A former cadet at West Point Academy, the nation’s premiere military academy, had her case, Doe v. USA, dismissed by the Second Circuit Court of Appeals. The appellate court explained that a Bivens claim is unavailable for military cadets alleging a violation of their rights connected to their service.
Significantly, the court found that cadets are not just students at their military academy, like West Point. Instead, the student/cadets are service-members in training, and thus, any claims arising from their training and education are deemed to be part of their military service.
What’s This Case About?
The Jane Doe plaintiff alleged that, in 2009, she had been raped while a cadet at West Point. Three months after the alleged rape, Doe dropped out of West Point. Fortunately, she enrolled in a traditional university and was able to graduate. In 2013, the plaintiff filed her lawsuit and asserted a Bivens claim that the academy was liable not just for tolerating a sexually hostile education environment towards women, but for creating the environment that led to her rape.
As the dissent noted, during training, group chants routinely included phrasing that glorified rape culture and violence against women. One of the chants that was quoted stated: “I wish that all the ladies/were statues of Venus/and I was a sculptor/I’d break ’em with my penis.”
Is Bivens Broken?
In short, like the several Bivens decisions that have been handed down since the Supreme Court’s last term, the Second Circuit explained that extending Bivens here is inappropriate as the claim arose out of Doe’s military service. The court further explained, as the other courts that recently rejected extending Bivens did, that Congress would need to act to extend this type of claim.
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