Arar v. Ashcroft

585 F.3d 559

Maher ARAR, Plaintiff-Appellant, v. John ASHCROFT, Attorney General of the United States, Larry D. Thompson, formerly Acting Deputy Attorney General, Tom Ridge, Secretary of Homeland Security, J. Scott Blackman, formerly Regional Director of the Regional Office of Immigration and Naturalization Services, Paula Corrigan, Regional Director of Immigration and Customs Enforcement, Edward J. McElroy, Formerly District Director of Immigration and Naturalization Services for New York District, and now Customs Enforcement, Robert Mueller, Director of the Federal Bureau of Investigation, John Doe 1-10, Federal Bureau of Investigation and/or Immigration and Naturalization Service Agents, and James W. Ziglar, formerly Commissioner for Immigration and Naturalization Services, United States, Defendants-Appellees.

Docket No. 06-4216-cv.

United States Court of Appeals, Second Circuit.

In Banc Rehearing: December 9, 2008.

Decided: November 2, 2009.

David Cole (Maria Couri LaHood, Jules Lobel, Katherine Gallagher, on the brief), Center for Constitutional Rights, New York, NY; Joshua S. Sohn (on the brief), DLA Piper U.S. LLP, New York, NY, for Plaintiff-Appellant.

Jonathan F. Cohn, Deputy Assistant Attorney General (Gregory G. Katsas, Assistant Attorney General; Benton J. Campbell, United States Attorney; Larry Lee

Gregg, R. Joseph Sher, Dennis C. Barghaan, Assistant United States Attorneys; Mary Hampton Mason, Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch; Barbara L. Herwig, Robert M. Loeb, Michael Abate, U.S. Department of Justice, Civil Division, Appellate Staff, on the brief), for Defendant-Appellee John Ashcroft, the official capacity Defendants-Appellees, and the United States.

Jeremy A. Lamken (John J. Cassidy, Jamie S. Kilberg, Paul J. Nathanson, on the brief), Baker Botts L.L.P., Washington D.C.; Stephen L. Braga (on the brief), Ropes & Gray L.L.P., Washington D.C., for Defendant-Appellee Larry D. Thompson.

Robin L. Goldfaden, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, for Amici Curiae American Civil Liberties Union and New York Civil Liberties Union in support of Plaintiff-Appellant.

Burt Neuborne, New York, NY, for Amici Curiae Norman Dorsen, Helen Hershkoff, Frank Michelman, Burt Neuborne, and David L. Shapiro, in support of Plaintiff-Appellant.

Michael B. De Leeuw, Dale E. Ho, Jonathan J. Smith, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, for Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in support of Plaintiff-Appellant.

Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Amici Curiae Retired Federal Judges in support of Plaintiff-Appellant.

Nancy Morawetz, New York University School of Law, New York, NY, for Amici Curiae Law Professors in support of Plaintiff-Appellant.

Alexander Yanos, Freshfields Bruckhaus Deringer U.S. LLP, New York, NY, for Amicus Curiae Redress Trust in support of Plaintiff-Appellant.

Before JACOBS, Chief Judge, McLAUGHLIN,^* CALABRESI,^** CABRANES, POOLER, SACK,^** SOTOMAYOR,^*** PARKER,^** RAGGI, WESLEY, HALL, and LIVINGSTON, Circuit Judges. KATZMANN, Circuit Judge, took no part in the consideration or decision of the case

JACOBS, C.J., filed the majority opinion in which McLAUGHLIN, CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON, JJ., joined.

SACK, J., filed a dissenting opinion in which CALABRESI, POOLER, and PARKER, JJ., joined.

PARKER, J., filed a dissenting opinion in which CALABRESI, POOLER, and SACK, JJ., joined.

POOLER, J., filed a dissenting opinion in which CALABRESI, SACK, and PARKER, JJ., joined.

CALABRESI, J., filed a dissenting opinion in which POOLER, SACK, and PARKER, JJ., joined.

DENNIS JACOBS, Chief Judge:

Maher Arar appeals from a judgment of the United States District Court for the Eastern District of New York (Trager, J.) dismissing his complaint against the Attorney General of the United States, the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, and others, including senior immigration officials. Arar alleges that he was detained while changing planes at Kennedy Airport in New York (based on a warning from Canadian authorities that he was a member of Al Qaeda), mistreated for twelve days while in United States custody, and then removed to Syria via Jordan pursuant to an inter-governmental understanding that he would be detained and interrogated under torture by Syrian officials. The complaint alleges a violation of the Torture Victim Protection Act ("TVPA") and of his Fifth Amendment substantive due process rights arising from the conditions of his detention in the United States, the denial of his access to counsel and to the courts while in the United States, and his detention and torture in Syria.

The district court dismissed the complaint (with leave to re-plead only as to the conditions of detention in the United States and his access to counsel and the courts during that period) and Arar timely appealed (without undertaking to amend). Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y.2006). A three-judge panel of this Court unanimously held that: (1) the District Court had personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar failed to state a claim under the TVPA; and (3) Arar failed to establish subject matter jurisdiction over his request for a declaratory judgment. Arar v. Ashcroft, 532 F.3d 157 (2d Cir.2008). A majority of the panel also dismissed Arar's Bivens claims, with one member of the panel dissenting. Id. The Court voted to rehear the appeal in banc. We now affirm.

We have no trouble affirming the district court's conclusions that Arar sufficiently alleged personal jurisdiction over the defendants who challenged it, and that Arar lacks standing to seek declaratory relief. We do not reach issues of qualified immunity or the state secrets privilege. As to the TVPA, we agree with the unanimous position of the panel that Arar insufficiently pleaded that the alleged conduct of United States officials was done under color of foreign law. We agree with the district court that Arar insufficiently pleaded his claim regarding detention in the United States, a ruling that has been reinforced by the subsequent authority of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Our attention is therefore focused on whether Arar's claims for detention and torture in Syria can be asserted under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens").

To decide the Bivens issue, we must determine whether Arar's claims invoke Bivens in a new context; and, if so, whether an alternative remedial scheme was available to Arar, or whether (in the absence of affirmative action by Congress) "`special factors counsel[] hesitation.'" See Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). This opinion holds that "extraordinary rendition" is a context new to Bivens claims, but avoids any categorical ruling on alternative remedies—because the dominant holding of this opinion is that, in the context of extraordinary rendition, hesitation is warranted by special factors. We therefore affirm. (The term "rendition" and its related usages are defined and discussed in the margin.¹)

Our ruling does not preclude judicial review and oversight in this context. But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.

Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that, when a case presents the intractable "special factors" apparent here, see infra at 574, it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress—and not for us as judges—to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, see David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. Times, Aug. 24, 2009, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.

I

Arar's complaint sets forth the following factual allegations.

Arar is a dual citizen of Syria, where he was born and raised, and of Canada, to which his family immigrated when he was 17.

While on vacation in Tunisia in September 2002, Arar was called back to work in Montreal. His itinerary called for stops in Zurich and New York.

Arar landed at Kennedy Airport around noon on September 26. Between planes, Arar presented his Canadian passport to an immigration official who, after checking Arar's credentials, asked Arar to wait nearby. About two hours later, Arar was fingerprinted and his bags searched. Between 4 p.m. and 9 p.m., Arar was interviewed by an agent from the Federal Bureau of Investigation ("FBI"), who asked (inter alia) about his relationships with certain individuals who were suspected of terrorist ties. Arar admitted knowing at least one of them, but denied being a member of a terrorist group. Following the FBI interview, Arar was questioned by an official from the Immigration and Nationalization Service ("INS") for three...