653 F.3d 591 (7th Cir. 2011), 10-1687, Vance v. Rumsfeld

Docket Nº:10-1687, 10-2442.
Citation:653 F.3d 591
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Donald VANCE and Nathan Ertel, Plaintiffs-Appellees, v. Donald RUMSFELD and The United States of America, Defendants-Appellants.
Attorney:Michael Kanovitz (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiffs-Appellees. Matthew M. Collette (argued), Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendants-Appellants. Mark W. DeLaquil, David B. Rivkin (argued), Attorneys, Baker & Host...
Judge Panel:Before MANION, EVANS, and HAMILTON, Circuit Judges. MANION, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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653 F.3d 591 (7th Cir. 2011)

Donald VANCE and Nathan Ertel, Plaintiffs-Appellees,

v.

Donald RUMSFELD and The United States of America, Defendants-Appellants.

Nos. 10-1687, 10-2442.

United States Court of Appeals, Seventh Circuit.

August 8, 2011

Argued Feb. 10, 2011.

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[Copyrighted Material Omitted]

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Michael Kanovitz (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiffs-Appellees.

Matthew M. Collette (argued), Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendants-Appellants.

Mark W. DeLaquil, David B. Rivkin (argued), Attorneys, Baker & Hostetler LLP, Louis Clark, Washington, DC, for Amici Curiae.

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Before MANION, EVANS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This appeal raises fundamental questions about the relationship between the citizens of our country and their government. Plaintiffs Donald Vance and Nathan Ertel are American citizens and civilians. Their complaint alleges in detail that they were detained and illegally tortured by U.S. military personnel in Iraq in 2006. Plaintiffs were released from military custody without ever being charged with a crime. They then filed this suit for violations of their constitutional rights against former Secretary of Defense Donald Rumsfeld and other unknown defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiffs seek damages from Secretary Rumsfeld and others for their roles in creating and carrying out policies that caused plaintiffs' alleged torture. Plaintiffs also bring a claim against the United States under the Administrative Procedure Act to recover personal property that was seized when they were detained.

Secretary Rumsfeld and the United States moved to dismiss the claims against them. The district court denied in part Secretary Rumsfeld's motion to dismiss, allowing plaintiffs to proceed with Bivens claims for torture and cruel, inhuman, and degrading treatment, which have been presented as Fifth Amendment substantive due process claims. Vance v. Rumsfeld, 694 F.Supp.2d 957 (N.D.Ill.2010). The district court also denied the government's motion to dismiss the plaintiffs' property claim. Vance v. Rumsfeld, 2009 WL 2252258 (N.D.Ill.2009). Secretary Rumsfeld and the United States have appealed, and we consider their appeals pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 1292(b).

We agree with the district court that the plaintiffs may proceed with their Bivens claims against Secretary Rumsfeld. Taking the issues in ascending order of breadth, we agree first, applying the standards of Federal Rule of Civil Procedure 12(b)(6), that plaintiffs have alleged in sufficient detail facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture. Second, we agree with the district court that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings. The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

Next, we agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. We see no persuasive justification in the Bivens case law or otherwise for defendants' most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone. United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.

The defendants rely on two circuit decisions denying Bivens remedies to alien detainees alleging that U.S. officials caused them to be tortured, one case arising from war zones, Ali v. Rumsfeld, 649 F.3d 762 (D.C.Cir.2011) (detainees in Iraq and Afghanistan), and the other as part of the war on terror, Arar v. Ashcroft, 585 F.3d 559 (2d Cir.2009) (en banc) (" extraordinary rendition" case). Those claims by aliens are readily distinguishable from this case based on the different circumstances of aliens and civilian U.S. citizens. Whether or not one agrees with those decisions,

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the difficult issues posed by aliens' claims should not lead courts to extend the reasoning in those cases to deny all civil remedies to civilian U.S. citizens who have been tortured by their own government, in violation of the most fundamental guarantees in the constitutional pact between citizens and our government.

As to the modest property claim against the United States, however, we agree with the government that the Administrative Procedure Act's " military authority" exception precludes judicial review of military actions affecting personal property in a war zone, and we reverse the district court's decision on that claim.

I. Factual and Procedural Background

A. Factual Allegations

Plaintiffs Donald Vance and Nathan Ertel have alleged sobering claims that they were tortured by U.S. military personnel while they were detained indefinitely at Camp Cropper, a U.S. military prison in Iraq in 2006, during the ongoing Iraq War.1 Because this case comes before us from the denial of a motion to dismiss, we assume the truth of all well-pled allegations in the complaint, viewing those allegations in the light most favorable to the plaintiffs. See Muscarello v. Ogle County Bd. of Comm'rs, 610 F.3d 416, 421 (7th Cir.2010), citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). We do not vouch for the truth of the allegations. By seeking dismissal under Rule 12(b)(6), however, the defendants have asked us to decide the issues based on the assumption that the allegations are true. We proceed on that basis.

We can only summarize here the key allegations in the detailed Complaint, with its 79 pages and 387 paragraphs, citing the pertinent paragraph numbers. 2 Vance and Ertel, two young American civilians, independently moved from their homes in Illinois and Virginia to work in Iraq to help " rebuild the country and achieve democracy" following the beginning of the current conflict there. See ¶ ¶ 3, 28. In 2005 and 2006, before their detention, the two Americans worked for a privately-owned Iraqi security services company, Shield Group Security, in the " Red Zone" in Iraq, the area outside the secure " Green Zone" in Baghdad. ¶ ¶ 33-39. Over time, Vance became suspicious that the company was involved with corruption and other illegal activity. ¶ ¶ 18, 42. He noticed, for example, that Shield Group Security officials were making payments to Iraqi sheikhs, which he believed was done to obtain influence. ¶ ¶ 41-42. While Vance was home in Chicago for his father's funeral, he contacted U.S. government officials to report his suspicions. ¶ 43. He met with an FBI agent, who arranged for Vance to continue reporting suspicious activity back to Chicago. The FBI agent also requested that Vance meet U.S. government officials in Iraq to report his observations. ¶ ¶ 44-47, 49. Vance told his friend and colleague Ertel that he had become an informant, and Ertel contributed information as well. ¶ ¶ 48-49.

The plaintiffs were frequently in touch with their government contacts, sometimes multiple times a day. ¶ 45. At the request

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of a U.S. government official in Iraq, Vance copied and shared Shield Group Security documents with U.S. officials. ¶ 47. Vance and Ertel reported their in-depth observations of individuals closely associated with Shield Group Security, including U.S. and Iraqi government officials who were involved with illegal arms trading, stockpiling of weapons, bribery, and other suspicious activity and relationships. ¶ ¶ 45-104. Their whistleblowing allegedly included the sharing of sensitive information with the U.S. government, including reports that their supervisor, who called himself the " Director" of the " Beer for Bullets" program, traded liquor to American soldiers in exchange for U.S. weapons and ammunition that Shield Group Security then used or sold for a profit. ¶ 95.

Shield Group Security officials became suspicious about the plaintiffs' loyalty to the firm. On April 14, 2006, they confiscated the credentials that allowed plaintiffs access to the Green Zone, effectively trapping them inside the firm's compound in the Red Zone. ¶ ¶ 107-12, 116-19. Plaintiffs called their U.S. government contacts in Iraq for help. They were told that they should interpret Shield Group Security's actions as taking them hostage, and should barricade themselves with weapons in a room of the compound. ¶ ¶ 120, 124-25. They were assured that U.S. forces would come to rescue them. ¶ 124. U.S. forces came to the compound and took Vance and Ertel to the U.S. Embassy for questioning. ¶ ¶ 125-31. Military personnel seized all of their personal property, including laptop computers, cell phones, and cameras. ¶ 127. The plaintiffs shared information about Shield Group Security transactions and were sent to a trailer to sleep. ¶ ¶ 130-31.

After two or three hours of sleep, Vance and Ertel, who were under the impression that they had been rescued by their government, were in for a shock. They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. ¶ ¶ 131, 138-39. There, plaintiffs allege, they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits. ¶ 140. They were instructed to keep their chins to their chests and not to speak. They were threatened...

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