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Cioca v. Rumsfeld, No. 12-1065

Decided: July 23, 2013

The Fourth Circuit affirmed the District Court for the Eastern District of Virginia’s Order dismissing Plaintiffs’ complaint for failure to state a claim because the alleged injuries arose out of or in the course of activity incident to military service.

Alleging they were victims of rape and sexual misconduct by fellow servicemembers during their military careers, twenty-eight current and former members of the U.S. Armed Forces (“Plaintiffs”) brought suit against two former Secretaries of Defense, Donald Rumsfeld and Robert Gates (“Defendants”), seeking money damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The complaint alleged that the acts and omissions of Defendants, in their official capacities, contributed to a military culture of tolerance for the sexual crimes perpetrated against them. Based on factual assertions set forth in the complaint, Plaintiffs alleged that the Defendants violated their Fifth Amendment rights to due process and equal protection, their First Amendment rights to free speech, and their Seventh Amendment rights to trial by jury. After a hearing on Defendant’s Rule 12(b)(6) motion, the District Court issued an order dismissing the complaint. In its order, the District Court noted that a Bivens-type remedy was not appropriate in this situation given the unique disciplinary structure of the military establishment and further observed that the Supreme Court has counseled against the exercise of judicial authority in the military context. This appeal followed.

Before beginning its analysis, the Fourth Circuit first provided a backdrop of Bivens actions and the constitutional basis upon which such actions rely. In conclusion, the court noted that Bivens suits are never permitted for constitutional violations arising from military service, no matter how severe the injury or how egregious the rights infringement. Next, applying the “incident to service” rule, the court explained that the Plaintiffs’ alleged injuries clearly arose out of or in the course of activity incident to service. Consequently, the court affirmed the district court, holding that the Plaintiffs were not entitled to a Bivens-type remedy. In so holding, the court relied heavily on Supreme Court precedent which, at its core, draws on the Separation of Powers doctrine and seeks to refrain from allowing the civilian court system to second-guess military decisions.

Full Opinion

– W. Ryan Nichols