Vance v. Rumsfeld

• Decision Date: 07 November 2012
• Docket Number: 10–2442.,Nos. 10–1687,s. 10–1687
• Citation: 701 F.3d 193
• Parties: Donald VANCE and Nathan Ertel, Plaintiffs–Appellees, v. Donald H. RUMSFELD and The United States of America, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

701 F.3d 193

Donald VANCE and Nathan Ertel, Plaintiffs–Appellees,

v.Donald H. RUMSFELD and The United States of America, Defendants–Appellants.

Nos. 10–1687, 10–2442.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 10, 2011.

Decided Aug. 8, 2011.

Reargued En Banc Feb. 8, 2012.

Decided Nov. 7, 2012.

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

Robert Loeb (argued), Attorney, Department of Justice, Civil Div., Appellate Staff, Washington, DC, for Defendants–Appellants.

Mark W. DeLaquil, David B. Rivkin (argued), Attorneys, Baker & Hostetler LLP, Washington, DC, for Harold Brown, Richard B. Cheney, William S. Cohen, Amici Curiae.

Louis Clark, Government Accountability Project, Washington, DC, for Government Accountability Project, Society of Professional Journalists, Project on Government Oversight, Amici Curiae.

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

EASTERBROOK, Chief Judge.

This appeal presents the question whether the federal judiciary should create a right of action for damages against soldiers (and others in the chain of command) who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation. Both other courts of appeals that have resolved this question have given a negative answer. Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C.Cir.2012); Ali v. Rumsfeld, 649 F.3d 762 (D.C.Cir.2011). Another circuit declined to create a damages remedy against intelligence officials who turned a suspected terrorist over to another nation for interrogation. Arar v. Ashcroft, 585 F.3d 559, 571–81 (2d Cir.2009) (en banc). We agree with those decisions.

I

In 2005 and 2006 Donald Vance and Nathan Ertel worked in Iraq for Shield Group Security (later known as National Shield Security), a private firm that provided protective services to businesses and governmental organizations. (This factual narration comes from the complaint, whose allegations we must accept for current purposes.) Vance came to suspect that Shield was supplying weapons to groups opposed to the United States. He reported his observations to the FBI. Ertel furnished some of the information that Vance relayed. Persons who Vance and Ertel suspected of gun-running retaliated by accusing Vance and Ertel of being arms dealers themselves. Military personnel arrested them in mid-April 2006. (The complaint does not specify which day the arrests occurred.)

According to the complaint, plaintiffs were held in solitary confinement and denied access to counsel. Their interrogators used “threats of violence and actual violence, sleep deprivation and alteration, extremes of temperature, extremes of sound, light manipulation, threats of indefinite detention, denial of food, denial of water, denial of needed medical care, yelling, prolonged solitary confinement, incommunicado detention, falsified allegations and other psychologically-disruptive and injurious techniques.” Vance and Ertel were provisionally classified as “security internees” and called before a Detainee Status Board, but they were not allowed to present evidence—and the military officials running the proceedings refused to look at files on their computers that Vance and Ertel say would have established their innocence of arms-dealing charges. Nor did the Board contact the FBI, even though Vance and Ertel said that agents would verify their story.

The Board concluded on April 29, 2006, that Ertel should be released. Nonetheless he was held for another 18 days, during which interrogators continued to use harsh techniques. He was released on May 17, 2006. Vance remained in solitary confinement until his release on July 20, 2006, and was subjected to sleep deprivation, prolonged exposure to cold, intolerably loud music, “hooding,” “walling” (placing a person's heels against a wall and slamming his body backward into that wall), threats of violence, and other techniques that caused physical or mental pain. The Army Field Manual forbids several of these techniques, which it classifies as “physical torture,” “mental torture,” or “coercion.” See Army Field Manual: Intelligence Interrogation 1–8 (1992). Whether any of the techniques constitutes “torture” within the meaning of 18 U.S.C. § 2340(1), which makes torture by interrogators a crime, is a subject on which the parties' briefs do not join issue, and which we therefore do not address.

The Detainee Status Board eventually concluded that both Vance and Ertel are innocent of the allegations that had been made against them. Neither was charged with a crime.

In December 2006 Vance and Ertel filed this suit against persons who conducted or approved their detention and interrogation, and many others who had supervisory authority over those persons. The defendants included Secretary of Defense Donald Rumsfeld. Plaintiffs alleged that Secretary Rumsfeld had authorized the use of harsh interrogation methods in Iraq and contended that he is personally liable in damages—even though plaintiffs also alleged that they had never been accused of being enemy combatants and therefore were not within the scope of Secretary Rumsfeld's authorization. They also sued the United States, seeking the return of all property that had been seized from them in Iraq.

Rumsfeld asked the district court to dismiss the complaint, presenting three principal arguments: that federal law does not establish an action for damages on account of abusive military interrogation; that the complaint does not plausibly allege his personal involvement in plaintiffs' detention and interrogation; and that he is entitled to qualified immunity. The district court ruled against all of these contentions. 694 F.Supp.2d 957 (N.D.Ill.2010). Rumsfeld has appealed under the doctrine of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which treats the rejection of an immunity defense as a final decision for the purpose of 28 U.S.C. § 1291.

The United States also moved to dismiss the complaint, contending that the “military authority exception” to the Administrative Procedure Act, 5 U.S.C. § 701(b)(1)(G), bars the suit against it. Section 701(b)(1)(G) prohibits judicial review of “military authority exercised in the field in time of war or in occupied territory”. The district court concluded that this language does not apply—at least, does not prevent Vance and Ertel from engaging in discovery that they contend would show the statute's inapplicability—and denied the motion to dismiss. 2009 WL 2252258, 2009 U.S. Dist. Lexis 67349 (N.D.Ill. July 29, 2009). The district court later certified this order for interlocutory appeal under 28 U.S.C. § 1292(b), see 2010 WL 2136657, 2010 U.S. Dist. Lexis 51973 (N.D.Ill. May 26, 2010), and a motions panel accepted the appeal.

A merits panel reversed the district court's decision with respect to the United States but affirmed with respect to Rumsfeld's claim of immunity. 653 F.3d 591 (7th Cir.2011). We granted Rumsfeld's request for rehearing en banc and vacated the panel's opinion and judgment; this set aside both aspects of its decision.

II

Both the district court and the panel concluded that it is appropriate to create a private right of action for damages against persons in the military chain of command. See generally 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). The lead argument in former Secretary Rumsfeld's brief contests this conclusion. Because the basis of appellate jurisdiction is the district court's rejection of an immunity defense, however, we must consider whether we are authorized to address the merits.

The answer is yes. The Supreme Court held in Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), that when evaluating an argument that a right is not “clearly established”—the essential ingredient in any invocation of qualified immunity—a court may conclude that the right has not been “clearly” established because it has not been established at all. The Court followed up in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), by holding that a court of appeals must decide both whether the right in question exists and whether its existence had been “clearly established” before the time of the challenged acts. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), overruled that portion of Saucier and held that a court of appeals may use sound discretion when deciding whether to reach the merits ahead (or instead) of the immunity question. But the Court did not doubt that, on an interlocutory appeal under Mitchell, one potential ground of decision is a conclusion that the plaintiff does not have a legally sound claim for relief.

Wilkie v. Robbins, 551 U.S. 537, 548–50, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), applies this approach to Bivens claims in particular. Robbins sued some federal officials, asserting extra-statutory claims for damages and contending that reasoning along the lines of Bivens allowed the federal judiciary to recognize such a remedy. Defendants took an interlocutory appeal, contending that they enjoyed qualified immunity. The Supreme Court ruled in defendants' favor—not because of immunity, but because it concluded that it should not create a new Bivens remedy. Similarly, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court resolved a qualified-immunity appeal by deciding that the complaint did not state a plausible claim on the facts. We have jurisdiction to decide this case on the same grounds the Supreme Court employed in Wilkie and Iqbal. See also Levin v. Madigan, 692 F.3d 607, 610–11 (7th Cir.2012).

The appeal by the United States does not present any jurisdictional problem, given the court's decision...