Kendzior v. Gates et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/24/14. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNE ELISABETH KENDZIOR,
Plaintiff,
v.

Civil Action No. ELH-12-2184

ROBERT M. GATES, et al.
Defendants.
MEMORANDUM OPINION
In this constitutional tort action, plaintiff Anne E. Kendzior filed suit against former
Secretary of Defense Robert M. Gates; Secretary of the Navy Ray Mabus; and Jeffrey Fowler,
former Superintendent of the United States Naval Academy (“Naval Academy” or “Academy”).
Plaintiff seeks to hold defendants personally liable for fostering an atmosphere and culture at the
Naval Academy that led to two sexual assaults of plaintiff committed by fellow students while
plaintiff was a midshipman at the Academy; retaliation against plaintiff for reporting the
incidents; and a subsequent failure by defendants to hold the perpetrators accountable, instead
barring plaintiff from graduating from the Academy. See Complaint (ECF 1). Plaintiff’s claims
for deprivations of her constitutional rights by federal officials, as well as her request for
monetary relief, are predicated on Bivens v. Six Unkown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and its progeny. Id.
On August 22, 2012, defendants filed a “Motion to Stay Proceedings” pending the Fourth
Circuit’s resolution of Cioca v. Rumsfeld, No. 12-1065, a case in which current and former
servicemembers sought to bring Bivens claims against high-ranking military officials. ECF 9. In
Cioca, as here, the servicemembers alleged that they were victims of rape and sexual misconduct

by fellow servicemembers during their military careers, and they alleged that the acts and
omissions of high-ranking military officials contributed to a military culture of tolerance for the
sexual crimes perpetrated against them. See Cioca v. Rumsfeld, 720 F.3d 505, 506 (4th Cir.
2013). The threshold legal question in the Cioca appeal—whether a Bivens claim may be
brought against military officials for injuries arising out of or incident to military service—is also
a threshold question in this case.
Accordingly, on October 10, 2012, I granted defendants’ motion for a stay. ECF 14. In
my Order granting the stay, I explained, id.:
In my view, a decision in Cioca will prove helpful to resolution of a
central issue in this case: namely, whether a Bivens remedy is available to plaintiff
under the facts alleged. The Supreme Court has cautioned that a Bivens remedy is
not available in the presence of “special factors counseling hesitation,” including
where “the unique disciplinary structure of the military establishment” is
involved. Chappel v. Wallace, 462 U.S. 296, 298 (1983). The appeal in Cioca
will resolve whether a Bivens claim may be brought under the circumstances
attendant here, and in particular whether “special factors counseling hesitation”
are present when active duty military personnel allege constitutional torts,
virtually identical to those alleged here.
The Fourth Circuit issued its decision in Cioca on July 23, 2013. See Cioca, 720 F.3d
505. There, the Court outlined the history of the Bivens right of action and concluded that “no
Bivens action will lie where special factors counsel hesitation in creating an implied right of
action.” Id. at 512. In the Court’s view, “special factors clearly counsel hesitation in implying a
cause of action for injuries arising out of military service.” Id. According to the Fourth Circuit,
plaintiffs’ alleged injuries were “incident to service” because they “stem from the relationship
between the [plaintiffs] and the [plaintiffs’] service in the military.” Id. at 515. Under those
circumstances, allowing the suit to proceed “would call into question military discipline and
decisionmaking [and would] require judicial inquiry into, and hence intrusion upon, military
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matters.” Id. (internal quotation marks and citations omitted). Therefore, the Fourth Circuit
declined to recognize a Bivens remedy, instead holding that “judicial abstention is the proper
course in this case.” Id. at 518.
This Court subsequently issued a Scheduling Order on October 22, 2013 (ECF 22). In
accordance with the Scheduling Order, defendants filed a Motion to Dismiss on December 6,
2013 (“Motion,” ECF 23), and a supporting memorandum of law (“Memo,” ECF 23-1), arguing
that Cioca foreclosed plaintiff’s claims. See Memo at 11–15. Plaintiff filed an Opposition
(“Opp.,” ECF 24), in which she acknowledged that “the Fourth Circuit rejected an appeal by
other rape survivors who brought claims quite similar to those brought here.” Opp. at 3.
However, she maintains that the Fourth Circuit “reached the wrong result,” id. at 5, and asks this
Court to “consider de novo whether it should abstain or exercise jurisdiction over [her] claims.”
Id. at 1.
Defendants did not file a formal reply. Instead, by letter of January 7, 2014, they stated:
“Defendants do not believe that a formal reply memorandum will be of assistance to the Court in
resolving whether Plaintiff can maintain the constitutional claims she has advanced.” (“Reply
Letter,” ECF 25). Further, defendants said, id.:
Without belaboring the point . . . this Court . . . is obliged to follow the
Cioca precedent unless and until it has been overruled by the Supreme Court or
by an en banc decision of the Fourth Circuit. See Chisolm v. TranSouth Financial
Corp., 95 F.3d 331, 337 n.7 (4th Cir. 1996) (citing Busby v. Crown Supply, Inc.,
896 F.2d 833, 840-41 (4th Cir. 1990)); Doe v. Charleston Area Med. Ctr., Inc.,
529 F.2d 638, 642 (4th Cir. 1975).
I agree with defendants that the Fourth Circuit’s decision in Cioca requires me to grant
defendants’ Motion to Dismiss. As I stated in my Order of October 10, 2012 (ECF 14),
plaintiff’s claims in this case are “virtually identical” to those advanced in Cioca. And, the
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Fourth Circuit in Cioca rejected the claims. Moreover, plaintiff does not argue that any relevant
distinction exists.

Accordingly, I am bound by the Fourth Circuit’s ruling that, in the

circumstances presented here, a cause of action under Bivens is not available to plaintiff.
To be sure, plaintiff’s allegations are troubling. And, I appreciate plaintiff’s concern that,
“[i]f every court abstains from hearing compelling and legitimate claims brought by Academy
students harmed by the Executive Branch’s malfeasance, there is no reason for the Executive
Branch to fix the problems.” Opp. at 1–2. However, the Fourth Circuit’s decision in Cioca, by
which I am bound, “reflects the judicial deference to Congress and the Executive Branch in
matters of military oversight required by the Constitution and [] fidelity to the Supreme Court’s
consistent refusal to create new implied causes of action in this context.” Cioca, 720 F.3d at
518.
Conclusion
For the foregoing reasons, I will grant defendants’ Motion to Dismiss. An Order follows.

Date: February 24, 2014

/s/
Ellen Lipton Hollander
United States District Judge

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