Lebron v. Rumsfeld, Case No. 2:07–410–RMG.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Citation764 F.Supp.2d 787
Decision Date17 February 2011
Docket NumberCase No. 2:07–410–RMG.
PartiesEstela LEBRON, et al., Plaintiffs,v.Donald H. RUMSFELD, et al., Defendants.

764 F.Supp.2d 787

Estela LEBRON, et al., Plaintiffs,
Donald H. RUMSFELD, et al., Defendants.

Case No. 2:07–410–RMG.

United States District Court, D. South Carolina, Charleston Division.

Feb. 17, 2011.

[764 F.Supp.2d 789]

Jonathan Marc Freiman, National Litigation Project, Hope R. Metcalf, Yale Law School, Tahlia Townsend, Wiggin and Dana, New Haven, CT, Michael P. O'Connell, Stirling O'Connell and Pennington, Charleston, SC, Alexander Abraham Abdo, Benjamin Elihu Wizner, American Civil Liberties Union, New York, NY, for Plaintiffs.Joseph P. Griffith, Jr., Joseph P. Griffith Law Firm, Lee Ellis Berlinsky, U.S. Attorneys Office, Edward Bart Daniel, Matthew R. Hubbell, John Phillips Linton, Seth Warren Whitaker, Duffy and Young, William C. Cleveland, Buist Moore Smythe and McGee, Charleston, SC, Darian Ronald Bartram, David Rivkin, Lee Casey, Baker and Hostetler, William Scott Simpson, U.S. Department of Justice, Jacqueline Gerson Cooper, Richard Douglas Klingler, Sidley Austin, Jamil N. Jaffer, Kevin Brent Huff, Wan Joo Kim, Kellogg Huber Hansen Todd Evans and Figel, Charles S. Leeper, Michael Reilly Miner, Drinker Biddle and Reath, James E. Sherry, Paul W. Butler, Akin Gump Strauss Hauer and Feld, David E. Bell, Michael L. Martinez, Crowell and Moring, Edward C. Reddington, Frank Gregory Bowman, Williams and Connolly, Washington, DC, Jennifer J. Aldrich, U.S. Attorneys Office, Elizabeth Van Doren Gray, Bess Jones Durant, Tina Marie Cundari, Sowell Gray Stepp and Laffitte, Columbia, SC, Beattie B. Ashmore, Beattie B. Ashmore Law Office, William Alexander Coates,

[764 F.Supp.2d 790]

Roe Cassidy Coates and Price, Henry L. Parr, Jr, Wyche Burgess Freeman and Parham, Greenville, SC, for Defendants.


This matter comes before the Court on Defendants' motions to dismiss Plaintiffs' claims, asserting, inter alia, that no valid cause of action exists in this matter under the principles of 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) and its progeny and that they are entitled to qualified immunity regarding all claims asserted in the Third Amended Complaint. Defendant Gates, sued in his official capacity as Secretary of Defense, further asserts that Plaintiffs have no standing to assert claims for declaratory and injunctive relief arising from an alleged fear of redetention and/or the claimed stigmatizing effects of a continuing designation as an enemy combatant. For reasons set forth below, the Court grants Defendants' Motion to Dismiss (Dkt. Entry 141) and Defendant Gates' Motion to Dismiss (Dkt. Entry 139) and finds that this Order renders the remaining motions moot.


On May 8, 2002, Padilla, an American citizen, arrived at O'Hare International Airport in Chicago from Pakistan via Switzerland and was initially interrogated by Customs and law enforcement officials. After several hours of interrogation, he was served with a material witness warrant and taken into custody. Padilla was transferred to a detention center in New York City, placed under the control of the Bureau of Prisons and the United States Marshals and appointed counsel. Padilla, through counsel, moved on May 22, 2002 to vacate the material witness warrant. On June 9, 2002, President George W. Bush issued a formal directive to Donald Rumsfeld, then Secretary of Defense, designating Padilla as an “enemy combatant” who was “closely associated with [A]l Qaeda, an international terrorist organization with which the United States is at war.” (Dkt. Entry 91–3). The President further asserted that Padilla had “engaged in conduct that constituted hostile and war-like acts” and represented “a continuing, present and grave danger to the national security of the United States....” ( Id.). The President further asserted that Padilla possessed valuable intelligence about the personnel and activities of Al Qaeda and that it was “in the interest of the United States that the Secretary of Defense detain Mr. Padilla as an enemy combatant.” ( Id.). The President declared that his action was “consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant.” ( Id.).

Two days later, on June 11, 2002, Padilla's counsel filed a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 seeking his release from detention. According to an affidavit filed by Padilla's counsel, she was informed by government officials that Padilla was being transferred to the Naval Brig in Charleston, South Carolina and she would not have the right to visit him or communicate with him in any way. Padilla v. Bush, 233 F.Supp.2d 564, 572 (S.D.N.Y.2002). From that date until March 2004, Padilla was held incommunicado from counsel, family and friends and underwent extensive interrogation by government officials. Id. at 574.

Padilla's case was assigned to the Chief Judge of the Southern District of New York, Michael B. Mukasey.1 In opposition

[764 F.Supp.2d 791]

to the petition for writ of habeas corpus, the Government submitted a sworn statement titled “Declaration of Michael H. Mobbs”. (Dkt. Entry 91–2). In his declaration, Mr. Mobbs identified himself as a special advisor to the Under Secretary of Defense for Policy and provided the Court information in support of the President's designation of Padilla as an enemy combatant. Mobbs stated that the information provided to the Court derived from “multiple intelligence sources,” including two confidential sources that were held at locations outside the United States. According to Mr. Mobbs, these confidential sources “have direct connections with the Al Qaeda terrorist network and claim to have knowledge of the events described.” ( Id. at 3).

Mobbs further stated that Padilla had previously been convicted of murder and that he had traveled to Pakistan, Afghanistan and the Middle East after being released from prison. ( Id.). Padilla reportedly had become “closely associated” with known members of Al Qaeda and participated in discussions and training regarding the commission of terrorist acts within the United States. These discussions reportedly included a plan to build and detonate a “radiological dispersal device (also known as a ‘dirty bomb’)” within the United States, possibly in Washington, D.C. ( Id. at 4). There were also reportedly discussions regarding the detonation of explosive devices in hotel rooms, gas stations and train stations. ( Id. at 5). Mobbs further represented that Padilla had returned to the United States “to conduct reconnaissance and/or other attacks” on behalf of Al Qaeda when he was detained in Chicago. ( Id.). The Mobbs declaration concluded by repeating President Bush's finding at the time of Padilla's enemy combatant designation that he posed “a continuing, present and grave danger to the national security of the United States” and his detention was “necessary to prevent him from aiding Al Qaeda in its efforts to attack the United States ...” ( Id.).

In a comprehensive 50 page order issued on December 4, 2002, Judge Mukasey initially found that he had jurisdiction over the case despite the fact that Padilla had been moved by the Government to the Naval Brig in Charleston, South Carolina. Padilla v. Bush, 233 F.Supp.2d 564 (S.D.N.Y.2002). The District Court then turned its attention to the critical question of whether the President of the United States had the authority to designate an American citizen arrested on American soil for hostile acts on behalf of a foreign enemy as an “enemy combatant” and, thus, deny that citizen the rights normally afforded criminal defendants under the laws and Constitution of the United States. Judge Mukasey concluded that the President had the inherent authority to detain Padilla as an enemy combatant and further determined that the detention had been implicitly authorized by Congress in adopting the Joint Resolution providing the President the authority to take necessary actions against persons and organizations responsible for the attacks on September 11, 2001 and to prevent future terrorist attacks. 233 F.Supp.2d at 587–589. The District Court's finding regarding Congressional authorization for the President to detain Padilla was in response to Padilla's argument that the Non–Detention Act, 18 U.S.C. § 4001(a), prohibited the detention of any American citizen unless authorized by Congress.

While Judge Mukasey recognized the President's right to designate Padilla as an enemy combatant and to place him under the control of the Secretary of Defense, he was less comfortable with the detaining of Padilla “incommunicado.” Id. at 599. The District Court found that Padilla was not entitled to counsel or due process under the Fifth and Sixth Amendments because

[764 F.Supp.2d 792]

his detention was not pursuant to any criminal process but concluded that the rights associated with the Great Writ included the right to be represented by counsel. Id. at 601–05. He found the right to counsel weighed heavily in Padilla's favor and directed the Government to provide him access to his attorney to assist in the petition for a Writ of Habeas Corpus. Id. at 604–05.

The Government moved to reconsider that portion of Judge Mukasey's order which allowed Padilla to have access to counsel and submitted a sworn declaration from Vice Admiral Lowell Jocoby in support of its motion. (Dkt. Entry 91–23). Admiral Jacoby asserted that he “firmly believe[s] that providing Padilla access to counsel risks loss of a critical intelligence resource, resulting in grave and direct threat to national security.” ( Id. at 2). The Admiral explained that the Government's interrogation approach to Padilla was “largely dependent upon creating an atmosphere of dependency and trust between the subject and the interrogator.” ( Id. at 5).

Judge Mukasey characterized the Jacoby Declaration as “speculative” and criticized with equal force some of the opposing...

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4 cases
  • Doe v. Rumsfeld, Case No. 1:08–CV–1902.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 2 Agosto 2011
    ...the Vance court found that no special factors foreclosed a cause of action under Bivens. Id. at 972–75. But see Lebron v. Rumsfeld, 764 F.Supp.2d 787 (D.S.C.2011) (finding special factors precluded a citizen's Bivens action against Rumsfeld due to separation of powers and practical concerns......
  • Lebron v. Rumsfeld, 11–6480.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 23 Enero 2012
    ...combatant. On February 17, 2011, the district court granted the defendants' motion to dismiss Padilla's suit. See Lebron v. Rumsfeld, 764 F.Supp.2d 787 (D.S.C.2011). This appeal followed.II. Padilla first faults the district court for refusing to imply a new cause of action for money damage......
  • Padilla v. Yoo, 09–16478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Mayo 2012
    ...immunity because the complaint failed to allege that Padilla's treatment violated clearly established law. See Lebron v. Rumsfeld, 764 F.Supp.2d 787 (D.S.C.2011). First, the court rejected the proposition that Padilla's designation as an enemy combatant and consequential military detention ......
  • Doe v. Rumsfeld, CASE NO. 1:08-CV-1902
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 2 Agosto 2011
    ...the Vance court found that no special factors foreclosed a cause of action under Bivens. Id. at 972-75. But see Lebron v. Rumsfeld, 764 F. Supp. 2d 787 (D.S.C. 2011) (finding special factors precluded a citizen's Bivens action against Rumsfeld due to separation of powers and practical conce......
2 books & journal articles
  • The political economy of jus cogens.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 44 No. 4, October 2011
    • 1 Octubre 2011
    ...532 F.3d 157, 200 (2d Cir. 2008), rev'd en banc, 585 F.3d 559 (2d Cir. 2009) (refusing to find cause of action); Lebron v. Rumsfeld, 764 F. Supp. 2d 787, 798 (D.S.C. 2011) (finding no cause of action for detention as unlawful enemy combatant); In re Iraq & Afg. Detainees Litig., 479 F. ......
  • The war on terror: where we have been, are, and should be going.
    • United States
    • Denver Journal of International Law and Policy Vol. 40 No. 1-3, December - December 2011
    • 22 Diciembre 2011
    ...2011). (11.) Vance v. Rumsfeld, No. 10-1687, 2011 U.S. App. LEXIS 22083, at *1 (7th Cir. Oct. 28, 2011). (12.) See Lebron v. Rumsfeld, 764 F. Supp. 2d 787, 800 (D.S.C. 2011); Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 112 (D.D.C. (13.) Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 10......

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