585 F.3d 559 (2nd Cir. 2009), 06-4216-cv, Arar v. Ashcroft

Docket Nº:06-4216-cv
Citation:585 F.3d 559
Opinion Judge:DENNIS JACOBS, Chief Judge
Party Name: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 Immigra
Attorney: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, Assist...
Judge Panel: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 opinio...
Case Date:November 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 559

585 F.3d 559 (2nd Cir. 2009)

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

No. 06-4216-cv

United States Court of Appeals, Second Circuit

November 2, 2009

Page 560

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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In Banc Rehearing: December 9, 2008. As Amended November 5, 2009. As Amended December 23, 2009.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Trager, J.) dismissing Plaintiff-Appellant Maher Arar's complaint against John Ashcroft, the Attorney General of the United States; Tom Ridge, the Secretary of Homeland Security; Robert Mueller, the Director of the Federal Bureau of Investigation; and others. A majority of the panel also dismissed Arar's Bivens claims, with one member of the panel dissenting. Id. After in banc rehearing, the panel opinion is vacated and the judgment of the district court is affirmed.

Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 2006). 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.

Arar's complaint alleges violations of the Torture Victim Protection Act (" TVPA" ) and the Fifth Amendment. The District Court dismissed the complaint. Id. at 287-88. 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).

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. CALABRESI, J., filed a dissenting opinion in which POOLER, SACK, and PARKER, JJ., joined. POOLER, J., filed a dissenting opinion in which CALABRESI, SACK, and PARKER, 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. Sack, Circuit Judge, joined by Judges Calabresi, Pooler, and Parker, concurring in part and dissenting in part.

OPINION

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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

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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

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subject, then judicial review of such legislation would be...

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