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D.C. Circuit Says No Bivens in Doe v Rumsfeld Iraq Torture Case

By Tanya Roth, Esq. on June 20, 2012 10:02 AM

Today, we'll bring you another government contractor/torture lawsuit. This one isn't too far off from the other contractor lawsuits that have been popping up across the circuits.

We gave you a brief synopsis on the oral arguments in this case in April. Now, the D.C. Circuit Court of Appeals has ruled that a U.S. government contractor in Iraq cannot bring a lawsuit against former Defense Secretary Donald Rumsfeld for pecuniary damages.

This case was heard by a panel of three judges. While the district court gave the green light on the lawsuit, the D.C. Circuit Court of Appeals was quick to put the brakes on this one.

We have the usual facts here: John Doe goes to Iraq as a translator. He makes contact with an alleged bad-guy and ends up detained in a U.S. facility. There, he is subject to torture. He is eventually released and not charged with anything.

Of course, the case cites the usual authority, namely the Bivens case, which set the stage for a federal cause of action. Rumsfeld argued that he benefited from the doctrine of qualified immunity and that such a suit could not be brought against him.

While the district court said that Bivens applied, the D.C. Circuit Court of Appeals held to the contrary-- that Bivens did not apply in this case. This was due to the fact that there were special factors present in the current case which precluded Bivens remedies.

Specifically, the court noted that Bivens remedies were not available in cases involving the military, national security or intelligence.

To allow such remedy would hinder national security objectives, the court stated, in its 13-page opinion.

As for Rumsfeld's qualified immunity argument, the appeals court didn't address it since it had already determined that the suit could not be brought.

The district court's order has been reversed, but the attorneys for the contractor have indicated that they just might take the fight to the Supreme Court.

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