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Klay v. Panetta

United States District Court, District of Columbia

February 7, 2013

Ariana KLAY, et al., Plaintiffs,
Leon PANETTA, Secretary of Defense, et al., Defendants.

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Susan L. Burke, Burke PLLC, Washington, DC, for Plaintiffs.

Edward Martin, U.S. Department of Justice, Washington, DC, for Defendants.



Plaintiffs Ariana Klay, Elle Helmer, Nicole McCoy, Robin Kahle, Lamanda Cummings, Rebecca Blumer, Erica Dorn, Mariel Marmol, Christian Everage, Eric Pratt, Janet Galla, and Carla Butcher have filed this action against defendants Leon Panetta, Secretary of Defense; Robert M. Gates and Donald Rumsfeld, former Secretaries of Defense; James F. Amos, Commandant of the Marine Corps; James T. Conway and Michael W. Hagee, former Commandants of the Marine Corps; Ray Mabus, Secretary of the Navy; and Donald C. Winter and Gordon England, former Secretaries of the Navy, under

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Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging violations of their First, Fifth, and Seventh Amendment rights. Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court will grant defendants' motion because Supreme Court precedent requires it to abstain from inferring a Bivens remedy for plaintiffs, and because defendants are entitled to qualified immunity.


Plaintiffs are eleven women and one man who allege that while serving in the U.S. Armed Forces, they were " raped, sexually assaulted, stalked, ... and severely harassed" and then victimized again when they were humiliated and retaliated against for reporting the offenses perpetrated against them. Am. Compl. [Dkt. # 3] ¶¶ 6-180. All plaintiffs were on active duty when they suffered these sexual assaults and retaliatory actions at the hands of other service members. Id. Most of the attacks detailed in the complaint took place on military bases, military ships, or during foreign deployment. Id. ¶¶ 32-33, 40, 51, 75-76, 86, 97, 109-10, 146. Others occurred at private residences that were located off-base or in connection with social events with other service members. Am. Compl. ¶¶ 10, 63-64, 134, 168.

Plaintiffs have brought a Bivens suit for monetary damages against the current Secretary of Defense and two who came before him, the Commandant of the Marine Corps and his two predecessors, and the Secretary of the Navy and his two predecessors, alleging that they caused plaintiffs' injuries by creating and maintaining a hostile military environment that permitted sexual assault and retaliation to continue unabated. Am. Compl. ¶ 5. Specifically, plaintiffs contend that defendants:

• failed to implement certain congressional and statutory mandates designed to reduce sexual assault in the military, Am. Compl. ¶¶ 212, 216-22;
• " lack[ed] ... leadership" in the face of a known climate that condoned and perpetuated violence and retaliation against service members, Am. Compl. ¶ 194;
• failed to take " any steps, let alone systemic and effective steps, to identify and punish the personnel who retaliated against those courageous enough to report rape and sexual assault," Am. Compl. ¶ 199;
• granted moral waivers that permit felons to serve in the military, Am. Compl. ¶ 200;
• " presided over a dysfunctional system that permits all but a small handful of rapists to evade any form of incarceration," Am. Compl. ¶ 202;
• allowed military Command to interfere with the impartiality of criminal investigations, Am. Compl. ¶ 207;
• accepted nonjudicial punishment of alleged violators, Am. Compl. ¶ 208;
• allowed alleged rapists to be charged with adultery instead of rape, Am. Compl. ¶ 209;
• ensured that military (not civilian) authorities investigated and prosecuted rape and sexual assault charges, Am. Compl. ¶ 210;
• permitted accused rapists and sexual assailants to be honorably discharged, Am. Compl. ¶ 211;
• failed to accurately report the conviction rates of rape in the military, Am. Compl. ¶ 213; and
• permitted the destruction of forensic evidence, Am. Compl. ¶ 214.

Plaintiffs claim that these alleged acts and omissions directly resulted in a series

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of constitutional deprivations, and they allege violations of the following rights:

(1) a substantive due process " right to bodily integrity" under the Fifth Amendment, Am. Compl. ¶¶ 223-26;
(2) a procedural due process right to " justice" and to be free from unfair termination and mistreatment under the Fifth Amendment, Am. Compl. ¶¶ 227-30;
(3) an equal protection " right to be free from rape, sexual assault and sexual harassment under the Fifth Amendment," Am. Compl. ¶¶ 231-34;
(4) a First Amendment right to report sexual assault, sexual harassment and rape without suffering retaliation and adverse employment actions, Am. Compl. ¶ ¶ 235-37; and
(5) a claimed Seventh Amendment right to have a jury decide the fate of those who victimized them, Am. Compl. ¶¶ 238-40.

Defendants have moved to dismiss the case under Fed.R.Civ.P. 12(b)(6) on the grounds that Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs injured in the course of activities incident to military service, and that defendants are entitled to qualified immunity. Defs.' Mot. to Dismiss [Dkt. # 4] at 1-2. Plaintiffs maintain that their case is not barred by the abstention doctrine and that they have pled sufficient facts to overcome defendants' entitlement to qualified ...

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