The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.


5 Responses to “D.C. Circuit Rejects BIvens Claims in Military Sexual Assault Cases”

  1. Phil Cave says:

    Not being familiar with the issue, but is it possible the Gov. can now claim costs and attorney fees?

  2. Zeke says:

    From Judge Griffith’s concurrence:

    I am troubled by the possibility that plaintiffs’ counsel [Susan Burke] leveled this charge without first carefully reading the act in question. 

    Because of the constraints of this technological medium, I know you all can’t tell, but I’m wearing my surprised face.

  3. Pres Comacho says:

    Why would Burke concern herself w the law? Next u will expect her to concern herself w evidence – you all are just a bunch of victim haters.

  4. k fischer says:

    I wonder if the Senators standing behind Ms. Klay during this presser have ever read the redacted transcripts from the Court Martial that acquitted her alleged rapist.
    It sounds like her Husband was not happy with the way Ms. Klay’s Court Martial was run or the trial strategy that was used.  I would imagine that the Marine Corps is not too different than the Army in that the GCMCA or the chain of command does not make it a habit of hanging out anywhere near the courtroom.  So, who is in charge of running the courtroom?  Judge Advocates.  So, how does taking the UCMJ prosecution authority out of the hands of commanders help if you place them in the hands of Judge Advocates with legal training?  
    I agree with the notion that Judge Advocates should be in charge of the UCMJ.  However, the message put forth by Gillibrand and her crew is contradictory.  I wonder if they are giving Ms. Klay the megaphone because she is articulate, in shape, and has a husband who is, or was, also military and not so concerned that his wife maintained a, at the very least, close friendship with another man for 18 months where she went on overnight trips with him.  They need to tighten up their message, which on the one hand makes a compelling case in taking UCMJ authority out of the hands of the Chain of Command for both victims and the accused, yet in the same breath blames the Trial Counsel for the way they tried the court martial and screwed up her case. 

  5. Mike "No Man" Navarre says:

    KF–Wow that press conference sounds more like an indictment of judge advocates than convening authorities.  Funny how the solutions proposed aren’t solving the problems highlighted.  Some blog may have said that before . . . .