Interrogation: Interrogation Abuses: Civil Liability

A Closer Look at Lebron v. Rumsfeld (Padilla’s Bivens Suit)

By Larkin Reynolds
Wednesday, January 25, 2012, 4:24 PM

As Jack and Steve have both noted, yesterday the Fourth Circuit issued its opinion in Lebron v. Rumsfeld, the appeal seeking reversal of a district court's decision denying Jose Padilla declaratory and equitable relief against several current and former U.S. officials.  While Steve has also posted some initial thoughts on the opinion here (and more is sure to come from others interested in this case), what follows is a claim-by-claim summary of the Fourth Circuit's fairly lengthy panel opinion.

Alan recapped the briefs as well as the oral argument in the case a few months back.  Because these posts gave a pretty comprehensive snapshot of the procedural history, claims, and arguments, I’ll assume some reader familiarity with this case.  If you are very familiar with the background, skip the next three paragraphs.

Padilla’s experience in the U.S. federal court system began with the habeas petition he filed in the Southern District of New York following his May 2002 arrest at O’Hare International Airport in Chicago.  Those habeas claims, which challenged the legality of Padilla's military detention at the Naval Consolidated Brig in South Carolina were, however, eventually made moot (after being re-filed in the District of South Carolina) when authorities transferred Padilla to civilian custody while he stood trial on criminal charges.  The trial resulted in his conviction on several terrorism-related charges.  Last November, the Eleventh Circuit partially affirmed the trial court’s decision; it upheld the conviction but reversed the lower court on the issue of sentencing (finding the trial court’s sentence of 208 months to be too short) and remanded it for rehearing on that issue.  (Bobby has a post about this decision here.)

Padilla and his mother filed this particular civil suit in 2007 (though for simplicity I will refer to Padilla as the sole plaintiff). The complaint alleged that Padilla's detention as an enemy combatant and the treatment he experienced during the nearly four years of military detention in the naval brig violated both his constitutional rights and federal statutory rights.  The complaint named as defendants 61 former and current government officials; by the time the case reached the Fourth Circuit, only seven of the original 61 defendants remained.  These included former Secretary of Defense Donald Rumsfeld, former Deputy Secretary of Defense Paul Wolfowitz, former Defense Department General Counsel William Haynes, and former Director of the Defense Intelligence Agency Vice Admiral Lowell Jacoby, all sued in their personal capacities for unlawfully detaining Padilla in the military facility.  Two former Commanders of the Naval Consolidated Brig, Catherine Hanft and Melanie Marr, were alleged to have been responsible for "implement[ing] the unlawful [detention] regime.”  And Padilla also sued then-Secretary of Defense Robert Gates, in his official capacity, to enjoin him from detaining Padilla as an enemy combatant in the future.  That claim is now effectively imputed to current Secretary of Defense Leon Panetta.

The government moved to dismiss the case, and Judge Richard Mark Gergel granted the motion.  Judge Gergel in his February 2011 decision, found that the government’s grounds for dismissal were enough to block Padilla’s claims.  First, the district court held that no cause of action could lie in this case. Because implying a cause of action under Bivens required a court to find that there were no “special factors counseling hesitation,” and because there were such factors present in Padilla’s case, the court reasoned that it could not imply a cause of action here. Judge Gergel observed that the Supreme Court’s Bivens jurisprudence had permitted relatively few extensions over the years, in large part based on courts finding that the cases involved “special factors counseling hesitation.”  Where, as in this case, there were salient national security issues, the “entangle[ment]” of the judiciary in “issues normally reserved for the Executive Branch” created a bevy of factors counseling against Bivens expansion, including litigation costs that would be incurred by the government if such cases went to trial, the disruption to government officials forced to testify, and complex state secrets issues.  Second, Judge Gergel also found that the government officials named as defendants enjoyed qualified immunity from suit. Here, because the government defendants’ conduct did not “violate clearly established statutory or constitutional rights of what a reasonable person would have known,” they could not be held liable.  Finally, Judge Gergel found that Padilla lacked standing because his alleged injuries were insufficiently concrete and imminent to satisfy the Case or Controversy Clause of the Constitution.  Padilla appealed to the Fourth Circuit.

On Monday, the Court of Appeals affirmed the district court's decision. Judge J. Harvie Wilkinson penned the opinion for the unanimous panel, which also included Judge Diana Gribbon Motz and Judge Allyson Kay Duncan.

The opinion begins with an analysis of the Bivens claim. Padilla alleges that he has an implied cause of action against government officials for violations of his constitutional rights, including First, Fifth, Sixth, and Eighth Amendment guarantees in addition to those of the Suspension Clause and Article III. Bivens is the 1971 case that provides an implied cause of action for recovery of monetary damages against government officials who violate constitutional rights. Courts have recognized an implied cause of action flowing from the Constitution where (1) there are no "special factors counseling hesitation" in allowing such a case to proceed and (2) Congress has not legislated to provide a more specific cause of action.

The court first emphasized that the Supreme Court has historically counseled lower courts to use restraint in expanding Bivens. In fact, the Court had very recently (i.e. this year) refused to permit the doctrine’s extension in a case against employees of a privately operated federal prison. In Padilla's case in particular, the court wrote, to imply a cause of action would be particularly unsound because this case arises in the context of military detention, and because the Constitution allocates authority over military affairs to Congress and to the President as Commander in Chief, the fact that the Constitution “contemplates no comparable role for the judiciary” militates against placing the judiciary in the role of not only permitting the cause of action, but being the branch responsible for overseeing the suits. The court actually cites Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer on this point, noting that the facts presented in this case signaled "heightened judicial caution" in wading into disputes between individuals and the government.

Another component of this factor, in the court’s view, related to the circumstances of this case, in particular, rather than to the overarching constitutional architecture: Padilla’s enemy combatant classification and military detention raise fundamental questions incident to the conduct of armed conflict, and, because Congress had prescribed no damages remedy, there is little reason for the court to imply such a remedy now. The court drew a distinction between the relief requested here (damages and equitable relief) and that requested in the habeas context. The recognition of the habeas remedy, in the panel’s view, has little to do with the propriety of a Bivens action. The court observed that, where a plaintiff like Padilla could proceed, the evidence in the case would necessarily involve inquiry into “sensitive military decisions” made after extensive executive deliberations. Inevitably, the threat of potential judicial examination of these matters, and particularly the threat of personal liability, would affect all future executive deliberations. And where, as here, it is evident that Congress has legislated in this area and declined to insert a private right of action (as it had on three occasions, including the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 and the Military Commissions Act of 2009), the courts should not infer one--to do so would be to "trespass into areas constitutionally assigned to the coordinate branches of our government."

Moving to the second "special factor counseling hesitation," the court cited core judicial competency concerns.  First among them was the danger that permitting these actions would interrupt the “established chains of military command,” in that a suit would require judicial inquiry into the wisdom of military command decisions. In the panel’s view, the responsibility to impose such a check on military commanders lies with Congress, not the courts. Second, military intelligence operations would be negatively affected by permitting such suits because the government’s defense of the claims could require testimony that would imprudently intrude into everyday intelligence and operational questions. The cases “would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns” (quoting from the Second Circuit’s Arar v. Ashcroft en banc decision).

Finally, the court found that where Congress permits inquiry in these areas, such inquiry is limited; indeed, even when the Supreme Court has recognized space for judicial supervision, that space has been limited. On this point the court cites Boumediene v. Bush, where the Court permitted only the “limited tool” of habeas review.   But a Bivens suit is a different--and much more expansive--sort of remedy, in the panel's opinion.

The second "prong" of the Bivens inquiry was the issue of whether an alternative process exists for protecting the individual's claimed interest, and the resolution of this issue also tipped in favor of dismissal. In the Fourth Circuit's view, Padilla’s prior habeas challenges provided him the opportunity to present essentially the same arguments about the legality of his detention (citations omitted):

'That [Padilla] considers [his] existing remedies insufficient is simply irrelevant' to whether a court should imply a Bivens action. Bivens 'is concerned solely with deterring individual officers’ unconstitutional acts.' In such circumstances, we cannot regard the legislative failure to provide Padilla with the monetary damages he seeks from each defendant as an invitation to design some preferred remedial regime of our own.

The court concluded this section of the opinion noting that it did not need to reach the qualified immunity question—a question that the district court had resolved in the government’s favor—or the issue of whether Padilla had pleaded his claim with adequate specificity.

The panel next turned to Padilla’s statutory claim--the alleged violation of the Religious Freedom Restoration Act (“RFRA”). Padilla had alleged that conditions of his military confinement, which were the result of a policy designed and/or implemented by the defendants, violated the Act, which permits an individual whose “religious exercise has been burdened" to "obtain appropriate relief against a government."

The Fourth Circuit resolved this question somewhat differently from the district court.  Though the district court resolved this question on qualified immunity grounds by finding that the substantive requirements of RFRA were not clear at the time of Padilla’s military detention (i.e. whether withholding a watch, for example, would interfere with a detainee’s ability to observe prayer times), the appellate court began by analyzing whether, as an initial matter, the RFRA applied at all in the circumstances present in Padilla’s case. The panel was not convinced that RFRA applies in the military context. After describing the legislative history of RFRA (including its being located in Title 42 of the U.S. code, among other statutes applicable to civilians, rather than in Title 10), Judge Wilkinson wrote:

[I]t is hard to contend that a Congress that took such pains to ensure that the wearing of religious garments did not unnecessarily interfere with the military mission somehow meant for RFRA to provide a cause of action for a detained terrorist suspect to challenge the conditions of his confinement.

The court reasoned that because an action under RFRA requires the plaintiff to show a “violation of clearly established law,” and because it was not clear the Act even applied in the military context, Padilla did not have a cognizable RFRA claim. The Court also draws on precedent from the D.C. Circuit, where Judge Janice Rogers Brown took a similar view in her concurring opinion in:

Accepting plaintiffs’ argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate. In drafting RFRA, Congress was not focused on how to accommodate the important values of religious toleration in the military detention setting.

Having dispensed with Padilla’s Bivens and statutory claims, the panel finally turned to consider the district court’s decision on standing. Padilla was obligated to show that the harms he suffered ((1) fear that he would be redetained as an enemy combatant at some unspecified time in the future and (2) ongoing psychological harm arising from his designation as an enemy combatant and the attendant stigma of that designation) created an injury in fact.  As to the fear of his military detention, the court found that Padilla had only shown that such detention could occur at any time--not that it would.  This, in the Fourth Circuit’s view, was insufficient under longstanding Supreme Court jurisprudence. The level of immediacy of such detention was also absent from the complaint, since Padilla is currently completing a civilian jail sentence that could last up to seventeen years on resentencing. The court even cited to observations that three of the Supreme Court justices made when the Court declined to hear the merits of Padilla’s habeas challenge.  Chief Justice Roberts and Justice Stevens joined Justice Kennedy's concurrence, which said that “[a]ny consideration of what rights [Padilla] might be able to assert if he were returned to military custody would be hypothetical.”

As to the harm Padilla claimed from being labeled an enemy combatant, the court simply agreed with the lower court’s determination about the special stigma faced by a military detainee as compared with an individual convicted in civilian court (footnote omitted):

Here, Padilla was convicted after trial of three federal crimes of terrorism based on proof that he was a member of al Qaeda who had conspired with leaders of that organization and who was receiving training in an al Qaeda camp in Afghanistan at the very moment that members of that organization were murdering thousands of people with hijacked aircraft on 9/11.  It is hard to imagine what "incremental" harm it does to Padilla’s reputation to add the label of "enemy combatant" to the fact of his convictions and the conduct that led to them.

While the Lebron opinion appears to make far-reaching statements about judicial deference to congressionally authorized exercise of warmaking powers, it also wove a path around some of the stickier issues by leaving the qualified immunity question on the constitutional claims unexamined.  In sum, the true reach of the decision is not yet altogether clear.