FBI Abuse Row Could Reach SCOTUS After En Banc Denial

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By Patrick Gregory

Dec. 11 — A decision allowing immigrant detainees to pursue claims of abuse by former Attorney General John Ashcroft and other federal officials won't be reheard by the U.S. Court of Appeals for the Second Circuit, after it denied en banc review Dec. 11 by a 6-6 vote.

The government will likely seek certiorari at the U.S. Supreme Court, and the high court will likely grant review of the Second Circuit's June 2015 decision, Stephen I. Vladeck, a professor who teaches national security law at the American University law school, Washington, said Dec. 11 in a post on the blog, “Just Security.”

The U.S. Court of Appeals for the Second Circuit decision was “a monumental ruling, and perhaps the most significant circuit-level ruling in favor of victims of post-9/11 counterterrorism abuses to date,” Vladeck told Bloomberg BNA by e-mail after the ruling in Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015) (83 U.S.L.W. 1962, 6/23/15).

That ruling found that plaintiffs plausibly alleged violations of their Fifth Amendment equal protection and substantive due process rights. The plaintiffs alleged that they were imprisoned and abused based on being “Muslim or Arab,” the Second Circuit said.

“I imagine the Second Circuit's opinion won't be the last word on the matter,” Vladeck said.

National First

The June decision made the Second Circuit “the first in the nation to imply a Bivens damages action against senior Executive Branch officials” for taking actions “to safeguard our country in the immediate aftermath of the 9/11 attacks,” six dissenting judges said.

A Bivens claim is an implied private action under the Constitution for damages against federal officials for alleged violations of constitutional rights.

Review was needed because the decision departed from high court precedent concerning the scope of Bivens actions, “the broad shield of qualified immunity” and “the pleading standard for plausible claims,” the dissenters said.

Further, the dispute involves requiring federal officials “to defend against claims for money damages based on a detention policy applied to illegal aliens in the immediate aftermath of a terrorist attack on this country by aliens,” the dissent said.

Judges Dennis Jacobs, Jose A. Cabranes, Reena Raggi, Peter W. Hall, Debra Ann Livingston and Christopher F. Droney were the six dissenters.

‘Rogue Acts' Ratification

The plaintiffs “plausibly pled” their claim that “the Attorney General ratified the rogue acts of a number of field agents,” Judges Rosemary S. Pooler and Richard C. Wesley—who authored the June opinion—said in concurring in the denial of review.

Those rogue acts included detention of Arabs and Muslims—“or those who appeared to fit those categories”—based merely on religion, appearance or language, the concurrence said.

Allowing the claims to proceed was consistent with the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the concurrence said.

‘Departure From Precedent.'

The dissenters criticized the panel decision's “departure from precedent in three areas of law.”

First, the high court “has consistently emphasized that Bivens actions are limited to a few established contexts,” the dissenters said.

But the panel redefined those few contexts using an “impermissibly ‘high level of generality,' ” they said.

The panel avoided considering factors that strongly counseled against “extending Bivens here,” the dissenters said.

Those factors included a challenge to an executive policy instead of to “individual rogue action, the typical Bivens scenario,” the dissent said.

Second, high court precedent requires that qualified immunity apply to the government defendants unless they violated clearly established constitutional rights, the dissent said.

Here, the panel failed to cite “a case clearly establishing the unlawfulness of defendants' particular conduct in light of the specific context of this case,” the dissenters said.

Finally, the panel's reliance on “conclusory assumptions or insinuations of discriminatory purpose” was inconsistent with Iqbal‘s pleading standards, they said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com