Doe v. Hagenbeck
2017 U.S. App. LEXIS 16604
| 2d Cir. | 2017Background
- Jane Doe, a former West Point cadet, alleges she was raped by a fellow cadet in May 2010 and that West Point maintained a pervasive misogynistic culture that tolerated sexual harassment and discouraged reporting.
- Doe sued in 2013: Bivens claims against Lt. Gen. Hagenbeck and Brig. Gen. Rapp (personal capacity) for Fifth Amendment violations (due process and equal protection), and FTCA/Little Tucker Act claims against the United States; only the equal protection Bivens claim against the officers survived dismissal below.
- Doe’s equal protection theory: senior officers knowingly created and tolerated policies/practices that discriminated against female cadets and produced a sexually aggressive culture that led to her assault and harm.
- The district court allowed the equal protection Bivens claim to proceed; the officers appealed interlocutorily, arguing Bivens relief is barred in the military context.
- The Second Circuit majority reversed: applying Supreme Court precedent (Chappell, Stanley, Feres, Shearer), it held Bivens money damages are unavailable because Doe’s claim implicates military discipline, supervision, training, and command and therefore falls within the incident-to-service / special-factors rule.
- The court remanded with instructions to dismiss the equal protection Bivens claim; the dissent (Judge Chin) would have allowed the claim to proceed, viewing Doe primarily as a student and distinguishing prior military-duty cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens damages remedy is available for a cadet’s Fifth Amendment equal protection claim against superior officers | Doe: Bivens should extend to remedy gender-based discrimination and hostile-educational-environment claims at West Point | Officers: Bivens barred by special factors; monetary damages for service members challenging military management are unavailable (Feres/Chappell/Stanley) | Not available; Bivens claim dismissed because it implicates military discipline and the incident-to-service rule |
| Whether Doe’s injuries arose ‘‘incident to service’’ so as to bar Bivens relief | Doe: She was primarily a student; injuries were educational/recreational, not military-duty related | Officers: Cadets are service members; claims require second-guessing of military training, supervision, and command | Majority: injuries implicate military management and thus fall incident to service; Feres/Stanley/Chappell control; claim barred |
| Whether adjudicating the claim would improperly second-guess military managerial choices | Doe: Allegations concern school administration and violations of regulations, not battlefield discipline | Officers: Adjudication would require searching inquiry into training, discipline, and command decisions — special factors counsel hesitation | Majority: adjudication would require reviewing basic military choices and disrupt military regimes; special factors counsel against Bivens |
| Whether circuit and Supreme Court precedent compels dismissal despite Doe’s policy and equal protection arguments (and dissent’s contrary view) | Doe/Dissent: Precedent should not extend Feres to bar constitutional equal protection claims by cadets at a military academy acting as students | Officers/Majority: Chappell, Stanley, Shearer, and Feres require abstention from creating a Bivens remedy in this military context | Majority: Precedent compels dismissal; dissent would distinguish on student-status and regulatory-violation grounds |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (recognition of implied private damages action for constitutional violations)
- Chappell v. Wallace, 462 U.S. 296 (Bivens unavailable for enlisted personnel suing superior officers; special factors in military context)
- United States v. Stanley, 483 U.S. 669 (no Bivens remedy for injuries "incident to service"; extends Chappell)
- Feres v. United States, 340 U.S. 135 (FTCA liability barred for injuries arising out of activity incident to service)
- Shearer v. United States, 473 U.S. 52 (explaining risk of second-guessing military management and discipline)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (Bivens expansion disfavored; special factors analysis)
- Davis v. Passman, 442 U.S. 228 (recognition of Bivens remedy for gender discrimination in limited context)
- Carlson v. Green, 446 U.S. 14 (Bivens remedy for Eighth Amendment prison official misconduct)
- Wilkie v. Robbins, 551 U.S. 537 (two-step Bivens availability framework and special-factors consideration)
- Klay v. Panetta, 758 F.3d 369 (D.C. Cir. rejecting Bivens claims by service members challenging sexual-assault culture)
- Cioca v. Rumsfeld, 720 F.3d 505 (4th Cir. rejecting Bivens for military sexual-assault culture claims)