Doe v. Rumsfeld Highlights Tension in D.C. Circuit’s Recognition of Implied Constitutional Remedies in Foreign Policy Arena

In Doe v. Rumsfeld, the D.C. Circuit reversed the district court’s decision recognizing a Bivens remedy for a U.S. citizen who says he was confined and mistreated by the military without due process while employed as a translator by a defense contracting firm in Iraq.  [PDF].

Chief Judge Sentelle, writing for a unanimous panel, had no difficulty identifying the sort of “special factors” the Supreme Court has said must be considered before implying a cause of action directly under the Constitution in a new class of litigation.  Noting that “the Supreme Court has never implied a Bivens remedy in a case involving the military, national security, or intelligence,” the court saw no good reason to treat private contractors differently from military personnel, whom the Supreme Court has said cannot state a Bivens cause of action against their superiors, and CIA agents and non-citizen detainees, whose Bivens suits the D.C. Circuit has likewise rejected.

Friday’s decision is arguably in tension with another of Chief Judge Sentelle’s recent opinions, Navab-Safavi v. Glassman, in which the court permitted a federal contractor’s First and Fifth Amendment retaliation suit to go forward despite the government’s warning that her claims implicated foreign policy concerns regarding which “the government has traditionally received special deference.”  The plaintiff had been a translator for Voice of America’s Persian News Network. Her contract was terminated after she appeared in an anti-American video critical of the government’s foreign policy in Iraq. The agency explained that plaintiff’s involvement in the video undermined Voice of America’s mission–broadcasting “a clear message of United States policy” with journalistic credibility. Thus, according to the government, plaintiff’s continued involvement “could hinder [the agency’s] ability to advance foreign policy.”

Many of the same “special factors” that influenced the court’s decision in Doe v. Rumsfeld could well have foreclosed the plaintiff’s constitutional claims in Navab-Safavi. The Doe opinion recognized that “matters intimately related to national security are rarely proper subjects for judicial intervention.” And it pointed specifically to the risk of “hamper[ing] the war effort and bring[ing] aid and comfort to the enemy.” Although the federal agency in Navab-Safavi voiced similar concerns, the court did not undertake any analysis of “special factors” counseling against an implied constitutional cause of action in that case. Instead, the court reasoned that the plaintiff, as a mere translator, did not appear to exercise editorial judgment, and (absent any evidence to the contrary) her personal interest in vindicating her First Amendment rights outweighed the government’s interest in avoiding an apparently small risk to the agency’s journalistic credibility. But if the court had first decided that the special factors of national security and foreign policy counseled against implying a cause of action against the agency, the court could have avoided the Pickering balancing test altogether.

Future cases may have to reconcile Navab-Safavi with Doe and other cases restricting implied constitutional causes of action in the foreign policy arena.  It may be that, despite the foreign policy concerns the government voiced in Navab-Safavi, the agency did not preserve a specific argument that those concerns foreclosed an implied constitutional remedy.

Doe v. Rumsfeld, No. 11-5209 (June 15, 2012) (Sentelle, C.J., joined by Brown & Griffith, JJ.)

But cf.:

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