Jane Doe v. Lt. Gen. Franklin Lee Hagenbeck

870 F.3d 36

Jane DOE, Plaintiff-Appellee,

v.Lt. Gen. Franklin Lee HAGENBECK, Brig. Gen. William E. Rapp, Defendants-Appellants,United States of America, Defendant.

No. 15-1890-cv August Term 2015.

United States Court of Appeals, Second Circuit.

Argued: June 16, 2016

Decided: August 30, 2017

For Plaintiff-Appellee : Rebecca Ojserkis, Jonas Wang, Erin Baldwin, Kathryn Wynbrandt, Bethany Li, Michael J. Wishnie, Veteran Legal Services Clinic, Jerome M. Frank Legal Services Organization, Yale Law School, New Haven, CT, for Jane Doe.

For Defendants-Appellants : Christopher Connolly , Benjamin H. Torrance, Assistant United States Attorneys, New York, NY, for Joon H. Kim, Acting United

States Attorney for the Southern District of New York, for Lt. Gen. Franklin Lee Hagenbeck and Brig. Gen. William E. Rapp.

Amici Curiae : Caitlin J. Halligan, Joel M. Cohen, Casey K. Lee, Kathryn M. Cherry, Gibson, Dunn & Crutcher LLP, New York, NY, for Amici Curiae Federal Courts and Constitutional Law Professors, in support of Jane Doe.

Paul W. Hughes, Travis Crum, Mayer Brown LLP, Washington, D.C., for Amici Curiae University Administrators, in support of Jane Doe.

Penelope A. Preovolos, Ben Patterson, Morrison & Foerster LLP, San Francisco, CA, for Amici Curiae Former Military Officers, in support of Jane Doe.

John D. Niles, James Anglin Flynn, Covington & Burling LLP, Washington, D.C., for Amici Curiae National Veterans Legal Services Program, Protect Our Defenders, Service Women's Action Network, in support of Jane Doe.

Sandra S. Park, Steven Watt, Lenora M. Lapidus, American Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union, American Association of University Women, Human Rights and Gender Justice Clinic at the City University of New York School of Law, Human Rights Watch, National Alliance to End Sexual Violence, National Center on Domestic and Sexual Violence, National Women's Law Center, in support of Jane Doe.

Before: Wesley, Livingston, and Chin, Circuit Judges.

Judge Chin dissents in a separate opinion.

Debra Ann Livingston, Circuit Judge:

Jane Doe is a former United States Military Academy ("West Point") cadet who alleges that during her second year at West Point, she was sexually assaulted by a fellow cadet. She filed this lawsuit not against the cadet, but against two superior officers, Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities. Lieutenant General Hagenbeck was Superintendent of West Point from approximately July 2006 to July 2010, and in that role he chaired the Sexual Assault Review Board, which is the "primary means of oversight" of the sexual assault prevention and response program at West Point. Joint App'x 12. Brigadier General Rapp was Commandant of Cadets at West Point from 2009 to 2011 and was in charge of the administration and training of cadets. Doe alleges, in substance, that Lieutenant General Hagenbeck and Brigadier General Rapp "perpetrat[ed] a sexually aggressive culture" at West Point that "discriminated against female cadets," "put female cadets at risk of violent harm," and resulted, inter alia , in her sexual assault. Id. at 29.

In 2013, Doe filed suit against the United States, Lieutenant General Hagenbeck, and Brigadier General Rapp. She pleaded four causes of action, but the district court dismissed all but one: a claim against Lieutenant General Hagenbeck and Brigadier General Rapp brought pursuant to 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), on the basis of their alleged violation of equal protection rights protected by the Fifth Amendment. For the reasons stated below, we conclude that the district court erred in permitting this Bivens claim to proceed. We therefore REVERSE the order of the district court as to this claim and REMAND the case to the district court with instructions to dismiss it.

BACKGROUND

I. Factual Allegations¹

Doe, who graduated from high school in 2008, received an offer of admission to West Point during her senior year, which she accepted. As a West Point cadet, Doe was a member of the Army. 10 U.S.C. § 3075(b)(2). The expectation upon enrollment was that, following her military training and education at West Point—which, together with room and board, Doe received without charge—she would serve at least five years of active duty. The West Point curriculum, as Doe alleges in her Amended Complaint, "is designed to train ‘officer-leaders of character to serve the Army and the Nation.’ " Joint App'x 13.

Upon arrival at West Point, Doe, who was one of about 200 women among the approximately 1,300 cadets in her class, alleges that she encountered what she describes as a "male" and "misogynistic culture." Id. at 14, 15. Cadets, for example, sang sexually explicit and offensive chants while marching on campus, "in view and earshot of faculty and administrators." Id. at 16. Doe contends that she "observed her cadet classmates making misogynistic and sexually aggressive comments on a regular basis," while "[t]he West Point administration frequently ignored and sometimes condoned these comments." Id. at 15. Doe does not allege that Lieutenant General Hagenbeck or Brigadier General Rapp engaged in any such conduct, but she does contend that they "created" the culture there, which "marginalized" Doe and other female cadets and "caused them to be subjected to routine harassment, [to] suffer emotional distress and other harms, and [to] be pressured to conform to male norms."Id. Doe also maintains that West Point's training on sexual assault and harassment was inadequate "and did little to combat the overwhelmingly misogynistic culture of the school." Id. at 17.

In the early morning of May 9, 2010, during her second year at West Point, Doe alleges that she was raped by a fellow cadet with whom she had gone walking after hours. In particular, Doe asserts that after taking a prescribed sedative as she was preparing for bed, she agreed at about 1:00 a.m. to leave her dormitory with this cadet (identified by Doe in her Amended Complaint only as "Mr. Smith" ("Smith")) in violation of West Point rules. Doe alleges that she accepted only a few sips of alcohol from Smith but that, as a result of the combined effects of the sedative and the alcohol, she "began to lose awareness of her surroundings and consciousness of what she was doing." Id. at 22. Doe contends that Smith "was aware that [she] had lost consciousness and took advantage," attacking her and having "forcible, non-consensual intercourse with her." Id. She also maintains that she does not remember the details of the attack.

Doe sought care from West Point's cadet health clinic the next day, which provided her with emergency contraception and, on a subsequent visit on or about May 11, tested her for sexually-transmitted diseases. Although the treating nurse allegedly informed Doe that she had signs of vaginal tearing, and the medical record indicates Doe reported that she "was sexually assaulted by a friend," Doe states that the clinic "did not perform any forensic collection or preservation of evidence of the sexual assault." Id. at 23. During a regular appointment with her psychiatrist that day (a psychiatrist Doe began consulting, she alleges, because of the significant stress she suffered due to West Point's oppressive atmosphere), Doe reported "nonconsensual sexual relations with a friend," and was referred to West Point's Sexual Assault Response Counselor, Major Maria Burger. Id.

Doe met only once with Major Burger. During that meeting, the major explained to Doe that she could file either an "unrestricted" or a "restricted" report about the incident. Id . An unrestricted report would have included both Doe's and her alleged assailant's names and would have been given to commanders for potential disciplinary action. A restricted report would preserve their anonymity, but would not result in a referral. Doe filed a restricted report. She alleges in her Amended Complaint that she feared reputational harm or even retaliation from other cadets if she filed an unrestricted report. She also worried that she would be punished for having been out after hours and for consuming alcohol with her alleged assailant, and that an unrestricted report would damage her career prospects because "[i]t was common knowledge among the cadets that successful women in the military did not report incidents of sexual assault." Id.

Doe contends that in the aftermath of the sexual assault, her anxiety grew intolerable. Doe informed West Point that she would resign, and on August 13, 2010, she was honorably discharged. Doe thereafter enrolled in a civilian college from which she earned a degree.

II. Procedural History

On April 26, 2013, Doe filed a complaint in the United States District Court for the Southern District of New York (Hellerstein, J. ).² On September 4, 2013, she filed an Amended Complaint. Therein, Doe pleaded four independent causes of action: (1) a Bivens claim based on an alleged Fifth Amendment due process violation against Lieutenant General Hagenbeck and Brigadier General Rapp; (2) a Bivens claim premised on an alleged Fifth Amendment equal protection violation against Lieutenant General Hagenbeck and Brigadier General Rapp; (3) a claim for breach of the covenant of good faith and fair dealing under 28 U.S.C. § 1346(a)(2) (the "Little Tucker Act") against the United States; and (4) a Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 – 2680, claim against the United States alleging negligent supervision, negligent training, negligence, negligent infliction of emotional distress, and abuse of process.

On September 20, 2013, defendants filed a motion to dismiss the Amended Complaint, which Doe opposed. On April 13, 2015, the district court issued an opinion and order granting in part and denying in part defendants' motion. The district court granted defendants...