From a Supreme Court decision striking down male-only admissions policies at military colleges1×1. See United States v. Virginia, 518 U.S. 515 (1996). to the opening of all military positions to women, female servicemembers have made strides over the last few decades.2×2. See Russell Spivak & Adam Aliano, Should Women Register for Selective Service? The Legacy of Rostker v. Goldberg, Lawfare (Dec. 23, 2016, 10:00 AM), https://www.lawfareblog.com/should-women-register-selective-service-legacy-rostker-v-goldberg [https://perma.cc/YH7Y-XZHV] (listing women’s significant service-related milestones). Nevertheless, servicewomen continue to face significant challenges, including high sexual assault rates. Female soldiers are more likely to be sexually assaulted than killed in combat.3×3. Ann-Marie Woods, Note, A “More Searching Judicial Inquiry”: The Justiciability of Intra-Military Sexual Assault Claims, 55 B.C. L. Rev. 1329, 1330 (2014). The government estimates that in 2012 alone nearly 13,000 servicewomen experienced unwanted sexual contact, with the perpetrator most often being a military coworker or within the victim’s chain of command.4×4. See U.S. Comm’n on Civil Rights, Sexual Assault in the Military 6–7, 7 n.31 (2013), http://www.usccr.gov/pubs/09242013_Statutory_Enforcement_Report_Sexual_Assault_in_the_Military.pdf [https://perma.cc/TP4R-YQLQ]; see also Def. Manpower Data Ctr., Office of the Sec’y of Def., 2012 Workplace and Gender Relations Survey of Active Duty Members: Briefing on Sexual Assault and Sexual Harassment 37 (2013) [hereinafter Workplace and Gender Relations Survey], reprinted in Sexual Assault Prevention & Response Office, Dep’t of Def., Department of Defense Annual Report on Sexual Assault in the Military annex A (2013), http://www.sapr.mil/public/docs/reports/FY12_DoD_SAPRO_Annual_Report_on_Sexual_Assault-VOLUME_TWO.pdf [https://perma.cc/XG4E-UNUR] (reporting that 25% of female victims of unwanted sexual contact reported that the offender was in their chain of command and 57% indicated that the offender was a military coworker). Yet reporting rates of sexual misconduct are low.5×5. See, e.g., Workplace and Gender Relations Survey, supra note 4, at 79 (noting 66% of active-duty women who experienced unwanted sexual contact in 2012 did not report it). This is partly attributable to the military’s inadequate handling of complaints, including failures to address retaliation against victims and biases in the adjudication process.6×6. See, e.g., The Office of Kirsten Gillibrand, Comprehensive Resource Center for the Military Justice Improvement Act, Kirsten Gillibrand, http://www.gillibrand.senate.gov/mjia [https://perma.cc/M32U-R8U2]. Recently, in Baldwin v. Department of Defense,7×7. No. 1:15-cv-00424 (E.D. Va. Oct. 14, 2016). four servicewomen sued the Department of Defense (Department) for fostering a sexually hostile environment in the military and allowing biases in the military justice system, which contributed to their sexual assaults and prevented justice from being served upon the perpetrators.8×8. Complaint at 2, Baldwin (No. 1:15-cv-00424). The U.S. District Court for the Eastern District of Virginia dismissed the suit.9×9. Baldwin, slip op. at 1. In doing so, the court foreclosed the only avenue of judicial recourse for military sexual assault victims, avoiding the merits and creating an unattainable standard for future servicemembers challenging military sexual assault policies.
Plaintiffs Alyssa Rodriguez, Carmelita Swain, and Jennifer Smith are former servicewomen, and plaintiff Celina Baldwin serves on active duty.10×10. Id. at 2. All alleged that they experienced a sexually hostile environment, sexual assault, and/or rape by fellow servicemen.11×11. Id. Rodriguez claimed that she complained to military authorities; Smith filed an administrative complaint regarding a sexually hostile environment in her unit, which an investigation corroborated.12×12. Id. at 2–3. Such complaints were handled by the military justice system,13×13. Id. at 1–2. a congressionally created judicial structure that regulates the military and is governed by the Uniform Code of Military Justice (UCMJ).14×14. Id. at 2–3. “Under the [UCMJ], a single person is appointed as a ‘convening authority’ to oversee [an] investigation and prosecution,” functioning akin to a prosecutor and wielding the power to initiate an investigation, file charges, select a hearing officer, and determine if a charge is to be sent to trial.15×15. Id. at 3 (citing 10 U.S.C. §§ 822, 860 (2012)). All plaintiffs claimed that the Department “failed to eliminate a sexually hostile environment, failed to take any steps to prevent retaliation against those who report instances of sexual assault, and failed to prohibit those involved [as suspects] in sexual assault cases from becoming ‘convening authorities’ in sexual assault investigations.”16×16. Id. at 1. The plaintiffs sought injunctive relief to prevent the Department from appointing convening authorities who not only lack legal training, but also have held a command relationship with a relevant party or have engaged in prior sexual misconduct.17×17. Complaint, supra note 8, at 19.
Judge Lee granted the Department’s motion to dismiss on four grounds. First, he found that the plaintiffs lacked standing under the Lujan standard.18×18. Baldwin, slip op. at 7. Under Lujan, standing requires showing injury in fact, a causal link between the challenged conduct and the injury complained of, and likely redressability. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). He held that they did not demonstrate the imminent future injury required for prospective injunctive relief, as none could “assert facts that predict she will be assaulted in the future.”19×19. Baldwin, slip op. at 8. The court noted that three plaintiffs were no longer in the military and thus could not show imminent future injury by military officials.20×20. Id. Despite Baldwin’s continued service, the claim that she was “susceptible to future physical attacks” was deemed “speculative.”21×21. Id. at 9; see also id. at 8–9. The court did not analyze causation or redressability. Id. at 9.
Second, Judge Lee stated that the complaint presented a political question, which “precludes the courts from ‘encroaching on issues that the Constitution assigns to [the legislative or executive] branches or that the judiciary is ill-equipped to decide.’”22×22. Id. at 9 (quoting In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 334 (4th Cir. 2014)). He relied on four of the six factors identified by the Supreme Court in Baker v. Carr23×23. 369 U.S. 186 (1962). as relevant in determining if a case involves a political question.24×24. See Baldwin, slip op. at 10–11. The factors are whether: (1) there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; [(2)] or a lack of judicially discoverable and manageable standards for resolving it; [(3)] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [(4)] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [(5)] or an unusual need for unquestioning adherence to a political decision already made; [(6)] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker, 369 U.S. at 217. Regarding the constitutional factors,25×25. The first two factors derive from the Constitution’s text and structure and are often referred to as classical or constitutional factors, while the final four are known as prudential factors. See Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 247 n.24, 265 (2002). the court found that factor one applied because plaintiffs’ request would require it “to rewrite the [UCMJ] to ensure that ‘convening authorities’ . . . are not . . . associated with the accused.”26×26. Baldwin, slip op. at 10. It claimed that such judicial interference would “risk . . . communicating superiority over” the President’s Commander-in-Chief powers and Congress’s power to regulate the armed forces.27×27. Id. (citing U.S. Const. art. II, § 2; id. art. I, § 8). On factor two, the court stated that it lacked standards for resolving plaintiffs’ claims and that such a decision would implicate separation of powers.28×28. Id. at 10–11. The court also declared that the requested relief implicated prudential factors four and five.29×29. See id. at 10.
Third, the court found that the case involved a nonjusticiable military controversy.30×30. Id. at 11. Relying on Fourth Circuit precedent, the court stated that review of military action is confined to where a plaintiff proves that (1) the military violated “applicable statutes or its own regulations,” and (2) the plaintiff exhausted intraservice remedies.31×31. Id. (quoting Williams v. Wilson, 762 F.2d 357, 359 (4th Cir. 1985)). Judge Lee found the plaintiffs did not allege any policy violation by the military, but rather sought to amend existing policy.32×32. Id. at 13. Further, he held that none of the plaintiffs exhausted intraservice remedies.33×33. Id. Though Smith’s administrative complaint addressed the sexually hostile environment, it did not allege misconduct by the convening authority, and thus was not exhaustive.34×34. Id.
Finally, the court dismissed for failure to state a claim.35×35. Id. at 16. It found that Title VII36×36. 42 U.S.C. §§ 2000e to 2000e-17 (2012). does not apply to the military and that the plaintiffs had not alleged sufficiently specific facts to support an Administrative Procedure Act37×37. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.). claim or other statutory challenges.38×38. Id. at 14–16. The court did not address plaintiffs’ due process and equal protection claims. See Complaint, supra note 8, at 18.
The court’s short-shrift application of the standing, political question, and military controversy doctrines further extends an existing pattern of judicial avoidance characterizing intramilitary suits. This treatment highlights how such doctrines fail to account for the circumstances of military sexual assault victims, creating a standard that effectively precludes victims from ever obtaining relief.
The judiciary’s reluctance to wade into military affairs is longstanding. In Feres v. United States,39×39. 340 U.S. 135 (1950). the Supreme Court held that the Federal Tort Claims Act40×40. 28 U.S.C. §§ 1346(b), 2671–2680 (2012). sovereign immunity waiver does not apply to servicemembers’ claims against the government for injuries incurred incident to service.41×41. Feres, 340 U.S. at 142–46. The Feres doctrine has been interpreted broadly, barring military personnel from bringing damages suits, including under federal statutes or the U.S. Constitution,42×42. See, e.g., Natashia Tidwell, Note, Soldiers of Misfortune: The Justiciability of Injunctive Relief Actions in the Federal Courts and the U.S. Military’s Mandatory Anthrax Inoculation Program, 37 New Eng. L. Rev. 429, 438, 442 (2003). against the government and servicemembers regardless of the nature of the injury.43×43. See, e.g., David Saul Schwartz, Note, Making Intramilitary Tort Law More Civil: A Proposed Reform of the Feres Doctrine, 95 Yale L.J. 992, 994–95 (1986). Notwithstanding courts’ invocation of Feres to avoid military controversies, the doctrine has not been applied to injunctive relief claims.44×44. See, e.g., Tidwell, supra note 42, at 434; Wilkins v. United States, 279 F.3d 782, 787 (9th Cir. 2002) (noting the Supreme Court’s “jurisprudence points to the conclusion that Feres applies only to money damages”). Indeed, courts have adjudicated claims for injunctive relief against the military. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (First Amendment challenge to Air Force dress code); Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir. 2008) (due process and equal protection challenge to “Don’t Ask, Don’t Tell”); Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (en banc) (estoppel challenge to Army’s failure to reenlist a gay servicemember). Resultantly, when the military inadequately handles a servicemember’s claim, “the only avenues left open . . . are injunctive relief actions in the federal courts.”45×45. Tidwell, supra note 42, at 442. Thus, Baldwin’s high justicia-bility bar for injunctive relief creates an alarming barrier for those seeking recourse for the military’s treatment of sexual assault.
First, the court’s reading of the standing doctrine creates a nearly impossible standard, consistent with judicial reluctance to address military sexual assault.46×46. See Richard H. Fallon, Jr., The Fragmentation of Standing, 93 Tex. L. Rev. 1061, 1110–11 (2015) (“Standing issues rarely emerge in suits for damages. . . . With [two] cases growing out of the same set of events, the principal difference that led the Court to pronounce one justiciable and the other not involved the nature of the relief . . . requested[, namely,] judicially mandated restructuring of the [military].”). Requiring a plaintiff to “assert facts that predict she will be assaulted in the future” to prove injury in fact47×47. Baldwin, slip op. at 8. fails to appreciate the nature of these claims or the prevalence of military sexual misconduct. The court found that three of the plaintiffs could not prove injury since they were no longer serving. However, there are several hindrances on servicemembers’ ability to file suit while serving. All of the Baldwin plaintiffs allegedly suffered retaliation,48×48. See Complaint, supra note 8, at 13. as do sixty-two percent of servicewomen who report sexual assault.49×49. Nat’l Def. Research Inst., Sexual Assault and Sexual Harassment in the U.S. Military 20 (2014). Such retaliation may result in discharge or make it challenging to continue service given that retaliators are often coworkers or within the victim’s chain of command.50×50. See Francine Banner, Immoral Waiver: Judicial Review of Intra-Military Sexual Assault Claims, 17 Lewis & Clark L. Rev. 723, 768 (2013); see also Sexual Assault Prevention & Response Office, Dep’t of Def., Department of Defense Annual Report on Sexual Assault in the Military 43 (2016), http://www.sapr.mil/public/docs/reports/FY15_Annual/FY15_Annual_Report_on_Sexual_Assault_in_the_Military.pdf [https://perma.cc/4HDD-MFCR]. According to one study, female sexual assault or harassment victims are also five to eight times more likely to suffer from post-traumatic stress disorder — like three of the four Baldwin plaintiffs51×51. See Complaint, supra note 8, at 3–4. — than other female veterans, which frequently leads to separation from service.52×52. See The Relationships Between Military Sexual Assault, Post-Traumatic Stress Disorder and Suicide, and on Department of Defense and Department of Veterans Affairs Medical Treatment and Management of Victims of Sexual Trauma: Hearing Before the Subcomm. on Pers. of the S. Comm. on Armed Servs., 113th Cong. 2 (2014) (statement of Sen. Kirsten E. Gillibrand, Chair, S. Subcomm. on Pers. of the S. Comm. On Armed Servs.). Additionally, maintaining a lawsuit while on active duty is logistically arduous and likely to leave a plaintiff in a difficult position if she is suing due to the conduct of those she serves under or alongside. For example, in two recent cases brought by servicewomen for a sexually hostile environment — both dismissed under Feres53×53. See Klay v. Panetta, 758 F.3d 369 (D.C. Cir. 2014); Cioca v. Rumsfeld, 720 F.3d 505 (4th Cir. 2013). — one-third of the plaintiffs allegedly experienced retaliation for lodging a complaint, and others resigned after being ordered to continue serving under their alleged rapist or his associates.54×54. See Banner, supra note 50, at 737–38. Such official action included discharges, official reprimands, demotions, fines, investigations, and prosecutions. Id. at 737 n.85. This is common to reporting victims, who often face adverse action while attackers go free. Id. at 736–38, 767–68.
Yet, the court required even more than continued service to satisfy standing. Judge Lee held that Baldwin failed to demonstrate future injury because she could not show that she would suffer future sexual assault, despite continued service. This reasoning discounts the prevalence, and thus risk, of exposure to sexual misconduct. Baldwin was allegedly raped as well as sexually assaulted multiple times;55×55. Complaint, supra note 8, at 8–9. 76% of servicewomen describe sexual harassment as “common or very common,”56×56. The Office of Kirsten Gillibrand, supra note 6. and 23% have experienced unwanted sexual contact.57×57. U.S. Comm’n on Civil Rights, supra note 4, at 7. To say such evidence of rampant sexual misconduct — both specific to Baldwin and generally — is insufficient to prove future injury constricts standing to when a plaintiff continues to serve and continues to be sexually abused. This narrow construction is consistent with “anxieties about judicial competence that . . . frequently underlie rulings that plaintiffs who seek injunctive remedies against sensitive governmental operations have no standing”58×58. Fallon, supra note 46, at 1111. and functionally requires a victim to choose between removing herself from ongoing harm by resigning and obtaining judicial redress.
Second, the court’s overly expansive application of the political question doctrine creates a broad standard that, like its standing requirement,59×59. “[T]he concerns bearing on standing merge along a spectrum with concerns about whether the relief sought would overreach the bounds of judicial competence or enmesh the issuing court in functions more properly reserved to democratically accountable institutions.” Id. at 1110–11. impedes litigation. The analysis of Baker’s constitutional factors unwarrantedly assumed that because the case dealt with the military, it necessarily implicated separation of powers.60×60. In fact, the Supreme Court has heard gender-discrimination claims in the military context. See, e.g., United States v. Virginia, 518 U.S. 515 (1996). Regarding factor one, the court was not asked to address a matter constitutionally committed to another branch; it would neither have had to “rewrite” or “edit” the UCMJ, as Judge Lee claimed,61×61. Baldwin, slip op. at 10. nor engage with strategic military decisionmaking or national security matters. Rather, the court was tasked with determining the constitutionality of a statute, a staple competency of the judiciary.62×62. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (describing determining a statute’s constitutionality as “a familiar judicial exercise” that “courts cannot avoid . . . merely ‘because the issues have political implications’” (quoting INS v. Chadha, 462 U.S. 919, 943 (1983))). Contrary to Baldwin’s assertion on factor two,63×63. See Baldwin, slip op. at 10. courts are capable of resolving the plaintiffs’ claims. Civilian plaintiffs can successfully sue the government for military officials’ tortious conduct — including sexual assault64×64. See Schwartz, supra note 43, at 1005 & n.52. — and the judiciary regularly determines the lawfulness of statutes.
The court’s prudential considerations, namely its focus on Baker factors four and five,65×65. Baldwin, slip op. at 10. also do not justify deference. Baldwin offers few reasons to adhere to existing policy or why adjudication would disrespect other branches. While the military justice system is well equipped to handle issues of noncompliance with its own policies, it is not better positioned to weigh an individual’s constitutional rights against the military’s discipline interest or to decide the appropriate procedural protections for a sexual assault victim.66×66. See Schwartz, supra note 43, at 1010. Moreover, the Supreme Court’s recent jurisprudence suggests against finding a political question on prudential grounds.67×67. The majority in Zivotofsky ex rel. Zivotofsky v. Clinton did not consider prudential factors in finding the political question doctrine inapplicable. 566 U.S. 189, 195, 201 (2012). The concurrence warned that “[c]ourts should be particularly cautious before forgoing adjudication” on prudential grounds. Id. at 204 (Sotomayor, J., concurring in part and concurring in the judgment). The Baldwin court thus stretched the doctrine to cover acts with only a peripheral relationship to another branch’s domain, avoiding the merits68×68. See Gwynne Skinner, Misunderstood, Misconstrued, and Now Clearly Dead: The “Political Question Doctrine” as a Justiciability Doctrine, 29 J.L. & Pol. 427, 431, 460–65 (2014) (noting that courts may misapply Baker factors to evade deciding questions of military affairs). and immunizing the military from suit.
Finally, the court’s application of Fourth Circuit precedent on nonjusticiable military controversies serves as an additional obstacle to suit. The exhaustion-of-military-remedies constraint puts a heavy burden on plaintiffs to undergo a process they know will be painful and likely ineffective. It requires making a complaint while serving, despite the aforementioned challenges and a deep-seated lack of confidence in the system.69×69. See The Office of Kirsten Gillibrand, supra note 6 (“75 percent of [servicemembers] who have been sexually assaulted lack the confidence in the military justice system to come forward and report . . . .”). For example, victims are aware that complaints may be handled by a convening authority who is the victimizer, has other incentives to dismiss claims, or enables retaliation.70×70. See, e.g., id. (noting that supervisors and unit leaders commit nearly 60% of sexual harassment and gender discrimination offenses); Woods, supra note 3, at 1350 (discussing how commanding officers serving as convening authorities have an interest in dismissing claims and blaming victims to avoid questions about their managerial effectiveness). Further, the court distinguished between Smith’s complaint about her sexual assault and her failure to complain about how the convening authority handled her complaint.71×71. Baldwin, slip op. at 13. This creates a technical and impractical requirement that after being let down by the military justice system, a serving victim must lodge a complaint about the system’s bias with that same system to preserve a right to civil redress. Though such efforts appear useless, the court did not address the futility exception to exhaustion. Exhaustion is necessary only when an “unused remedy . . . may result in relief. [It is] never required . . . where the outcome would predictably be futile.”72×72. Dooley v. Ploger, 491 F.2d 608, 614–15 (4th Cir. 1974); see also Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991). The lack of engagement with this exception in a case directly dealing with the military justice system’s incompetence illustrates how the court’s reasoning stacks the deck against plaintiffs.
The Supreme Court has made clear that it “has never held . . . that military personnel are barred from all redress”73×73. Chappell v. Wallace, 462 U.S. 296, 304 (1983). and that “the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’”74×74. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)). Yet, Baldwin’s justiciability framework defies such mandates. In the interest of deference and avoidance, courts leave servicemembers’ safety to the whim of Congress and the Executive, which consistently fail to address military sexual assault.75×75. The Senate has repeatedly struck down Senator Gillibrand’s bill to reform military sexual assault prosecutions. President Obama did not take executive action on the matter. See Tom Brune, Kirsten Gillibrand Military Sexual Assault Bill Fails in Senate, Newsday (June 14, 2016, 9:25 PM), http://www.newsday.com/news/nation/kirsten-gillibrand-military-sexual-assault-bill-fails-in-senate-1.11915647 [https://perma.cc/CG4P-UZR6]. President Trump’s comments also suggest maintenance of the status quo. See Kay Steiger, Trump’s Solution to Military Sexual Assault Wouldn’t Actually Change the Process At All, Vox (Sept. 7, 2016, 10:21 PM), http://www.vox.com/2016/9/7/12843280/donald-trump-military-sexual-assault [https://perma.cc/87S2-A9K3]. Until other branches act, the judiciary’s self-imposed paralysis enables the government to continue denying legal protections to the very people who fight to defend it.