The full Seventh Circuit has granted the government’s motion to rehear en banc Vance v. Rumsfeld, a suit by two U.S. citizens alleging that they were detained and tortured by U.S. forces in Iraq. The date of oral argument is to be determined. The grant of rehearing vacates the court's opinion of Aug. 8, 2011, where a split panel allowed the plaintiffs' Bivens claims against Secretary Rumsfeld to proceed.
Writing for the majority of that panel, Judge David Hamilton held: (1) the plaintiffs "alleged in sufficient detail facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture"; (2) Secretary Rumsfeld "is not entitled to qualified immunity on the pleadings" because it was "clearly established [at the time of plaintiffs' detention] that the treatment plaintiffs have alleged was unconstitutional" and "[n]o reasonable public official could have believed" the alleged conduct to be legal; and (3) a Bivens remedy "is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone" and that it "would be startling and unprecedented to conclude" otherwise. Judge Hamilton distinguished Vance from the recent decisions in Ali v. Rumsfeld, __ F.3d __, 2011 WL 2462851 (D.C. Cir. June 21, 2011) and Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), each of which denied Bivens remedies to non-citizen detainees alleging torture. "Whether or not one agrees with those decisions," Judge Hamilton wrote, "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."
Judge Manion dissented, writing, "Present case law requires a very cautious approach before extending a Bivens remedy into any new context, and emphasizes that there are many 'special factors' present in this particular context that should cause us to hesitate and wait for Congress to act." "Confronted by allegations as horrible as those described in this case," Judge Manion continued, "it is understandable that the court concludes that there must be a remedy for these plaintiffs. But that concern should not enable this court to create new law." In recognizing a Bivens remedy, Judge Manion concluded, the panel "vaults over" the "consensus" of Ali and Arar and "for the first time ever, recognizes a Bivens cause of action for suits alleging constitutional violations by military personnel in an active war zone."
In earlier posts on this case, Ben reported on the government's petition for rehearing in Vance and the amicus brief filed in support of rehearing here, excerpted key points in the panel’s now-vacated opinion here, and offered commentary and analysis here and here. The brief in opposition to rehearing is available here. Note that the issues in Vance are strikingly similar to those in Doe v. Rumsfeld and Lebron v. Rumsfeld. Alan previewed the oral argument in Lebron here and recapped the arguments here.