You will recall that last month the Fourth Circuit ordered supplemental briefing on the issue of whether two plaintiffs in Cioca v. Rumsfeld who were former Coast Guard members (including Ms. Cioca herself) had standing to sue two former SECDEFs.  DOJ has now filed its supplemental brief addressing the issue, which we’ve posted here.

First, DOJ says it doesn’t matter.  Other plaintiffs in the case were DOD servicemembers, so the case can go forward even without the two former Coast Guard members.  DOJ also argues it doesn’t matter because the case was correctly kicked out of deference to the military.  But DOJ goes on to argue that the former Coast Guard members don’t have standing to sue the former SECDEFs, since they did not fall under SECDEF’s control:

Plaintiffs’ principal contention in the First Amended Complaint is that former Defense Secretaries Rumsfeld and Gates “failed to take reasonable steps to prevent Plaintiffs from being repeatedly raped, sexually assaulted and sexually harassed by federal military personnel, and by impeding Plaintiffs’ exercise of their First Amendment rights.” First Amended Complaint, ¶ 319 (JA 52) (Rumsfeld); ¶ 334 (JA 55) (Gates). As explained above, however, the Secretary of Defense had no authority over the Coast Guard at the time in question here. Thus, plaintiffs Cioca and Bertzikis cannot prove that Rumsfeld or Gates caused the violation of plaintiffs’ rights as alleged above or the injuries that are described at pp. 4-5, supra, as Article III requires.

One Response to “DOJ on standing of former Coast Guard members to sue former SECDEFs”

  1. DH Mazur says:

    In the brief, DOJ writes: “The district court dismissed all the plaintiffs’ claims based on the threshold principle of judicial deference to military judgments, which bars plaintiffs’ claims because they would require second-guessing military decisions regarding supervision and control of service members.”
    This argument takes great liberties with the actual language of the Cioca dismissal order, which doesn’t even use the word “deference.”  The district court, relying on Chappell,  held only that “the relief Plaintiffs seek under Bivens is unavailable in these circumstances.”  [Bivens permits a suit for damages for violation of constitutional rights.]
    Chappell limits remedies based in damages, but not other forms of relief for constitutional violations.  It does not mean what DOJ suggests, that courts have no business second-guessing anything the military does when enforcing discipline.  It’s a shame to see this kind of over-statement, and it’s not good for our system of civilian control, which requires the labor of all three branches of government.
    A former Air Force officer and author of A More Perfect Military: How the Constitution Can Make Our Military Stronger