Arar v. Ashcroft

06-4216-cv

Arar v. Ashcroft

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2008

6

7

8 In Banc Rehearing: December 9, 2008 Decided: November 2, 2009

9

10 Docket No. 06-4216-cv

11

12 - - - - - - - - - - - - - - - - - - - - - -x

13

14 MAHER ARAR,

15

16 Plaintiff-Appellant,

17

18 - v.-

19

20 JOHN ASHCROFT, Attorney General of the

21 United States, LARRY D. THOMPSON,

22 formerly Acting Deputy Attorney General,

23 TOM RIDGE, Secretary of Homeland Security,

24 J. SCOTT BLACKMAN, formerly Regional

25 Director of the Regional Office of

26 Immigration and Naturalization Services,

27 PAULA CORRIGAN, Regional Director of

28 Immigration and Customs Enforcement,

29 EDWARD J. MCELROY, formerly District

30 Director of Immigration and Naturalization

31 Services for New York District, and now

32 Customs Enforcement, ROBERT MUELLER,

33 Director of the Federal Bureau of

34 Investigation, John Doe 1-10, Federal

35 Bureau of Investigation and/or Immigration

36 and Naturalization Service Agents, and JAMES

37 W. ZIGLAR, formerly Commissioner for

38 Immigration and Naturalization Services,

39 United States,

40

41 Defendants-Appellees.

42

43 - - - - - - - - - - - - - - - - - - - -x

1 Before: JACOBS, Chief Judge, McLAUGHLIN,* CALABRESI,**

2 CABRANES, POOLER, SACK,** SOTOMAYOR,***

3 PARKER,** RAGGI, WESLEY, HALL, and LIVINGSTON,

4 Circuit Judges. KATZMANN, Circuit Judge, took

5 no part in the consideration or decision of

6 the case.

7

8 JACOBS, C.J., filed the majority opinion in which

9 MCLAUGHLIN, CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON,

10 JJ., joined.

11

12 CALABRESI, J., filed a dissenting opinion in which POOLER,

13 SACK, and PARKER, JJ., joined.

14

15 POOLER, J., filed a dissenting opinion in which CALABRESI,

16 SACK, and PARKER, JJ., joined.

17

18 SACK, J., filed a dissenting opinion in which CALABRESI,

19 POOLER, and PARKER, JJ., joined.

20

21 PARKER, J., filed a dissenting opinion in which CALABRESI,

22 POOLER, and SACK, JJ., joined.

23

24

25 Appeal from a judgment of the United States District

26 Court for the Eastern District of New York (Trager, J.)

*

Senior Circuit Judge McLaughlin was a member of the

initial three-judge panel that heard this appeal and is

therefore eligible to participate in in banc rehearing. See

28 U.S.C. § 46(c)(1).

**

Senior Circuit Judges Calabresi, Sack, and Parker,

who assumed senior status during the course of in banc

proceedings, are entitled to participate pursuant to 28

U.S.C. § 46(c)(2).

***

The Honorable Sonia Sotomayor, who was originally a

member of the in banc panel and who participated in oral

argument, was elevated to the Supreme Court on August 8,

2009.

2

1 dismissing Plaintiff-Appellant Maher Arar’s complaint

2 against John Ashcroft, the Attorney General of the United

3 States; Tom Ridge, the Secretary of Homeland Security;

4 Robert Mueller, the Director of the Federal Bureau of

5 Investigation; and others. Arar v. Ashcroft, 414 F. Supp.

6 2d 250 (E.D.N.Y. 2006). Arar alleges that he was detained

7 while changing planes at Kennedy Airport in New York (based

8 on a warning from Canadian authorities that he was a member

9 of Al Qaeda), mistreated for twelve days while in United

10 States custody, and then removed to Syria via Jordan

11 pursuant to an inter-governmental understanding that he

12 would be detained and interrogated under torture by Syrian

13 officials.

14 Arar’s complaint alleges violations of the Torture

15 Victim Protection Act (“TVPA”) and the Fifth Amendment. The

16 District Court dismissed the complaint. Id. at 287-88. A

17 three-judge panel of this Court unanimously held that: (1)

18 the District Court had personal jurisdiction over Thompson,

19 Ashcroft, and Mueller; (2) Arar failed to state a claim

20 under the TVPA; and (3) Arar failed to establish subject

21 matter jurisdiction over his request for a declaratory

22 judgment. Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). A

3

1 majority of the panel also dismissed Arar’s Bivens claims,

2 with one member of the panel dissenting. Id. After in banc

3 rehearing, the panel opinion is vacated and the judgment of

4 the district court is affirmed.

5 DAVID COLE (Maria Couri LaHood,

6 Jules Lobel, Katherine

7 Gallagher, on the brief), Center

8 for Constitutional Rights, New

9 York, NY; Joshua S. Sohn (on the

10 brief), DLA Piper US LLP, New

11 York, NY, for Plaintiff-

12 Appellant.

13

14 JONATHAN F. COHN, Deputy

15 Assistant Attorney General

16 (Gregory G. Katsas, Assistant

17 Attorney General; Benton J.

18 Campbell, United States

19 Attorney; Larry Lee Gregg, R.

20 Joseph Sher, Dennis C. Barghaan,

21 Assistant United States

22 Attorneys; Mary Hampton Mason,

23 Jeremy S. Brumbelow, U.S.

24 Department of Justice, Civil

25 Division, Torts Branch; Barbara

26 L. Herwig, Robert M. Loeb,

27 Michael Abate, U.S. Department

28 of Justice, Civil Division,

29 Appellate Staff, on the brief),

30 for Defendant-Appellee John

31 Ashcroft, the official capacity

32 Defendants-Appellees, and the

33 United States.

34

35 JEREMY A. LAMKEN (John J.

36 Cassidy, Jamie S. Kilberg, Paul

37 J. Nathanson, on the brief),

38 Baker Botts L.L.P., Washington

39 D.C.; Stephen L. Braga (on the

40 brief), Ropes & Gray L.L.P.,

4

1 Washington D.C.,

2 for Defendant-Appellee Larry D.

3 Thompson.

4

5 Robin L. Goldfaden, American

6 Civil Liberties Union

7 Foundation, Immigrants’ Rights

8 Project, San Francisco, CA, for

9 Amici Curiae American Civil

10 Liberties Union and New York

11 Civil Liberties Union in support

12 of Plaintiff-Appellant.

13

14 Burt Neuborne, New York, NY, for

15 Amici Curiae Norman Dorsen,

16 Helen Hershkoff, Frank

17 Michelman, Burt Neuborne, and

18 David L. Shapiro, in support of

19 Plaintiff-Appellant.

20

21 Michael B. De Leeuw, Dale E. Ho,

22 Jonathan J. Smith, Fried, Frank,

23 Harris, Shriver & Jacobson LLP,

24 New York, NY, for Amicus Curiae

25 NAACP Legal Defense &

26 Educational Fund, Inc. in

27 support of Plaintiff-Appellant.

28

29 Sidney S. Rosdeitcher, Paul,

30 Weiss, Rifkind, Wharton &

31 Garrison LLP, New York, NY, for

32 Amici Curiae Retired Federal

33 Judges in support of Plaintiff-

34 Appellant.

35

36 Nancy Morawetz, New York

37 University School of Law, New

38 York, NY, for Amici Curiae Law

39 Professors in support of

40 Plaintiff-Appellant.

41

42 Alexander Yanos, Freshfields

43 Bruckhaus Deringer US LLP, New

44 York, NY, for Amicus Curiae

5

1 Redress Trust in support of

2 Plaintiff-Appellant.

3

4

5

6 DENNIS JACOBS, Chief Judge:

7

8 Maher Arar appeals from a judgment of the United States

9 District Court for the Eastern District of New York (Trager,

10 J.) dismissing his complaint against the Attorney General of

11 the United States, the Secretary of Homeland Security, the

12 Director of the Federal Bureau of Investigation, and others,

13 including senior immigration officials. Arar alleges that

14 he was detained while changing planes at Kennedy Airport in

15 New York (based on a warning from Canadian authorities that

16 he was a member of Al Qaeda), mistreated for twelve days

17 while in United States custody, and then removed to Syria

18 via Jordan pursuant to an inter-governmental understanding

19 that he would be detained and interrogated under torture by

20 Syrian officials. The complaint alleges a violation of the

21 Torture Victim Protection Act (“TVPA”) and of his Fifth

22 Amendment substantive due process rights arising from the

23 conditions of his detention in the United States, the denial

24 of his access to counsel and to the courts while in the

25 United States, and his detention and torture in Syria.

26 The district court dismissed the complaint (with leave

6

1 to re-plead only as to the conditions of detention in the

2 United States and his access to counsel and the courts

3 during that period) and Arar timely appealed (without

4 undertaking to amend). Arar v. Ashcroft, 414 F. Supp. 2d

5 250 (E.D.N.Y. 2006). A three-judge panel of this Court

6 unanimously held that: (1) the District Court had personal

7 jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar

8 failed to state a claim under the TVPA; and (3) Arar failed

9 to establish subject matter jurisdiction over his request

10 for a declaratory judgment. Arar v. Ashcroft, 532 F.3d 157

11 (2d Cir. 2008). A majority of the panel also dismissed

12 Arar’s Bivens claims, with one member of the panel

13 dissenting. Id. The Court voted to rehear the appeal in

14 banc. We now affirm.

15 We have no trouble affirming the district court’s

16 conclusions that Arar sufficiently alleged personal

17 jurisdiction over the defendants who challenged it, and that

18 Arar lacks standing to seek declaratory relief. We do not

19 reach issues of qualified immunity or the state secrets

20 privilege. As to the TVPA, we agree with the unanimous

21 position of the panel that Arar insufficiently pleaded that

22 the alleged conduct of United States officials was done

7

1 under color of foreign law. We agree with the district

2 court that Arar insufficiently pleaded his claim regarding

3 detention in the United States, a ruling that has been

4 reinforced by the subsequent authority of Bell Atlantic

5 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Our attention

6 is therefore focused on whether Arar’s claims for detention

7 and torture in Syria can be asserted under Bivens v. Six

8 Unknown Named Agents of Federal Bureau of Narcotics, 403

9 U.S. 388 (1971) (“Bivens”).

10 To decide the Bivens issue, we must determine whether

11 Arar’s claims invoke Bivens in a new context; and, if so,

12 whether an alternative remedial scheme was available to

13 Arar, or whether (in the absence of affirmative action by

14 Congress) “‘special factors counsel[] hesitation.’” See

15 Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v.

16 Lucas, 462 U.S. 367, 378 (1983)). This opinion holds that

17 “extraordinary rendition” is a context new to Bivens claims,

18 but avoids any categorical ruling on alternative remedies--

19 because the dominant holding of this opinion is that, in the

20 context of extraordinary rendition, hesitation is warranted

21 by special factors. We therefore affirm. (The term

22 “rendition” and its related usages are defined and discussed

8

1 in the margin.1 )

1

The term “rendition” refers to the transfer of a

fugitive from one state to another or from one country to

another. See Black’s Law Dictionary 1410 (9th ed. 2004)

(defining “rendition” as “[t]he return of a fugitive from

one state to the state where the fugitive is accused or was

convicted of a crime”); see also Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 1.9(c)

(“[I]nterstate rendition[ ] is specifically provided for in

the United States Constitution. In order to implement the

rendition clause, Congress enacted the Federal Rendition

Act, which requires that the demanding state produce ‘a copy

of an indictment found or an affidavit made before a

magistrate of any State or Territory, charging the person

demanded with having committed treason, felony, or other

crime, certified as authentic by the governor.’” (footnotes

omitted)). In the international context, “extradition” is a

“distinct form of rendition” in which “one [country]

surrenders a person within its territorial jurisdiction to a

requesting [country] via a formal legal process, typically

established by treaty between the countries.” Cong.

Research Serv., Renditions: Constraints Imposed by Laws on

Torture 1 (2009); see also 1 Oppenheim’s International Law

§§ 415-16 (9th ed. 1996). Although most international

renditions occur under a formal extradition treaty,

renditions also occur outside the scope of extradition

treaties, often as a matter of international comity. See 1

Oppenheim, supra, § 416; Cong. Research Serv., supra, at 1;

see also 18 U.S.C. § 3181(b) (permitting, “in the exercise

of comity, the surrender of persons, other than citizens,

nationals, or permanent residents of the United States, who

have committed crimes of violence against nationals of the

United States in foreign countries without regard to the

existence of any treaty of extradition with such foreign

government”). The terms “‘irregular rendition’ and

‘extraordinary rendition’ have been used to refer to the

extrajudicial transfer of a person from one [country] to

another.” Cong. Research Serv., supra, at 1; see also

Black’s Law Dictionary 1410 (9th ed. 2009) (defining

“extraordinary rendition” as “[t]he transfer, without formal

charges, trial, or court approval, of a person suspected of

being a terrorist or supporter of a terrorist group to a

9

1 Our ruling does not preclude judicial review and

2 oversight in this context. But if a civil remedy in damages

3 is to be created for harms suffered in the context of

4 extraordinary rendition, it must be created by Congress,

foreign nation for imprisonment and interrogation on behalf

of the transferring nation”). As we understand and use the

term here, “extraordinary rendition” does not, by itself,

imply that a subject of extraordinary rendition will be

treated as Arar alleges he was treated during and after the

rendition alleged in this action.

The United States Department of State records that,

between 1993 and 2001, “rendition” provided the means for

obtaining custody of ten suspected terrorists and

“extradition” applied to another four suspects. See U.S.

Dep’t of State, Patterns of Global Terrorism 2001, App. D:

Extraditions and Renditions of Terrorists to the United

States. Accordingly, the rendition of suspected terrorists

outside the mechanisms established by extradition treaties--

so-called extraordinary rendition--had been employed as a

means of combating terrorists for nearly a decade prior to

the events giving rise to this litigation. See John B.

Bellinger III, Legal Adviser, U.S. Dep’t of State, Letter to

the Editor, Wall St. J., July 5, 2006, at A25 (discussing

the renditions of suspected terrorists Ramzi Yousef and Mir

Aimal Kansi to the United States and the rendition of Illich

Ramirez Sanchez, also known as “Carlos the Jackal,” by

French authorities from the Sudan to France, “which was

subsequently upheld by the European Commission on Human

Rights”), reprinted in Digest of United States Practice in

International Law 162-63 (Sally J. Cummings ed., 2006); see

also Remarks of Condoleezza Rice, U.S. Sec’y of State (Dec.

5, 2005) (“For decades, the United States and other

countries have used ‘renditions’ to transport terrorist

suspects from the country where they were captured to their

home country or to other countries where they can be

questioned, held, or brought to justice.”), in Digest of

United States Practice in International Law 100, 102 (Sally

J. Cummings ed., 2005).

10

1 which alone has the institutional competence to set

2 parameters, delineate safe harbors, and specify relief. If

3 Congress chooses to legislate on this subject, then judicial

4 review of such legislation would be available.

5

6

7

8 [lines 5-13 intentionally left blank]

9

10

11

12

13

14 Applying our understanding of Supreme Court precedent,

15 we decline to create, on our own, a new cause of action

16 against officers and employees of the federal government.

17 Rather, we conclude that, when a case presents the

18 intractable “special factors” apparent here, see supra at

19 36-37, it is for the Executive in the first instance to

20 decide how to implement extraordinary rendition, and for the

21 elected members of Congress--and not for us as judges--to

22 decide whether an individual may seek compensation from

11

1 government officers and employees directly, or from the

2 government, for a constitutional violation. Administrations

3 past and present have reserved the right to employ

4 rendition, see David Johnston, U.S. Says Rendition to

5 Continue, but with More Oversight, N.Y. Times, Aug. 24,

6 2009, and not withstanding prolonged public debate, Congress

7 has not prohibited the practice, imposed limits on its use,

8 or created a cause of action for those who allege they have

9 suffered constitutional injury as a consequence.

10

11 I

12 Arar’s complaint sets forth the following factual

13 allegations.

14 Arar is a dual citizen of Syria, where he was born and

15 raised, and of Canada, to which his family immigrated when

16 he was 17.

17 While on vacation in Tunisia in September 2002, Arar

18 was called back to work in Montreal. His itinerary called

19 for stops in Zurich and New York.

20 Arar landed at Kennedy Airport around noon on September

21 26. Between planes, Arar presented his Canadian passport to

22 an immigration official who, after checking Arar’s

12

1 credentials, asked Arar to wait nearby. About two hours

2 later, Arar was fingerprinted and his bags searched.

3 Between 4 p.m. and 9 p.m., Arar was interviewed by an agent

4 from the Federal Bureau of Investigation (“FBI”), who asked

5 (inter alia) about his relationships with certain

6 individuals who were suspected of terrorist ties. Arar

7 admitted knowing at least one of them, but denied being a

8 member of a terrorist group. Following the FBI interview,

9 Arar was questioned by an official from the Immigration and

10 Nationalization Service (“INS”) for three more hours; he

11 continued to deny terrorist affiliations.

12 Arar spent the night alone in a room at the airport.

13 The next morning (September 27) he was questioned by FBI

14 agents from approximately 9 a.m. until 2 p.m.; the agents

15 asked him about Osama Bin Laden, Iraq, Palestine, and other

16 things. That evening, Arar was given an opportunity to

17 return voluntarily to Syria. He refused, citing a fear of

18 torture, and asked instead to go to Canada or Switzerland.

19 Later that evening, he was transferred to the Metropolitan

20 Detention Center (“MDC”) in Brooklyn, where he remained

21 until October 8.

22 On October 1, the INS initiated removal proceedings,

13

1 and served Arar with a document stating that he was

2 inadmissible because he belonged to a terrorist

3 organization. Later that day, he called his mother-in-law

4 in Ottawa--his prior requests to place calls and speak to a

5 lawyer having been denied or ignored. His family retained a

6 lawyer to represent him and contacted the Canadian Consulate

7 in New York.

8 A Canadian consular official visited Arar on October 3.

9 The next day, immigration officers asked Arar to designate

10 in writing the country to which he would want to be removed.

11 He designated Canada. On the evening of October 5, Arar met

12 with his attorney. The following evening, a Sunday, Arar

13 was again questioned by INS officials. The INS District

14 Director in New York left a voicemail message on the office

15 phone of Arar’s attorney that the interview would take

16 place, but the attorney did not receive the message in time

17 to attend. Arar was told that she chose not to attend. In

18 days following, the attorney was given false information

19 about Arar’s whereabouts.

20 On October 8, 2002, Arar learned that the INS had: (1)

21 ordered his removal to Syria, (2) made a (required) finding

22 that such removal would be consistent with Article 3 of the

14

1 Convention Against Torture (“CAT”), 2 and (3) barred him from

2 re-entering the United States for five years. He was found

3 inadmissible to the United States on the basis of 8 U.S.C.

4 § 1182(a)(3)(B)(i)(V), which provides that any alien who “is

5 a member of a terrorist organization” is inadmissible to the

6 United States. The finding was based on Arar’s association

7 with a suspected terrorist and other (classified)

8 information. Thereafter, Defendant J. Scott Blackman, an

9 INS Regional Director, made a determination that Arar was

10 clearly and unequivocally a member of Al Qaeda and

11 inadmissible to the United States. A “Final Notice of

12 Inadmissibility,” dated October 8, and signed by Defendant

13 Deputy Attorney General Larry Thompson, stated that Arar’s

14 removal to Syria would be consistent with the CAT,

15 notwithstanding Arar’s articulated fear of torture.

16 Later that day, Arar was taken to New Jersey, whence he

2

Article 3 of the Convention Against Torture

“prohibits any state party to the Convention from expelling,

returning or extraditing any person to another State where

there are substantial grounds for believing that he would be

in danger of being subjected to torture, and provides that

the determination of whether such grounds exist [must take]

into account all relevant considerations including, where

applicable, the existence in the State concerned of a

consistent pattern of gross, flagrant or mass violations of

human rights.” Tun v. INS, 445 F.3d 554, 566 (2d Cir. 2006)

(internal quotation marks, brackets, and ellipsis omitted).

15

1 flew in a small jet to Washington, D.C., and then to Amman,

2 Jordan. When he arrived in Amman on October 9, he was

3 handed over to Jordanian authorities who treated him roughly

4 and then delivered him to the custody of Syrian officials,

5 who detained him at a Syrian Military Intelligence facility.

6 Arar was in Syria for a year, the first ten months in

7 an underground cell six feet by three, and seven feet high.

8 He was interrogated for twelve days on his arrival in Syria,

9 and in that period was beaten on his palms, hips, and lower

10 back with a two-inch-thick electric cable and with bare

11 hands. Arar alleges that United States officials conspired

12 to send him to Syria for the purpose of interrogation under

13 torture, and directed the interrogations from abroad by

14 providing Syria with Arar’s dossier, dictating questions for

15 the Syrians to ask him, and receiving intelligence learned

16 from the interviews.

17 On October 20, 2002, Canadian Embassy officials

18 inquired of Syria as to Arar’s whereabouts. The next day,

19 Syria confirmed to Canada that Arar was in its custody; that

20 same day, interrogation ceased. Arar remained in Syria,

21 however, receiving visits from Canadian consular officials.

22 On August 14, 2003, Arar defied his captors by telling

16

1 the Canadians that he had been tortured and was confined to

2 a small underground cell. Five days later, after signing a

3 confession that he had trained as a terrorist in

4 Afghanistan, Arar was moved to various locations. On

5 October 5, 2003, Arar was released to the custody of a

6 Canadian embassy official in Damascus, and was flown to

7 Ottawa the next day.

8

9 II

10 On January 22, 2004, Arar filed a four-count complaint

11 in the Eastern District of New York seeking damages from

12 federal officials for harms suffered as a result of his

13 detention and confinement in the United States and his

14 detention and interrogation in Syria. Count One of Arar's

15 complaint seeks relief under the Torture Victim Protection

16 Act (“TVPA”), 28 U.S.C. § 1350 note (a)(1) (the “TVPA

17 claim”). Counts Two and Three seek relief under the Fifth

18 Amendment for Arar's alleged torture in Syria (Count Two)

19 and his detention there (Count Three). Count Four seeks

20 relief under the Fifth Amendment for Arar’s detention in the

21 United States prior to his removal to Syria. Arar also

22 seeks a declaratory judgment that defendants’ conduct

17

1 violated his “constitutional, civil, and human rights.”

2 Defendants-Appellees moved to dismiss the complaint

3 pursuant to Federal Rule of Civil Procedure 12(b),

4 challenging personal jurisdiction over Defendants Ashcroft,

5 Thompson, and Mueller and challenging subject-matter

6 jurisdiction as to the claims alleging confinement and

7 torture in Syria on the ground that they arise from an order

8 of removal and are therefore subject to the jurisdictional

9 bar of the Immigration and Nationality Act (see infra Part

10 VI). It was also argued that Arar lacked standing to seek a

11 declaratory judgment.

12 On February 16, 2006, the district court dismissed

13 Counts One, Two, and Three with prejudice, and Count Four

14 without prejudice. Arar v. Ashcroft, 414 F. Supp. 2d 250,

15 287-88 (E.D.N.Y. 2006). The district court also concluded

16 that Arar lacked standing to bring a claim for declaratory

17 relief. Id. at 258-59.

18 Arar elected not to re-plead Count Four, and on August

19 17, 2006, the district court entered judgment dismissing all

20 of Arar’s claims. Arar timely appealed. A divided three-

21 judge panel of this Court affirmed on June 30, 2008. Arar

22 v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). The Court voted

18

1 to rehear the case in banc, and oral argument was heard on

2 December 9, 2008.

3

4 III

5 We review de novo the district court’s decision to

6 grant a motion to dismiss. In re NYSE Specialists Sec.

7 Litig., 503 F.3d 89, 95 (2d Cir. 2007). In so doing, we

8 accept as true the factual allegations of the complaint, and

9 construe all reasonable inferences that can be drawn from

10 the complaint in the light most favorable to the plaintiff.

11 Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); see also

12 Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

13 At the outset, we conclude (as the panel concluded

14 unanimously) that Arar: (1) sufficiently alleged personal

15 jurisdiction over the defendants, and (2) has no standing to

16 seek declaratory relief; in addition, because we dismiss the

17 action for the reasons set forth below, we need not (and do

18 not) reach the issues of qualified immunity or the state

19 secrets privilege.

20 This opinion owes a debt to the panel opinions.

21

22

19

1 IV

2 The TVPA creates a cause of action for damages against

3 any “individual who, under actual or apparent authority, or

4 color of law, of any foreign nation . . . subjects an

5 individual to torture.” 28 U.S.C. § 1350 note (a)(1).

6 Count One of Arar’s complaint alleges that the defendants

7 conspired with Jordanian and Syrian officials to have Arar

8 tortured in direct violation of the TVPA.

9 Any allegation arising under the TVPA requires a

10 demonstration that the defendants acted under color of

11 foreign law, or under its authority. Kadic v. Karadzic, 70

12 F.3d 232, 245 (2d Cir. 1995). “In construing the term[] . .

13 . ‘color of law,’ courts are instructed to look . . . to

14 jurisprudence under 42 U.S.C. § 1983 . . . .” Id. (citing

15 H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991)

16 reprinted in 1992 U.S.C.C.A.N. 84, 87). Under section 1983,

17 “[t]he traditional definition of acting under color of state

18 law requires that the defendant . . . have exercised power

19 ‘possessed by virtue of state law and made possible only

20 because the wrongdoer is clothed with the authority of state

21 law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting

22 United States v. Classic, 313 U.S. 299, 326 (1941)). The

20

1 determination as to whether a non-state party acts under

2 color of state law requires an intensely fact-specific

3 judgment unaided by rigid criteria as to whether particular

4 conduct may be fairly attributed to the state. See

5 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531

6 U.S. 288, 295 (2001). A federal officer who conspires with

7 a state officer may act under color of state law, see

8 Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154

9 (2d Cir. 2006); but since “federal officials typically act

10 under color of federal law,” they are rarely deemed to have

11 acted under color of state law. Strickland ex rel.

12 Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997)

13 (emphasis in original).

14 Accordingly, to state a claim under the TVPA, Arar must

15 adequately allege that the defendants possessed power under

16 Syrian law, and that the offending actions (i.e., Arar’s

17 removal to Syria and subsequent torture) derived from an

18 exercise of that power, or that defendants could not have

19 undertaken their culpable actions absent such power. The

20 complaint contains no such allegation. Arar has argued that

21 his allegation of conspiracy cures any deficiency under the

22 TVPA. But the conspiracy allegation is that United States

21

1 officials encouraged and facilitated the exercise of power

2 by Syrians in Syria, not that the United States officials

3 had or exercised power or authority under Syrian law. The

4 defendants are alleged to have acted under color of federal,

5 not Syrian, law, and to have acted in accordance with

6 alleged federal policies and in pursuit of the aims of the

7 federal government in the international context. At most,

8 it is alleged that the defendants encouraged or solicited

9 certain conduct by foreign officials. Such conduct is

10 insufficient to establish that the defendants were in some

11 way clothed with the authority of Syrian law or that their

12 conduct may otherwise be fairly attributable to Syria. See,

13 e.g., Harbury v. Hayden, 444 F. Supp. 2d 19, 42-43 (D.D.C.

14 2006), aff’d on other grounds, 522 F.3d 413 (D.C. Cir.

15 2008). We therefore agree with the unanimous holding of the

16 panel and affirm the District Court’s dismissal of the TVPA

17 claim.3

3

Judge P OOLER relies on a line of section 1983 cases

explaining when and how private conduct can constitute state

action, and then reasons by analogy to deem the defendants’

conduct in this case to have arisen under foreign (Syrian)

law. See Dissent of Judge Pooler at 8-9. Under this

theory, Judge P OOLER would allow a person tortured abroad to

sue an official of the United States government, who in the

performance of her official duties, “encourage[d],”

“facilitat[ed],” or “solicit[ed]” the mistreatment. Id. at

22

1 V

2 Count Four of the complaint alleges that the conditions

3 of confinement in the United States (prior to Arar’s removal

4 to Syria), and the denial of access to courts during that

5 detention, violated Arar’s substantive due process rights

6 under the Fifth Amendment. The District Court dismissed

7 this claim--without prejudice--as insufficiently pleaded,

8 and invited Arar to re-plead the claim in order to

9 “articulate more precisely the judicial relief he was

10 denied” and to “name those defendants that were personally

11 involved in the alleged unconstitutional treatment.” Arar,

12 414 F. Supp. 2d at 286, 287. Arar elected (in his counsel’s

13 words) to “stand on the allegations of his original

14 complaint.”

15 On a motion to dismiss, courts require “enough facts to

10. Notably, she cites no authority for this remarkable

proposition, which would render a U.S. official an official

of a foreign government when she deals with that foreign

state on matters involving intelligence, military, and

diplomatic affairs. At least one commentator has proposed a

legislative amendment to bring the law into line with what

Judge P OOLER thinks it is, or should be. See Richard Henry

Seamon, U.S. Torture as a Tort, 37 Rutgers L.J. 715, 802,

804 (2006) (“Under current law, U.S. officials can seldom be

held civilly liable for torture . . . . Congress could amend

the TVPA to extend the cause of action to the victims of

torture inflicted under color of federal law.”).

23

1 state a claim to relief that is plausible on its face.”

2 Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 129 S.

3 Ct. 1937, 1949-50 (2009). “Factual allegations must be

4 enough to raise a right to relief above the speculative

5 level . . . .” Twombly, 550 U.S. at 555. Broad allegations

6 of conspiracy are insufficient; the plaintiff “must provide

7 some factual basis supporting a meeting of the minds, such

8 that defendants entered into an agreement, express or tacit,

9 to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105,

10 110 (2d Cir. 2003) (internal quotation marks omitted)

11 (addressing conspiracy claims under 42 U.S.C. § 1985).

12 Furthermore, a plaintiff in a Bivens action is required to

13 allege facts indicating that the defendants were personally

14 involved in the claimed constitutional violation. See Ellis

15 v. Blum, 643 F.2d 68, 85 (2d Cir. 1981); see also Thomas v.

16 Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006).

17 Arar alleges that “Defendants”--undifferentiated--

18 “denied Mr. Arar effective access to consular assistance,

19 the courts, his lawyers, and family members” in order to

20 effectuate his removal to Syria. But he fails to specify

21 any culpable action taken by any single defendant, and does

22 not allege the “meeting of the minds” that a plausible

24

1 conspiracy claim requires. He alleges (in passive voice)

2 that his requests to make phone calls “were ignored,” and

3 that “he was told” that he was not entitled to a lawyer, but

4 he fails to link these denials to any defendant, named or

5 unnamed. Given this omission, and in view of Arar’s

6 rejection of an opportunity to re-plead, we agree with the

7 District Court and the panel majority that this Count of the

8 complaint must be dismissed.

9 We express no view as to the sufficiency of the

10 pleading otherwise, that is, whether the conduct alleged (if

11 plausibly attributable to defendants) would violate a

12 constitutionally protected interest.4 To the extent that

13 this claim may be deemed to be a Bivens-type action, it may

14 raise some of the special factors considered later in this

15 opinion.

16

17 VI

18 Arar’s remaining claims seek relief on the basis of

19 torture and detention in Syria, and are cast as violations

4

We need not, therefore, consider the panel’s holding

that Arar failed “to establish that he possessed any

entitlement to a pre-removal hearing” or “to the assistance

of counsel.” Arar, 532 F.3d at 187-88.

25

1 of substantive due process. At the outset, Defendants argue

2 that the jurisdictional bar of the INA deprived the District

3 Court of subject-matter jurisdiction over these counts

4 because Arar’s removal was conducted pursuant to a decision

5 that was “at the discretion” of the Attorney General.

6 “[A]ny policy toward aliens is vitally and intricately

7 interwoven with contemporaneous policies in regard to the

8 conduct of foreign relations, the war power, and the

9 maintenance of a republican form of government. Such

10 matters are so exclusively entrusted to the political

11 branches of government as to be largely immune from judicial

12 inquiry or interference.” Harisiades v. Shaughnessy, 342

13 U.S. 580, 588-89 (1952). Accordingly, the INA requires an

14 alien to seek relief only through judicial review of a

15 removal order in the appropriate court of appeals; it

16 entirely forecloses judicial review of decisions of the

17 Attorney General or the Secretary of Homeland Security

18 specified by the INA to be within the discretion of those

19 officers. See 8 U.S.C. § 1252.5

5

8 U.S.C. § 1252(b)(9) provides that “[j]udicial

review of all questions of law and fact, including

interpretation and application of constitutional and

statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United States

26

1 However, the application of the INA’s jurisdictional

2 bar is problematic in this case because the proceedings

3 under the INA are alleged to have been irregular in several

4 respects.

5 First, the complaint alleges that the government took

6 the following actions that impaired Arar’s timely ability to

7 seek the judicial review normally afforded under the INA and

8 to receive any meaningful relief: denying his requests to

9 contact an attorney or his family; misleading his lawyer

10 (after one was retained for him) as to his location and

11 status, thereby frustrating any advocacy on his behalf; and

12 serving the removal order on Arar en route to Amman, when he

13 no longer had access to his attorney and could not make use

. . . shall be available only in judicial review of a final

order.” Subsection 1252(a)(5), in turn, states that “a

petition for review filed with an appropriate court of

appeals . . . shall be the sole and exclusive means for

judicial review of an order of removal.” Finally, pursuant

to § 1252 (a)(2)(B):

[N]o court shall have jurisdiction to review . . .

(ii) any . . . decision or action of the Attorney

General or the Secretary of Homeland Security the

authority for which is specified . . . to be in

the discretion of the Attorney General or the

Secretary of Homeland Security, other than the

granting of [asylum].

27

1 of the review process. The complaint also alleges that the

2 government undertook extraordinary rendition in clear

3 violation of the protections afforded aliens by the INA,

4 suggesting that the government itself might not have viewed

5 the INA as the real source of its removal authority in this

6 context. However, mere allegations of obstruction generally

7 do not circumvent a congressionally mandated remedial

8 scheme. Otherwise, limitations on the jurisdiction of the

9 district courts could easily be evaded and thwarted.

10 Second, although the INA governs the status of aliens

11 in transit at United States airports, and clearly has a role

12 in such circumstances, see 8 U.S.C. § 1182(d)(4)(C), this is

13 not a typical immigration case according to the complaint:

14 Arar took no step to enter or stay in this country; he was

15 changing planes to go elsewhere, repeatedly expressed his

16 desire to return to Canada, and was ticketed to Montreal.

17 Even though this case does not present the familiar fact

18 pattern of an alien trying to enter or remain in the United

19 States, our immigration laws apply with equal force to

20 aliens who seek admission to our country and to aliens whom

21 the government seeks to keep out of our country.

22 In short, it is not clear that the INA’s judicial

28

1 review provisions govern circumstances of involuntary

2 rendition such as those alleged here. Indeed, rendition may

3 take place in circumstances that in no way implicate United

4 States immigration laws, such as when a person is detained

5 abroad and rendered to some third country.

6 Finally, even if the INA’s jurisdictional bar is

7 surmounted and review not foreclosed, Arar has alleged

8 circumstances that would have prevented him from obtaining

9 review. If, as he alleges, he was served with the removal

10 order while he was already en route to Amman, the INA could

11 have afforded him no relief then (and can afford him no

12 affirmative relief at this time in this case).

13 In any event, we need not decide the vexed question of

14 whether the INA bar defeats jurisdiction of Arar’s

15 substantive due process claims, because we conclude below

16 that the case must be dismissed at the threshold for other

17 reasons.

18

19 VII

20 In Bivens v. Six Unknown Named Agents of Federal Bureau

21 of Narcotics, 403 U.S. 388 (1971), the Supreme Court

22 “recognized for the first time an implied private action for

29

1 damages against federal officers alleged to have violated a

2 citizen’s constitutional rights.” Corr. Servs. Corp. v.

3 Malesko, 534 U.S. 61, 66 (2001). The plaintiff in Bivens

4 had been subjected to an unlawful, warrantless search which

5 resulted in his arrest. Bivens, 403 U.S. at 389-90. The

6 Supreme Court allowed him to state a cause of action for

7 money damages directly under the Fourth Amendment, thereby

8 giving rise to a judicially-created remedy stemming directly

9 from the Constitution itself. Id. at 397.

10 The purpose of the Bivens remedy “is to deter

11 individual federal officers from committing constitutional

12 violations.” Malesko, 534 U.S. at 70. So a Bivens action

13 is brought against individuals, and any damages are payable

14 by the offending officers. Carlson v. Green, 446 U.S. 14,

15 21 (1980). Notwithstanding the potential breadth of claims

16 that would serve that objective, the Supreme Court has

17 warned that the Bivens remedy is an extraordinary thing that

18 should rarely if ever be applied in “new contexts.” See

19 Malesko, 534 U.S. at 69 (internal quotation marks omitted);

20 Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also

21 Dotson v. Griesa, 398 F.3d 156, 166 (2d Cir. 2005) (“Because

22 a Bivens action is a judicially created remedy . . . courts

30

1 proceed cautiously in extending such implied relief

2 . . . .”). In the 38 years since Bivens, the Supreme Court

3 has extended it twice only: in the context of an employment

4 discrimination claim in violation of the Due Process Clause,

5 Davis v. Passman, 442 U.S. 228 (1979); and in the context of

6 an Eighth Amendment violation by prison officials, Carlson,

7 446 U.S. 14; see also Wilkie v. Robbins, 551 U.S. 537, 550

8 (2007) (“[I]n most instances we have found a Bivens remedy

9 unjustified.”); Malesko, 534 U.S. at 68 (“[W]e have

10 consistently refused to extend Bivens liability to any new

11 context or new category of defendants.”). Since Carlson in

12 1980, the Supreme Court has declined to extend the

13 Bivens remedy in any new direction at all. Among the

14 rejected contexts are: violations of federal employees’

15 First Amendment rights by their employers, Bush v. Lucas,

16 462 U.S. 367 (1983); harms suffered incident to military

17 service, United States v. Stanley, 483 U.S. 669 (1987);

18 Chappell v. Wallace, 462 U.S. 296 (1983); denials of Social

19 Security benefits, Schweiker, 487 U.S. at 412; claims

20 against federal agencies, FDIC v. Meyer, 510 U.S. 471

21 (1994); claims against private corporations operating under

22 federal contracts, Malesko, 534 U.S. 61 (2001); and claims

31

1 of retaliation by federal officials against private

2 landowners, Wilkie, 551 U.S. at 562.

3 This case requires us to examine whether allowing this

4 Bivens action to proceed would extend Bivens to a new

5 “context,” and if so, whether such an extension is

6 advisable.

7 “Context” is not defined in the case law. At a

8 sufficiently high level of generality, any claim can be

9 analogized to some other claim for which a Bivens action is

10 afforded, just as at a sufficiently high level of

11 particularity, every case has points of distinction. We

12 construe the word “context” as it is commonly used in law:

13 to reflect a potentially recurring scenario that has similar

14 legal and factual components.

15 The context of this case is international rendition,

16 specifically, “extraordinary rendition.” Extraordinary

17 rendition is treated as a distinct phenomenon in

18 international law. See supra note 1. Indeed, law review

19 articles that affirmatively advocate the creation of a

20 remedy in cases like Arar’s recognize “extraordinary

21 rendition” as the context. See, e.g., Peter Johnston, Note,

22 Leaving the Invisible Universe: Why All Victims of

32

1 Extraordinary Rendition Need a Cause of Action Against the

2 United States, 16 J.L. & Pol’y 357, 363 (2007). More

3 particularly, the context of extraordinary rendition in

4 Arar’s case is the complicity or cooperation of United

5 States government officials in the delivery of a non-citizen

6 to a foreign country for torture (or with the expectation

7 that torture will take place). This is a “new context”: no

8 court has previously afforded a Bivens remedy for

9 extraordinary rendition.

10 Once we have identified the context as “new,” we must

11 decide whether to recognize a Bivens remedy in that

12 environment of fact and law . The Supreme Court tells us

13 that this is a two-part inquiry. In order to determine

14 whether to recognize a Bivens remedy in a new context, we

15 must consider: whether there is an alternative remedial

16 scheme available to the plaintiff; and whether “‘special

17 factors counsel[] hesitation’” in creating a Bivens remedy.

18 Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at 378).

19

20 VIII

21 There are several possible alternative remedial schemes

22 here. Congress has established a substantial,

33

1 comprehensive, and intricate remedial scheme in the context

2 of immigration. The INA provides for review of final orders

3 of removal, including review of the government’s designation

4 of a particular destination country and many (albeit not

5 all) decisions of the Attorney General and the Secretary of

6 Homeland Security. See 8 U.S.C. § 1252; Mendis v. Filip,

7 554 F.3d 335, 338 (2d Cir. 2009). Congress has supplemented

8 this general remedial scheme with specific guidance for

9 particular contexts by enacting (i) the Foreign Affairs

10 Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C.

11 § 1231 note; see also 8 C.F.R. § 208.16(c); and (ii) the

12 TVPA, which, as already discussed, provides no remedy to

13 Arar. At the same time, Congress has expressly limited

14 review of the removal of aliens who (like Arar) are

15 removable for reasons related to national security. See 8

16 U.S.C. § 1225(c). Congress has also regularly modified the

17 various review mechanisms to account for perceived

18 difficulties and complications. See, e.g., REAL ID Act of

19 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302; Illegal

20 Immigration Reform and Immigrant Responsibility Act of 1996,

21 Pub. L. No. 104-208, div. C, 110 Stat. 3009-546. In light

22 of the complexity of the remedial scheme Congress has

34

1 created (and frequently amended), we would ordinarily draw a

2 strong inference that Congress intended the judiciary to

3 stay its hand and refrain from creating a Bivens action in

4 this context. See Wilkie, 551 U.S. at 554; Schweiker, 487

5 U.S. at 424-29; Bush, 462 U.S. at 388.

6 We recognize, however, that any reliance on the INA as

7 an alternative remedial scheme presents difficulties for the

8 same reasons discussed in Part VI above. Arar has alleged

9 that he was actively prevented from seeking any meaningful

10 review and relief through the INA processes. In the end, we

11 need not decide whether an alternative remedial scheme was

12 available because, “even in the absence of an alternative

13 [remedial scheme], a Bivens remedy is a subject of judgment

14 . . . [in which] courts must . . . pay particular heed . . .

15 to any special factors counselling hesitation before

16 authorizing a new kind of federal litigation.” Wilkie, 551

17 U.S. at 550 (internal quotation marks omitted).6 Such

18 special factors are clearly present in the new context of

6

Accordingly, we have no occasion to consider the

panel’s conclusion that the “review procedures set forth by

the INA provide a convincing reason for us to resist

recognizing a Bivens cause of action for Arar’s claims.”

Arar, 532 F.3d at 180 (internal quotation marks and citation

omitted).

35

1 this case, and they sternly counsel hesitation.

2

3 IX

4 When the Bivens cause of action was created in 1971,

5 the Supreme Court explained that such a remedy could be

6 afforded because that “case involve[d] no special factors

7 counselling hesitation in the absence of affirmative action

8 by Congress.” Bivens, 403 U.S. at 396. This prudential

9 limitation was expressly weighed by the Court in Davis, 442

10 U.S. at 245-46, and Carlson, 446 U.S. at 18-19, and such

11 hesitation has defeated numerous Bivens initiatives, see,

12 e.g., Stanley, 483 U.S. at 683-84; Chappell, 462 U.S. at

13 304; Wilkie, 551 U.S. at 554-55; Dotson, 398 F.3d at 166-67.

14 Among the “special factors” that have “counsel[ed]

15 hesitation” and thereby foreclosed a Bivens remedy are:

16 military concerns, Stanley, 483 U.S. at 683-84; Chappell,

17 462 U.S. at 304; separation of powers, United States v. City

18 of Philadelphia, 644 F.2d 187, 200 (3d Cir. 1980); the

19 comprehensiveness of available statutory schemes, Dotson,

20 398 F.3d at 166; national security concerns, Beattie v.

21 Boeing Co., 43 F.3d 559, 563 (10th Cir. 1994); and foreign

22 policy considerations, United States v. Verdugo-Urquidez,

36

1 494 U.S. 259, 274 (1990).

2 Two principles emerge from this review of case law:

3 • “Special factors” is an embracing category,

4 not easily defined; but it is limited in terms

5 to factors that provoke “hesitation.” While

6 special factors should be substantial enough

7 to justify the absence of a damages remedy for

8 a wrong, no account is taken of countervailing

9 factors that might counsel alacrity or

10 activism, and none has ever been cited by the

11 Supreme Court as a reason for affording a

12 Bivens remedy where it would not otherwise

13 exist.

14

15 • The only relevant threshold--that a factor

16 “counsels hesitation”--is remarkably low. It

17 is at the opposite end of the continuum from

18 the unflagging duty to exercise jurisdiction.

19 Hesitation is a pause, not a full stop, or an

20 abstention; and to counsel is not to require.

21 “Hesitation” is “counseled” whenever

22 thoughtful discretion would pause even to

23 consider.7

24

25 With these principles in mind, we adduce, one by one,

26 special factors that bear upon the recognition of a Bivens

27 remedy for rendition.

28

29 X

30 Although this action is cast in terms of a claim for

7

Judge P OOLER labels these two principles “dicta,” see

Dissent of Judge Pooler at 2, but they are not. They are

integral to the holding in this in banc case, because we do

not take account of countervailing factors and because we

apply the standard we announce.

37

1 money damages against the defendants in their individual

2 capacities, it operates as a constitutional challenge to

3 policies promulgated by the executive. Our federal system

4 of checks and balances provides means to consider allegedly

5 unconstitutional executive policy, but a private action for

6 money damages against individual policymakers is not one of

7 them. A Bivens action is sometimes analogized to an action

8 pursuant to 42 U.S.C. § 1983, but it does not reach so far

9 as to create the federal counterpart to an action under

10 Monell v. Department of Social Services, 436 U.S. 658

11 (1978). Here, we need not decide categorically whether a

12 Bivens action can lie against policymakers because in the

13 context of extraordinary rendition, such an action would

14 have the natural tendency to affect diplomacy, foreign

15 policy, and the security of the nation, and that fact

16 counsels hesitation. Our holding need be no broader.

17

18 A. Security and Foreign Policy

19 The Executive has practiced rendition since at least

20 1995. See Extraordinary Rendition in U.S. Counterterrorism

21 Policy: The Impact on Transatlantic Relations: Joint Hearing

22 Before the Subcomm. on International Organizations, Human

38

1 Rights, and Oversight and the Subcomm. on Europe of the H.

2 Comm. on Foreign Affairs, 110th Cong. 15 (2007) (statement

3 of Michael F. Scheuer, Former Chief, Bin Laden Unit, CIA).

4 Arar gives “the mid-1990s” as the date for the inception of

5 the policy under which he was sent to Syria for torture.

6 Pl. Maher Arar’s Mem. of Law in Opp’n to Defs.’ Invocation

7 of the State Secrets Privilege, Mar. 14, 2005, at 6. A suit

8 seeking a damages remedy against senior officials who

9 implement such a policy is in critical respects a suit

10 against the government as to which the government has not

11 waived sovereign immunity. Such a suit unavoidably

12 influences government policy, probes government secrets,

13 invades government interests, enmeshes government lawyers,

14 and thereby elicits government funds for settlement.

15 (Canada has already paid Arar $10 million. 8 )

16 It is a substantial understatement to say that one must

17 hesitate before extending Bivens into such a context. A

18 suit seeking a damages remedy against senior officials who

19 implement an extraordinary rendition policy would enmesh the

8

See Press Release and Announcement, Stephen Harper,

Prime Minister of Can. (Jan. 26, 2007),

http://pm.gc.ca/eng/media.asp?id=1510; Ottawa Reaches $10M

Settlement with Arar, CBC News, Jan. 26, 2007,

http://www.cbc.ca/canada/story/2007/01/25/arar-harper.html.

39

1 courts ineluctably in an assessment of the validity and

2 rationale of that policy and its implementation in this

3 particular case, matters that directly affect significant

4 diplomatic and national security concerns. It is clear from

5 the face of the complaint that Arar explicitly targets the

6 “policy” of extraordinary rendition; he cites the policy

7 twice in his complaint, and submits documents and media

8 reports concerning the practice. His claim cannot proceed

9 without inquiry into the perceived need for the policy, the

10 threats to which it responds, the substance and sources of

11 the intelligence used to formulate it, and the propriety of

12 adopting specific responses to particular threats in light

13 of apparent geopolitical circumstances and our relations

14 with foreign countries.

15 The Supreme Court has expressly counseled that matters

16 touching upon foreign policy and national security fall

17 within “an area of executive action ‘in which courts have

18 long been hesitant to intrude’” absent congressional

19 authorization. Lincoln v. Vigil, 508 U.S. 182, 192 (1993)

20 (emphasis added) (quoting Franklin v. Massachusetts, 505

21 U.S. 788, 819 (1992) (Stevens, J., concurring in part and

22 concurring in the judgment)). It “has recognized ‘the

40

1 generally accepted view that foreign policy was the province

2 and responsibility of the Executive. . . . Thus, unless

3 Congress specifically has provided otherwise, courts

4 traditionally have been reluctant to intrude upon the

5 authority of the Executive in military and national security

6 affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 529-30

7 (1988) (emphasis added) (quoting Haig v. Agee, 453 U.S. 280,

8 293-94 (1981)). This “hesita[tion]” and “reluctan[ce]” is

9 counseled by:

10 • the constitutional separation of powers among

11 the branches of government, see United States

12 v. Curtiss-Wright Exp. Co., 299 U.S. 304, 320-

13 22 (1936) (noting the “plenary and exclusive

14 power of the President as the sole organ of

15 the federal government in the field of

16 international relations” and discussing the

17 difficulties presented by congressional--let

18 alone judicial--involvement in such affairs),

19 and

20

21 • the limited institutional competence of the

22 judiciary, see Boumediene v. Bush, 128 S. Ct.

23 2229, 2276-77 (2008) (“Unlike the President

24 and some designated Members of Congress,

25 neither the Members of this Court nor most

26 federal judges begin the day with briefings

27 that may describe new and serious threats to

28 our Nation and its people. The law must accord

29 the Executive substantial authority to

30 apprehend and detain those who pose a real

31 danger to our security.”); see also Munaf v.

32 Geren, 128 S. Ct. 2207, 2226 (2008) (“The

33 Judiciary is not suited to [make]

34 determinations [in the area of foreign

35 affairs] that would . . . undermine the

41

1 Government’s ability to speak with one voice

2 in this area. In contrast, the political

3 branches are well situated to consider

4 sensitive foreign policy issues, such as

5 whether there is a serious prospect of torture

6 at the hands of any ally, and what to do about

7 it if there is.” (citation omitted)).

8

9 True, courts can--with difficulty and resourcefulness--

10 consider state secrets and even reexamine judgments made in

11 the foreign affairs context when they must, that is, when

12 there is an unflagging duty to exercise our jurisdiction.

13 Otherwise:

14 [T]he special needs of foreign affairs must stay

15 our hand in the creation of damage remedies

16 against military and foreign policy officials for

17 allegedly unconstitutional treatment of foreign

18 subjects causing injury abroad. The foreign

19 affairs implications of suits such as this cannot

20 be ignored--their ability to produce what the

21 Supreme Court has called in another context

22 “embarrassment of our government abroad” through

23 “multifarious pronouncements by various

24 departments on one question.” Whether or not the

25 present litigation is motivated by considerations

26 of geopolitics rather than personal harm, we think

27 that as a general matter the danger of foreign

28 citizens’ using the courts in situations such as

29 this to obstruct the foreign policy of our

30 government is sufficiently acute that we must

31 leave to Congress the judgment whether a damage

32 remedy should exist.

33 Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.

34 1985) (Scalia, J.) (quoting Baker v. Carr, 369 U.S. 186, 217

35 (1962)). Absent clear congressional authorization, the

42

1 judicial review of extraordinary rendition would offend the

2 separation of powers and inhibit this country’s foreign

3 policy. It does not matter for our purposes whether such

4 consequences would flow from innocent interference or from

5 deliberate manipulation. These concerns must counsel

6 hesitation in creating a new damages remedy that Congress

7 has not seen fit to authorize.

8

9 B. Classified Information

10 The extraordinary rendition context involves exchanges

11 among the ministries and agencies of foreign countries on

12 diplomatic, security, and intelligence issues. The

13 sensitivities of such classified material are “too obvious

14 to call for enlarged discussion.” Dep’t of Navy, 484 U.S.

15 at 529 (internal quotation marks omitted). Even the probing

16 of these matters entails the risk that other countries will

17 become less willing to cooperate with the United States in

18 sharing intelligence resources to counter terrorism. “At

19 its core,” as the panel opinion observed, “this suit arises

20 from the Executive Branch’s alleged determination that (a)

21 Arar was affiliated with Al Qaeda, and therefore a threat to

22 national security, and (b) his removal to Syria was

43

1 appropriate in light of U.S. diplomatic and national

2 security interests.” Arar, 532 F.3d at 181. To determine

3 the basis for Arar’s alleged designation as an Al Qaeda

4 member and his subsequent removal to Syria, the district

5 court would have to consider what was done by the national

6 security apparatus of at least three foreign countries, as

7 well as that of the United States. Indeed, the Canadian

8 government--which appears to have provided the intelligence

9 that United States officials were acting upon when they

10 detained Arar--paid Arar compensation for its role in the

11 events surrounding this lawsuit, but has also asserted the

12 need for Canada itself to maintain the confidentiality of

13 certain classified materials related to Arar’s claims.9

14

15 C. Open Courts

16 Allegations of conspiracy among government agencies

17 that must often work in secret inevitably implicate a lot of

18 classified material that cannot be introduced into the

19 public record. Allowing Arar’s claims to proceed would very

20 likely mean that some documents or information sought by

9

See Ottawa Trying to Hold Back Documents from Arar

Inquiry, CBC News, Apr. 29, 2004,

http://www.cbc.ca/canada/story/2004/04/29/arar040429.html.

44

1 Arar would be redacted, reviewed in camera, and otherwise

2 concealed from the public. Concealment does not bespeak

3 wrongdoing: in such matters, it is just as important to

4 conceal what has not been done. Nevertheless, these

5 measures would excite suspicion and speculation as to the

6 true nature and depth of the supposed conspiracy, and as to

7 the scope and depth of judicial oversight. Indeed, after an

8 inquiry at oral argument as to whether classified materials

9 relating to Arar’s claims could be made available for review

10 in camera, Arar objected to the supplementation of the

11 record with material he could not see. See Letter from

12 David Cole, Counsel for Maher Arar (Dec. 23, 2008). After

13 pointing out that such materials are unnecessary to the

14 adjudication of a motion on the pleadings (where the

15 allegations of the complaint must be accepted as true), Arar

16 protested that any materials submitted ex parte and in

17 camera would not be subject to adversarial testing and that

18 consideration of such documents would be “presumptively

19 unconstitutional” since they would result in a decision “on

20 the basis of secret information available to only one side

21 of the dispute.”

22 The court’s reliance on information that cannot be

45

1 introduced into the public record is likely to be a common

2 feature of any Bivens actions arising in the context of

3 alleged extraordinary rendition. This should provoke

4 hesitation, given the strong preference in the Anglo-

5 American legal tradition for open court proceedings, a value

6 incorporated into modern First and Sixth Amendment law. See

7 U.S. Const. amend. VI (guaranteeing the right to a “public

8 trial” (emphasis added)); Westmoreland v. Columbia Broad.

9 Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (noting that the

10 First Amendment secures “a right of access to civil

11 proceedings”). The risk of limiting access, of course, is

12 that where a proceeding “has been concealed from public view

13 an unexpected outcome can cause a reaction that the system

14 at best has failed and at worst has been corrupted.”

15 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571

16 (1980). “[T]he appearance of justice can best be provided

17 by allowing people to observe” proceedings. Id. at 572.

18 “People in an open society do not demand infallibility from

19 their institutions, but it is difficult for them to accept

20 what they are prohibited from observing.” Id. This is

21 especially true in the courts, where the guarantee of a

22 public trial “has always been recognized as a safeguard

46

1 against any attempt to employ our courts as instruments of

2 persecution. The knowledge that every criminal trial is

3 subject to contemporaneous review in the forum of public

4 opinion is an effective restraint on possible abuse of

5 judicial power.” In re Oliver, 333 U.S. 257, 270 (1948).

6 Granted, there are circumstances in which a court may

7 close proceedings to which a public right of access

8 presumptively attaches. See Waller v. Georgia, 467 U.S. 39,

9 45 (1984); United States v. Alcantara, 396 F.3d 189, 199-200

10 (2d Cir. 2005); United States v. Doe, 63 F.3d 121, 127-28

11 (2d Cir. 1995). And the problems posed by the need to

12 consider classified material are unavoidable in some

13 criminal prosecutions and in other cases where we have a

14 duty, imposed by Congress, to exercise jurisdiction. But

15 this is not such a circumstance or such a case. The

16 preference for open rather than clandestine court

17 proceedings is a special factor that counsels hesitation in

18 extending Bivens to the extraordinary rendition context.

19

20 XI

21 A government report states that this case involves

22 assurances received from other governments in connection

47

1 with the determination that Arar’s removal to Syria would be

2 consistent with Article 3 of the CAT. Office of Inspector

3 General, Dep’t of Homeland Sec., (Unclassified) The Removal

4 of a Canadian Citizen to Syria 5, 22, 26-27 (2008).10 This

5 case is not unique in that respect. Cases in the context of

6 extraordinary rendition are very likely to present serious

7 questions relating to private diplomatic assurances from

8 foreign countries received by federal officials, and this

9 feature of such claims opens the door to graymail.

10

11 A. Assurances

12 The regulations promulgated pursuant to the FARRA

13 explicitly authorize the removal of an alien to a foreign

14 country following receipt from that country of sufficiently

15 reliable assurances that the alien will not be tortured.

16 See 8 C.F.R. § 208.18(c). Should we decide to extend Bivens

17 into the extraordinary rendition context, resolution of

18 these actions will require us to determine whether any such

10

We take judicial notice of the existence of this

unclassified report and the scope of its contents, including

the limited discussion of assurances. Notice is taken only

that the report alleges that assurances were received, not

as to the truth of that allegation or the reliability of

those assurances.

48

1 assurances were received from the country of rendition and

2 whether the relevant defendants relied upon them in good

3 faith in removing the alien at issue.

4 Any analysis of these questions would necessarily

5 involve us in an inquiry into the work of foreign

6 governments and several federal agencies, the nature of

7 certain classified information, and the extent of secret

8 diplomatic relationships. An investigation into the

9 existence and content of such assurances would potentially

10 embarrass our government through inadvertent or deliberate

11 disclosure of information harmful to our own and other

12 states.11 Given the general allocation of authority over

13 foreign relations to the political branches and the

14 decidedly limited experience and knowledge of the federal

15 judiciary regarding such matters, such an investigation

16 would also implicate grave concerns about the separation of

17 powers and our institutional competence. See, e.g., Kiyemba

11

This risk is not necessarily abated by the

undertakings of counsel. See, e.g., United States v.

Sattar, 395 F. Supp. 2d 79 (S.D.N.Y. 2005) (denying attorney

Lynne Stewart’s motion for a judgment of acquittal following

her conviction by a jury of, inter alia, conspiring to

defraud the United States, conspiring to provide material

support to carry out murder and kidnap in a foreign country,

and making false statements).

49

1 v. Obama, 561 F.3d 509, 515 (D.C. Cir. 2009) (“[S]eparation

2 of powers principles . . . preclude the courts from second-

3 guessing the Executive’s assessment of the likelihood a

4 detainee will be tortured by a foreign sovereign.”). These

5 considerations strongly counsel hesitation in acknowledging

6 a Bivens remedy in this context.

7

8 B. Graymail

9 As emphasized above, Arar invokes Bivens to challenge

10 policies promulgated and pursued by the executive branch,

11 not simply isolated actions of individual federal employees.

12 Such an extension of Bivens is without precedent and

13 implicates questions of separation of powers as well as

14 sovereign immunity. This, by itself, counsels hesitation;

15 there is further reason to hesitate where, as in this case,

16 the challenged government policies are the subject of

17 classified communications: a possibility that such suits

18 will make the government “vulnerable to ‘graymail,’ i.e.,

19 individual lawsuits brought to induce the [government] to

20 settle a case (or prevent its filing) out of fear that any

21 effort to litigate the action would reveal classified

22 information that may undermine ongoing covert operations,”

50

1 or otherwise compromise foreign policy efforts. Tenet v.

2 Doe, 544 U.S. 1, 11 (2005). We cast no aspersions on Arar,

3 or his lawyers; this dynamic inheres in any case where there

4 is a risk that a defendant might “disclose classified

5 information in the course of a trial.” United States v.

6 Pappas, 94 F.3d 795, 799 (2d Cir. 1996). This is an endemic

7 risk in cases (however few) which involve a claim like

8 Arar’s.

9 The risk of graymail is itself a special factor which

10 counsels hesitation in creating a Bivens remedy. There

11 would be hesitation enough in an ordinary graymail case,

12 i.e., where the tactic is employed against the government,

13 which can trade settlement cash (or the dismissal of

14 criminal charges) for secrecy. See Tenet, 544 U.S. at 11;

15 Pappas, 94 F.3d at 799. But the graymail risk in a Bivens

16 rendition case is uniquely troublesome. The interest in

17 protecting military, diplomatic, and intelligence secrets is

18 located (as always) in the government; yet a Bivens claim,

19 by definition, is never pleaded against the government.

20 See, e.g., Malesko, 534 U.S. at 70. So in a Bivens case,

21 there is a dissociation between the holder of the non-

22 disclosure interest (the government, which cannot be sued

51

1 directly under Bivens) and the person with the incentive to

2 disclose (the defendant, who cannot waive, but will be

3 liable for any damages assessed). In a rendition case, the

4 Bivens plaintiff could in effect pressure the individual

5 defendants until the government cries uncle. Thus any

6 Bivens action involving extraordinary rendition would

7 inevitably suck the government into the case to protect its

8 considerable interests, and--if disclosure is ordered--to

9 appeal, or to suffer the disclosure, or to pay.

10 This pressure on the government to pay a settlement has

11 (at least) two further perverse effects. First, a payment

12 from the Treasury tends to obviate any payment or

13 contribution by the individual defendants. Yet, “[Bivens]

14 is concerned solely with deterring the unconstitutional acts

15 of individual officers” by extracting payment from

16 individual wrongdoers. Malesko, 534 U.S. at 71. When the

17 government elects to settle a Bivens case which is

18 susceptible to graymail, the individual wrongdoer pays

19 nothing and the deterrent effect is lost. Second, the

20 individual defendant in such a case has no incentive to

21 resist discovery that imperils government interests; rather,

22 discovery induces the government to settle. So in the

52

1 extraordinary rendition context, there is a risk (or

2 likelihood) that the government effectively becomes the real

3 defendant in interest, and the named defendants become

4 proxies that the government cannot control. Precisely

5 because Bivens has never been approved as a Monell-like

6 vehicle for challenging government policies, this factor

7 also counsels hesitation in extending a private damages

8 action in this context.12

9 In the end, a Bivens action based on rendition is--in

10 all but name--a claim against the government.13 It is not

11 for nothing that Canada (the government, not an individual

12

Judge C ALABRESI does not discount the risk of

graymail; he just minimizes the harm, equating it with

settlement pressures that routinely inhere in section 1983

litigation. However, “graymail” is a term of art,

signifying the use of military or intelligence information

as hostage for payment of money or a plea bargain. The

prospect of graymail does not induce Judge C ALABRESI to pause

because he sees graymail as part of the “judicial structures

that facilitate the giving of compensation, at least to

innocent victims . . . .” See Dissent of Judge Calabresi at

15.

13

It is telling that, according to the Deputy

Assistant Attorney General, Mr. Arar and his attorney went

to the United States Congress and requested--without

success--that it “clarify the ambiguity [in this area] with

legislation and . . . give [Mr. Arar] reparations.”

Transcript of Arar In banc Oral Argument at 49. Cf. 153

Cong. Rec. D1384-02 (Oct. 18, 2007); Matthew Jaffe, Congress

Hears Testimony in Arar Torture Case, ABC News, Oct. 18,

2007,

http://abcnews.go.com/Politics/story?id=3746371&page=1.

53

1 officer of it) paid Arar $10 million dollars.

2

3 XII

4 In the small number of contexts in which courts have

5 implied a Bivens remedy, it has often been easy to identify

6 both the line between constitutional and unconstitutional

7 conduct, and the alternative course which officers should

8 have pursued. The guard who beat a prisoner should not have

9 beaten him; the agent who searched without a warrant should

10 have gotten one; and the immigration officer who subjected

11 an alien to multiple strip searches without cause should

12 have left the alien in his clothes. This distinction may or

13 may not amount to a special factor counseling hesitation in

14 the implication of a Bivens remedy. But it is surely

15 remarkable that the context of extraordinary rendition is so

16 different, involving as it does a complex and rapidly

17 changing legal framework beset with critical legal judgments

18 that have not yet been made, as well as policy choices that

19 are by no means easily reached.

20 Consider: should the officers here have let Arar go on

21 his way and board his flight to Montreal? Canada was

22 evidently unwilling to receive him; it was, after all,

54

1 Canadian authorities who identified Arar as a terrorist (or

2 did something that led their government to apologize

3 publicly to Arar and pay him $10 million).

4 Should a person identified as a terrorist by his own

5 country be allowed to board his plane and go on to his

6 destination? Surely, that would raise questions as to what

7 duty is owed to the other passengers and the crew.

8 Or should a suspected terrorist en route to Canada have

9 been released on the Canadian border--over which he could

10 re-enter the United States virtually at will? Or should he

11 have been sent back whence his plane came, or to some third

12 country? Should those governments be told that Canada

13 thinks he is a terrorist? If so, what country would take

14 him?

15 Or should the suspected terrorist have been sent to

16 Guantanamo Bay or--if no other country would take him--kept

17 in the United States with the prospect of release into the

18 general population? See Zadvydas v. Davis, 533 U.S. 678,

19 699-700 (2001).

20 None of this is to say that extraordinary rendition is

21 or should be a favored policy choice. At the same time, the

22 officials required to decide these vexed issues are “subject

55

1 to the pull of competing obligations.” Lombardi v. Whitman,

2 485 F.3d 73, 83 (2d Cir. 2007). Many viable actions they

3 might consider “clash with other equally important

4 governmental responsibilities.” Pena v. DePrisco, 432 F.3d

5 98, 114 (2d Cir. 2005) (internal quotation marks omitted).

6 Given the ample reasons for pause already discussed, we need

7 not and do not rely on this consideration in concluding that

8 it is inappropriate to extend Bivens to this context.

9 Still, Congress is the appropriate branch of government to

10 decide under what circumstances (if any) these kinds of

11 policy decisions--which are directly related to the security

12 of the population and the foreign affairs of the country--

13 should be subjected to the influence of litigation brought

14 by aliens.

15

16 XIII

17 All of these special factors notwithstanding, we cannot

18 ignore that, as the panel dissent put it, “there is a long

19 history of judicial review of Executive and Legislative

20 decisions related to the conduct of foreign relations and

21 national security.” Arar, 532 F.3d at 213 (Sack, J.,

22 concurring in part and dissenting in part). Where does that

56

1 leave us? We recognize our limited competence, authority,

2 and jurisdiction to make rules or set parameters to govern

3 the practice called rendition. By the same token, we can

4 easily locate that competence, expertise, and responsibility

5 elsewhere: in Congress. Congress may be content for the

6 Executive Branch to exercise these powers without judicial

7 check. But if Congress wishes to create a remedy for

8 individuals like Arar, it can enact legislation that

9 includes enumerated eligibility parameters, delineated safe

10 harbors, defined review processes, and specific relief to be

11 afforded. Once Congress has performed this task, then the

12 courts in a proper case will be able to review the statute

13 and provide judicial oversight to the “Executive and

14 Legislative decisions [which have been made with regard] to

15 the conduct of foreign relations and national security.”14

14

Dissents by their nature express views that are not

the law. These dissenting opinions contain words and

passages that are emotional and (in our respectful view)

overwrought. Accordingly, there is no need for extended

engagement. A brief survey will suffice.

Judge S ACK’s dissent deems “artificial” our

characterization of the new Bivens context in this case as

“entirely one of ‘international rendition, specifically

extraordinary rendition.’” See Dissent of Judge Sack at 34.

We would have thought it would be common ground that the

context of this appeal is extraordinary rendition. Judge

S ACK, however, reconceives the context, at some points

characterizing the constitutional tort as encompassing only

57

1

those events that occurred within the United States while at

other points requiring that the entire narrative be

considered as a seamless whole, JFK to Syria. Compare id.

at 34 with id. at 36-37. But this case is emphatically and

obviously about extraordinary rendition (and its alleged

abuse), as is elsewhere acknowledged in the opinions of

Judge C ALABRESI and Judge P ARKER. See Dissent of Judge

Calabresi at 15; Dissent of Judge Parker at 2.

As to the extraordinary rendition context, Judge S ACK

(joined by all dissenters) makes the following constructive

(and telling) concessions: “It is difficult to deny the

existence of ‘special factors counseling hesitation’ in this

case[,]” Dissent of Judge Sack at 47; “It . . . may be that

to the extent actions against ‘policymakers’ can be equated

with lawsuits against policies, they may not survive

Iqbal[,]” id. at 49; and, “We share what we think to be the

majority’s intuition that this case would likely turn

largely, if not entirely, on decisions of national security

and diplomacy . . . [,]” id. at 56.

Judge C ALABRESI’s dissent urges that we forgo

considering whether specific factors counsel hesitation

under Bivens so that we could instead remand to see whether

the case might eventually be dismissed as unmanageable under

the state secrets privilege--which Judge C ALABRESI seems

equally to disapprove. See Dissent of Judge Calabresi at 13

(state secrets privilege is the subject of “significant

criticism, much of it warranted”). Thus Judge C ALABRESI

professes hesitance to “hesitate” with respect to Bivens, as

well as skepticism of the state secrets privilege. In doing

so, he avoids fully endorsing either of the primary

potential resolutions of this appeal, and hardly makes a

choice at all. Even so, the authority cited by Judge

C ALABRESI, which suggests deciding whether a claim is stated

before doing Bivens analysis, is inapposite. Judge C ALABRESI

fails to consider that application of the state secrets

privilege is often performed witness-by-witness; question-

by-question; page-by-page; paragraph-by-paragraph--and can

take years. It is not judicial activism to hesitate before

requiring such an exercise in circumstances in which a

Bivens claim may not lie. In any event, the state secrets

doctrine has roots in separation of powers principles, and

58

1 Id.

2

3 CONCLUSION

4 For the reasons stated above, the judgment of the

5 District Court is affirmed. The panel opinion is hereby

6 vacated.

is not itself devoid of constitutional implications. See

Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (“The

authority to protect [information related to national

security] falls on the President as head of the Executive

Branch and as Commander in Chief.”); El-Masri v. United

States, 479 F.3d 296, 303 (4th Cir. 2007) (“Although the

state secrets privilege was developed at common law, it

performs a function of constitutional significance, because

it allows the executive branch to protect information whose

secrecy is necessary to its military and foreign-affairs

responsibilities.”).

59

1 CALABRESI, POOLER, SACK, and PARKER, Circuit Judges, dissent. Each joins fully in all

2 the dissenting opinions, but each writes separately to emphasize particular aspects of these

3 dissents.

1 Arar v. Ashcroft, No. 06-4216

2 Sack, Circuit Judge, joined by Judges Calabresi, Pooler, and

3 Parker, concurring in part and dissenting in part.

4 -------------------------------------------------------------

5 The opinion of the en banc majority1 departs from the

6 opinion of the panel majority in two important and salutary

7 respects.

8 First, the Court now explicitly acknowledges that "this

9 is not a typical immigration case." Supra at [24]. We would

10 prefer that the Court concede that this is not an immigration

11 case at all -- it is about the alleged unconstitutional treatment

12 of an alien suspected of terrorism -- but we welcome the

13 resulting decision not to dismiss Arar's claims as

14 jurisdictionally barred by the Immigration and Nationality Act

15 ("INA"), see supra at [23], and not to rely, in the Court's

16 Bivens analysis, upon the INA's remedial scheme and the well nigh

17 unlimited executive power that the INA bestows, see supra at

1

Judges Straub and Sotomayor voted in the en banc poll but

do not participate in deciding the case en banc because Judge

Straub took senior status prior to the en banc hearing and Judge

Sotomayor has been elevated to the Supreme Court. Judge Katzmann

recused himself from both the poll and the en banc hearing.

Senior Judge McLaughlin, as a member of the original panel, has

participated in the en banc consideration. Judge Calabresi

participated in the en banc hearing, but has taken senior status

since the argument. The author of this opinion has also taken

senior status since the hearing, but was a member of the panel

that heard the appeal and therefore , like Judge McLaughlin,

would have been able to have participated in the en banc hearing

in any event. Judge Lynch, who joined the Court since the

argument, has not participated in these proceedings.

1 [31]. Compare Arar v. Ashcroft, 532 F.3d 157, 169-71 & n.10,

2 179-81 (2d Cir. 2008) ("Arar Panel Op.").

3 In its second departure from the panel decision, the

4 Court declines to hold that if, as Arar alleges, government

5 conduct "denied [him] effective access to consular assistance,

6 the courts, his lawyers, and family members in order to

7 effectuate his removal to Syria," Arar's constitutional rights

8 would not have thereby been violated. Supra at [20] (internal

9 quotation marks omitted); compare Arar Panel Op., 532 F.3d at

10 184-89. We agree with this approach too. Indeed, we think both

11 of these departures are significant enough in themselves to have

12 rendered the unwieldy and often wasteful en banc process

13 worthwhile here.

14 We disagree, however, with the majority's continued

15 insistence that Arar cannot employ a Bivens remedy to seek

16 compensation for his injuries at the hands of government agents.

17 The majority reaches that conclusion by artificially dividing the

18 complaint into a domestic claim that does not involve torture --

19 viz., "[Arar's] claim regarding detention in the United States,"

20 supra at [6] -- and a foreign claim that does -- viz., "[Arar's]

21 claims for detention and torture in Syria," id. The majority

22 then dismisses the domestic claim as inadequately pleaded and the

-2-

1 foreign claim as one that cannot "be asserted under Bivens" in

2 light of the opinion's "dominant holding" that "in the context of

3 involuntary rendition, hesitation is warranted by special

4 factors." Supra at [6-7].

5 In our view, even treating Arar's claim for

6 mistreatment while in United States custody and denial of access

7 to United States counsel and United States courts as, arguendo, a

8 claim that is entirely isolated from the remainder of Arar's

9 allegations, it was adequately pleaded in his highly detailed

10 complaint.

11 As we will explain, however, the complaint's

12 allegations cannot properly be divided into claims for

13 mistreatment in the United States and "claims for detention and

14 torture in Syria." Arar's complaint of mistreatment sweeps more

15 broadly than that, encompassing a chain of events that began with

16 his interception and detention at New York's John F. Kennedy

17 Airport ("JFK") and continued with his being sent abroad in

18 shackles by government agents with the knowledge that he would

19 likely be tortured as a result. Viewed in this light, we

20 conclude that Arar's allegations do not present a "new context"

21 for a Bivens action.

-3-

1 And even were it a new context, we disagree with what

2 appears to be the en banc majority's test for whether a new

3 Bivens action should be made available: the existence vel non of

4 "special factors counselling hesitation." First, we think

5 heeding "special factors" relating to secrecy and security is a

6 form of double counting inasmuch as those interests are fully

7 protected by the state-secrets privilege. Second, in our view

8 the applicable test is not whether "special factors" exist, but

9 whether after "paying particular heed to" them, a Bivens remedy

10 should be recognized with respect to at least some allegations in

11 the complaint. Applying that test, we think a Bivens remedy is

12 available.

13 We hasten to add that under the proper formulation of

14 the test, we might well agree with the en banc majority that a

15 Bivens action is not available in the context of an alien's

16 "claims for detention and torture in Syria." But, as we will

17 explain, Arar's allegations are not so limited.

18 Our overriding concern, however, is with the majority's

19 apparent determination to go to whatever length necessary to

20 reach what it calls its "dominant holding": that a Bivens remedy

21 is unavailable. Such a holding is unnecessary inasmuch as the

22 government assures us that this case could likely be resolved

-4-

1 quickly and expeditiously in the district court by application of

2 the state-secrets privilege.

3 What is at stake on this appeal is not whether Arar

4 will, through this litigation, obtain compensation for the injury

5 he suffered as a result of the malfeasance of employees of the

6 United States. In light of the many hurdles he would have to

7 surmount,2 he would be extremely unlikely to do so. Rather, the

8 question for the Court is, and has from the outset been, the

9 manner by which that likely result will (or will not) be reached.

10 We fear that the majority is so bound and determined to declare

11 categorically that there is no Bivens action in the present

12 "context," that it unnecessarily makes dubious law.

13 For those reasons, we respectfully dissent.3

14 I. Arar's Allegations

2

See, e.g., Arar Panel Op., 532 F.3d at 193 et seq. (Sack,

J., concurring in part and dissenting in part) ("Arar partial

panel dissent").

3

We do not dissent from the majority's conclusions as to

personal jurisdiction. The author of this opinion, as a member

of the panel that originally heard this appeal, concurred in the

panel opinion's conclusion that relief under the Torture Victim

Protection Act is unavailable to Arar. Having reviewed the

arguments to the contrary stated in Judge Pooler's partial

dissent, infra, for the reasons stated in it, he now agrees that

the relief under the Act is available to Arar. Inasmuch as the

en banc Court now holds that it is not available, however, this

opinion accepts its unavailability as a matter of law for the

purposes of the Bivens analysis that follows.

-5-

1 The majority's recitation of the facts, see supra [8-

2 13], is generally accurate, but anodyne. A complete assessment

3 of the majority opinion and the implications of the Court's

4 decision is not possible without a fuller account of the

5 troubling allegations contained in Arar's complaint.

6 "Because this is an appeal from a dismissal of a

7 complaint under Fed. R. Civ. P. 12(b)(6), we view the allegations

8 of the complaint in the light most favorable to appellant."

9 Paycom Billing Servs. v. MasterCard Int'l, Inc., 467 F.3d 283,

10 285 (2d Cir. 2006). The district court's opinion carefully and

11 fully sets forth Arar's allegations. See Arar v. Ashcroft, 414

12 F. Supp. 2d 250, 252-57 (E.D.N.Y. 2006). We adhere to that

13 account nearly verbatim.4

14 A. Arar's Apprehension, Detention, and Forcible

15 Transportation to Syria

16

17 Arar, who is in his thirties, is a native of Syria. He

18 immigrated to Canada with his family when he was a teenager. He

19 is a dual citizen of Syria and Canada. He resides in Ottawa.

20 (Arar, 414 F. Supp. 2d at 252.)

4

Citations to the district court opinion appear in

parentheses. The footnotes and subheadings are ours.

-6-

1 In September 2002, while vacationing with his family in

2 Tunisia, he was called back to work by his employer5 to consult

3 with a prospective client. He purchased a return ticket to

4 Montreal with stops6 in Zurich and New York. He left Tunisia on

5 September 25, 2002. (Id.)

6 On September 26, 2002, Arar arrived from Switzerland at

7 JFK to catch a connecting flight to Montreal. Upon presenting

8 his passport to an immigration inspector, he was identified as

9 "the subject of a . . . lookout as being a member of a known

10 terrorist organization." Compl. Ex. D (Decision of J. Scott

11 Blackman, Regional Director) at 2. He was interrogated by

12 various officials for approximately eight hours.7 The officials

13 asked Arar if he had contacts with terrorist groups, which he

14 categorically denied. Arar was then transported to another site

15 at JFK, where he was placed in solitary confinement. He alleges

16 that he was transported in chains and shackles and was left in a

5

Arar was employed by a privately held Massachusetts-based

developer and supplier of software for technical computing. See

Compl. ¶ 12.

6

That is, changes of plane.

7

According to the complaint, on that day, Arar was

questioned first by an FBI agent for five hours, Compl. ¶ 29,

then by an immigration officer for three hours, id. ¶ 31.

-7-

1 room with no bed and with lights on throughout the night. (Arar,

2 414 F. Supp. 2d at 253.)

3 The following day, starting at approximately 9:00 a.m.,

4 two FBI agents interrogated Arar for about five hours, asking him

5 questions about Osama bin Laden, Iraq, and Palestine. Arar

6 alleges that the agents yelled and swore at him throughout the

7 interrogation. They ignored his repeated requests to make a

8 telephone call and see a lawyer. At 2:00 p.m. that day, Arar was

9 taken back to his cell, chained and shackled, and provided a cold

10 McDonald's meal -- his first food in nearly two days. (Id.)

11 That evening, Arar was given an opportunity to

12 voluntarily return to Syria, but refused, citing a fear of being

13 tortured if returned there and insisting that he be sent to

14 Canada or returned to Switzerland. An immigration officer told

15 Arar that the United States had a "special interest" in his case

16 and then asked him to sign a form, the contents of which he was

17 not allowed to read. That evening, Arar was transferred, in

18 chains and shackles, to the Metropolitan Detention Center ("MDC")

19 in Brooklyn, New York,8 where he was strip-searched and placed in

8

This is the same federal prison in which, less than a

year earlier, Javaid Iqbal was allegedly mistreated. Iqbal, a

Muslim inmate accused of conspiracy to defraud the United States

and fraud with identification and held post-9/11 in the MDC,

allegedly suffered "unconstitutional actions against him in

-8-

1 solitary confinement. During his initial three days at MDC,

2 Arar's continued requests to meet with a lawyer and make

3 telephone calls were refused. (Id.)

4 On October 1, 2002,9 the Immigration and Naturalization

5 Service ("INS") initiated removal proceedings against Arar, who

6 was charged with being temporarily inadmissible because of his

7 membership in al-Qaeda, a group designated by the Secretary of

8 State as a foreign terrorist organization. Upon being given

9 permission to make one telephone call, Arar called his mother-in-

10 law in Ottawa, Canada. (Id.)

11 Upon learning of Arar's whereabouts, his family

12 contacted the Office for Consular Affairs ("Canadian

connection with his confinement under harsh conditions . . .

after separation from the general prison population." Iqbal v.

Hasty, 490 F.3d 143, 147, 148 n.1 (2d Cir. 2007). We held, with

respect to Iqbal's subsequent Bivens action, that such treatment

was not protected, as a matter of law, by the doctrine of

qualified immunity. Id. at 177-78. The Supreme Court

subsequently reversed that judgment and remanded, holding that

the complaint was insufficiently pleaded as to two high-ranking

official defendants. See Ashcroft v. Iqbal, 129 S. Ct. 1937,

1952 (2009). On September 29, 2009, the remaining parties in

Iqbal filed a document in this Court stipulating that the appeal

was to be "withdrawn from active consideration before the

Court . . . because a settlement has been reached in principle

between Javaid Iqbal and defendant United States." Iqbal v.

Hasty, No. 05-5768-cv (2d Cir. Sept. 30, 2009), "Stipulation

Withdrawing Appeal from Active Consideration" dated September 29,

2009.

9

I.e., five days after Arar's arrival in the United

States.

-9-

1 Consulate")10 and retained an attorney, Amal Oummih, to represent

2 him. The Canadian Consulate had not been notified of Arar's

3 detention. On October 3, 2002, Arar received a visit from

4 Maureen Girvan from the Canadian Consulate, who, when presented

5 with the document noting Arar's inadmissibility to the United

6 States, assured Arar that removal to Syria was not an option. On

7 October 4, 2002, Arar designated Canada as the country to which

8 he wished to be removed. (Id.)

9 On October 5, 2002, Arar had his only meeting with

10 counsel. The following day, he was taken in chains and shackles

11 to a room where approximately seven INS officials questioned him

12 about his reasons for opposing removal to Syria. His attorney

13 was not provided advance notice of the interrogation, and Arar

14 further alleges that U.S. officials misled him into thinking his

15 attorney had chosen not to attend. During the interrogation,

16 Arar continued to express his fear of being tortured if returned

17 to Syria. At the conclusion of the six-hour interrogation, Arar

18 was informed that the officials were discussing his case with

19 "Washington, D.C." Arar was asked to sign a document that

10

The consulate is in New York City.

-10-

1 appeared to be a transcript. He refused to sign the form. (Id.

2 at 253-54.)

3 The following day, October 7, 2002, attorney Oummih

4 received two telephone calls informing her that Arar had been

5 taken for processing to an INS office at Varick Street in

6 Manhattan, that he would eventually be placed in a detention

7 facility in New Jersey, and that she should call back the

8 following morning for Arar's exact whereabouts. However, Arar

9 alleges that he never left the MDC and that the contents of both

10 of these phone calls to his counsel were false and misleading.

11 (Id. at 254.)

12 That same day, October 7, 2002, the INS Regional

13 Director, J. Scott Blackman, determined from classified and

14 unclassified information that Arar is "clearly and unequivocally"

15 a member of al-Qaeda and, therefore, "clearly and unequivocally

16 inadmissible to the United States" under 8 U.S.C.

17 § 1182(a)(3)(B)(i)(V). See Compl. Ex. D. at 1, 3, 5. Based on

18 that finding, Blackman concluded "that there are reasonable

19 grounds to believe that [Arar] is a danger to the security of the

20 United States." Id. at 6 (brackets in original). (Arar, 414 F.

21 Supp. 2d at 254.)

-11-

1 At approximately 4:00 a.m. on October 8, 2002, Arar

2 learned that, based on classified information, INS regional

3 director Blackman had ordered that Arar be sent to Syria and that

4 his removal there was consistent with Article Three of the United

5 Nations Convention Against Torture and Other Cruel, Inhuman, or

6 Degrading Treatment or Punishment ("CAT"). Arar pleaded for

7 reconsideration but was told by INS officials that the agency was

8 not governed by the "Geneva Conventions" and that Arar was barred

9 from reentering the country for a period of five years and would

10 be admissible only with the permission of the Attorney General.

11 (Id.)

12 Later that day, Arar was taken in chains and shackles

13 to a New Jersey airfield, where he boarded a small jet airplane

14 bound for Washington, D.C. From there, he was flown to Amman,

15 Jordan, arriving there on October 9, 2002. He was then handed

16 over to Jordanian authorities, who delivered him to the Syrians

17 later that day. At this time, U.S. officials had not informed

18 either Canadian Consulate official Girvan or attorney Oummih that

19 Arar had been removed to Syria. Arar alleges that Syrian

20 officials refused to accept Arar directly from the United States.

21 (Id.)

-12-

1 Arar's Final Notice of Inadmissability ("Final Notice")

2 ordered him removed without further inquiry before an immigration

3 judge. See Compl. Ex. D. According to the Final Notice: "The

4 Commissioner of the Immigration and Naturalization Service has

5 determined that your removal to Syria would be consistent with

6 [CAT]." Id. (brackets in original). The Final Notice was dated

7 October 8, 2002, and was signed by Deputy Attorney General Larry

8 Thompson. After oral argument in the district court on the

9 defendants' motions to dismiss, in a letter dated August 18,

10 2005, counsel for Arar said that Arar had received the Final

11 Notice within hours of boarding the aircraft taking him to

12 Jordan. (Arar, 414 F. Supp. 2d at 254.)

13 B. Arar's Detention in Syria

14 During his ten-month period of detention in Syria, Arar

15 alleges, he was placed in a "grave" cell measuring six feet long,

16 seven feet high, and three feet wide. The cell was located

17 within the Palestine Branch of the Syrian Military Intelligence

18 ("Palestine Branch"). The cell was damp and cold, contained very

19 little light, and was infested with rats, which would enter the

20 cell through a small aperture in the ceiling. Cats would urinate

21 on Arar through the aperture, and sanitary facilities were

22 nonexistent. Arar was allowed to bathe himself in cold water

-13-

1 once per week. He was prohibited from exercising and was

2 provided barely edible food. Arar lost forty pounds during his

3 ten-month period of detention in Syria. (Id.)

4 During his first twelve days in Syrian detention, Arar

5 was interrogated for eighteen hours per day and was physically

6 and psychologically tortured. He was beaten on his palms, hips,

7 and lower back with a two-inch-thick electric cable. His captors

8 also used their fists to beat him on his stomach, his face, and

9 the back of his neck. He was subjected to excruciating pain and

10 pleaded with his captors to stop, but they would not. He was

11 placed in a room where he could hear the screams of other

12 detainees being tortured and was told that he, too, would be

13 placed in a spine-breaking "chair," hung upside down in a "tire"

14 for beatings, and subjected to electric shocks. To lessen his

15 exposure to the torture, Arar falsely confessed, among other

16 things, to having trained with terrorists in Afghanistan, even

17 though he had never been to Afghanistan and had never been

18 involved in terrorist activity. (Id. at 255.)

19 Arar alleges that his interrogation in Syria was

20 coordinated and planned by U.S. officials, who sent the Syrians a

21 dossier containing specific questions. As support for this

22 allegation, Arar notes that the interrogations in the United

-14-

1 States and Syria contained identical questions, including a

2 specific question about his relationship with a particular

3 individual wanted for terrorism. In return, Arar alleges, the

4 Syrian officials supplied U.S. officials with all information

5 extracted from Arar; Arar cites a statement by one Syrian

6 official who has publicly stated that the Syrian government

7 shared information with the United States that it extracted from

8 him. See Compl. Ex. E (January 21, 2004 transcript of CBS's

9 Sixty Minutes II: "His Year In Hell"). (Id.)

10 C. Arar's Contact with the Canadian Government

11 While Detained in Syria

12 The Canadian Embassy contacted the Syrian government

13 about Arar on October 20, 2002, and the following day, Syrian

14 officials confirmed that they were detaining him. At this point,

15 the Syrian officials ceased interrogating and torturing Arar.

16 (Id.)

17 Canadian officials visited Arar at the Palestine Branch

18 five times during his ten-month detention. Prior to each visit,

19 Arar was warned not to disclose that he was being mistreated. He

20 complied but eventually broke down during the fifth visit,

21 telling the Canadian consular official that he was being tortured

22 and kept in a grave. (Id.)

-15-

1 Five days later, Arar was brought to a Syrian

2 investigation branch, where he was forced to sign a confession

3 stating that he had participated in terrorist training in

4 Afghanistan even though, Arar states, he has never been to

5 Afghanistan or participated in any terrorist activity. Arar was

6 then taken to an overcrowded Syrian prison, where he remained for

7 six weeks. (Id.)

8 On September 28, 2003, Arar was transferred back to the

9 Palestine Branch, where he was held for one week. During this

10 week, he heard other detainees screaming in pain and begging for

11 their torture to end. (Id.)

12 On October 5, 2003, Syria, without filing any charges

13 against Arar, released him into the custody of Canadian Embassy

14 officials in Damascus. He was flown to Ottawa the following day

15 and reunited with his family. (Id.)

16 Arar contends that he is not a member of any terrorist

17 organization, including al-Qaeda, and has never knowingly

18 associated himself with terrorists, terrorist organizations, or

19 terrorist activity. Arar claims that the individual about whom

20 he was questioned was a casual acquaintance whom Arar had last

21 seen in October 2001. He believes that he was removed to Syria

22 for interrogation under torture because of his casual

-16-

1 acquaintance with this individual and others believed to be

2 involved in terrorist activity. But Arar contends "on

3 information and belief" that there has never been, nor is there

4 now, any reasonable suspicion that he was involved in such

5 activity. Compl. ¶ 2. (Arar, 414 F. Supp. 2d at 255-56

6 (footnote omitted).)

7 Arar alleges that he continues to suffer adverse

8 effects from his ordeal in Syria. He claims that he has trouble

9 relating to his wife and children, suffers from nightmares, is

10 frequently branded a terrorist, and is having trouble finding

11 employment due to his reputation and inability to travel in the

12 United States. (Id. at 256.)

13 D. U.S. Policy Relating to Interrogation

14 of Detainees by Foreign Governments

15 The complaint alleges on information and belief that

16 Arar was removed to Syria under a covert U.S. policy of

17 "extraordinary rendition," according to which individuals are

18 sent to foreign countries to undergo methods of interrogation not

19 permitted in the United States. The extraordinary rendition

20 policy involves the removal of "non-U.S. citizens detained in

21 this country and elsewhere and suspected -- reasonably or

22 unreasonably -- of terrorist activity to countries, including

-17-

1 Syria, where interrogations under torture are routine." Compl.

2 ¶ 24. Arar alleges on information and belief that the United

3 States sends individuals "to countries like Syria precisely

4 because those countries can and do use methods of interrogation

5 to obtain information from detainees that would not be morally

6 acceptable or legal in the United States and other democracies."

7 Id. The complaint further alleges that federal officials

8 involved with extraordinary rendition "have facilitated such

9 human rights abuses, exchanging dossiers with intelligence

10 officials in the countries to which non-U.S. citizens are

11 removed." Id. The complaint also alleges that the United States

12 involves Syria in its extraordinary rendition program to extract

13 counter-terrorism information. (Arar, 414 F. Supp. 2d at 256.)

14 This extraordinary rendition program is, Arar alleges,

15 not part of any official or declared U.S. public policy;

16 nevertheless, it has received extensive attention in the press,

17 where unnamed U.S. officials and certain foreign officials have

18 admitted to the existence of such a policy. Arar details a

19 number of articles in the mainstream press recounting both the

20 incidents of this particular case and the extraordinary rendition

21 program more broadly. These articles are attached as Exhibit C

22 of his complaint. (Id. at 256-57.)

-18-

1 Arar alleges that the defendants directed the

2 interrogations in Syria by providing information about Arar to

3 Syrian officials and receiving reports on Arar's responses.

4 Consequently, the defendants conspired with, and/or aided and

5 abetted, Syrian officials in arbitrarily detaining,

6 interrogating, and torturing Arar. Arar argues in the

7 alternative that, at a minimum, the defendants knew or at least

8 should have known that there was a substantial likelihood that he

9 would be tortured upon his removal to Syria. (Id. at 257.)

10 E. Syria's Human Rights Record

11 Arar's claim that he faced a likelihood of torture in

12 Syria is supported by U.S. State Department reports on Syria's

13 human rights practices. See, e.g., Bureau of Democracy, Human

14 Rights, and Labor, United States Department of State, 2004

15 Country Reports on Human Rights Practices (Released February 28,

16 2005) ("2004 Report"). According to the State Department,

17 Syria's "human rights record remained poor, and the Government

18 continued to commit numerous, serious abuses . . . includ[ing]

19 the use of torture in detention, which at times resulted in

20 death." Id. at 1. Although the Syrian constitution officially

21 prohibits such practices, "there was credible evidence that

22 security forces continued to use torture frequently." Id. at 2.

-19-

1 The 2004 Report cites "numerous cases of security forces using

2 torture on prisoners in custody." Id. Similar references

3 throughout the 2004 Report, as well as State Department reports

4 from prior years, are legion. See, e.g., Compl. Ex. A (2002

5 State Department Human Rights Report on Syria). (Arar, 414 F.

6 Supp. 2d at 257.)11

7 F. The Canadian Government Inquiry

8 On September 18, 2006, a Commission of Inquiry into the

9 Actions of Canadian Officials in Relation to Maher Arar ("Arar

10 Commission"), established by the government of Canada to

11 investigate the Arar affair, issued a three-volume report. See

12 Arar Commission, Report of the Events Relating to Maher Arar

13 (2006) ("Commission Report").12 A press release issued by the

14 Commission summarized: "On Maher Arar the Commissioner [Dennis

15 O'Connor] comes to one important conclusion: 'I am able to say

16 categorically that there is no evidence to indicate that Mr. Arar

11

The district court's description of the facts as alleged

in the complaint ends here.

12

On October 23, 2007, this Court granted Arar's motion to

take judicial notice of the Report insofar as its existence and

the scope of its contents were concerned, but denied the motion

insofar as it may have sought judicial notice of the facts

asserted in the report. But cf. supra at [4-5] (employing the

report as the source for facts relating to Canadian involvement

in the Arar incident).

-20-

1 has committed any offence or that his activities constitute a

2 threat to the security of Canada.'" Arar Commission, Press

3 Release, Arar Commission Releases Its Findings on the Handling of

4 the Maher Arar Case (Sept. 18, 2006) (boldface in original),

5 available at http://www.ararcommission.ca/eng/Release Final_Sept

6 18.pdf (copy on file with the Clerk of Court). On January 26,

7 2007, the Office of the Prime Minister of Canada issued the

8 following announcement:

9 Prime Minister Stephen Harper today released

10 the letter of apology he has sent to Maher

11 Arar and his family for any role Canadian

12 officials may have played in what happened to

13 Mr. Arar, Monia Mazigh and their family in

14 2002 and 2003.

15 "Although the events leading up to this

16 terrible ordeal happened under the previous

17 government, our Government will do everything

18 in its power to ensure that the issues raised

19 by Commissioner O'Connor are addressed," said

20 the Prime Minister. "I sincerely hope that

21 these actions will help Mr. Arar and his

22 family begin a new and hopeful chapter in

23 their lives."

24 Canada's New Government has accepted all 23

25 recommendations made in Commissioner

26 O'Connor's first report, and has already

27 begun acting upon them. The Government has

28 sent letters to both the Syrian and the U.S.

29 governments formally objecting to the

30 treatment of Mr. Arar. Ministers Day and

31 MacKay have also expressed Canada’s concerns

32 on this important issue to their American

33 counterparts. Finally, Canada has removed

-21-

1 Mr. Arar from Canadian lookout lists, and

2 requested that the United States amend its

3 own records accordingly.

4 The Prime Minister also announced that

5 Canada's New Government has successfully

6 completed the mediation process with Mr.

7 Arar, fulfilling another one of Commissioner

8 O'Connor's recommendations. This settlement,

9 mutually agreed upon by all parties, ensures

10 that Mr. Arar and his family will obtain fair

11 compensation, in the amount of $10.5 million,

12 plus legal costs, for the ordeal they have

13 suffered.

14 Office of the Prime Minister, Press Release, Prime Minister

15 Releases Letter of Apology to Maher Arar and His Family and

16 Announces Completion of Mediation Process (Jan. 26, 2007),

17 available at http://pm.gc.ca/eng/

18 media.asp?id=1509 (last visited July 15, 2009); see also Margaret

19 L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition

20 and the Rule of Law, 75 Geo. Wash. L. Rev. 1333, 1339-40 (2007).

21 II. The Dismissal of the Fourth Claim for Relief

22 The fulcrum of the en banc majority's analysis is its

23 conclusion that this appeal requires us to decide whether "to

24 devise a new Bivens damages action" under Wilkie v. Robbins, 127

25 S. Ct. 2588, 2597 (2007). See supra at [6]. But the majority

26 can characterize Arar's action as "new" only by isolating and

27 eliminating the domestic aspects of the case. It does so in part

-22-

1 by affirming the district court's dismissal of Arar's "Fourth

2 Claim for Relief, (Fifth Amendment: Substantive Due Process --

3 Domestic Detention)" on the ground that the claim was

4 insufficiently pleaded. See supra at [19-21]. We think that

5 ruling to be incorrect.

6 With respect to the conditions of confinement aspect of

7 this claim, the district court concluded that Arar was entitled

8 to Fifth Amendment substantive due process protection and that

9 his rights in that respect could have been violated by "the

10 deprivations Arar alleges with respect to his treatment while in

11 U.S. custody." Arar, 414 F. Supp. 2d at 286. We agree, and the

12 majority does not decide otherwise. Supra at [21]. With respect

13 to the access to counsel and the courts aspect of the claim, the

14 district court concluded that Arar would be able to state a claim

15 for interference "with his access to courts in part by

16 [government officials] lying to his counsel," if he could

17 "identify 'a separate and distinct right to seek judicial relief

18 for some wrong.'" Arar, 414 F. Supp. 2d at 285 (quoting

19 Christopher v. Harbury, 536 U.S. 403, 414-15 (2002)). We agree

20 here, too, and the majority does not decide otherwise.

21 But the district court nonetheless dismissed the Fourth

22 Claim for Relief without prejudice. On pain of forfeiture of the

-23-

1 claims, it required Arar (1) with respect to the mistreatment

2 claim, to "name those defendants that were personally involved in

3 the alleged unconstitutional treatment," and, (2) with respect to

4 the denial of access claim, to replead "without regard to any

5 [underlying] rendition claim," in light of the court's conclusion

6 that no Bivens action was available with respect to such a claim,

7 and, because it was unclear to what underlying relief Arar was

8 denied access, "identify[ing] the specific injury he was

9 prevented from grieving." Arar, 414 F. Supp. 2d at 287-88. Arar

10 declined to replead,13 rendering the dismissal final.

13

Following the district court's dismissal of the fourth

claim without prejudice and dismissal of the first three claims

with prejudice, Arar moved for certification of a final judgment

on the first three claims to enable him to appeal them

immediately. See Arar v. Ashcroft, No. CV-04-0249 (DGT), 2006 WL

1875375, 2006 U.S. Dist. LEXIS 45550 (E.D.N.Y. July 5, 2006).

The district court denied the motion. See id. Arar then

declined to replead the fourth claim, apparently in order to

obtain this Court's early review of the dismissal of the first

three claims, cf. id.

The majority affirms the dismissal of the fourth claim

partly "in view of Arar's rejection of an opportunity to re-

plead." Supra at [21]. While we do not read that as a

suggestion that this claim has been waived on appeal, we note

that any such suggestion would be incorrect. We may review the

entire judgment. See, e.g., Kittay v. Kornstein, 230 F.3d 531,

541 n.8 (2d Cir. 2000) ("[A] disclaimer of intent to amend the

complaint renders the District Court's judgment final and allows

review of the dismissal in this Court."); Festa v. Local 3 Int'l

Brotherhood of Elec. Workers, 905 F.2d 35, 36-37 (2d Cir. 1990)

(per curiam); Conn. Nat'l Bank v. Fluor Corp., 808 F.2d 957,

-24-

1 A. Specification of Defendants' Acts and Conspiracy Allegations

2 The majority affirms the dismissal of the Fourth Claim

3 for Relief on the ground that Arar's complaint does not "specify

4 any culpable action taken by any single defendant" and fails to

5 allege a conspiracy. Supra at [21]. We disagree with each of

6 these rationales.

7 Arar should not have been required to "name those

8 defendants [who] were personally involved in the alleged

9 unconstitutional treatment." Arar, 414 F. Supp. 2d at 287. In

10 actions pursuant to 42 U.S.C. § 1983, which are "analog[s]" of

11 the less-common Bivens action, Ashcroft v. Iqbal, 129 S. Ct.

12 1937, 1948 (2009) (citation omitted), we allow plaintiffs to

13 "maintain[] supervisory personnel as defendants . . . until [they

14 have] been afforded an opportunity through at least brief

15 discovery to identify the subordinate officials who have personal

16 liability." Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998)

17 (citing Second Circuit authority).

18 Similarly, courts have rejected the dismissal

19 of suits against unnamed defendants described

20 by roles . . . until the plaintiff has had

21 some opportunity for discovery to learn the

22 identities of responsible officials. Once

23 the supervisory officer has inquired within

960-61 (2d Cir. 1987).

-25-

1 the institution and identified the actual

2 decision-makers of the challenged action,

3 those officials may then submit affidavits

4 based on their personal knowledge of the

5 circumstances.

6 Id. (citations omitted). It should not be forgotten that the

7 full name of the Bivens case itself is Bivens v. Six Unknown

8 Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

9 (emphasis added).14

10 To be sure, the Supreme Court has recently set a strict

11 pleading standard for supervisory liability claims under Bivens

12 against a former Attorney General of the United States and the

13 Director of the FBI." See Iqbal, supra. We do not think,

14 however, that the Court has thereby permitted governmental actors

15 who are unnamed in a complaint automatically to escape personal

16 civil rights liability. A plaintiff must, after all, have some

14

The Supreme Court explained: "The agents were not named

in petitioner's complaint, and the District Court ordered that

the complaint be served upon "those federal agents who it is

indicated by the records of the United States Attorney

participated in the November 25, 1965, arrest of the

[petitioner]." App. 3. Five agents were ultimately served."

Id. at 390 n.2; see also Bivens, Brief for Respondent at *2 n.1,

1970 WL 116900 ("The apparent contradiction in the title of this

case -- "Unknown Named" -- arises from the fact that after

petitioner filed his complaint, the United States Attorney

supplied the clerk of the court with the agents' names. However,

as the summonses and their returns indicate, only five agents are

apparently involved (App. 5-24), rather than six as stated in the

case title.")

-26-

1 way to identify a defendant who anonymously violates his civil

2 rights. We doubt that Iqbal requires a plaintiff to obtain his

3 abusers' business cards in order to state a civil rights claim.

4 Put conversely, we do not think that Iqbal implies that federal

5 government miscreants may avoid Bivens liability altogether

6 through the simple expedient of wearing hoods while inflicting

7 injury. Some manner of proceeding must be made available for the

8 reasons we recognized in Davis.

9 Whether or not there is a mechanism available to

10 identify the "Doe" defendants, moreover, Arar's complaint does

11 sufficiently name some individual defendants who personally took

12 part in the alleged violation of his civil rights. The role of

13 defendant J. Scott Blackman, formerly Director of the Regional

14 Office of INS, for example, is, as reflected in the district

15 court's explication of the facts, see Arar, 414 F. Supp. 2d at

16 252-54, set forth in reasonable detail in the complaint.15 So are

15

The complaint alleges, inter alia:

Early on October 8, 2002, at about 4 a.m.,

Mr. Arar was taken in chains and shackles to

a room where two INS officials told him that,

based on Mr. Arar's casual acquaintance with

certain named individuals, including Mr.

Almalki as well as classified information,

Defendant Blackman, Regional Director for the

Eastern Region of Immigration and

Naturalization Services, had decided to

-27-

1 at least some of the acts of the defendant Edward J. McElroy,

2 District Director of the INS.16

3 The majority also asserts that Arar does no more than

4 "allege[] (in passive voice) that his requests to make phone

5 calls 'were ignored,' and that 'he was told' that he was not

6 entitled to a lawyer." Supra at [21]. But as indicated above,

7 such an identification of the unnamed defendants by their "roles"

8 should be sufficient to enable a plaintiff to survive a motion to

9 dismiss, and subsequently to use discovery to identify them. And

10 while the majority is correct that the complaint does not utter

remove Mr. Arar to Syria. Without

elaboration, Defendant Blackman also

stipulated that Mr. Arar's removal would be

consistent with Article 3 of CAT. . . . (A

copy of Defendant Blackman's decision is

attached as Exhibit D [to the complaint]).

Compl. ¶ 47.

16

The complaint alleges, inter alia:

The only notice given [Arar's counsel prior

to his interrogation late on the evening of

Sunday, October 6, 2002] was a message left

by Defendant McElroy, District Director for

Immigration and Naturalization Services for

New York City, on [counsel's] voice mail at

work that same [Sunday] evening. [She] did

not retrieve the message until she arrived at

work the next day, Monday morning, October 7,

2002 -- long after Mr. Arar's interrogation

had ended.

Compl. ¶ 43.

-28-

1 the talismanic words "meeting of the minds" to invoke an

2 agreement among the defendants, see supra at [21], it is plain

3 that the logistically complex concerted action allegedly taken to

4 detain Arar and then transport him abroad implies an alleged

5 agreement by government actors within the United States to act in

6 concert.

7 B. Dismissal of Claims of Denial of Access to Courts and

8 Counsel

9

10 With respect to the dismissal of Arar's claim for

11 "interfere[nce] with his access to lawyers and the courts" while

12 he was incarcerated by United States officials, Compl. ¶ 93, we

13 think the district court erred here, too. An access to courts

14 claim requires the pleading of (1) a "nonfrivolous, arguable

15 underlying claim" that has been frustrated by the defendants'

16 actions, and (2) a continued inability to obtain the relief

17 sought by the underlying claim. Christopher, 536 U.S. at 415-16

18 (internal quotation marks omitted). The district court decided

19 that Arar failed to plead with sufficient "precis[ion]" the

20 existence of a sought-for underlying claim for relief, Arar, 414

21 F. Supp. 2d at 286, which means it decided that, for purposes of

22 Federal Rule of Civil Procedure 8,17 the defendants were not put

17

That rule provides:

Claim for Relief. A pleading that states a

-29-

1 on notice of the existence of such a claim. See Christopher, 536

2 U.S. at 416 ("Like any other element of an access claim, the

3 underlying cause of action and its lost remedy must be addressed

4 by allegations . . . sufficient to give fair notice to a

5 defendant.").

6 But taking the allegations in the complaint as true, as

7 we must, the complaint clearly implies the existence of an

8 underlying claim for relief under CAT. The defendants can hardly

9 argue that under Arar's assertions, which we take to be true,

10 they lacked notice of such a claim, since the complaint says that

11 it was they who first notified Arar about it: Arar alleges that

12 on October 8, 2002, "two INS officials told him that . . .

13 Defendant Blackman . . . had decided to remove [him] to Syria,"

14 and "Defendant Blackman also stipulated that [such action] would

15 be consistent with Article 3 of CAT." Compl. ¶ 47. Indeed, the

claim for relief must contain:

(1) a short and plain statement of the

grounds for the court's jurisdiction, unless

the court already has jurisdiction and the

claim needs no new jurisdictional support;

(2) a short and plain statement of the

claim showing that the pleader is entitled to

relief; and

(3) a demand for the relief sought, which

may include relief in the alternative or

different types of relief.

Fed. R. Civ. P. 8(a).

-30-

1 complaint alleges that Arar asked defendants for reconsideration

2 of that decision -- i.e., relief from it -- in light of the

3 prospect of torture in Syria, but the officials said that "the

4 INS is not governed by the 'Geneva Conventions.'" Id.

5 Insofar as the district court's requirement that Arar

6 "articulate more precisely the judicial relief he was denied,"

7 Arar, 414 F. Supp. 2d at 286, related to its holding that "Bivens

8 did not extend a remedy to Arar for his deportation to Syria,"

9 id., we disagree for the reasons set forth below. Insofar as the

10 district court thought Arar's underlying CAT claim would have

11 been frivolous, it was mistaken. Cf. Ramsameachire v. Ashcroft,

12 357 F.3d 169, 184 (2d Cir. 2004) (pursuant to the CAT, the United

13 States may not remove an alien to a country if "'it is more

14 likely than not that he or she would be tortured if removed to

15 [that country]'" (quoting 8 C.F.R. § 208.16(c)(2))).

16 Nor was CAT the only relief Arar was denied. As the

17 government pointed out at oral argument, "th[e] decision [in

18 Michael v. INS, 48 F.3d 657 (2d Cir. 1995),] shows that in

19 extraordinary cases, and no one can dispute that this is an

20 extraordinary case, the plaintiff could have filed a habeas

-31-

1 [petition] and sought a stay pursuant to the All Writs Act." Tr.

2 at 82 (Cohn).18

3 Contrary to the district court's ruling, then, Arar's

4 complaint put the defendants on notice of claims seeking relief

5 to bar his removal that were frustrated by the defendants'

6 actions. Whatever the ultimate merits of those claims, they

7 would not have been "frivolous." And absent a remedy for the

8 rendition and torture themselves -- the district court, and the

9 majority, of course, conclude there is none -- no contemporaneous

10 legal relief is now possible except through the access to courts

11 and counsel claim. See generally Br. of Amici Norman Dorsen et

12 al. at 12-14. The Fourth Claim for Relief therefore states a

13 sufficient due process access claim.

14 C. Sufficient Pleading under Iqbal

15 More generally, we think the district court's extended

16 recitation of the allegations in the complaint makes clear that

17 the facts of Arar's mistreatment while within the United States

18

In response to a question by the Chief Judge as to what

cognizable allegations might be made in such a habeas petition,

the government said, "Your Honor, I'm not going to speak for what

a judge might or might not have said, but in his habeas position

and his petition for a stay he could say, look, things are moving

quickly, I'm afraid they're going to send me to Syria, don't let

that happen." Tr. 84; see also id. at 85.

-32-

1 -- including the alleged denial of his access to courts and

2 counsel and his alleged mistreatment while in federal detention

3 in the United States -- were pleaded meticulously and in copious

4 detail. The assertion of relevant places, times, and events --

5 and names when known -- is lengthy and specific. Even measured

6 in light of Supreme Court case law post-dating the district

7 court's dismissal of the fourth claim, which instituted a more

8 stringent standard of review for pleadings, the complaint here

9 passes muster. It does not "offer[] 'labels and conclusions' or

10 'a formulaic recitation of the elements of a cause of action.'"

11 Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly,

12 550 U.S. 544, 555 (2007)). Nor does it "tender[] 'naked

13 assertion[s]' devoid of 'further factual enhancement.'" Id.

14 (quoting Twombly, 550 U.S. at 557). Its allegations of a

15 constitutional violation are "'plausible on [their] face.'" Id.

16 (quoting Twombly, 550 U.S. at 555). And, as we have explained,

17 Arar has pled "factual content that allows the court to draw the

18 reasonable inference that the defendant[s] [are] liable for the

19 misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). We

20 would therefore vacate the district court's dismissal of the

21 Fourth Claim for Relief.

-33-

1 III. The Majority's Interpretation of the Second and

2 Third Claims for Relief

3 Having thus decided, mistakenly we think, that Arar's

4 Fourth Claim for Relief has failed, our colleagues leap to the

5 conclusion that what remains -- the allegations contained in what

6 Arar's complaint styles as the Second and Third Claims for Relief

7 -- relates only to the legal implications of the international

8 and foreign elements of the defendants' behavior. See supra at

9 [21] ("Arar's remaining claims seek relief on the basis of

10 torture and detention in Syria . . . ."). Even were we to agree

11 with the majority's view that the Fourth Claim for Relief

12 warranted dismissal, we would still not concur in its crabbed

13 interpretation of Arar's complaint in light of the facts alleged

14 in it.

15 "[W]e may not affirm the dismissal of [a] complaint

16 because [it has] proceeded under the wrong theory 'so long as [it

17 has] alleged facts sufficient to support a meritorious legal

18 claim.'" Hack v. President & Fellows of Yale Coll., 237 F.3d 81,

19 89 (2d Cir. 2000) (plurality opinion of Pooler, J.) (quoting

20 Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir.

21 1997)), cert. denied, 534 U.S. 888 (2001). "'Factual allegations

22 alone are what matter[].'" Northrop, 134 F.3d at 46 (quoting

23 Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (en

-34-

1 banc)); see also Newman v. Silver, 713 F.2d 14, 15 n.1 (2d Cir.

2 1983) ("[T]he nature of federal pleading . . . is by statement of

3 claim, not by legal theories.").19 And we are required to read

4 those factual allegations as a whole. See Shapiro v. Cantor, 123

5 F.3d 717, 721 (2d Cir. 1997); see also Aldana v. Del Monte Fresh

6 Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005)

7 (per curiam), cert. denied, 127 S. Ct. 596 (2006); Goldwasser v.

8 Ameritech Corp., 222 F.3d 390, 401 (7th Cir. 2000).

9 Although Arar pled in his Fourth Claim for Relief what

10 he denominated as a separate "Claim" on the subject of "Domestic

11 Detention," including allegations about unconstitutional

12 conditions of confinement and denial of access to courts and

13 counsel, the complaint as a whole makes broader allegations of

14 mistreatment while within the borders of the United States.

15 According to the complaint: (1) Arar was apprehended by

16 government agents as he sought to change planes at JFK; (2) he

17 was not seeking to enter the United States; (3) his detention was

19

The Federal Rules of Civil Procedure instruct that

"[p]leadings must be construed so as to do justice." Fed. R.

Civ. P. 8(e). Wright and Miller's treatise counsels that "[t]his

provision is not simply a precatory statement but reflects one of

the basic philosophies of practice under the federal rules." 5

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1286 (3d ed. 2004). "One of the most important

objectives of the federal rules is that lawsuits should be

determined on their merits and according to the dictates of

justice, rather than in terms of whether or not the averments in

the paper pleadings have been artfully drawn." Id.

-35-

1 for the purpose of obtaining information from him about terrorism

2 and his alleged links with terrorists and terrorist

3 organizations; (4) he was interrogated harshly on that topic --

4 mostly by FBI agents –- for many hours over a period of two days;

5 (5) during that period, he was held incommunicado and was

6 mistreated by, among other things, being deprived of food and

7 water for a substantial portion of his time in custody; (6) he

8 was then taken from JFK to the MDC in Brooklyn, where he

9 continued to be held incommunicado and in solitary confinement

10 for another three days; (7) while at the MDC, INS agents sought

11 unsuccessfully to have him agree to be removed to Syria because

12 they and other U.S. government agents intended that he would be

13 questioned there along similar lines, but under torture; (8) U.S.

14 officials thwarted his ability to consult with counsel or access

15 the courts; and (9) thirteen days after Arar had been intercepted

16 and incarcerated at the airport, defendants sent him against his

17 will to Syria, where they allegedly intended that he be

18 questioned under torture and while enduring brutal and inhumane

19 conditions of captivity. This was, as alleged, all part of a

20 single course of action conceived of and executed by the

21 defendants in the United States in order to try to make Arar

22 "talk."

-36-

1 It may not have been best for Arar to file a complaint

2 that structures his claims for relief so as to charge knowing or

3 reckless subjection to torture, coercive interrogation, and

4 arbitrary detention in Syria (the second and third claims)

5 separately from charges of cruel and inhuman conditions of

6 confinement and "interfere[nce] with access to lawyers and the

7 courts" while in the United States (the fourth claim). But such

8 division of theories is of no legal consequence. "'Factual

9 allegations alone are what matter[].'" Northrop, 134 F.3d at 46

10 (quoting Albert, 851 F.2d at 571 n.3). The assessment of Arar's

11 complaint must, then, take into account the entire arc of factual

12 allegations that it contains –- his interception and arrest; his

13 interrogation, principally by FBI agents, about his putative ties

14 to terrorists; his detention and mistreatment at JFK in Queens

15 and the MDC in Brooklyn; the deliberate misleading of both his

16 lawyer and the Canadian Consulate; and his transport to

17 Washington, D.C. and forced transfer to Syrian authorities for

18 further detention and questioning under torture. Such attention

19 to the complaint's factual allegations, rather than its legal

20 theories, makes perfectly clear that the remaining claims upon

21 which Arar seeks relief are not limited to his "detention or

22 torture in Syria," supra at [6], but include allegations of

-37-

1 violations of his due process rights in the United States. The

2 scope of those claims is relevant in analyzing whether a Bivens

3 remedy is available.

4 IV. The "Context" in Which a Bivens Remedy Is Sought

5 The majority's artificial interpretation of the

6 complaint permits it to characterize the "context" of Arar's

7 Bivens action as entirely one of "international rendition,

8 specifically, 'extraordinary rendition.'" Supra at [32]; see

9 also id. ("Extraordinary rendition is treated as a distinct

10 phenomenon in international law."). This permits the majority to

11 focus on the part of the complaint that presents a "new context"

12 for Bivens purposes. But when the complaint is considered in

13 light of all of Arar's allegations, his due process claim for

14 relief from his apprehension, detention, interrogation, and

15 denial of access to counsel and courts in the United States, as

16 well as his expulsion to Syria for further interrogation likely

17 under torture, is not at all "new."

18 A. Bivens and Its Progeny

19 In Bivens v. Six Unknown Named Agents of Fed. Bureau of

20 Narcotics, 403 U.S. 388 (1971), the Supreme Court "recognized for

21 the first time an implied private action for damages against

22 federal officers alleged to have violated a citizen's

-38-

1 constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S.

2 61, 66 (2001). Bivens permitted "a victim of a Fourth Amendment

3 violation by federal officers [to] bring suit for money damages

4 against the officers in federal court." Id. The Supreme Court

5 has been reluctant, as the majority correctly observes, to

6 "extend" Bivens liability further. See, e.g., Wilkie, 127 S. Ct.

7 at 2597. The Court has done so only twice –- in the contexts of

8 "an implied damages remedy under the Due Process Clause of the

9 Fifth Amendment" in Davis v. Passman, 442 U.S. 228 (1979), and

10 under "the Cruel and Unusual Punishments Clause of the Eighth

11 Amendment" in Carlson v. Green, 446 U.S. 14 (1980). Malesko, 534

12 U.S. at 67; see also Wilkie, 127 S. Ct. at 2597-98. But we must

13 ask whether we should "devise a new Bivens damages action,"

14 Wilkie, 127 S. Ct. at 2597, only if the asserted action is,

15 indeed, new. And a new Bivens action is not being sought unless

16 the plaintiff is asking the court to "extend Bivens liability to

17 a[] new context or new category of defendants." Malesko, 534

18 U.S. at 68.

19 B. The New Category of Defendants Test

20 The majority does not suggest that Arar's Bivens claim

21 fails because it is against a new category of defendants. The

22 Bivens remedy was devised to supply relief for constitutional

-39-

1 torts by federal agents and officials. See Malesko, 534 U.S. at

2 70.

3 C. The New Context Test

4 The questions, then, are whether we are facing a "new

5 context," or considering recognizing "a new Bivens damages

6 action," questions that are complicated by the fact that the

7 meaning that the Supreme Court has ascribed to those terms is

8 less than clear. Compare Malesko, 534 U.S. at 67 (noting that

9 Bivens was extended to "a new right of action" in Davis v.

10 Passman, in which the Court "recognized an implied damages remedy

11 under the Due Process Clause of the Fifth Amendment" (emphasis

12 added)), with id. at 68 (describing Schweiker v. Chilicky, 487

13 U.S. 412 (1988), as presenting a "new context[]" in which the

14 plaintiffs sought damages under the Due Process Clause for errors

15 made by federal officials "in the[] handling of [their] Social

16 Security applications" (emphasis added)).

17 If the alleged facts of Arar's complaint were limited

18 to his claim of "extraordinary rendition" to, and torture in,

19 Syria -- that is, limited to his allegations that he was

20 transported by the United States government to Syria via Jordan

21 pursuant to a conspiracy or other arrangement among the countries

22 or their agents and mistreated in Syria as a result -- as the

-40-

1 majority would have it, then we might well agree that we are

2 dealing with a "new context." But, as we have explained, the

3 complaint is not so limited. Incarceration in the United States

4 without cause, mistreatment while so incarcerated, denial of

5 access to counsel and the courts while so incarcerated, and the

6 facilitation of torture by others, considered as possible

7 violations of a plaintiff's procedural and substantive due

8 process rights, are hardly novel claims, nor do they present us

9 with a "new context" in any legally significant sense.20

10 We have recognized implied Bivens rights of action

11 pursuant to the Due Process Clause, so Arar's claims for relief

12 are not new actions under Bivens in that sense. A deprivation of

20

In one sense, every case presents a new context, in that

it presents a new set of facts to which we are expected to apply

established law. But a new set of facts is not ipso facto a "new

context." We do not decide, based on the difference in factual

setting alone, whether or not it is a good idea to allow a

plaintiff to avail him or herself of a well-established remedy

such as that afforded by Bivens. This is illustrated by cases

involving legal contexts where Bivens is well-established, in

which courts do not conduct a fresh assessment as to whether a

Bivens action is available based on the facts of each case. See,

e.g., Groh v. Ramirez, 540 U.S. 551 (2004) (Bivens action for

Fourth Amendment violation); McCarthy v. Madigan, 503 U.S. 140

(1992) (Bivens action for Eighth Amendment violation), superseded

by statute on other grounds as stated in Booth v. Churner, 532

U.S. 731 (2001); Castro v. United States, 34 F.3d 106 (2d Cir.

1994) (Fourth Amendment); Armstrong v. Sears, 33 F.3d 182 (2d

Cir. 1994) (same); Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994)

(same); see also Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004)

(same), rev'd on other grounds, sub nom Will v. Hallock, 546 U.S.

345 (2006).

-41-

1 procedural due process rights can give rise to a Bivens claim

2 under our case law. See, e.g., Tellier v. Fields, 280 F.3d 69,

3 80-83 (2d Cir. 2000). And while we do not appear to have

4 squarely considered whether a Bivens action may lie for alleged

5 violations of substantive due process rights, our cases imply

6 that it can be. In Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007),

7 rev'd in part on other grounds sub nom Ashcroft v. Iqbal, 129 S.

8 Ct. 1937 (2009), for example, we considered a Bivens action

9 brought on, inter alia, a Fifth Amendment substantive due process

10 theory. The plaintiff alleged physical mistreatment and

11 humiliation, as a Muslim prisoner, by federal prison officials,

12 while he was detained at the MDC. After concluding, on

13 interlocutory appeal, that the defendants were not entitled to

14 qualified immunity, we returned the matter to the district court

15 for further proceedings. We did not so much as hint either that

16 a Bivens remedy was unavailable or that its availability would

-42-

1 constitute an unwarranted extension of the Bivens doctrine.21

2 Iqbal, 490 F.3d at 177-78.

3 In other cases we have apparently assumed Bivens

4 remedies were available for substantive due process claims. See

5 Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006) (reversing

6 district court's dismissal of Bivens action for violation of

7 plaintiff's Fifth Amendment substantive due process rights while

8 detained at the MDC); Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir.

9 2000) (dismissing, on qualified immunity grounds, plaintiff's

10 Bivens claim for, inter alia, substantive due process violations,

11 without questioning whether a cause of action was available); Li

12 v. Canarozzi, 142 F.3d 83 (2d Cir. 1998) (affirming judgment

13 following jury verdict for defendants in Bivens action based on

14 allegations of physical assault by guards at the federal

15 Metropolitan Correctional Center in New York City, although not

16 explicitly on substantive due process grounds); Ayeni v. Mottola,

17 35 F.3d 680, 691 (2d Cir. 1994) (apparently assuming that Bivens

18 remedy was available for substantive due process claim, but

21

Shortly after we decided Iqbal, the Supreme Court made

clear that by appealing from the district court's denial of

qualified immunity, the defendants placed within our jurisdiction

the question of "the recognition of the entire cause of action."

Wilkie, 127 S. Ct. at 2597 n.4. The district court in Iqbal had

specifically rejected the defendants' argument that a Bivens

action was unavailable. See Elmaghraby v. Ashcroft, No. 04 CV

01809 JG SMG, 2005 WL 2375202, at *14, 2005 U.S. Dist. LEXIS

21434, at *44-*45 (E.D.N.Y. Sept. 27, 2005). Thus, had we

thought that no Bivens action was available, we had the power to

resolve Iqbal's claims on that basis.

-43-

1 deciding that it could not be pursued because the claim in issue

2 was covered by the more particular provisions of the Fourth

3 Amendment, for which a Bivens action was permitted), abrogated on

4 qualified immunity grounds, Wilson v. Layne, 526 U.S. 603 (1999).

5 Indeed, even the most "international" of Arar's

6 domestic allegations -- that the defendants, acting within the

7 United States

This text is long and has been trimmed here. Open the source document for the complete record.