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No Bivens Relief for 28 Military Sexual Assault Victims

By William Peacock, Esq. on July 26, 2013 | Last updated on March 21, 2019

"The law is now settled 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."

That statement, from Erwin Chemerinsky's Federal Jurisdiction treatise sums up the opinion quite well. Twenty-eight current and former members of the armed forces attempted to sue two former Secretaries of Defense, Donald Rumsfeld and Robert Gates, for their "acts and omissions" that enabled a "military culture of tolerance for sexual crimes perpetrated against them."

Unfortunately, while Bivens v. Six Unknown Agents of Federal Bureau of Narcotics does provide that "violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages," there is a long series of cases, denying relief to those injured "incident to service."

In fact, even outside of the military context, the Supreme Court has only twice recognized a Bivens-type implied monetary remedy in a federal context. One case involved a congressional staffer suing a congressman over denied due process. The other was a cruel and unusual punishment case.

The court has been especially hostile to Bivens claims arising out of one's military duties, preaching judicial abstention consistently, beginning from Chappell (racial discrimination case) and cemented with Stanley (involuntary army LSD experiments).

Why the abstention? First, there are the numerous redundant explicit provisions in the Constitution that delegate authority over military matters to Congress and the Executive. Specifically, Congress is explicitly authorized to declare war, establish armed forces, and regulate the armed forces. The judiciary, on the other hand, has no role in the military whatsoever.

Second, on a more pragmatic note, do we really want our civil court system deposing officers, second-guessing military policy decisions, and hauling soldiers into court? Do we want the looming specter of litigation to haunt the men and women of our armed forces?

The court has even denied relief to a soldier that was kidnapped and murdered by another solider in Shearer. The murderer had previously been convicted of manslaughter in Germany, and upon release from German prison, had been reassigned state-side to Fort Bliss, where he committed his heinous act.

That case also demonstrates how claims involving sexual assault can be classified as "incident to service." The victim in Shearer was murdered off base, while off duty. He wasn't, to borrow from employment law, in the scope of anything related to his official duties at the time he was murdered by the allegedly negligently-reassigned convicted killer. Sherarer demonstrates how far the "incident to service" test stretches.

It's an unfortunate outcome for the twenty-eight plaintiffs. They are all victims of horrific acts, but legally, judicial abstention is mandated by decades of clear, controlling precedent from the nation's highest court.

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