Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
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.
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.
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.
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 email@example.com
To contact the editor responsible for this story: Jessie Kokrda Kamens at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)