Lebron v. Rumsfeld: the Fourth Circuit Drops an Anvil on Bivens
I’m going to interrupt my look at the ECHR’s decision in Othman, in order to offer a few observations on the Fourth Circuit decision this week in Lebron v. Rumsfeld. (There has been a little discussion on Lawfare.) This case is one of two Bivens cases that had been pending involving Jose Padilla. (The other is still before the Ninth Circuit and the parties have just been ordered to brief the effect of the Fourth Circuit decision, especially with respect to the issue of non-mutual collateral estoppel). In Lebron, the Fourth Circuit found that “special factors” preclude a Bivens remedy in cases involving “enemy combatants” in military detention, even in cases of U.S. citizens held in the United States. It’s a blunt instrument of a holding. While a number of issues were before the Court, this post looks at the Bivens part of the decision and identifies a few errors in the Court’s reasoning. The Fourth Circuit overreads Supreme Court precedents on Bivens dealing with the military and ignores Congress’s clear intention to preserve Bivens for citizens in its post-9/11 activity in the field of national security.
For those who are not national security junkies, Jose Padilla is the U.S. citizen who after training at an Al Qaeda training camp was arrested in the United States while allegedly engaged in activities related to a “dirty bomb” plot. He was then transferred to a military brig, held incommunicado, and subjected to “enhanced interrogation techniques” (aka torture). Padilla filed suits in South Carolina against Rumsfeld (and other Department of Defense officials) and against John Yoo in California for damages related to the injuries he suffered while in military detention. Estela Lebron is his mother.
“Special factors” is part of the two-prong Bivens test. Before fashioning a Bivens remedy, a court must consider whether any existing alternative process protects the interest at issue; if not, the court must engage in the kind of “remedial determination that is appropriate for a common law tribunal,” taking account of any “special factors counseling hesitation.” (Bush v. Lucas). In Lebron, the Fourth Circuit found two “special factors” especially important – first, that military affairs are delegated by the Constitution to Congress and the President as Commander in Chief; and second, that judicial scrutiny in cases involving national security pose formidable issues of administrability. Though the facts before the Court involve a designated “enemy combatant” held in special circumstances by the military, the logic of the decision potentially gives it much broader sweep.
The Fourth Circuit’s decision here leans heavily on two Supreme Court precedents involving Bivens and the military context, United States v. Stanley and Chappell v. Wallace, but radically enlarges their application. Both of those cases held that an enlisted man is precluded from bringing a Bivens suit for injuries sustained in the course of his military service. (Stanley is a particularly ugly case involving a soldier who sustained injuries after enrolling in an Army program testing the effects of chemical weapons but was secretly ministered LSD.) Both cases hold that the explicit constitutional grant of authority to Congress to “make Rules for the Government and Regulation of the land and naval Forces” and Congress’s subsequent exercise of that authority in enacting the Uniform Code of Military Justice mean that Congress has created an alternate remedial scheme in the case of military servicemen that provides the exclusive remedy to servicemen for injuries that are “incident to service.” In other words, Stanley and Chappell are best read as cases dealing with the internal regulations of the military – with soldiers who have voluntarily waived some of their rights, not with prisoners who are being involuntarily held. In Lebron, the Fourth Circuit takes the limitation of injuries “incident to service” and transforms it into something much different — injuries “incident to the conduct of armed conflict.” Given that the government has argued that the war on terror – I know we’re not supposed to use that term anymore, but whatever the new war is, it feels a lot like the war on terror to me – potentially encompasses the entire world, this would mean that no citizen could ever sue military personnel for anything done in the name of national security.
As important as its over-reading of Stanley and Chappell is the error the Fourth Circuit arguably makes in concluding that Congress has affirmatively decided not to provide a damages remedy to citizen enemy combatants for injuries suffered in detention. The Court points to the lack of express causes of action in the Military Commissions Act of 2009, the Military Commissions Act of 2006, and the Detainee Treatment Act of 2005 as evidence that “Congress was no idle bystander” to the debate about detainee treatment. That Congress did not expressly create causes of action in these statutes is taken as “ample evidence” that “congressional inaction has not been inadvertent” (citing Schweiker v. Chilicky). Since the “special factors” analysis goes to the question of which branch is better suited to create the remedy, the Fourth Circuit concluded that it should not intrude into areas constitutionally delegated to a coordinate branch.
The mistake the Court makes here is not to recognize that although these statutes did not create a damages remedy for alien enemy combatants, they were careful to preserve damages remedies available to citizens. By 2004, after the cases of John Walker Lindh and Yaser Hamdi, Congress was well aware that U.S. citizens could be designated enemy combatants. (Full disclosure: I was counsel of record on an amicus brief focused on special factors in the Ninth Circuit appeal in Padilla v. Yoo – the following sentences draw from that brief.) In 2005, in the DTA, Congress stated that “[n]othing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody…of the United States.” In the MCA, Congress limited the stripping of jurisdiction to aliens in U.S. custody. §2241(e)(2)(stripping federal courts of jurisdiction “to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”) In addition, the U.S ratified the Convention against Torture (CAT) without lodging a reservation against the obligation in Art. 14 to provide a remedy for victims of torture occurring within the United States. In a set of “Reservations, Understandings, and Declarations” accompanying its ratification, Congress expressed his understanding that the CAT required it to provide a private right of action only “for acts of torture committed in territory under [its] jurisdiction.” In its first report to Committee on Torture, the treaty body overseeing implementation of the CAT, the Department of State enumerated Bivens as one of the existing federal laws that would provide the required right of action. In ratifying the CAT, Congress surely realized that one agency of government that might potentially torture is the military.
The Court’s reading of these statutes would be correct if Padilla were an alien, but he is not. As I’ve shown, 41 Seton Hall L. Rev. 1491, the pattern of post-9/11 damages claims brought thus far is that they succeed to greater or lesser extent when brought by citizens or resident aliens and fail completely when brought by aliens abroad. Padilla’s enemy combatant label may put him in different category from other post-9/11 Bivens plaintiffs, but it seems to me clearly wrong to say that Congress has expressed its intent to foreclose a Bivens remedy in the case of citizen enemy combatants.