Kori Cioca v. Donald Rumsfeld
2013 U.S. App. LEXIS 14916
| 4th Cir. | 2013Background
- Twenty-eight current/former service members sued former Defense Secretaries Rumsfeld and Gates under Bivens seeking money damages for alleged failures that fostered a culture tolerating rape and sexual assault in the military.
- Plaintiffs alleged constitutional violations (Fifth, First, Seventh Amendments) based on Defendants’ policymaking, oversight, and purported interference with investigations and prosecutions.
- Defendants moved to dismiss under Rule 12(b)(6), arguing Bivens does not extend to claims arising from military service and, alternatively, asserting qualified immunity.
- The district court dismissed, relying on Supreme Court precedent (Chappell, Stanley, Feres) that counsels against creating Bivens remedies in the military context.
- The Fourth Circuit affirmed, holding plaintiffs’ claims are “incident to service” and that special factors (separation of powers and military discipline) bar a Bivens remedy; the court did not reach qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens money remedy lies for alleged constitutional violations arising from military-service-related policies and oversight | Bivens should be extended so servicemembers can obtain money damages for constitutional harms caused by Defendants’ policies/omissions | Bivens cannot be extended into the military context because special factors (separation of powers; military discipline) counsel hesitation; the claims arise from military service | No Bivens remedy; dismissal affirmed |
| Whether plaintiffs’ injuries are "incident to service" (thus barred) | Plaintiffs: injuries did not arise to further a military mission and thus are not incident to service | Defendants: claims challenge military command/discipline and require second‑guessing of military decisions | Held incident-to-service applies; claims arise from the military relationship and implicate military decisionmaking |
| Whether plaintiffs’ reliance on non‑money‑damages precedent (Chappell language, Brooks) avoids the bar | Plaintiffs: Chappell’s statement and Brooks support redress; courts can adjudicate violations of congressional mandates | Defendants: Chappell’s language refers to non‑money relief; Brooks is inapposite because it involved off‑duty, garden‑variety tort claims | Court: Chappell’s cited language limited to non‑monetary relief; Brooks distinguishes and does not permit Bivens money damages in this context |
Key Cases Cited
- Bivens v. Six Unknown Agents, 403 U.S. 388 (recognition of implied Fourth Amendment damages remedy)
- Chappell v. Wallace, 462 U.S. 296 (military discipline and chain‑of‑command concerns counsel against Bivens relief)
- United States v. Stanley, 483 U.S. 669 (no Bivens remedy for injuries "incident to service"; adoption of Feres logic in Bivens context)
- Feres v. United States, 340 U.S. 135 (FTCA bars claims for injuries incident to military service)
- Shearer v. United States, 473 U.S. 52 (application of Feres where suits would question military discipline and supervision)
- Davis v. Passman, 442 U.S. 228 (rare extension of Bivens in non‑military context)
- Carlson v. Green, 446 U.S. 14 (rare extension of Bivens in non‑military context)
- Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.) (discussion of Bivens limits and separation‑of‑powers concerns in military settings)