D.C. Circuit Rules Detainee Treatment Act Not Subject to § 1983 Remedy

by Derek Gilna

A John Doe plaintiff, a U.S. citizen and employee of an American-owned defense contracting firm performing Arabic translating in Iraq, was taken into custody and held at Camp Cropper near the Baghdad International Airport for nine months. Doe, who was never formally charged with a crime, claims that he was beaten and choked by guards, and confined with al Qaeda and Ba'ath Party members before being returned to the U.S. and ultimately released. He brought an action in 2008 against former Secretary of Defense Donald Rumsfeld, other U.S. government officers, and the U.S. government.

Doe's lawsuit requested that the District Court find Rumsfeld personally liable for violating his rights under the Detainee Treatment Act, or DTA, and for violating his constitutional rights guaranteed under the Fifth, Eighth, and Fourteenth Amendments on the theory that Rumsfeld "developed, authorized, and implemented the policies that caused him harm." The district court dismissed the DTA claims, procedural due process, and access to court claims, "holding that Doe had not pled sufficient facts to overcome Secretary Rumsfeld's qualified immunity defense."

The district court did permit Doe's action for substantive due process claims under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), also known as a Bivens case. The Appeals Court of the D.C. Circuit reversed.

The Appeals Court noted that the district court in this case was extending the scope of Bivens relief, something that it asserted had only occurred twice in the 42 years since Bivens was decided, "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)." The court added that the "Supreme Court consistently has considered and rejected Bivens in all other contexts... (and) we perceive that special factors present in this case counsel against the implication of a new Bivens remedy."

According to the appeals decision, the "Supreme Court has never implied a Bivens remedy in a case involving the military, national security, or intelligence." These areas, it said "are rarely proper subjects for judicial intervention." Haig v. Agee, 453 U.S. 280, 292 (1981). The court further said that the litigation of Doe's case would require testimony from top military officials and other military personnel, "which would detract focus, resources, and personnel from the mission in Iraq." Doe's argument which attempted to distinguish his circumstances from those of Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), and Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009), on the grounds of his citizenship also were not persuasive to the court.

The court's decision also indicated that another 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. Bush v. Lucas, 462 U.S. 367 (1983). But it also said that the absence of statutory relief for a constitutional violation does not necessarily imply that courts should fashion a remedy resulting in monetary damages.

“Neither in (the DTA) nor any other (law) 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," the court concluded. As a result, the Court did not reach the issue of Secretary Rumsfeld's claim of qualified immunity. See: Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012).

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