Arar v. Ashcroft

Citation585 F.3d 559
Decision Date02 November 2009
Docket NumberDocket No. 06-4216-cv.
PartiesMaher 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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...

To continue reading

Request your trial
456 cases
  • Mays v. Governor, No. 157335
    • United States
    • Michigan Supreme Court
    • July 29, 2020
    ... ... Though lower federal courts have often refused to extend Bivens , see, e.g., Turpin v Mailet , 591 F2d 426, 427 (CA 2, 1979); Arar v Ashcroft , 585 F3d 559, 581 (CA 2, 2009); De La Paz v Coy , 786 F3d 367, 375 (CA 5, 2015); Vanderklok v United States , 868 F3d 189, 209 (CA 3, ... ...
  • Pinson v. U.S. Dep't of Justice
    • United States
    • U.S. District Court — District of Columbia
    • January 8, 2021
    ... ... at 1856, the Court declared that "expanding the Bivens remedy is now a disfavored judicial activity," id. at 1857 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). It reasoned that Congress is better positioned than the courts to weigh the ... See Arar v. Ashcroft , 585 F.3d 559, 573 (2d Cir. 2009) (en banc) (declining to decide availability issue because, regardless, other 514 F.Supp.3d 245 ... ...
  • Nally v. Graham
    • United States
    • U.S. District Court — District of Kansas
    • July 29, 2021
    ... ... IT IS SO ORDERED. -------- Notes: 1 Ridge at Red Hawk, L.L.C. v. Schneider , 493 F.3d 1174, 1177 (10th Cir. 2007). 2 Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 3 Kan. Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1214 (10th Cir. 2011) ... 2404, 76 L.Ed.2d 648 (1983) (quoting United States v. Standard Oil Co. , 332 U.S. 301, 302, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947) ). 69 Arar v. Ashcroft , 585 F.3d 559, 574 (2d Cir. 2009) (en banc). 70 Hernandez v. Mesa , U.S. , 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020). 71 See ... ...
  • In Re Robert F. Rae
    • United States
    • U.S. Bankruptcy Court — District of Connecticut
    • August 25, 2010
    ... ... of the complaint, and construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff, Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir.2009), unless such inferences relate to jurisdiction, because jurisdiction must be shown affirmatively ... ...
  • Request a trial to view additional results
12 books & journal articles
  • The pleading problem.
    • United States
    • Stanford Law Review Vol. 62 No. 5, May 2010
    • May 1, 2010
    ...and that "he was told" that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. 585 F.3d 559, 569 (2d Cir. 2009) (en banc). The Arar dissenters, however, disputed the majority's characterization of Arar's complaint as failing to identify c......
  • The curious history of the Alien Tort Statute.
    • United States
    • Notre Dame Law Review Vol. 89 No. 4, March - March 2014
    • March 1, 2014
    ...hesitation." See, e.g., Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. (371) Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (quoting Weinberg v. Johnson, 518 A.2d 985......
  • No longer secret: overcoming the state secrets doctrine to explore meaningful remedies for victims of extraordinary rendition.
    • United States
    • Case Western Reserve Law Review Vol. 62 No. 4, June 2012
    • June 22, 2012
    ...the former director of the CIA for abuses he sustained while detained at a CIA facility in Afghanistan). (5) See, e.g., Arar v. Ashcroft, 585 F.3d 559, 563-64 (2d Cir. 2009) (dismissing plaintiff's case against U.S. officials for his treatment, allegedly authorized by the United States, at ......
  • Litigating How We Fight
    • United States
    • International Law Studies No. 87, January 2011
    • January 1, 2011
    ...Rasul v. Myers, 129 S. Ct. 763 (2008). 27. Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009). 28. Id., at 529, 530. 29. Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), cert, denied, 130 S. Ct. 3409 (2010). 30. Id. at 575 ("A suit seeking a damages remedy against senior officials who implement an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT