Monday, August 15, 2011

Distinguishing Iqbal, Seventh Circuit holds allegations against Donald Rumsfeld adequately state a Bivens claim

            In Vance v. Rumsfeld, 2011 WL 3437511 (7th Cir. Aug. 8, 2011), plaintiffs, who are American citizens and civilians, alleged that they were detained and tortured by U.S. military personnel in Iraq for several months in 2006, then were released without ever being charged with a crime.  Plaintiffs had worked for a privately-owned Iraqi security services company and began whistle-blowing when they became suspicious that the company was involved in corruption and other illegal activities.  Their detention by the U.S. military followed. 

            Plaintiffs filed a Bivens claim alleging Fifth Amendment substantive due process violations (Count I) against Donald Rumsfeld, the former Secretary of Defense, and others, for torture and cruel, inhuman treatment, among other claims.  Defendant Rumsfeld filed a 12(b)(6) motion based in part on the asserted failure of plaintiffs’ complaint to allege his personal responsibility for their treatment and on qualified immunity. 

            The district court denied the motion to dismiss Count I, and the Seventh Circuit (hearing the appeal under Sections 1291 and 1292(b)) affirmed:

To proceed with their Bivens claims, plaintiffs must allege facts indicating that Secretary Rumsfeld was personally involved in and responsible for the alleged constitutional violations. See Iqbal, 129 S.Ct. at 1948–49 . . .  “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. As the Supreme Court said in Iqbal, “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Id. Unlike in Iqbal, which was a discrimination case, where the plaintiff was required to plead that the defendant acted with discriminatory purpose, the minimum knowledge and intent required here would be deliberate indifference, as in analogous cases involving prison and school officials in domestic settings.  . . . .

The Federal Rules of Civil Procedure impose no special pleading requirements for Bivens claims, including those against former high-ranking government officials. See Swierkiewicz v. Sorema N.A ., 534 U.S. 506, 513–14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The notice pleading standard under Rule 8 of the Federal Rules of Civil Procedure applies, and a plaintiff is required to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The complaint will survive a motion to dismiss if it meets the “plausibility” standard applied in Iqbal and Twombly. . . . .

We agree with the district court's observation in this case: “Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking government officials. It is not, however, a categorical bar on claims against these officials.” 

The court then summarized the complaint’s extensive and detailed allegations of Rumsfeld’s involvement, concluding: 

We agree with the district court that the plaintiffs have alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention. . . .

We agree with the district court that plaintiffs have articulated facts that, if true, would show the violation of a clearly established constitutional right. In fact, the defendants' argument to the contrary evaporates upon review. The plaintiffs have pled that they were subjected to treatment that constituted torture by U.S. officials while in U.S. custody. On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?

--Patricia Hatamyar Moore

Recent Decisions, Twombly/Iqbal | Permalink


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