Friday, November 9, 2012
The en banc Seventh Circuit this week ruled in Vance v. Rumsfeld that two American military contractors had no cause of action against former Defense Secretary Donald Rumsfeld for torture. The ruling was expected: the court previously vacated the three-judge panel ruling allowing the case to move forward; oral arguments suggested that the full court was hostile to the plaintiffs' claims; and the ruling aligns with similar (but distinguishable and less sweeping) rulings in the Fourth and D.C. Circuits. We posted last on the case, with links to an earlier post, here.
The ruling ends the plaintiffs' case and effectively creates absolute immunity against such claims for military personnel and their civilian commanders--at least in the Seventh Circuit. Given similar rulings in the Fourth and D.C. Circuits--and no circuit going the other way--the case almost surely will not attract the attention of the Supreme Court. (Even if the Court took it up, it would almost certainly affirm the Seventh Circuit's ruling, given its trend with Bivens actions.) The case also extended the no-supervisory-liability rule for Bivens claims (affirmed in Iqbal), holding that Secretary Rumsfeld's alleged authorization of torture, even if true, was simply too attenuated from the actions of those who actually tortured the plaintiffs.
The case involved two American military contractors who claimed that they were detained and tortured by military authorities in Iraq. They sued Secretary Rumsfeld under Bivens based on his alleged authorization of torture techniques.
The en banc Seventh Circuit reversed a three-judge panel and held that Bivens did not offer a remedy to the plaintiffs. Chief Judge Easterbrook, writing for the court, set the tone early in his opinion, expressing hostility to "creating new Bivens claims":
[The Supreme Court] has not created another [Bivens] remedy during the last 32 years--though it has reversed more than a dozen appellate decisions that had created new actions for damages. Whatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated. The Supreme Court never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damges. The Court has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States. Yet plaintiffs propose a novel damages remedy against military personnel who acted in a foreign nation--and in a combat zone, no less.
Op. at 9. Chief Judge Easterbrook wrote that "special factors" counseled against a Bivens remedy, in particular the courts' relative inability to assess the merits of military policies and decisions. Chief Judge Easterbrook also mentioned that Congress declined to create a statutory remedy, suggesting that it didn't want plaintiffs suing military personnel or their superiors, and that Congress created two administrative paths to remedies but that the plaintiffs did not pursue them. "But Congress has not authorized awards of damages against soldiers and their superiors, and creating a right of action in common-law fashion would intrude inapropriately into the military command structure." Op. at 17.
Note that the ruling (Part III) extends to "soldiers and their superiors," even though this case was only against Secretary Rumsfeld.
Chief Judge Easterbrook also wrote that Secretary Rumsfeld's authorization of torture was too attenuated from the actions of those who actually tortured the plaintiffs to survive the no-supervisor-liability rule for Bivens claims. The plaintiffs sought to navigate this rule by alleging that Secretary Rumsfeld personally authorized torture--i.e., that he wasn't vicariously liable, but was rather directly responsible. But Chief Judge Easterbrook wrote that Iqbal requires that a defendant "wants the unconstitutional or illegal conduct to occur." Op. at 19. That, he said, the plaintiffs did not allege.
Judge Wood concurred in the judgment only but wrote separately to emphasize that the alleged actions were torture, and could not hide behind the euphamism of enhanced interrogation techniques. Judge Wood also disagreed with the majority insofar as its opinion (Part III) would insulate military personnel (and not merely the Secretary of Defense) from Bivens liability.
Judges Hamilton, Rovner, and Williams all wrote a separate dissent and all joined each others' dissents, emphasizing different points. Judge Hamilton pointed out that the ruling gives more rights to aliens (under the Torture Victim Protection Act) than U.S. citizens and explained in great detail why U.S. law, in fact, assumes that the plaintiffs should have had a Bivens claim. Judge Rovner argued that the plaintiffs pleaded sufficiently specific facts related to Secretary Rumsfeld's direct responsibility to survive the pleading standards set in Iqbal and Twombley. And Judge Williams emphasized the remarkable scope of the majority's opinion. "No case from our highest court or our sister circuits has approached such a sweeping conclusion." Op. at 73.