Wednesday, August 30, 2017

West Point cadet cannot bring Bivens case

In a 2-1 decision, the United States Court of Appeals for the Second Circuit today decided Doe v. Hagenbeck, a Bivens action against the former Superintendent of the U.S. Military Academy and the Academy's former Commandant of Cadets. The court's summary is as follows:
Appeal from an April 13, 2015 order of the United States District Court for the Southern District of New York (Hellerstein, J.), granting in part and denying in part Defendants’ motion to dismiss. Plaintiff‐Appellee Jane Doe — a former West Point cadet who alleges that she was sexually assaulted by another cadet — brought a Bivens action against two superior officers at West Point, Defendants‐Appellants Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities, for alleged violation of her Fifth Amendment right to equal protection. Because adjudicating Doe’s claim would require judicial interference into a wide range of military functions (including the training, supervision, discipline, education, and command of service personnel at West Point), triggering the incident‐to‐service rule, we conclude that there is no Bivens remedy available in this context. Accordingly, the order of the district court is REVERSED, and the case is REMANDED with instructions to dismiss.
Circuit Judge Denny Chin dissented. 

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