# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2012 Decided June 15, 2012

No. 11-5209

J OHN D OE

, A PPELLEE

v.

D ONALD H. R UMSFELD

, A PPELLANT

M ICHAEL C HERTOFF

, ET AL

., A PPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01902)

Henry C. Whitaker , Attorney, argued the cause for

appellant. With him on the briefs were Tony West , Assistant

Attorney General, Ronald C. Machen Jr. , U.S. Attorney, and

Robert M. Loeb , Attorney.

Michael I. Kanovitz argued the cause for appellee John Doe.

With him on the brief were Gayle Horn and Jesselyn Radack

.

Debra S. Katz was on the brief for amicus curiae Project on

Government Oversight in support of appellee John Doe.2

Before: S ENTELLE

, Chief Judge , B ROWN and G RIFFITH

, Circuit Judges

.

Opinion for the Court filed by Chief Judge S ENTELLE

.

S ENTELLE

, Chief Judge : Appellee, a government contractor

identified herein as John Doe, underwent military detention in

Iraq. After his release, he filed this action in the district court

against, inter alia , then-Secretary of Defense Donald Rumsfeld

alleging claims under the Detainee Treatment Act (DTA), 42

U.S.C. § 2000dd et seq. , and a Bivens action for violation of his

due process rights. Secretary Rumsfeld moved to dismiss for

failure to state a claim upon which relief could be granted. The

district court granted the motion as to the claims under the DTA

and some other claims, but did imply an action under the Bivens

due process theory and denied Rumsfeld’s motion to dismiss as

to those claims. Secretary Rums feld appeals from the denial of

his motion, arguing both that the claims are barred by qualified

immunity and that the court erred in implying such a cause of

action in the first instance. Because we agree that the district

court erred in implying such a cause of action, we reverse the

order of the district court.

Background

Because this case arises out of a motion to dismiss, we, like

the district court, accept the well-pleaded factual allegations set

forth in Doe’s complaint as true for purposes of this stage of the

litigation and construe reasonabl e inferences from those

allegations in Doe’s favor, although we are not required to

accept Doe’s legal conclusions as true. S ee, e.g., Ashcroft v.

Iqbal

, 556 U.S. 662, 678-79 (2009). Doe’s complaint alleges the

following facts:3

In December 200 4, Doe, a United States citizen and

employee of an American-owned defense contracting firm,

traveled to Iraq to work as a civilia n Arabic translator and was

detailed to a Unite d States Marine Corps Human Exploitation

Team operating along the Iraqi-Syrian border. Doe’s job was to

develop intelligence through contacts with local Iraqis and to

d iscover threats to the Marine unit. In July 2005, he made

contact and developed a relationship with Iraqi Sheikh Abd AlSattar Abu Risha. Doe maintains that he became the unit’s point

of contact with Al-Sattar and that, through a series of secretive

meetings, he cultivated Al-Sattar as a United States “ally.”

On Octobe r 20, 2005, Doe returned to a United States

military camp in preparation to depart for his annual l eave.

There, a Navy Crimina l Investigative Service (NCIS) agent

asked to interview Doe. Doe agreed and discussed his work

with the agent.

Two weeks later, Doe traveled to Al Asad, a United States

m ilitary base, from which he was scheduled to depart fo r his

leave. At that point, three NCIS agents, including the one who

previously interviewed him, along w ith another United States

official, detained Doe and interrogated him for four hours. Doe

all eges that the agents denied his requests to have an attorney,

a company representative, or a member of the Marine unit

present for his questioning. Doe states that the agents

c onfiscated his luggage, blindfolded him, kicked him in th e

back, and threatened to shoot him if he tried to escape.

Doe was transferred into the custody of the Marine Corps.

After seventy-two hours of solitary confineme nt, he was

b lindfolded, hooded, and flown to Camp Cropper, a U nited

States military facility near Baghdad International Airport used

to hold high-value detainees, where he was confined for nine

months. For the first three months, Doe alleges he was kept in4

solitary confinement; the reafter, he was transferred into a cell

housing suspected hostile al Qaeda and Arab Socialist B a’ath

Party members. Doe alleges that the military officers publicized

his affiliation with the Department of Defense to encourage his

cell mates to attack him and that the prison guards mistreate d

him by exposing him to extreme temperatures and depriving him

o f sleep. He alleges that one guard choked him repeatedly.

During his detainment, United States government officials

interrogated Doe multiple times and denied his requ e sts for an

attorney to be present at those interrogations.

In December 2005, the Detainee Status Board held a

heari ng and deemed Doe a threat to the Multi-National Forces

in Iraq. In July 2006, the Board held a second hearing, after

which Doe was transpo rted to Jordan and ultimately to the

United States, where he was released. Doe was never formally

charged with a crime. He alleges that his property was not

returned to him and that he has been placed on watch lists,

preventing contracting firms from hiring him and causing

customs officials to interrogat e him when he returns from

international travel.

Procedural History

In November 2008, Doe f iled this action against former

Secretary of Defense Donald Rumsfeld, other United States

government officers and agents, and the United States

government. Relevant to this appeal, Doe asked the district

court to hold Secretary Rumsfeld personally liable for violating

Doe’s rights under the DTA and for violating Doe’s

constitutional rights guaranteed under the Fifth, Eighth, and

Fourteenth Amendments on the theory that Secretary Rumsfeld

developed, authorized, and implement ed the policies that caused

Doe harm.5

Secretary Rumsfeld moved to dismiss Doe’s claims against

him for failure to state a clai m upon which relief could be

granted. Doe v. Rumsfeld , 800 F. Supp. 2d 94, 100 (D.D.C.

2011). The district court dismi ssed Doe’s claims arising under

the DTA, holding that the DTA does not provide a private cause

of action. I d

. at 104-05. The district court also dismissed Doe’s

procedural due process and access to court claims, holding that

Doe had not pled sufficient facts t o overcome Secretary

Rumsfeld’s qualified immunity defense. Id . at 113-14.

The court held, however, that Doe could maintain a federal

cause of action for his substantive due process claims under

Bivens v. Six Unknown Agents of Federal Bureau of Narcotics

, 403 U.S. 388 (1971). The district court also held that Secretary

Rumsfeld was not entitled to a qualified immu nity defense to

Doe’s substantive due process claim s because Doe had a right

to be free from detention and interrogation practices that “shock

the conscience”; that right was established at the time of

R umsfeld’s alleged conduct; and Doe sufficiently pled fac ts to

support a clai m that Secretary Rumsfeld violated that right.

Doe , 800 F. Supp. 2d at 115.

Secretary Rumsfeld filed this interlo cutory appeal of the

district court’s partial deni al of his motion to dismiss Doe’s

claims against him. He argues that the di strict court erred first

by implying a Bivens action arising out of the sensitive context

of a military deten tion in a foreign warzone and second by

denying him qualified immunity against Doe’s substantive due

process claims. Our review of each of these legal issues is d e

novo

. S ee Wilson v. Libby

, 535 F.3d 697, 704 (D.C. Cir. 2008).

Jurisdiction

Although the jurisdiction of courts of appeals ordinarily

extends only to review of “final decisions” of the district courts,6

we have jurisdiction over the current interlocutory appeal. This

case fits squarely within a we ll-established exception that the

denial of a motion to dismiss on the ground of qualified

immunity has sufficient finality to warrant interlocutory review,

and within the language of Hartman v. Moore , 547 U.S. 250

(2006), that where “the definition of an element of the [asserted

cause of action] [was] directly implicated by the defense of

qualified immunity and properly before us on interlocutory

appeal,” we have jurisdiction over the appeal. Id. at 257 n.5.

Analysis

Doe’s due process claims agai nst the Secretary of Defense

depend upon the court extending th e bounds of claims for relief

first recognized by the Supreme Court in Bivens v. Six Unknown

Named Agents , 403 U.S. 388 (1971). In Bivens

, the Supreme

Court held that plaintiffs may have a cause of action ag ainst

federal officia ls who, while acting under the color of law,

violate the plaintiffs’ Fourth Amendment right to be secure

against unreasonable searches and seizu res, even if no statute

authorizes such relief. The Court cautioned in dicta in B ivens

, and in later cases repeatedly held, that if “special factors

counsel[] hesitation in t h e absence of affirmative action by

Congress” or if Congress affirmatively has declared that injured

persons mus t seek another remedy, courts should not imply a

cause of action where none exists. S ee Bivens

, 403 U.S. at 396-

97; Chappell v. Wallace

, 462 U.S. 296, 298 (1 983); United

States v. Stanley

, 483 U.S. 669, 678 (1987); Minneci v. Pollard

, 132 S. Ct. 617, 621 (2012). The district court in this case held

that no special factors counsel hesitation an d no other remedy

exists for the alleged violations of Doe’s substantive due process

rights. Therefore, the court held, Doe could maintain a federal

cause of action under Bivens

. Doe , 800 F. Supp. 2d at 111.7

We do not agree. The implication of a B ivens action,

consistent with the dicta in Bivens itself and the later holdings of

the Supreme Court and this court, is not some thing to be

undertaken lightl y. In the forty-two years since the Supreme

Court decided B ivens

, only twice has it extended Bivens

remedie s into new classes of cases —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). S ee Arar v. Ashcroft

, 585 F.3d 559, 571 (2d Cir. 2009).

In 1988, the Supreme Court acknowledged tha t “[o]ur more

recent decisions have responded cautiousl y to suggestions that

Bivens remedies be extended into new contexts.” S chweiker v.

Chili cky , 487 U.S. 412, 421 (1988). More recently, the Court

expla ined that “[b]ecause implied causes of action are

disfavored, the Court has been reluctant to extend Bivens

liability to any new context or new catego r y of defendants.”

Iqbal

, 556 U.S. at 675 (quota tion marks and citation omitted).

The Supreme Court consistently ha s considered and rejected

Bivens remedies in all other contexts. S ee Minn eci , 132 S. Ct.

at 622-23 (collecting five categories of cases in which the Court

has declined to imply Bivens reme dies). Unlike the district

court, we perce ive that special factors present in this case

counsel against the implication of a new Bivens remedy.

1. Special Factors Pertaining to Military, Intelligence,

and National Security

The Supreme Court has never implied a B i vens remedy in

a case involving the military, national security, or intelligence.

In the mi litary context, the Court has explained that “the

insistence (evi dent from the number of Clauses devoted to the

subject) with which the Constitution confers authority over the

Army, Navy, and militia upon political branches . .

. . counsels8

hesitation in our creation of damages remedies in this field.”

Stanley

, 483 U.S. at 682. In Stanley , the Court held that “no

Bivens remedy is available for injuries that ‘arise out of or are in

the course of activity incident to service.’” Id. at 684 (quoting

Feres v. United States , 340 U.S. 135, 146 (1950)). The Stanley

decision echoed the Supreme Court’s earlier refusal to recognize

a cause of action against military superiors in Chappell v.

Wallace , 462 U.S. 296 (1983). There, five enlisted men sought

damages and other relief against their superior officers for

alleged discrimination. In refusing to recognize a Bivens cause

of action, the Court stated that “‘[i]t would be difficult to think

of a clearer example of the type of governmental action that was

intended by the Constitution to be left to the political branches

directly responsibl e—as the Judicial Branch is not—to the

electoral process.’” C happell, 462 U.S. at 302 (quoting

Gilligan v. Morgan

, 413 U.S. 1, 10 (1973)). Granted, Doe is a

contractor and not an actual member of the military, but we see

no way in which this affects the special factors analysis.

The strength of the special factors of military and national

security is underlined by precedent beyond the Bivens cases, and

indeed before the creation of Bivens remedies. T he Court long

has recognized that even during the “twilight between war and

peace,” trials th a t would deplete military resources “would

hamper the war effort and bring aid and comfort to the enemy.”

Johnson v. Eisentrager

, 339 U.S. 763, 779 ( 1950). In the

context of national security and intelligence, the Court has

cautioned that “[m] atters intimately related to . . . national

s ecurity are rarely proper subjects for judicial intervention.”

Haig v. Agee

, 453 U.S. 280, 292 (1981). Military detainee cases

impli cate similar concerns regarding the conduct of war, the

separatio n of powers, and the public scrutiny of sensitive

information.9

In addition to the Supreme Court precedent, this circuit and

others have not implied Bivens actions in cases involving these

special factors. For instance, in A li v. Rumsfeld

, 649 F.3d 762

(D.C. Cir. 2011), we considered whether Afghan and Iraqi

detainees who were captured and held in their home countries by

the United Stat es military could bring B ivens claims against

United States military officials. In addition to our concerns that

such a trial would deplete military resources, we recognized that

“allowing a Bivens action to be brought against American

military officials engaged in warwould disrupt and hinder the

ability of ou r armed forces to act decisively and without

hesitation in defense of our liberty and national interests.” A li

, 649 F.3d at 773 (quotation marks and citation omitted); see also

Rasul v. Myers , 563 F.3d 527, 532 n.5 (D.C. Cir. 2009).

In Wilson

, we considered whether to imply a Bivens remedy

to allow a Centra l Intelligence Agency operative and her

husband to recover damages for injuries they allegedly suffered

when her covert status was made public. W ilson

, 535 F.3d at

701, 704. I n declining to imply such a cause of action, we held

that the “require[d] judicial intrusion” into national security and

intelligence matters was itself a special factor counseling

hesitation because such intrusion wou ld subject sensitive

operations and operatives to judicial and public scrutiny. I d

. at

710.

In Arar

, the Second Circuit determined that a dual citizen

of Canada and Syr ia could not bring a B ivens claim against

United States government and mili tary officials based on

allegations of torture he suffered in t he United States because

“such an action would have the natural tendency to af fect

diplomacy , foreign policy, and the security of the nation, and

that fact counsels hesitation.” 585 F.3d at 574.10

And in Lebron v. Rumsfeld

, 670 F. 3d 540 (4th Cir. 2012),

the Fourth Circuit held that a United States citizen wh o was

arrested and detained as an enemy combatant in the United

States upon his return from Afghanistan could not bring a Bivens

action against top Department of Defense officials for their

policy judgments regarding the designation and treatment of

e nemy combatants. I d

. at 544-45, 547, 556-57. The L ebron

court offered an extensive review of the numerous factors

counseling hesitation, including the importance of “[p]reserving

the constit utionally prescribed balance of powers,” i d

. at 548-50;

the sensitive nature of the allegations involved in detainee cases,

id

. at 550-51; the need to review the military command structure

in order to determine liability, id . at 553; and administrability

concerns regarding the need to require current and former

officials to testify about the rationale for the policy at issue, id

. at 553-54.

Many of the same special factors counseling hesitation

identified in the cases discussed above are present in this case.

In his complaint, Doe challenges the development and

implementation of numerous military policies and decisions.

The complaint would require a court to delve into the military’s

policies regarding the de s ignation of detainees as “security

internees” or “enemy combatants,” as well as policies governing

interrogation techniques.

Doe’s allegations against Secretary Rumsfeld implicate the

military ch ain of command and the discretion Secretary

Rumsfeld and other top officials gave to NCIS agents to detain

and question potential enemy combatants. The allegations raise

questions regarding Secretary Rumsfeld’s personal control over

the treatment and release of specific detainees. Litigation of

Doe’s case would require testimony from top military officials

as well as force s on the ground, which would detract focus,

resources, and personnel from the mission in Ira q. And as we11

recognized in Ali

, allowing such an a ction would hinder our

troops from acting decisively in our nation’s interest for fear of

judicial review of every detention and interrogation. S ee 649

F.3d at 773.

Doe seeks to di stinguish his case from our precedent by

emphasizing that he, unlike the detainees in R asul and Ali

, i s a

United States citiz en. Appellee’s Br. at 19. Those decisions,

however, did not hinge on the plaintiffs’ citi zenship status.

Although Doe’s United States citizenship does remove concerns

we had in those cases about the effects that allowing a B ivens

action would have on foreign affairs, s ee, e.g.

, Ali

, 649 F.3d at

773-7 4, his citizenship does not alleviate the other special

factors counseling hesitation present in those cases an d

discussed above.

2. Congressional Action

The S u preme Court has held that one special factor

precluding the creation of a Bivens remedy is the existence of a

statute that prov ides at least a partial remedy to the same harm

alleged by a plaintiff seeking a Bivens remedy. See, e.g., Bush

v. Lucas

, 462 U.S. 367, 380, 388 (1983) (presence of federal

civil service laws precluded additional Bivens remedies, even

thoug h they did not provide “complete relief”). The Supreme

Court also has stated that “[t]he absence of statutory relief for a

constitutional violation

. . . does not by any means necessarily

imply that courts should aw a rd money damages against the

o fficers responsible for the violation.” S chweiker

, 487 U.S. at

421-22. T he Court explained that “the concept of ‘special

facto rs counselling hesitation in the absence of affirmative

action by Congress’ has proved to include an approp riate

judicial deference to indications that congressional inaction has

n o t been inadvertent.” I d

. at 423 (denying Bivens remedy for

emotional distress suffered because of delay in receipt of Social12

Secur ity benefits, in part because Congress had created elaborate

Social Security scheme, but not that particular reme dy).

Similarly, this Court has acknowledged that i n situations in

which “Congress has intentionally withheld a remedy . . . we

must most ref rain from providing one because it is in those

situations that appropriate judicial deference is especially due to

the considere d judgment of Congress that certain remedies are

not warranted.” W ilson

, 535 F.3d at 709 (internal quot ation

marks omitted).

That is not to say that there is a statute as directly

implicated in this case as there was in Lucas or Wilson

. But

congressional inaction a lso can inform our understanding of

Congress’s intent. For instance, under the Torture Victim

Protection Act, 28 U.S. C. § 1350, United States residents may

sue foreign states. When asked to expand the list of possible

defendants unde r that statute, we assumed that Congress

deliberately “did not

. . . include as possible defendants either

American government officers or private U.S. persons.” S aleh

v. Titan Corp.

, 580 F.3d 1, 16 (2009). Here, there is similar

evidence of congressi onal inaction, which supports our

conclusion that this is not a proper case for the implication of a

Bivens remedy. In 2005, Congress enacted the Detainee

Tre atment Act, which governs interrogation practices and

prohibits Department of Defense officials from using any

techniques not authorized by the United Sta tes Army Field

Manual on Intelligence Interrogation. 42 U.S.C. § 2000dd(a);

10 U.S.C. § 801 note. As the district court recognized, the DTA

c reated no private cause of action. Neither in that Act nor any

other 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.13

Qualified Immunity

Secretary Rumsfeld also argues that the district court erred

by denying him qual ified immunity against Doe’s substantive

d ue process claims. Qualified immunity protects public

officials personally sued for damages “from liability for civil

damag es insofar as their conduct does not violate clearly

establi shed statutory or constitutional rights of which a

reasonable p erson would have known.” S ee Harlow v.

Fitzgerald

, 457 U.S. 800, 818 (1982). Because we have

determined th at Doe may not bring a B ivens action against

Secr e tary Rumsfeld, we need not consider Secretary Rumsfeld’s

qualified immunity defense to such an action.

Conclusion

Because Doe has failed to state a constitutional B ivens

claim for whi ch relief may be granted, we reverse the district

court’s order.