18-185

Doe v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL. 

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 

the City of New York, on the 29th day of May, two thousand twenty.

PRESENT:

RALPH K. WINTER,

RICHARD C. WESLEY,

RICHARD J. SULLIVAN,

Circuit Judges.

_____________________________________

Jane Doe,

Plaintiff-Appellant,

v. 18-185

United States of America, 

Defendant-Appellee,

Lieutenant General Franklin Lee Hagenbeck, 

Brigadier General William E. Rapp, 
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Defendants.I

FOR PLAINTIFF-APPELLANT: KATHRYN POGIN, JADE FORD 

(Chandini Jha, Kath Xu, Michael J. Wishnie,

Shikha Garg, Abigail Olson, Samantha 

Schnell, on the brief), Veterans Legal Services 

Clinic, Jerome N. Frank Legal Services

Organization, Yale Law School, New

Haven, CT.

FOR DEFENDANT-APPELLEE: CHRISTOPHER CONNOLLY (Benjamin 

H. Torrance, on the brief), Assistant United 

States Attorneys, for Geoffrey S. Berman, 

United States Attorney for the Southern 

District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Alvin K. Hellerstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED. 

Plaintiff-Appellant “Jane Doe” appeals a decision of the district court 

(Hellerstein, J.) dismissing her claims under the Federal Tort Claims Act (“FTCA”) and 

Little Tucker Act (“LTA”) against the United States. Doe, a former cadet at the United 

States Military Academy (“West Point”), alleges that she was sexually assaulted by a 

fellow cadet in 2010. In 2013, Doe brought claims under Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against two high-ranking military 

officials based on their roles in developing and overseeing West Point’s allegedly 

I The Clerk of Court is directed to amend the caption as set forth above. 
3

inadequate sexual assault policies; FTCA claims against the United States based on those 

same allegedly inadequate policies; and a contract claim under the LTA on the theory 

that by implementing the allegedly inadequate sexual assault policies, the United States 

breached the “agreement” it entered into with Doe when she joined West Point as a cadet. 

The district court dismissed all claims except for Doe’s Bivens equal protection claim. Doe 

v. Hagenbeck, 98 F. Supp. 3d 672 (S.D.N.Y. 2015). Lieutenant General Hagenbeck and 

Brigadier General Rapp filed a notice of interlocutory appeal regarding Doe’s Bivens 

equal protection claim, and on appeal, a panel of this Court concluded that her Bivens 

claim was barred by the doctrine of intramilitary immunity established in Feres v. United 

States, 340 U.S. 135 (1950). Doe v. Hagenbeck (“Doe I”), 870 F.3d 36 (2d Cir. 2017). 

Accordingly, we remanded to the district court with instructions to dismiss that claim. 

Now before the Court are Doe’s FTCA and LTA claims. Principally, Doe argues 

that (1) her FTCA claims are not barred by intramilitary immunity because her rape was 

not “incident to service;” and (2) the district court erred in dismissing her LTA claims, 

and a previous motions panel of this Court erred in concluding that those claims did not 

present a federal question. We assume the parties’ familiarity with the underlying facts 

and the record of prior proceedings, a detailed recitation of which is provided in Doe I,

and refer to them only as necessary to explain our decision to affirm.
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I. Standard of Review

In considering a dismissal for lack of subject matter jurisdiction under Rule 

12(b)(1), we “review factual findings for clear error and legal conclusions de novo.” 

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (internal quotation marks 

omitted). “A plaintiff asserting subject matter jurisdiction has the burden of proving by 

a preponderance of the evidence that it exists.” Id.

II. Doe’s FTCA Claims

Doe brings a number of claims under the FTCA, arguing that Defendants 

Hagenbeck, Rapp, and other West Point officials negligently trained and supervised West 

Point cadets and staff concerning sexual assault; implemented inadequate sexual assault 

policies; “created an unreasonable risk of causing [Doe] emotional distress” by creating 

and maintaining inadequate policies concerning sexual assault, failing to discipline 

assailants, and tolerating sexually aggressive conduct, J. App’x 62–63; and failed to 

investigate and punish instances of sexual assault in order “to conceal the true extent of 

the sexual violence at West Point,” J. App’x 63. The government argues that these claims 

are foreclosed by our decision in Doe I. We agree.

Under Feres v. United States, “the Government is not liable under the [FTCA] for 

injuries to servicemen where the injuries arise out of or are in the course of activity 

incident to service.” 340 U.S. at 146. Feres requires dismissal of a suit in which 

“commanding officers would have to stand prepared to convince a civilian court of the 
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wisdom of a wide range of military and disciplinary decisions; for example, whether to 

overlook a particular incident or episode, whether to discharge a serviceman, and 

whether and how to place restraints on a soldier’s off-base conduct.” United States v. 

Shearer, 473 U.S. 52, 58 (1985). 

In Doe I, we concluded that Doe’s Bivens claims were barred by the doctrine of 

intramilitary immunity because her injuries occurred “incident to service.” 870 F.3d at 

45. In doing so, we concluded that her allegations “center on the implementation and 

supervision of allegedly inadequate and harmful training and education programs 

relating to sexual assault and harassment;” “the alleged failure to provide properly . . . 

for the report and investigation of sexual assault claims, and for the support of cadets 

who are assaulted;” “the alleged lack of sufficient numbers of female faculty and 

administrators at West Point and on the failure to recruit female cadets;” “the allegedly 

inadequate punishment meted out not only to perpetrators of sexual violence but also to 

those who engage in misogynistic chants, slurs and comments;” and, “most broadly, on 

the assertedly culpable tolerance of a hostile culture toward women at West Point.” Id. 

at 46. We determined that “[a]djudicating such a money damages claim would require a 

civilian court to engage in searching fact-finding about Lieutenant General Hagenbeck 

and Brigadier General Rapp’s ‘basic choices about the discipline, supervision, and 

control’ of the cadets that they were responsible for training as future officers.” Id. 

(quoting Shearer, 473 U.S. at 58). Doe’s FTCA claims involve the same purportedly 
6

wrongful conduct and the same injuries. Accordingly, Doe’s FTCA claims are incident 

to service, and are therefore barred under Feres. 

Doe’s remaining arguments are similarly foreclosed by Doe I. For instance, Doe 

contends that, under Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995), her injuries were not 

within the scope of her military employment. But as the Court explained in Doe I, Taber

did not create a new test for immunity, and Feres remains good law. Doe I, 870 F.3d at 47 

n.9 (noting that “Taber could not be read to alter the reach of Feres, which was then and 

remains binding precedent”). And as we also noted in Doe I, “in the FTCA context, Taber

itself noted . . . that the incident-to-service rule (regardless of workers’ compensation 

considerations) is properly invoked when adjudicating the claim of a service member 

would require ‘commanding officers . . . to stand prepared to convince a civilian court of 

the wisdom of a wide range of military and disciplinary decisions.’” Id. at 48 (quoting 

Taber, 67 F.3d at 1049). “This is precisely the problem with Doe’s claim here.” Id.

Put simply, although Doe frames her suit as related to her role as a student and 

not her role as a soldier, the Court in Doe I has already concluded otherwise. Id. at 48

(finding Doe’s argument that she “was not a soldier on the battlefield, but a student 

attending college” to be “both contrary to the case law and unsupported by the factual 

allegations in Doe’s Amended Complaint”). As we noted previously, Doe was a member 

of the military, id. at 45, subject to military command “‘at all times,’” id. at 48 (quoting 10 

U.S.C. § 7446(d)), who was at West Point “‘for the purpose of military instruction,’” id. at 
7

48–49 (quoting 10 U.S.C. § 7449(a)). Her education was “inextricably intertwined” with 

her “military pursuits.” Id. at 49. We see no reason to depart from these findings now. 

Accordingly, we affirm the district court’s dismissal of Doe’s FTCA claims for lack of 

subject matter jurisdiction. See Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996) (“[T]he 

proper vehicle for dismissing a Feres-barred FTCA claim is a dismissal for lack of subjectmatter jurisdiction.”). We therefore do not reach the question of whetherthe district court 

erred in dismissing her claims under the FTCA’s discretionary function exception. See 

Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (“It is well-settled that this court 

may affirm on any grounds for which there is a record sufficient to permit conclusions of 

law, including grounds no[t]relied upon by the district court.”) (internal quotation marks 

and alterations omitted)).

III. Doe’s LTA Claim

Doe next contends that the district court erred in dismissing her LTA claim, and 

that that we should reconsider our prior ruling regarding our jurisdiction over this claim. 

We disagree. The LTA vests district courts with concurrent jurisdiction for “civil action[s] 

or claim[s] against the United States, not exceeding $10,000 in amount, founded . . . upon 

any express or implied contract with the United States . . . in cases not sounding in tort.” 

28 U.S.C. § 1346(a)(2). Section 1295(a)(2) grants “exclusive jurisdiction” to the Federal 

Circuit over nontax appeals from decisions of the district courts when “the jurisdiction of 

that court was based, in whole or in part,” on the LTA. United States v. Hohri, 482 U.S. 64, 
8

68–69, 75–76 (1987) (quoting 28 U.S.C. § 1295(a)(2)). However, 28 U.S.C. § 1346 “is itself 

only a jurisdictional statute; it does not create any substantive right enforceable against 

the United States for money damages.” United States v. Testan, 424 U.S. 392, 398 (1976). 

As such, a plaintiff bringing a claim under the LTA must identify some statute, 

regulation, or contractual provision that provides for payment of money damages in the 

event of a breach. See id. 

Before we decided Doe I, Doe moved to transfer the government’s appeal to the 

Federal Circuit, arguing that it had exclusive jurisdiction because the district court’s 

jurisdiction was based in part on the LTA. A motions panel of this Court denied that

motion, finding that “the district court’s jurisdiction was not based on the [LTA], since 

[Doe’s] contract claim failed to present a substantial federal question.” J. App’x 98 (the 

“Motions Panel’s Order”). After the district court’s final judgment following Doe I, Doe

appealed to the Federal Circuit, which granted the government’s subsequent motion to 

transfer the appeal to the Second Circuit. The Federal Circuit concluded that the Motions

Panel’s jurisdictional determination was “law of the case,” and that the Federal Circuit 

lacked jurisdiction to hear the appeal “[b]ecause the district court’s jurisdiction was not 

based in whole or in part on the [LTA].” J. App’x 168–71. Doe now asks us to overturn 

the Motions Panel’s Order denying her motion to transfer the government’s appeal and 

to send her appeal back to the Federal Circuit. We decline to do so.
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The “law of the case” doctrine “posits that when a court decides upon a rule of 

law, that decision should continue to govern the same issues in subsequent stages in the 

same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (1988) (internal 

quotation marks omitted). While a court has the “power to revisit prior decisions of its 

own or of a coordinate court in any circumstance, . . . as a rule courts should be loathe to 

do so in the absence of extraordinary circumstances such as where the initial decision was 

‘clearly erroneous and would work a manifest injustice.’” Id. at 817 (quoting Arizona v. 

California, 460 U.S. 605, 618 n.8 (1983)). The doctrine of the law of the case is, of course,

“even less binding in the context of interlocutory orders,” as “a motions panel’s decision 

is based on an abbreviated record and made without the benefit of full briefing by the 

parties, which may result in a less than thorough exploration of the issues.” Rezzonico v. 

H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999). Nonetheless, “[t]he major grounds 

justifying reconsideration” remain “an intervening change of controlling law, the 

availability of new evidence, or the need to correct a clear error or prevent manifest 

injustice.” Doe v. N.Y.C. Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983) (internal 

quotation marks omitted).

Although the record here was in a sense “abbreviated” given the interlocutory 

nature of the appeal, Rezzonico, 182 F.3d at 149, the motion was nonetheless fully briefed 

and argued by two sophisticated parties. Moreover, this is not a case in which the 

Motions Panel “silently address[ed] the jurisdictional question” or where a pro se litigant 
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failed to brief a complex jurisdictional issue. See Lora v. O’Heaney, 602 F.3d 106, 109 (2d 

Cir. 2010). And, as explained below, we do not question our jurisdiction over this appeal. 

In sum, as Doe points to no factual or legal development that the Motions Panel failed to 

consider, and does not otherwise point to a “clear error” or “manifest injustice”

warranting reconsideration, we decline to revisit the Motions Panel’s Order, deny Doe’s 

implicit request to transfer this appeal back to the Federal Circuit, and proceed to 

consider the district court’s dismissal of Doe’s claim on the merits. 

In substance, Doe contends that the “Oath of Allegiance” that she signed when she 

agreed to attend West Point carried an “implied covenant of good faith and fair dealing” 

that the United States breached by failing to address the hostile culture toward women 

that existed at the institution. But the Oath of Allegiance did not create a binding contract 

with the United States for the purposes of the LTA. West Point cadets are appointed, see 

10 U.S.C. §§ 7441a, 7442, 7446, and the Supreme Court has emphasized that an 

appointment does not create a “contract” for the purposes of LTA jurisdiction, see Army 

& Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 735–38 (1982); see also United States v. 

Hopkins, 427 U.S. 123, 128 (1976) (“[A]bsent specific command of statute or authorized 

regulation, an appointed employee subjected to unwarranted personnel action does not 

have a cause of action against the United States.”); Chu v. United States, 773 F.2d 1226, 

1229 (Fed. Cir. 1985). Accordingly, Doe’s claim simply “sound[s] in tort,” and therefore

did not give rise to a claim under the LTA. 28 U.S.C. § 1346(a)(2); Bembenista v. United 
11

States, 866 F.2d 493, 496 (D.C. Cir. 1989). We therefore affirm the dismissal of Doe’s LTA 

claim.

We have reviewed the remainder of Doe’s arguments and find them to be without 

merit. For the foregoing reasons, the order of the district court is AFFIRMED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court