Ariana Klay v. Leon Panetta

758 F.3d 369, 411 U.S. App. D.C. 178, 2014 WL 3538071, 2014 U.S. App. LEXIS 13725, 123 Fair Empl. Prac. Cas. (BNA) 1013
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 18, 2014
Docket13-5081
StatusPublished
Cited by22 cases

This text of 758 F.3d 369 (Ariana Klay v. Leon Panetta) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ariana Klay v. Leon Panetta, 758 F.3d 369, 411 U.S. App. D.C. 178, 2014 WL 3538071, 2014 U.S. App. LEXIS 13725, 123 Fair Empl. Prac. Cas. (BNA) 1013 (D.C. Cir. 2014).

Opinions

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring Opinion filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Plaintiffs are current or former members of the United States Navy and Marine Corps who allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight. Their appeal is both difficult and easy. Difficult, because it involves shocking allegations that members of this nation’s armed forces who put themselves at risk to protect our liberties were abused in such a vile and callous manner. Easy, because plaintiffs seek relief under a legal theory that is patently deficient.

Plaintiffs have not sued their attackers or those who retaliated against them for reporting their abuse. Rather, plaintiffs have sought money damages directly un[371]*371der the Constitution from senior officials in the military and Department of Defense who, plaintiffs allege, could have put in place policies to prevent their injuries but failed to do so. The Supreme Court has held that military officials are not subject to personal liability under the Constitution for their management decisions, including the choices they make about the discipline, supervision, and control of servicemem-bers. Because adjudication of plaintiffs’ claims would require judicial intrusion upon such military matters, we affirm the district court’s dismissal of their suit.

I

Because this appeal arises from the defendants’ successful motion to dismiss, we presume the allegations in the complaint are true and view the facts in the light most favorable to plaintiffs. See Autor v. Pritzker, 740 F.3d 176, 179 (D.C.Cir.2014).

Plaintiffs are twelve current and former sailors and Marines. During their service, eleven were either raped or sexually assaulted by fellow members of the armed forces. One was the target of severe sexual harassment by Marines and a fellow Navy Corpsman with whom she deployed. The attacks and harassment left plaintiffs with a range of serious physical and psychological injuries. In each case the injury was compounded by the retaliation plaintiffs suffered when they reported what had happened to their superiors.

Though the experience of each plaintiff is unique, that of Janet Galla provides an example of the kind of harm plaintiffs endured. See First Am. Compl. ¶¶ 144-164. Galla served in the Navy from 1999 to 2005 as a Hospital Corpsman. On June 11, 2004, after having dinner with a group of friends, Galla returned to her ship. While she was checking her email in the ship’s Medical Department, a fellow Corpsman asked if he could show her something in one of the Department’s operating rooms. She followed him into an operating room, where he tried to kiss her. She resisted, asked him to stop, and tried to leave the room, but he prevented her from escaping, then raped her. Galla immediately reported the rape. Although her attacker was ultimately convicted and sent to prison, Galla faced retaliation from her chain of command. She was not allowed to work in enclosed spaces with male colleagues, a restriction her superiors claimed was for her own protection. This limitation not only made it difficult for her to do her job, but left her feeling ostracized from her shipmates. Galla began to receive negative performance evaluations and was eventually told by her commander that it would be best for “morale” if she left the ship. She transferred to a duty station on land, but the retaliation continued when her new chain of command learned about the rape and the ongoing investigation. Suffering from post-traumatic stress disorder, Galla was singled out for drug and alcohol tests and was accused of using her rape as an excuse for poor job performance. One member of her new command told her that the rape was only “five minutes of her life” and she needed to “get over it already.” In the face of such harassment and ostracism, Galla accepted her superiors’ offer of immediate separation from the Navy in 2005.

In 2012, Galla and the other plaintiffs filed suit in the district court against nine defendants: the three most recent Secretaries of Defense, Secretaries of the Navy, and Commandants of the Marine Corps. Id. ¶¶ 181-189. Plaintiffs alleged that their injuries resulted from the acts and omissions of these defendants who were fully 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 take effective steps to [372]*372do so. See id. ¶¶ 190-206. Plaintiffs identified a variety of practices the defendants allegedly authorized or oversaw that contributed to this hostile environment. For instance, the defendants granted “moral waivers” that let recruits with criminal convictions serve in the military; they allowed commanders to interfere with the impartiality of criminal investigations into sexual assaults; and they permitted perpetrators to receive nonjudicial punishment and to be honorably discharged. See id. ¶¶ 200, 207-222. In addition, plaintiffs alleged that the three defendant 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. See id. ¶¶ 216-217, 219, 222.

Plaintiffs did not, however, claim that this alleged misconduct ran afoul of any federal statute that would authorize them to recover damages from the defendants. Instead, plaintiffs argued that the defendants’ actions and inactions violated a variety of plaintiffs’ constitutional rights: 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. See id. ¶¶ 223-240. Citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), plaintiffs argued that the cause of action for damages they sought could be implied directly under these constitutional provisions. See First Am. Compl. ¶ 2.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and the district court granted their motion. Klay v. Pan-etta, 924 F.Supp.2d 8 (D.D.C.2013). Acknowledging that the “factual recitations ... describe brutal and criminal assaults, compounded by a degrading and humiliating institutional response,” the court nonetheless concluded that it lacked “the power to provide the particular sort of remedy sought here for the specific injustices alleged in the complaint.” Id. at 12. According to the district court, plaintiffs’ 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.’” Id. at 13 (quoting United States v. Stanley, 483 U.S. 669, 684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987)).

Plaintiffs appealed. We have jurisdiction under 28 U.S.C.

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Bluebook (online)
758 F.3d 369, 411 U.S. App. D.C. 178, 2014 WL 3538071, 2014 U.S. App. LEXIS 13725, 123 Fair Empl. Prac. Cas. (BNA) 1013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ariana-klay-v-leon-panetta-cadc-2014.