The Fourth Circuit has issued a decision in Cioca.  Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Niemeyer and Judge Thacker joined.  Way into their opinion the court advises:

Distilling these cases to their core holdings [Chappell, Bivens, Stanley, Feres], we restate the principles guiding our analysis in the case at bar: no Bivens action will lie where special factors counsel hesitation in creating an implied right of action and special factors clearly counsel hesitation in implying a cause of action for in juries arising out of military service. The Supreme Court holding in Stanley left no doubt as to this principle: “We hold that no Bivens remedy is available for injuries that ‘arise out of or are in the course of activity incident to service.’” 483 U.S. at 684. As one treatise has succinctly explained: “The law is now settled that Bivens suits are never permitted for constitutional violations arising from military service, no matter how severe the injury or how egregious the rights infringement.” Erwin Chemerinsky, Federal Jurisdiction 621-22 (5th ed. 2007).

Slip op. at 17.

. . .

In the more than twenty-five years since the Supreme Court pronounced in Stanley that servicemembers will not have an mplied cause of action against the government for injuries arising out of or incident to their military service under Bivens, Congress has never created an express cause of action as a remedy for the type of claim that Plaintiffs allege here.

The court did drop a footnote to tell us that:

Although we have serious doubts that  Cioca and Bertzikis possess such standing in this action, we do not decide that issue because we conclude that judicial abstention is appropriate in this case. See, e.g., Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) (observing that prudential bars, such as abstention, “represent[] the sort of threshold question we have recognized may be resolved before addressing jurisdiction”) (internal quotation marks omitted).

H/T to alert reader who reads PACER for fun.

One Response to “Cioca-DC affirmed”

  1. SgtDad says:

    Note whose treatise is cited.
    Both sides of this issue have good points to be made.