On August 8 of this year, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit permitted two American citizens to sue several U.S. military officials and former Secretary of Defense Donald Rumsfeld for violating their constitutional rights.
In that case, Vance v. Rumsfeld, the plaintiffs alleged that U.S. military officials in Iraq detained and tortured them for several months, and then released them from custody without even charging them with a crime. The plaintiffs further alleged that Rumsfeld was personally involved in, and responsible for, the rights-violations.
If the allegations are true, then such actions by the military were reprehensible. Indeed, even the defendants themselves did not dispute in court that the officials’ behavior—if it occurred as alleged in the plaintiffs’ complaint—would constitute a flagrant violation of the plaintiffs’ constitutional rights.
The issue before the court was not, however, whether the behavior actually occurred, but whether the plaintiffs could seek relief in the manner they did, even assuming the truth of their allegations.
In this column, I will first explain the three essential issues before the Seventh Circuit in Vance. Second, I will discuss in greater detail the first issue, and assess the considerations the court took into account in resolving that issue the way it did. Third and finally, I will highlight the significance of the decision and some of its possible implications.
Allowing the Suit to Proceed: Three Essential Questions
The appeals court grappled with three crucial questions before reaching its decision in favor of the plaintiffs. The first question, and the one I discuss at length in this column, was whether the plaintiffs had even stated a proper claim for relief.
For an injured person to be entitled to relief in the American justice system, she must allege (and ultimately prove) that the defendant’s conduct injured her in a manner for which the law provides a remedy. For example, neither state nor federal law provides a remedy for the “injury” of being cut off in traffic. Thus, if a person were to seek relief in court for such a claim, his or her complaint would be dismissed for “failure to state a claim upon which relief can be granted.” Likewise, in Vance, the defendants moved to dismiss the plaintiffs’ claim on the ground that the plaintiffs had alleged a claim for which the law did not provide relief.
The second question the court addressed was whether the plaintiffs’ claim was sufficiently plausible for a federal court to hear the case on its merits. Under the 2009 Supreme Court case Ashcroft v. Iqbal, individuals suing government officials must plead “that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” The Iqbal Court also held that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” (emphasis added).
Thus, because the plaintiffs in Vance named former Secretary of Defense Rumsfeld in their complaint, they had to allege that not only the military officials, but also Rumsfeld himself—through his own individual actions—violated their constitutional rights. Moreover, they had to support that allegation with sufficient facts to make it plausibly true as to each defendant.
Notably, the Court in Iqbal itself found that the plaintiff there failed to meet this heightened requirement because his allegations did not show that the top-level official at issue (then-Attorney General Ashcroft, in that case) personally and intentionally discriminated against the plaintiff.
The Seventh Circuit’s final inquiry in Vance was whether the officials’ actions violated “clearly established law” at the time, thereby precluding the officials from asserting immunity as a defense to liability. The doctrine of “qualified immunity” protects most government officials from liability if their official conduct did not violate a law that was “clearly established” at the time they acted.
Thus, even if a court finds an official’s actions to be unconstitutional, she still may be immune from liability if there is no precedent that clearly designated that type of conduct as unconstitutional at the time that she acted. The plaintiffs in Vance argued, however, that the law was clearly established at the time and thus that qualified immunity was unavailable as a defense.
In the face of persuasive precedent to the contrary, the Seventh Circuit answered “Yes” to all three of these questions—thereby allowing the suit to go forward.
Bivens and Court-Created Remedies
Courts have traditionally avoided creating remedies where Congress has expressed an intent to create them itself. For example, many federal statutes establish certain individual rights and prescribe the means by which individuals may seek a remedy for violations of those rights. In contrast, the Constitution enumerates certain individual rights—and yet, in itself, provides no means by which a person might seek relief if those rights were to be violated.
Congress thus enacted a law—Section 1983 of Title 42 of the United States Code, often referred to simply as “Section 1983”—that explicitly permits individuals to sue state officials for violations of their constitutional rights. In contrast, however, Congress has passed no such legislation regarding violations by federal officials.
The Supreme Court first addressed this disparity in 1971 in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, where it held that the Fourth Amendment’s guarantee against unreasonable searches and seizures contains an implied right of individual enforcement. Put another way, private individuals can sue federal officials for violations of their Fourth Amendment right against unreasonable searches and seizures. The Bivens Court reached this conclusion in large part because of the absence of any federal statute comparable to Section 1983 creating such liability. In the absence of a federal statute to authorize such suits, the Court essentially allowed those who are wronged by an illegal search to sue directly under the Constitution itself.
The Supreme Court has also held that the Fifth Amendment’s equal protection component and the Eighth Amendment’s guarantee against cruel and unusual punishment similarly contain implied rights of enforcement. Collectively, these claims of constitutional violations against federal officials are called Bivens claims, named for the first case to acknowledge that such a remedy can exist. Beyond these three decisions, however, courts have been hesitant to recognize additional Bivens claims, in part out of deference to Congress’s prerogative to establish remedies itself. However, that hesitance should not be interpreted as sheer unwillingness.
The Test for When a Court Should Recognize a Would-Be Bivens Claim
The Supreme Court has laid out a two-step test to determine whether a particular Bivens claim should be recognized, as follows:
First, a court should consider “whether any alternative, existing process for protecting the interests amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.”
If such an alternative exists, then the plaintiff may not use a Bivens claim to seek relief (because permitting her to do so would usurp Congress’s power to prescribe remedies).
If no such alternative exists, a court should then determine whether any “special factors . . . counsel hesitation.” Among the “special factors” courts have recognized as precluding Bivens actions in the past are: claims where plaintiffs are not U.S. citizens, claims brought by military personnel against their superior officers, claims purely consisting of matters of military action and policy, and claims implicating matters of national security.
Absent any special factors, or after balancing them against the interest of justice and individual liberty, a court may determine whether to recognize a particular Bivens claim.
The Bivens Claim Asserted in Vance v. Rumsfeld
In Vance v. Rumsfeld, the plaintiffs asked the court to recognize their Bivens claim against Rumsfeld and the military officers for authorizing and carrying out torture. The crux of their argument was that a court should withhold a Bivens remedy only if special factors compel it to do so, and that no such special factors were present.
The defendants countered that Bivens claims were not so readily available, and that special factors were present that militated against recognition of the plaintiffs’ claim. Recent case law suggests (and the Seventh Circuit’s reasoning supports) that Bivens claims are not so widely permissible as the plaintiffs suggested, but neither are the special factors so pervasive, let alone compelling, as the defendants painted them.
The success of the plaintiffs’ lawsuit relied on the court’s finding that “a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone.” In other words, the plaintiffs sought a Bivens remedy for the violation of their constitutional right to be free from torture, which they argued falls within the right to substantive due process.
Although the Fifth Amendment has its own Due Process Clause, the concept of substantive due process comes from the Fourteenth Amendment’s Due Process Clause. A violation of a person’s substantive due process rights is typically characterized as behavior that “shocks the conscience.” The Supreme Court had not yet ruled whether a Bivens remedy is generally available for that type of constitutional violation, so the Seventh Circuit engaged in the two-step process to answer that question.
One Question Before the Court: Was There an Alternative Method of Obtaining Relief?
The court first looked for an alternative method of obtaining relief. Although the defendants in Vance did not argue that there was an alternative remedy available to the plaintiffs, an amicus brief filed by former Secretaries of Defense and Members of the Joint Chiefs of Staff did present that argument. Their brief suggested that the plaintiffs were afforded protection by several treaties, policies, and laws—including the Geneva Conventions and the Uniform Code of Military Justice.
The Seventh Circuit rejected that argument, however, because all of those avenues of relief would have required remedial action by the very officials who had allegedly violated the plaintiffs’ rights in the first place. Moreover, the court found that the mere opportunity to complain does not constitute adequate relief, and that the plaintiffs actually had sought relief through the few administrative options available to them, with no results.
The Three Key Considerations Relating to Special Factors
Finding no alternative remedy, the court then turned to the question of special factors and divided the inquiry into three considerations: the relative breadth of the plaintiffs’ claim for relief and the defendants’ asserted defense; Bivens precedents in favor of recognizing the claim; and Bivens precedents against recognition.
As to the first consideration, regarding the breadth of the claims and the defense, the court found that the plaintiffs sought only a remedy for treatment “contrary to explicit statutory law and stated military policy” that violated their constitutional right to substantive due process. In contrast, the court found that the defendants’ argument that Bivens claims should never be recognized in foreign war zones would immunize Cabinet members like the Secretary of Defense, personnel who actually carry out orders, and “every officer in between” for conduct including “deliberate torture and even cold-blooded murder of civilian U.S. citizens.” The court found this level of immunity overbroad, and thus found the defendants’ argument unpersuasive.
With regard to the second consideration, the appeals court analogized to three different situations that the Supreme Court has ruled on: The Court has held that Bivens is available to prisoners suing federal jailors for violations of their Eighth Amendment right against cruel and unusual punishment; that Bivens is available to civilians suing military personnel; and that Bivens is available to civilian U.S. citizens when they leave the United States.
Based on the similarity of these three situations to the situation before it, the Seventh Circuit reasoned that a Bivens claim should be available to the plaintiffs in Vance.
Regarding the third and final consideration, the court rejected the defendants’ arguments that the plaintiffs were seeking “a general review of military actions and policies,” finding instead that the plaintiffs challenged “only their particular torture.”
Perhaps most importantly, the court distinguished prior decisions denying Bivens remedies to plaintiffs alleging torture by pointing out that the prior cases involved non-citizen plaintiffs, whereas the plaintiffs in Vance were undisputedly U.S. citizens.
Further, the court noted that of those remaining cases involving U.S. citizens as plaintiffs where a Bivens remedy was denied, all involved claims by military personnel against military officers.
These fairly minute, yet ultimately crucial, differences were ultimately what led the court to permit the plaintiffs’ Bivens claim.
Why Vance Is Different
The Seventh Circuit’s decision in Vance stands on solid reasoning, despite carving out some narrow distinctions from other cases that would have compelled a decision for the defendants, had they been found to be truly analogous. As the Second Circuit pointed out in its decision in Arar v. Ashcroft, the Supreme Court has refused to extend Bivens to any new context. However, Vance presented a set of facts that lent itself perfectly to Bivens’s extension.
The court’s emphasis on the citizenship of the plaintiffs is significant and draws upon the nearly indisputable proposition that the Bill of Rights should protect U.S. citizens regardless of where they are located. Most of the torture cases that courts have dismissed have involved non-U.S. citizens, and the Seventh Circuit had no difficulty distinguishing the facts of Vance from all of those cases on that basis alone.
The more contentious portion of the Vance court’s reasoning, however, lies in its analysis of “special factors.” Indeed, the Second Circuit in Arar painted in broad strokes the types of “special factors” that courts have used to foreclose Bivens remedies, among them “military concerns.” Unconvinced by such expansive language, the Vance court pointed out that the case the Second Circuit cited for “military concerns” involved military personnel—not civilians—suing military officials.
This distinction is not trivial; to ignore it would potentially give the military unfettered discretion to violate civilians’ constitutional rights, which surely the Second Circuit did not intend by its overbroad statement.
In essence, the Seventh Circuit’s carefully articulated decision in Vance walks a very narrow path between the special factors that would preclude the plaintiffs’ claim for relief. It does so in a way that is well-reasoned and well-tailored, such that it is wholly compatible with the reasoning even in those prior decisions that came out for the government official defendants.
The Possible Implications of the Seventh Circuit’s Decision
The Seventh Circuit’s decision in this case is one of very few that have allowed a war-related claim to proceed to adjudication on the merits, but it may be merely among the first of many. Notably, it is the highest court decision imposing accountability on a top-level government official from the Bush Administration for what many perceived as its national-security excesses.
The decision follows on the heels of a similar, yet less-publicized, decision by a federal district judge in Washington, D.C., who permitted a suit by a U.S. Army veteran who also alleged being tortured by the U.S. military in Iraq to go forward. And earlier this year, a federal district judge in California permitted a suit against former Justice Department lawyer John Yoo, while a judge in South Carolina rejected a similar suit against Rumsfeld. In both of those cases, an appeal is pending.
The courts have historically tried to steer clear of cases that are essentially political or military in nature, and one could argue that the cases discussed here fall into that category. However, that historical tendency on the part of the courts may be changing. Indeed, the beginning of what appears to be a new wave of cases may suggest that the American judicial system, and the general public, may be demanding greater transparency and accountability from the federal government when it comes to political and/or military matters. Alternatively, though, the outcome of the case before the Seventh Circuit may simply be the product of a “perfect” set of facts. Indeed, the Seventh Circuit expressly acknowledged that very possibility:
Our decision today opens up the courts to other claims like this, but we hope and expect that allegations of this nature will be exceedingly rare. We make no broader holding about whether other future claims about violations of government policy would be cognizable under Bivens.
Yet the presence of similar cases in courts across the country suggests that the allegations before the Seventh Circuit may not be as rare as the court hopes. The outcomes of these pending cases, as well as those cases that are similar but have not yet made headlines, will likely determine whether the Supreme Court will decide to hear one of this set of cases, in order to resolve the important question they all raise.
Overall, the Seventh Circuit has authored a masterful opinion in Vance v. Rumsfeld, and one that bodes well for future plaintiffs in these types of cases. Let’s hope that future courts facing similar cases are as wise.