Donald Vance v. Donald Rumsfeld, 2012 U.S. App. LEXIS 23084

Background

Vance and Ertel, U.S. citizens, worked in Iraq for Shield Group Security (later National Shield Security) and were detained by military personnel in 2006 after reporting suspected arms running.
Plaintiffs alleged they endured solitary confinement, denial of counsel, and harsh interrogation techniques including threats, sleep deprivation, extreme temps, sensory deprivation, and other coercive methods.
The Detainee Status Board found them innocent; they were not charged with crimes, but suffered prolonged detention and continued harsh treatment before release.
In December 2006 they sued numerous officials, including Secretary of Defense Rumsfeld, asserting constitutional and statutory rights violations and seeking return of seized property.
The district court rejected several defenses; the United States sought dismissal under the military authority exception; an appeal under 28 U.S.C. § 1292(b) followed, and a panel reversed in part, prompting en banc review.
The court ultimately held that Congress has not provided a private damages action against military personnel for such conduct and that a Bivens remedy should not be created; § 701(b)(1)(G) also bars suit against the United States.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a private damages action against military personnel is available under Bivens.	Vance contends a federal common-law right to damages exists for torture by military personnel.	Rumsfeld argues there is no Bivens remedy and that special factors counsel hesitation or bar relief.	No private damages action; not created.
Whether former Secretary Rumsfeld can be personally liable for plaintiffs’ mistreatment.	Vance alleges personal involvement or deliberate indifference by Rumsfeld.	Rumsfeld grants no personal liability under Iqbal and related standards; no evidence of intent to harm.	Rumsfeld not personally liable; no viable Bivens claim against him.
Does the military authority exception 5 U.S.C. § 701(b)(1)(G) bar the suit against the United States?	§ 701(b)(1)(G) does not bar discovery and potential relief; the suit is not barred on the merits.	Panel held the provision bars any relief against the United States.	Agree that § 701(b)(1)(G) bars relief against the United States.
Should a Bivens-remedy be extended given the citizenship of plaintiffs and the non-statutory path to relief?	Citizens should have a right to damages for constitutional violations by U.S. personnel abroad.	The majority’s approach uses broad factors; Congress has provided alternatives (Military Claims Act, Foreign Claims Act, etc.).	No Bivens extension; political branches control remedies.
Are the common-law damages claims plausible against the Secretary given national-security considerations?	Plaintiffs allege Rumsfeld approved or directed policies resulting in torture; claims should survive Iqbal scrutiny.	Supervisory liability requires substantial showing; policy-level liability is inappropriate under Bivens.	Plaintiffs’ claims against Rumsfeld insufficiently pled to overcome immunity; decision reversed.

Key Cases Cited

Lebrón v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012) (rejected Bivens-like damages against military personnel for detainee rights in Iraq)
Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012) (rejected Bivens-like claims by contractors against officials)
Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) (civilian contractor treated as soldier for prosecution purposes in some contexts)
Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc decision on state-secrets and Bivens-like relief)
Chappell v. Wallace, 462 U.S. 296 (1983) (Feres framework; limits on Bivens for injuries incident to service)
United States v. Stanley, 483 U.S. 669 (1987) (limits on Bivens where injuries arise incident to military service)
Mitchell v. Forsyth, 472 U.S. 511 (1985) (national-security liability; adopts qualified immunity over absolute immunity)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard; government officials not liable on bare conclusions)
Wilkie v. Robbins, 551 U.S. 537 (2007) (Bivens remedies and policy considerations; no automatic new damages action)
Minneci v. Pollard, 132 S. Ct. 617 (2012) (limits Bivens remedy in private-prison context; supports caution in creation)
Saucier v. Katz, 533 U.S. 194 (2001) (procedural approach to qualified immunity later overruled in part)
Reid v. Covert, 354 U.S. 1 (1957) (constitutional rights apply when government punishes citizens abroad)
Munaf v. Geren, 553 U.S. 674 (2008) (citizens abroad; distinguishes between citizens and aliens in habeas context)
Boumediene v. Bush, 553 U.S. 723 (2008) (Habeas rights extend to detainees; constitutional protections apply extraterritorially)