The separation between the civilian court system and the U.S. military repeatedly affirmed by the U.S. Supreme Court won't allow a former West Point cadet's attempts to hold superior officers accountable for an on-campus sexual assault to go forward, a split U.S. Court of Appeals for the Second Circuit panel found Wednesday.

Judges Richard Wesley and Debra Ann Livingston reversed the decision by U.S. District Judge Alvin Hellerstein of the Southern District of New York, up on interlocutory appeal, to allow plaintiff Jane Doe's Fifth Amendment equal protection suit to go forward against Lieutenant General Franklin Lee Hagenbeck, former West Point superintendent, and Brigadier General William Rapp, former commandant of cadets.

Arguments pivoted on the Supreme Court's 1971 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, but the panel found that the high court's continual calls for restraint in broadening the liability covered by Bivens prevented the plaintiff from overcoming the court's concerns, as “adjudicating Doe's claim would require judicial interference into a wide range of military functions.”