Echoing two other circuits, the U.S. Court of Appeals for the Seventh Circuit has held there’s no right of action for damages against soldiers who allegedly mistreat or use abusive interrogation tactics on military prisoners.

On November 7, a split en banc court in Vance v. Rumsfeld agreed with Fourth and D.C. Circuit decisions on the issue. The Seventh Circuit also cited a 2009 en banc Second Circuit ruling in Arar v. Ashcroft, which rejected a damages remedy against intelligence officials who turned a suspected terrorist over to another country.

Donald Vance and Nathan Ertel, who were private security contractors in Iraq, were arrested in April 2006 after Vance told the FBI about alleged military wrong-doing. Ertel gave Vance some of the information. Ertel was released that May followed by Vance that July.

In December 2006, they sued individuals who allegedly detained, harshly interrogated and mistreated them. They also named as defendants supervisors, including former Secretary of Defense Donald Rumsfeld, who they claimed had authorized the use of harsh interrogation methods in Iraq.

In July 2009, Judge Wayne Andersen of the Northern District of Illinois denied the government’s dismissal motion, including Rumsfeld’s claim of qualified immunity.

In a 2-1 August 2011 panel ruling, the Seventh Circuit affirmed Andersen’s ruling denying Rumsfeld’s claim of immunity. The panel also reversed the denial of the United States’ bid to dismiss the plaintiffs’ property claims under the “military authority” exception to the Administrative Procedure Act.

Judge David Hamilton wrote the opinion joined by former Judge Terence Evans, who died later the same month. Judge Daniel Manion concurred in part and dissented in part.

In the recent en banc decision, the appeals court reversed. Judge Frank Easterbrook wrote that there cannot be a right of action against remote superiors like Rumsfeld unless there’s one against soldiers. “The Supreme Court has never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damages,” Easterbrook wrote. Manion, along with judges Joel Flaum, Michael Kanne, Richard Posner, Diane Sykes and John Daniel Tinder, joined Easterbrook in the opinion.

Hamilton and judges Ilana Diamond Rovner and Ann Claire Williams each wrote a dissent joined by the other two. Hamilton wrote that plaintiffs have a civil remedy under the 1971 Supreme Court ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allows damages suits against federal officers or employees for constitutional violations. Hamilton wrote that the majority “in effect creates a new absolute immunity from Bivens liability” for U.S. military personnel.

Judge Diane Wood concurred only in the court’s judgment. Wood wrote that Rumsfeld is entitled to qualified immunity in the suit. She noted that she’s in “substantial agreement” with Hamilton’s dissent on the possibility of liability “for those who actually committed these heinous acts.”

Rovner joined Hamilton’s dissent and Wood’s concurrence in all but the section about whether there should be a right of action for damages against military personnel who abuse detainees. Rovner wrote, “we cannot allow fear to cause us to stray from the established federal pleading standards.” Williams took the same stance as Rovner.

The plaintiffs’ attorney, Mike Kanovitz, a partner at Chicago’s Loevy & Loevy, said the majority’s holding that there’s no possibility of a lawsuit when a member of the military commits this type of violation is “very surprising and disturbing.” The question is “one that should be reviewed at the level of the Supreme Court,” Kanovitz said.

The U.S. Department of Justice has no comment, said spokesman Charles Miller.

David Rivkin Jr., a Washington partner at Baker & Hostetler, argued for an amicus group consisting of former secretaries of defense and chairmen of the joint chiefs of staffs. He said that the decision “completely vindicates Secretary Rumsfeld’s leadership of the Department of Defense, while providing important protections for the national security officials charged with keeping America safe.”

Sheri Qualters can be contacted at squalters@alm.com.