers” that let recruits with criminal convictions serve, allowing commanders to interfere in investigations, and allowing perpetrators to receive nonjudicial punishment and be honorably discharged. In addition, the plaintiffs alleged that the 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. However, the plaintiffs did not allege the misconduct ran afoul of a federal statute authorizing them to recover damages. Instead, they alleged violations of their 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. Dismissing their suit, the district court concluded that it lacked the power to provide the remedy sought because their 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.” Bivens actions. Affirming, the D.C. Circuit panel explained the history of Bivens, which recognized an implied private cause of action for damages against federal officials who violate the Fourth Amendment. The appeals court noted that there has been an unwillingness to extend Bivens liability to new categories of defendants and noted that this unwillingness derives from the High Court’s shift toward disfavoring judicially implied causes of action generally. That said, the court described the two-step analysis for determining if a Bivens remedy is available. First, courts ask if any alternative remedy exists to protect the interest and, if not, courts make a remedial determination and evaluate whether any special factors counsel hesitation before authorizing a new kind of federal litigation. Here, the appeals court assumed that there is not alternative remedy for the plaintiffs here and concluded that their would-be Bivens action nonetheless failed at the second step of the analysis. Specifically, both the military context of the claims and Congress’s extensive legislation on this specific issue counseled decisively against authorizing the Bivens remedy. “Incident to service.” Pointing to the Supreme Court’s decision in United States v Stanley, the appellate panel explained that no Bivens remedy is available for injuries that “arise out of or are in the course of activity incident to service.” Here, while the plaintiffs correctly argued that it was inconceivable that they were assaulted “to advance a military mission,” that was not the key inquiry. Instead, courts ask whether the suit requires a civilian court to second-guess military decisions and whether the suit might impair essential military discipline. The court does not focus narrowly on the conduct that proximately caused the harm but rather takes a broader view. “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,’ — then the claim is barred by the “incident to service’ test.” Here, the 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,” stated the appeals court. Congress’ activity in the field. Also of significance was the fact that Congress has legislated pervasively in the field; it “has been ‘no idle bystander to th[e] debate’ about sexual assault in the military,” wrote the court. The appeals court pointed to the four most recent National Defense Authorization Acts, which included numerous provisions aimed at combating the issue. “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.” – See more at: http://www.employmentlawdaily.com/index.php/news/military-women-sexually-assaulted-by-colleagues-find-no-recourse-in-civilian-court/#sthash.1cUxTS8i.dpuf
By Lorene D. Park, J.D.