Turkmen v. Hasty

• Decision Date: 11 December 2015
• Docket Number: 13–1002(Con),13–1003(Con),13–999(Con),13–1662(XAP).,Nos. 13–981 (L),s. 13–981 (L)
• Citation: 808 F.3d 197 (Mem)
• Parties: Ibrahim TURKMEN, Akhil Sachdeva, Ahmer Iqbal Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Purna Bajracharya, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees–Cross–Appellants, v. Dennis HASTY, former Warden of the Metropolitan Detention Center, Michael Zenk, former Warden of the Metropolitan Detention Center, James Sherman, former Metropolitan Detention Center Associate Warden for Custody, Defendants–Appellants, John Ashcroft, former Attorney General of the United States, Robert Mueller, former Director, Federal Bureau of Investigation, James W. Ziglar, former Commissioner, Immigration and Naturalization Service, Defendants–Cross–Appellees, Salvatore Lopresti, former Metropolitan Detention Center Captain, Joseph Cuciti, former Metropolitan Detention Center Lieutenant, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

808 F.3d 197 (Mem)

Ibrahim TURKMEN, Akhil Sachdeva, Ahmer Iqbal Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Purna Bajracharya, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees–Cross–Appellants,

v. Dennis HASTY, former Warden of the Metropolitan Detention Center, Michael Zenk, former Warden of the Metropolitan Detention Center, James Sherman, former Metropolitan Detention Center Associate Warden for Custody, Defendants–Appellants,John Ashcroft, former Attorney General of the United States, Robert Mueller, former Director, Federal Bureau of Investigation, James W. Ziglar, former Commissioner, Immigration and Naturalization Service, Defendants–Cross–Appellees,Salvatore Lopresti, former Metropolitan Detention Center Captain, Joseph Cuciti, former Metropolitan Detention Center Lieutenant, Defendants.

Nos. 13–981 (L)

13–999(Con)

13–1002(Con)

13–1003(Con)

13–1662(XAP).

United States Court of Appeals, Second Circuit.

Dec. 11, 2015.

Rachel Anne Meeropol, Esq., Sunita Patel, Esq., New York, N.Y., for Plaintiffs–Appellees–Cross–Appellants.

H. Thomas Byron, III, United States Department of Justice, Washington, DC, William Alden McDaniel, Jr., Esq., Michelle M. McGeogh, Esq., Ballard Spahr LLP, Baltimore, MD, for Defendants–Cross–Appellees.

Shari Ross Lahlou, Esq., Clifton Scott Elgarten, Esq., Crowell & Moring LLP, Washington, DC, Hugh D. Sandler, Esq., Crowell & Moring LLP, Allan N. Taffet, Esq., Kirk Brett, Esq., Joshua C. Klein, Esq., Duval & Stachenfeld LLP, New York, N.Y., Debra L. Roth, Julia H. Perkins, Esq., Shaw, Bransford, Veileux & Roth, P.C., Jeffrey A. Lamken, Justin Vaun Shur, Esq., Martin Totaro, Esq., Mololamken LLP, Washington, DC, for Defendants–Appellants.

James J. Keefe, Esq., James J. Keefe, P.C., Mineola, N.Y., for Defendants.

PRESENT: DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges.¹

ORDER

Following disposition of this appeal, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

ROSEMARY S. POOLER and RICHARD C. WESLEY, Circuit Judges, concur by opinion in the denial of rehearing en banc.

DENNIS JACOBS, JOSÉ A. CABRANES, REENA RAGGI, PETER W. HALL, DEBRA ANN LIVINGSTON, and CHRISTOPHER F. DRONEY, Circuit Judges, dissent by opinion from the denial of rehearing en banc.

ROSEMARY S. POOLER and RICHARD C. WESLEY, Circuit Judges, concurring in the denial of rehearing en banc:

Our dissenting colleagues lament that the majority opinion in this matter presents the first circuit decision in the country allowing a Bivens claim for an "executive policy" enacted in response to a national emergency. We disagree. The majority opinion acknowledges that Iqbal confirmed that it was constitutionally permissible for the Attorney General to subject detainees with suspected ties to terrorism to restrictive conditions of confinement. The majority opinion is unanimous in concluding that plaintiffs have no claim in that regard.

Our differences arise from the significance of what we conclude is a plausibly pled allegation that the Attorney General ratified the rogue acts of a number of field agents in carrying out his lawful policy. The Attorney General is alleged to have endorsed the restrictive detention of a number of men who were Arabs or Muslims or both—or those who appeared to fit those categories—that resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one's faith, one's appearance, or one's native tongue.

Moreover, the dissenters fail to note that two of the defendants in this case ran the Metropolitan Detention Center and are alleged to have filed false documents with regard to the risk assessments of detainees and to have encouraged a dangerous environment for those detainees at the facility. As alleged in the complaint and documented by the Inspector General's report and national media, this included assaults, daily strip searches, and numerous other degrading acts. All of these actions, were they to have occurred in a regular prison environment and been employed against an inmate not suspected of posing any security risk, would have been considered unlawfully punitive. See Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861 (holding that particular conditions or restrictions of pretrial detention must be reasonably related to a legitimate governmental objective); see also, e.g., Stoudemire v. Mich. Dep't of Corrs., 705 F.3d 560, 574 (6th Cir.2013) (" ‘[A] strip search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.’ " (quoting Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.1996) )). This view accords not only with Iqbal, but also with both our own prior precedent and the views expressed by several of our sister circuits in the wake of Iqbal. See, e.g., Walker v. Schult, 717 F.3d 119, 125 (2d Cir.2013) ; Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir.2010) ; Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir.2011).

This case has drawn this Court's attention now for over thirteen years. The majority opinion and dissent have analyzed many arguments (including Judge Raggi's Bivens concerns, which were not even advanced by the government) and hundreds of cases. The length of our efforts now fills many pages. In our view, it is time to move the case forward.

DENNIS JACOBS, JOSÉ A. CABRANES, REENA RAGGI, PETER W. HALL, DEBRA ANN LIVINGSTON, and CHRISTOPHER F. DRONEY, Circuit Judges, dissenting from the denial of rehearing en banc:

In this case, a sharply divided panel makes our court the first in the nation to imply a Bivens damages action¹ against senior Executive Branch officials—including the former Attorney General of the United States and the Director of the FBI—for actions taken to safeguard our country in the immediate aftermath of the 9/11 attacks. See Turkmen v. Hasty, 789 F.3d 218 (2d Cir.2015) ; id. at 265 (Raggi, J., dissenting in part). The question of whether to rehear this case en banc has now evenly divided the active judges of the court (6–6), which means defendants' petitions for rehearing will be denied. We six judges who voted for rehearing respectfully dissent from that denial.²

The panel decision raises questions of exceptional importance meriting further review. These concern our court's faithful adherence to controlling Supreme Court precedent respecting (1) the narrow scope of Bivens actions, (2) the broad shield of qualified immunity, and (3) the pleading standard for plausible claims. Judge Raggi discusses each of these points in detail in her panel dissent. See id. at 265–302. We incorporate that opinion here, which allows us to avoid repeating its analysis in summarizing our reasons for seeking en banc review.

* * *

In June 2001, the Supreme Court observed that the threat of "terrorism" might demand "heightened deference to the judgments of the political branches with respect to matters of national security," including "forms of preventive detention" for illegal aliens. Zadvydas v. Davis, 533 U.S. 678, 696, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Less than three months later, the deadliest terrorist attack in the history of this nation—committed by aliens operating under foreign direction—presented federal officials with what even the panel majority acknowledges were "unprecedented challenges" in protecting our homeland from further harm. Turkmen v. Hasty, 789 F.3d at 226.³ Astoundingly, given these circumstances, this court now implies a Bivens damages action—a practice that is generally "disfavored," Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and usually "unjustified," Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) —to expose the former Attorney General, FBI Director, and other federal officials to potentially unlimited personal liability for their efforts to provide such protection.⁴

We are the first court to use Bivens to this effect. Four Courts of Appeals—for the Fourth, Seventh, Ninth, and D.C. Circuits—have declined to extend Bivens to suits against executive branch officials for national security actions taken after the 9/11 attacks. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.2012) (en banc ); Doe v. Rumsfeld, 683 F.3d 390 (D.C.Cir.2012) ; Mirmehdi v. United States, 689 F.3d 975 (9th Cir.2012) ; Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.2012) ; see also Meshal v. Higgenbotham, 804 F.3d 417 (D.C.Cir.2015) ; Ali v. Rumsfeld, 649 F.3d 762 (D.C.Cir.2011) ; Rasul v. Myers, 563 F.3d 527 (D.C.Cir.2009). The panel decision puts this court at odds not only with these sister circuits, but also with controlling Supreme Court precedent in the following three areas of law.

1. The Proper Scope of Bivens Actions

After implying damages actions against federal officials on three occasions in the decade between 1971 and 1980, the Supreme Court has never done so again.⁵ Rather, it has consistently emphasized that Bivens actions are limited to a few established contexts, and that those contexts cannot be generalized to extend Bivens further. See Wilkie v. Robbins, 551 U.S. at 549–50, 127 S.Ct. 2588. Only by redefining the few established Bivens contexts at an impermissibly "high level of generality" has the panel majority here been able to avoid its obligation to consider whether a judicially implied damages action is "the best way" to implement constitutional guarantees in the unprecedented legal and factual circumstances of this case. Id. at 500, 561–62, 127 S.Ct. 2588 (requiring such judgment to extend Bivens, and recognizing that Congress is usually in "far better position" than courts to evaluate impact of new species of...