Tuesday, January 24, 2012
A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention. The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.
Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act. He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief. The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.
The Fourth Circuit affirmed. The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief. The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.
The panel also said that Padilla had other forms of relief, in particular habeas.
The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts. Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy. The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld. Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens. (We posted on the cases here.)
The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates. That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien. The court ruled that alienage didn't matter for the special factor analysis.
The ruling on alternative relief is not so obviously in tension with Vance and Doe. The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas. (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)
The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit. Oral arguments are set for February 8.
The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.
Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief. It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.