United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2012 Decided June 15, 2012
No. 11-5209
JOHN DOE,
APPELLEE
v.
DONALD H. RUMSFELD,
APPELLANT
MICHAEL CHERTOFF, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01902)
Henry C. Whitaker, Attorney, argued the cause for
appellant. With him on the briefs were Tony West, Assistant
Attorney General, Ronald C. Machen Jr., U.S. Attorney, and
Robert M. Loeb, Attorney.
Michael I. Kanovitz argued the cause for appellee John Doe.
With him on the brief were Gayle Horn and Jesselyn Radack.
Debra S. Katz was on the brief for amicus curiae Project on
Government Oversight in support of appellee John Doe.
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Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: Appellee, a government contractor
identified herein as John Doe, underwent military detention in
Iraq. After his release, he filed this action in the district court
against, inter alia, then-Secretary of Defense Donald Rumsfeld
alleging claims under the Detainee Treatment Act (DTA), 42
U.S.C. § 2000dd et seq., and a Bivens action for violation of his
due process rights. Secretary Rumsfeld moved to dismiss for
failure to state a claim upon which relief could be granted. The
district court granted the motion as to the claims under the DTA
and some other claims, but did imply an action under the Bivens
due process theory and denied Rumsfeld’s motion to dismiss as
to those claims. Secretary Rumsfeld appeals from the denial of
his motion, arguing both that the claims are barred by qualified
immunity and that the court erred in implying such a cause of
action in the first instance. Because we agree that the district
court erred in implying such a cause of action, we reverse the
order of the district court.
Background
Because this case arises out of a motion to dismiss, we, like
the district court, accept the well-pleaded factual allegations set
forth in Doe’s complaint as true for purposes of this stage of the
litigation and construe reasonable inferences from those
allegations in Doe’s favor, although we are not required to
accept Doe’s legal conclusions as true. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Doe’s complaint alleges the
following facts:
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In December 2004, Doe, a United States citizen and
employee of an American-owned defense contracting firm,
traveled to Iraq to work as a civilian Arabic translator and was
detailed to a United States Marine Corps Human Exploitation
Team operating along the Iraqi-Syrian border. Doe’s job was to
develop intelligence through contacts with local Iraqis and to
discover threats to the Marine unit. In July 2005, he made
contact and developed a relationship with Iraqi Sheikh Abd Al-
Sattar Abu Risha. Doe maintains that he became the unit’s point
of contact with Al-Sattar and that, through a series of secretive
meetings, he cultivated Al-Sattar as a United States “ally.”
On October 20, 2005, Doe returned to a United States
military camp in preparation to depart for his annual leave.
There, a Navy Criminal Investigative Service (NCIS) agent
asked to interview Doe. Doe agreed and discussed his work
with the agent.
Two weeks later, Doe traveled to Al Asad, a United States
military base, from which he was scheduled to depart for his
leave. At that point, three NCIS agents, including the one who
previously interviewed him, along with another United States
official, detained Doe and interrogated him for four hours. Doe
alleges that the agents denied his requests to have an attorney,
a company representative, or a member of the Marine unit
present for his questioning. Doe states that the agents
confiscated his luggage, blindfolded him, kicked him in the
back, and threatened to shoot him if he tried to escape.
Doe was transferred into the custody of the Marine Corps.
After seventy-two hours of solitary confinement, he was
blindfolded, hooded, and flown to Camp Cropper, a United
States military facility near Baghdad International Airport used
to hold high-value detainees, where he was confined for nine
months. For the first three months, Doe alleges he was kept in
4
solitary confinement; thereafter, he was transferred into a cell
housing suspected hostile al Qaeda and Arab Socialist Ba’ath
Party members. Doe alleges that the military officers publicized
his affiliation with the Department of Defense to encourage his
cell mates to attack him and that the prison guards mistreated
him by exposing him to extreme temperatures and depriving him
of sleep. He alleges that one guard choked him repeatedly.
During his detainment, United States government officials
interrogated Doe multiple times and denied his requests for an
attorney to be present at those interrogations.
In December 2005, the Detainee Status Board held a
hearing and deemed Doe a threat to the Multi-National Forces
in Iraq. In July 2006, the Board held a second hearing, after
which Doe was transported to Jordan and ultimately to the
United States, where he was released. Doe was never formally
charged with a crime. He alleges that his property was not
returned to him and that he has been placed on watch lists,
preventing contracting firms from hiring him and causing
customs officials to interrogate him when he returns from
international travel.
Procedural History
In November 2008, Doe filed this action against former
Secretary of Defense Donald Rumsfeld, other United States
government officers and agents, and the United States
government. Relevant to this appeal, Doe asked the district
court to hold Secretary Rumsfeld personally liable for violating
Doe’s rights under the DTA and for violating Doe’s
constitutional rights guaranteed under the Fifth, Eighth, and
Fourteenth Amendments on the theory that Secretary Rumsfeld
developed, authorized, and implemented the policies that caused
Doe harm.
5
Secretary Rumsfeld moved to dismiss Doe’s claims against
him for failure to state a claim upon which relief could be
granted. Doe v. Rumsfeld, 800 F. Supp. 2d 94, 100 (D.D.C.
2011). The district court dismissed Doe’s claims arising under
the DTA, holding that the DTA does not provide a private cause
of action. Id. at 104-05. The district court also dismissed Doe’s
procedural due process and access to court claims, holding that
Doe had not pled sufficient facts to overcome Secretary
Rumsfeld’s qualified immunity defense. Id. at 113-14.
The court held, however, that Doe could maintain a federal
cause of action for his substantive due process claims under
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). The district court also held that Secretary
Rumsfeld was not entitled to a qualified immunity defense to
Doe’s substantive due process claims because Doe had a right
to be free from detention and interrogation practices that “shock
the conscience”; that right was established at the time of
Rumsfeld’s alleged conduct; and Doe sufficiently pled facts to
support a claim that Secretary Rumsfeld violated that right.
Doe, 800 F. Supp. 2d at 115.
Secretary Rumsfeld filed this interlocutory appeal of the
district court’s partial denial of his motion to dismiss Doe’s
claims against him. He argues that the district court erred first
by implying a Bivens action arising out of the sensitive context
of a military detention in a foreign warzone and second by
denying him qualified immunity against Doe’s substantive due
process claims. Our review of each of these legal issues is de
novo. See Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008).
Jurisdiction
Although the jurisdiction of courts of appeals ordinarily
extends only to review of “final decisions” of the district courts,
6
we have jurisdiction over the current interlocutory appeal. This
case fits squarely within a well-established exception that the
denial of a motion to dismiss on the ground of qualified
immunity has sufficient finality to warrant interlocutory review,
and within the language of Hartman v. Moore, 547 U.S. 250
(2006), that where “the definition of an element of the [asserted
cause of action] [was] directly implicated by the defense of
qualified immunity and properly before us on interlocutory
appeal,” we have jurisdiction over the appeal. Id. at 257 n.5.
Analysis
Doe’s due process claims against the Secretary of Defense
depend upon the court extending the bounds of claims for relief
first recognized by the Supreme Court in Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). In Bivens, the Supreme
Court held that plaintiffs may have a cause of action against
federal officials who, while acting under the color of law,
violate the plaintiffs’ Fourth Amendment right to be secure
against unreasonable searches and seizures, even if no statute
authorizes such relief. The Court cautioned in dicta in Bivens,
and in later cases repeatedly held, that if “special factors
counsel[] hesitation in the absence of affirmative action by
Congress” or if Congress affirmatively has declared that injured
persons must seek another remedy, courts should not imply a
cause of action where none exists. See Bivens, 403 U.S. at 396-
97; Chappell v. Wallace, 462 U.S. 296, 298 (1983); United
States v. Stanley, 483 U.S. 669, 678 (1987); Minneci v. Pollard,
132 S. Ct. 617, 621 (2012). The district court in this case held
that no special factors counsel hesitation and no other remedy
exists for the alleged violations of Doe’s substantive due process
rights. Therefore, the court held, Doe could maintain a federal
cause of action under Bivens. Doe, 800 F. Supp. 2d at 111.
7
We do not agree. The implication of a Bivens action,
consistent with the dicta in Bivens itself and the later holdings of
the Supreme Court and this court, is not something to be
undertaken lightly. In the forty-two years since the Supreme
Court decided Bivens, only twice has it extended Bivens
remedies into new classes of cases—once in the context of a
congressional employee’s employment discrimination due
process claim, Davis v. Passman, 442 U.S. 228 (1979), and once
in the context of a prisoner’s claim against prison officials for an
Eighth Amendment violation, Carlson v. Green, 446 U.S. 14
(1980). See Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009).
In 1988, the Supreme Court acknowledged that “[o]ur more
recent decisions have responded cautiously to suggestions that
Bivens remedies be extended into new contexts.” Schweiker v.
Chilicky, 487 U.S. 412, 421 (1988). More recently, the Court
explained that “[b]ecause implied causes of action are
disfavored, the Court has been reluctant to extend Bivens
liability to any new context or new category of defendants.”
Iqbal, 556 U.S. at 675 (quotation marks and citation omitted).
The Supreme Court consistently has considered and rejected
Bivens remedies in all other contexts. See Minneci, 132 S. Ct.
at 622-23 (collecting five categories of cases in which the Court
has declined to imply Bivens remedies). Unlike the district
court, we perceive that special factors present in this case
counsel against the implication of a new Bivens remedy.
1. Special Factors Pertaining to Military, Intelligence,
and National Security
The Supreme Court has never implied a Bivens remedy in
a case involving the military, national security, or intelligence.
In the military context, the Court has explained that “the
insistence (evident from the number of Clauses devoted to the
subject) with which the Constitution confers authority over the
Army, Navy, and militia upon political branches . . . . counsels
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hesitation in our creation of damages remedies in this field.”
Stanley, 483 U.S. at 682. In Stanley, the Court held that “no
Bivens remedy is available for injuries that ‘arise out of or are in
the course of activity incident to service.’” Id. at 684 (quoting
Feres v. United States, 340 U.S. 135, 146 (1950)). The Stanley
decision echoed the Supreme Court’s earlier refusal to recognize
a cause of action against military superiors in Chappell v.
Wallace, 462 U.S. 296 (1983). There, five enlisted men sought
damages and other relief against their superior officers for
alleged discrimination. In refusing to recognize a Bivens cause
of action, the Court stated that “‘[i]t would be difficult to think
of a clearer example of the type of governmental action that was
intended by the Constitution to be left to the political branches
directly responsible—as the Judicial Branch is not—to the
electoral process.’” Chappell, 462 U.S. at 302 (quoting
Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). Granted, Doe is a
contractor and not an actual member of the military, but we see
no way in which this affects the special factors analysis.
The strength of the special factors of military and national
security is underlined by precedent beyond the Bivens cases, and
indeed before the creation of Bivens remedies. The Court long
has recognized that even during the “twilight between war and
peace,” trials that would deplete military resources “would
hamper the war effort and bring aid and comfort to the enemy.”
Johnson v. Eisentrager, 339 U.S. 763, 779 (1950). In the
context of national security and intelligence, the Court has
cautioned that “[m]atters intimately related to . . . national
security are rarely proper subjects for judicial intervention.”
Haig v. Agee, 453 U.S. 280, 292 (1981). Military detainee cases
implicate similar concerns regarding the conduct of war, the
separation of powers, and the public scrutiny of sensitive
information.
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In addition to the Supreme Court precedent, this circuit and
others have not implied Bivens actions in cases involving these
special factors. For instance, in Ali v. Rumsfeld, 649 F.3d 762
(D.C. Cir. 2011), we considered whether Afghan and Iraqi
detainees who were captured and held in their home countries by
the United States military could bring Bivens claims against
United States military officials. In addition to our concerns that
such a trial would deplete military resources, we recognized that
“allowing a Bivens action to be brought against American
military officials engaged in war would disrupt and hinder the
ability of our armed forces to act decisively and without
hesitation in defense of our liberty and national interests.” Ali,
649 F.3d at 773 (quotation marks and citation omitted); see also
Rasul v. Myers, 563 F.3d 527, 532 n.5 (D.C. Cir. 2009).
In Wilson, we considered whether to imply a Bivens remedy
to allow a Central Intelligence Agency operative and her
husband to recover damages for injuries they allegedly suffered
when her covert status was made public. Wilson, 535 F.3d at
701, 704. In declining to imply such a cause of action, we held
that the “require[d] judicial intrusion” into national security and
intelligence matters was itself a special factor counseling
hesitation because such intrusion would subject sensitive
operations and operatives to judicial and public scrutiny. Id. at
710.
In Arar, the Second Circuit determined that a dual citizen
of Canada and Syria could not bring a Bivens claim against
United States government and military officials based on
allegations of torture he suffered in the United States because
“such an action would have the natural tendency to affect
diplomacy, foreign policy, and the security of the nation, and
that fact counsels hesitation.” 585 F.3d at 574.
10
And in Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012),
the Fourth Circuit held that a United States citizen who was
arrested and detained as an enemy combatant in the United
States upon his return from Afghanistan could not bring a Bivens
action against top Department of Defense officials for their
policy judgments regarding the designation and treatment of
enemy combatants. Id. at 544-45, 547, 556-57. The Lebron
court offered an extensive review of the numerous factors
counseling hesitation, including the importance of “[p]reserving
the constitutionally prescribed balance of powers,” id. at 548-50;
the sensitive nature of the allegations involved in detainee cases,
id. at 550-51; the need to review the military command structure
in order to determine liability, id. at 553; and administrability
concerns regarding the need to require current and former
officials to testify about the rationale for the policy at issue, id.
at 553-54.
Many of the same special factors counseling hesitation
identified in the cases discussed above are present in this case.
In his complaint, Doe challenges the development and
implementation of numerous military policies and decisions.
The complaint would require a court to delve into the military’s
policies regarding the designation of detainees as “security
internees” or “enemy combatants,” as well as policies governing
interrogation techniques.
Doe’s allegations against Secretary Rumsfeld implicate the
military chain of command and the discretion Secretary
Rumsfeld and other top officials gave to NCIS agents to detain
and question potential enemy combatants. The allegations raise
questions regarding Secretary Rumsfeld’s personal control over
the treatment and release of specific detainees. Litigation of
Doe’s case would require testimony from top military officials
as well as forces on the ground, which would detract focus,
resources, and personnel from the mission in Iraq. And as we
11
recognized in Ali, allowing such an action would hinder our
troops from acting decisively in our nation’s interest for fear of
judicial review of every detention and interrogation. See 649
F.3d at 773.
Doe seeks to distinguish his case from our precedent by
emphasizing that he, unlike the detainees in Rasul and Ali, is a
United States citizen. Appellee’s Br. at 19. Those decisions,
however, did not hinge on the plaintiffs’ citizenship status.
Although Doe’s United States citizenship does remove concerns
we had in those cases about the effects that allowing a Bivens
action would have on foreign affairs, see, e.g., Ali, 649 F.3d at
773-74, his citizenship does not alleviate the other special
factors counseling hesitation present in those cases and
discussed above.
2. Congressional Action
The Supreme Court has held that one special factor
precluding the creation of a Bivens remedy is the existence of a
statute that provides at least a partial remedy to the same harm
alleged by a plaintiff seeking a Bivens remedy. See, e.g., Bush
v. Lucas, 462 U.S. 367, 380, 388 (1983) (presence of federal
civil service laws precluded additional Bivens remedies, even
though they did not provide “complete relief”). The Supreme
Court also has stated that “[t]he absence of statutory relief for a
constitutional violation . . . does not by any means necessarily
imply that courts should award money damages against the
officers responsible for the violation.” Schweiker, 487 U.S. at
421-22. The Court explained that “the concept of ‘special
factors counselling hesitation in the absence of affirmative
action by Congress’ has proved to include an appropriate
judicial deference to indications that congressional inaction has
not been inadvertent.” Id. at 423 (denying Bivens remedy for
emotional distress suffered because of delay in receipt of Social
12
Security benefits, in part because Congress had created elaborate
Social Security scheme, but not that particular remedy).
Similarly, this Court has acknowledged that in situations in
which “Congress has intentionally withheld a remedy . . . we
must most refrain from providing one because it is in those
situations that appropriate judicial deference is especially due to
the considered judgment of Congress that certain remedies are
not warranted.” Wilson, 535 F.3d at 709 (internal quotation
marks omitted).
That is not to say that there is a statute as directly
implicated in this case as there was in Lucas or Wilson. But
congressional inaction also can inform our understanding of
Congress’s intent. For instance, under the Torture Victim
Protection Act, 28 U.S.C. § 1350, United States residents may
sue foreign states. When asked to expand the list of possible
defendants under that statute, we assumed that Congress
deliberately “did not . . . include as possible defendants either
American government officers or private U.S. persons.” Saleh
v. Titan Corp., 580 F.3d 1, 16 (2009). Here, there is similar
evidence of congressional inaction, which supports our
conclusion that this is not a proper case for the implication of a
Bivens remedy. In 2005, Congress enacted the Detainee
Treatment Act, which governs interrogation practices and
prohibits Department of Defense officials from using any
techniques not authorized by the United States Army Field
Manual on Intelligence Interrogation. 42 U.S.C. § 2000dd(a);
10 U.S.C. § 801 note. As the district court recognized, the DTA
created no private cause of action. Neither in that Act nor any
other has Congress extended a cause of action for detainees to
sue federal military and government officials in federal court for
their treatment while in detention. It would be inappropriate for
this Court to presume to supplant Congress’s judgment in a field
so decidedly entrusted to its purview.
13
Qualified Immunity
Secretary Rumsfeld also argues that the district court erred
by denying him qualified immunity against Doe’s substantive
due process claims. Qualified immunity protects public
officials personally sued for damages “from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Because we have
determined that Doe may not bring a Bivens action against
Secretary Rumsfeld, we need not consider Secretary Rumsfeld’s
qualified immunity defense to such an action.
Conclusion
Because Doe has failed to state a constitutional Bivens
claim for which relief may be granted, we reverse the district
court’s order.