Late last week, the Second Circuit issued a long-awaited opinion in Doe v. Hagenbeck. The case deals with myriad claims brought forward by a former West Point Cadet, Jane Doe, against Lt. Gen. Franklin Lee Hagenbeck and Brig. Gen. William E. Rapp, the superintendent and commandant of cadets, respectively, of the United States Military Academy at West Point. The claims stem from Jane Doe’s rape by an older male cadet, the school’s handling of the incident, and allegations of a sexually discriminatory atmosphere at the prestigious institution in upstate New York. At trial, the government, representing Hagenbeck and Rapp, filed for dismissal of all claims. One survived the motion to dismiss: Doe’s Equal Protection claim. The government appealed that decision by Judge Alvin Hellerstein of the Southern District of New York. More than two years after the trial court’s orders were issued, the Second Circuit reversed the decision, saying that such claims are in fact barred under the Feres doctrine.

As the problem of sexual assaults in the military—against both men and women—continues to gain national prominence, the Doe case is timely and consequential. The Second Circuit’s decision is, broadly speaking, a body-blow to military victims of sexual assault, but the ruling itself is worth teasing out.

Background

Doe’s Alleged Rape

Doe was a West Point cadet who matriculated into the venerated academy in 2008. She said that she was raped in her first year. A male upperclassman offered her alcohol, she said, which she drank after she ingested a medically prescribed sedative. She lost consciousness soon after, she later said. Per her complaint:

He attacked Ms. Doe and had forcible, non-consensual intercourse with her. Ms. Doe remembers lying on the concrete floor of a boiler room, not understanding what was going on. She does not remember the details of the attack. Ms. Doe woke up a few hours later in her bed, on or about the morning of May 9, 2010, with dirt on her clothes and hair, bruises on her lower back, and blood between her legs. Ms. Doe was confused and alarmed. She confided in a friend, who advised her to obtain emergency contraception.

After taking the contraceptive, Doe was tested for sexually transmitted diseases and had a vaginal examination, which showed signs of tearing, though the clinic “did not conduct a forensic examination to collect evidence (as is required by DOD regulations).”

University Atmosphere

Hagenbeck and Rapp enter the legal picture in relation to the academy’s allegedly discriminatory and misogynistic atmosphere. As the ACLU amici stated, Hagenbeck and Rapp’s failure to uphold their duty to protect female cadets “caused them to be subjected to routine harassment, suffer emotional distress and other harms, and be pressured to conform to male norms.” Beyond the scores of inappropriate and sexual songs and comments made by cadets and faculty alike, myriad statistics from the Defense Department’s Sexual Assault Prevention and Response Annual Report on Sexual Harassment and Violence at the Military Service Academies for 2010-2011 support Doe’s claim. What’s more, the report shows that the lion’s share of women who choose not to report sexual assault do so out of fear of damage to their reputation or standing at the school.

Doe put forth causes of action under the Federal Tort Claims Act (FTCA), the Tucker Act, and the Fifth Amendment’s Due Process clause and its Equal Protection clause.

Trial Court Decision

Due Process Claim – Dismissed

According to Bivens v. Six Unknown Fed. Narcotics Agents, “[w]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” In Davis v. Passman, the Supreme Court extended Bivens claims to alleged violations of the Fifth Amendment’s Due Process clause. But such a claim requires the defendant’s action be a proximate cause of the plaintiff’s alleged injury. Judge Hellerstein held “that the[] allegations fail to show a plausible and sufficient factual nexus to show proximate cause for the relief [Doe] seeks, and that this portion of her complaint should be dismissed.”

Federal Torts Claim Act Claim – Dismissed

The Federal Torts Claim Act claim was barred because, while the act provides a private right of action to private citizens injured by a government agent acting within the scope of his or her employment, there is an exemption under 28 U.S.C. § 2680(a) for those “perform[ing] a discretionary function,” meaning those whose work has discretion built in, such as those choosing the details of how to implement a general policy. Hagenbeck and Rapp fit under that shield, Judge Hellerstein ruled in dismissing Doe's claim.

Little Tucker Act Claim – Dismissed

The “Little Tucker” Act, codified at 28 U.S.C. § 1346(a)(2), permits district courts concurrent jurisdiction with the U.S. Federal Court of Claims for recovery of moneys due under $10,000 based “upon any express or implied contract with the United States.” By taking an oath of allegiance upon enrollment, Doe claimed to have created such a contract. Judge Hellerstein concluded that “because the United States performed the services it agreed to perform,” namely permitting her to enroll in the military academy and providing her “an education, room, and board,” Doe’s contract was met.

Equal Protection Claim – Upheld

In Hellerstein’s words, “Doe’s equal protection claim is different.”

To understand why, we must first do a bit of background study into the Feres doctrine. The doctrine stems from Feres v. United States; in that case, the court concluded that, while the Federal Tort Claims Act opens the government up to “liability under circumstances that would bring private liability into existence . . . the Government is not liable under the Federal Tort Claims Act to recover money damages for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” According to Professor Paul Figley, “[w]hether Feres applies to a particular claim turns on whether the injury arose incident to military service.” Historically, the doctrine has been applied to foreclose the vast majority of military sexual assault cases. For example, the Sixth, Tenth, Eighth, Third, Seventh, Ninth, Fourth and D.C. Circuits have barred analogous claims by similarly situated litigants, as have a host of trial courts.

But Judge Hellerstein felt that this case presented a novel problem.

Quoting Justice Ruth Bader Ginsberg’s opinion in United States v. Virginia, the court concluded that “Doe’s equal protection claim is that she was denied her constitutionally-protected right to an ‘equal opportunity to aspire, achieve, participate in and contribute to society based on [her] individual talents and capacities.’ ” Given the substantial evidence Doe marshaled regarding the distinct treatment of male and female cadets at West Point, Doe sufficiently stated a cause of action: presuming Doe’s allegations true, “Hagenbeck and Rapp were indifferent to their constitutional and statutory obligations to foster equal conditions and equal protection between male and female cadets.” Subsequently, Judge Hellerstein concluded that Doe’s “equal protection claim . . . has sufficient legal basis to withstand Defendants’ motion to dismiss.”

Appellate Decision

Put simply, Judges Debra Ann Livingston and Richard Wesley disagreed with the district court, and they reversed and remanded the case. Judge Denny Chin, on the other hand, dissented.

Majority Opinion

The majority opinion rested primarily on Chappell v. Wallace, United States v. Shearer and United States v. Stanley, three of Feres’ progeny cases. In Chappell, enlisted Navy sailors sued the government for allegedly discriminatory practices within the context of their performance reviews. Quoting Bivens, the Supreme Court stated in Chappell its reluctance to permit a Bivens-esque case to proceed when “‘special factors counselling hesitation’ are present.” Two such factors were present in Chappell: first, Congress’s decision not to specifically include military action in drafting the Federal Tort Claims Act—what Feres rested on—despite its explicit constitutional authority over the military. Second, “[t]he special nature of military life – the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel – would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command.” Shearer buttressed the incident-to-service rule and extended this reasoning to any “allegation [that] goes directly to the ‘management’ of the military [calling] into question basic choices about the discipline, supervision, and control of a serviceman.” Stanley reaffirmed this principle, stating that such allegations “require abstention.”

The majority of the panel felt that this framework and precedent “lead ineluctably to the conclusion that Doe cannot maintain her Bivens claim.”

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. . . . Adjudicating such a money damages claim would require a civilian court to engage in searching fact‐finding about Lieutenant General Hagenbeck and Brigadier General Rapp’s “basic choices about the discipline, supervision, and control” of the cadets that they were responsible for training as future officers. Shearer, 473 U.S. at 58. In such circumstances, we conclude that Chappell and Stanley squarely foreclose Doe’s Bivens claim.

What’s more, as stated earlier, this conclusion was consistent with recent decisions of other circuits.

The majority then addresses each of the nuances of Doe’s argument. First, regarding Doe’s reliance on U.S. v. Virginia (commonly known as “VMI”), Judge Livingston, writing for Judge Wesley, states that “VMI is simply not germane to the remedial inquiry”; Hagenbeck and Rapp aren’t moving to dismiss the case based on equal protection defenses but, rather, are arguing only that “the remedy of money damages is unavailable to members of the armed services for violations of those rights where Congress has not acted and the incident‐to‐service rule is satisfied.” Thus, VMI is inapposite. (This is bolstered by the fact that Chappell was also an Equal Protection claim.)

Finally, Judge Livingston discards Doe’s argument that what occurred was not incident to service under the Second Circuit precedent of Taber v. Maine. In Taber, two off-duty servicemen collided in an automobile accident; Judge Calabersi wrote that despite the conclusion of the case, Feres is guiding precedent when adjudication requires “ ‘commanding officers . . . to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions.’ ” Livingston and Wesley thought that “[t]his is precisely the problem with Doe’s claim,” compelling the claim’s dismissal.

Dissenting Opinion

Judge Chin dissented, resting on Taber and the idea that the conduct in question:

did not arise ‘incident to military service.’ When she was subjected to a pattern of discrimination, and when she was raped, she was not in military combat or acting as a soldier or performing military service. Rather, she was simply a student, and her injuries were incident only to her status as a student. When she was raped, she was taking a walk on a college campus with another student, someone she thought was a friend. The actions and decisions she now challenges had nothing to do with military discipline and command; instead, she seeks recourse for injuries caused by purported failures on the part of school administrators acting in an academic capacity overseeing a learning environment for students.

Chin first looks at Equal Protection claims in education more broadly: not only does the clause protect people with respect to admittance and matriculation “but,” citing the Supreme Court’s 2008 opinion in Fitzgerald v. Barnstable School Committee, “to the continued treatment of students after they have been admitted.” Given that Equal Protection “principles have been applied to the military and military institutions,” Judge Chin concluded that “Doe was entitled, under the Fifth Amendment and the Army’s own regulations, to an environment free from gender discrimination and sexual harassment.”

Next, Chin’s dissent takes on the Feres doctrine head-on using Taber’s language. In Taber, the Second Circuit held that “the link between Taber’s activity when he was injured and his military status is too frail to support a Feres bar.” Similar language was found in Wake v. United States, another Second Circuit case, this one decided the year after Taber: The relevant factors to determining whether an injury is incident to service are “the relationship of the activity to the individual’s membership in the service,” “the location of the conduct giving rise to the underlying tort claim,” and “whether the activity is limited to military personnel and whether the service member was taking advantage of a privilege or enjoying a benefit conferred as a result of military service.”

As Judge Chin understood it, Doe’s injuries fell outside the scope of the test for two primary reasons:

First, as to the activities immediately preceding Doe’s rape, her ultimate injury, she was engaged in purely recreational activity: she was out for an evening walk on a college campus, after curfew, with another student who was a friend. Second, as to her broader activities at West Point, she was a student attending college: she was taking classes, participating in extracurricular activities, and learning to grow up and to be a self‐sufficient and healthy individual. . . . There was “nothing characteristically military” about what she was doing, and her injuries did not arise out of military employment.

What’s more, Judge Chin found that “the ‘special factors counseling hesitation’ in the intramilitary immunity cases” were not implicated:

First, Doe’s claims do not implicate “delicate questions involving military discipline.” Taber, 67 F.3d at 1049. Her claims do not call into question “the military judgments and decisions that are inextricably intertwined with the conduct of the military mission.” Johnson, 481 U.S. at 691. The actions and decisions of the individual defendants being challenged here do not implicate, except perhaps in the most abstract sense, military discipline or military judgment or military preparation. . . . Second, the “federal system of military death and disability benefits” established by Congress for injuries sustained by military personnel incident to service, Taber, 67 F.3d at 1049, apparently is not available to Doe. . . . Third, the district court’s decision to permit Doe to proceed with her federal constitutional claim does not implicate the Court’s concern that a “uniform federal scheme” not be displaced by “the contingencies of local tort law.” Taber, 67 F.3d at 1049.

Next, Judge Chin props up his position by distinguishing three cases the majority opinion cites where Feres barred claims brought by service academy cadets. “None,” he notes, “involved a claim for the violation of constitutional rights,” nor did any have a similar fact pattern. “Moreover, in all three cases, the armed forces provided disability or death benefits or other compensation.” Finally, Judge Chin reads the military sexual assault cases barred by Feres in other circuits as sufficiently distinct because they “involved active duty service members who brought broad challenges to policies of high‐ranking government officials, raising questions as to military discipline and command for those in active duty” rather than the comparatively isolated and non-military nature of running an educational institution.

The problem with the Feres doctrine, as Judge Calabresi put it in Taber, is that it has “quickly lurched toward incoherence” in large part due to Brooks v. United States, a case decided the year before Feres. As described by the court in Feres, the plaintiffs in Brooks—two service members—did recover under the Federal Tort Claims Act because their injury occurred while they were “on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission [when] a government owned and operated vehicle collided with” them. The court, composed of the same justices, actively sought to distinguish Brooks and Feres due to whether the injury was “arising out of” or “incident to” one’s service. Otherwise, as the court said in Brooks, all service-member claims would be barred automatically because “all human events depend upon what has already transpired.”

It strikes me, therefore, that a more concrete line must be drawn—what arises from service as opposed to what happens to someone who was in a particular place at a particular time irrespective of her military duties—to better inform lower courts if a given claim more resembles Brooks or Feres. Whether Jane Doe and her legal team from Yale Law School ask the Supreme Court to install such signposts is another matter.