Khorrami, Ahmad F. v. Rolince, Michael E.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2755

A HMAD F ARID K HORRAMI,

Plaintiff-Appellee,

v.

M ICHAEL E. R OLINCE, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 6579—James B. Zagel, Judge.

____________

A RGUED M AY 6, 2008—D ECIDED A UGUST 27, 2008

____________

Before E ASTERBROOK, Chief Judge, and W OOD and

T INDER, Circuit Judges.

W OOD , Circuit Judge. The underlying allegations in

this appeal paint a sorry picture of false accusations,

roughshod law enforcement tactics, and prejudice. Yet at

the same time, they remind us of how difficult it has been

for law enforcement authorities to learn how to carry out

their counterterrorism responsibilities in the post-9/11

world. We conclude, however, that this appeal from

2 No. 07-2755

the district court’s order denying qualified immunity to

certain officials and refusing to dismiss the case is not

properly before us. We therefore dismiss the appeal for

want of appellate jurisdiction.

I

Ahmed Khorrami was born in Iran and moved to the

United States in 1973 for an education at Purdue Univer-

sity. He went on to receive advanced degrees in aeronau-

tics from the California Institute of Technology, Berkeley,

and Oxford. He returned to the United States in 1997

with joint Iranian-British citizenship in order to become a

pilot. He completed his training in 2000, and in August of

that year he applied for an adjustment of his immigration

status based on his marriage to a U.S. citizen. In February

2001, the INS issued Khorrami advance parole authoriza-

tion, and he began working for Skyway Airlines in Mil-

waukee in July.

Dr. Khorrami’s story is not terribly unusual up to this

point, but it changed dramatically after September 11,

2001. (Our account of the facts is based on Khorrami’s

complaint, which must be taken as true at this stage of the

litigation. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007).)

Within days after the attacks, Khorrami’s friends told

him that they had been contacted by the FBI. His

wife—who had been part of a relief team comforting

grieving families at Newark Airport—flew back to

Chicago on September 16 because she was worried about

him. On September 17, Khorrami agreed to be questioned

No. 07-2755 3

in his home by two FBI agents. He told the agents that

he would speak to his employer later that day.

Khorrami and his wife visited Skyway Airline’s offices

and met Khorrami’s supervisor, Captain George Velguth,

as well as another FBI agent. Khorrami informed this

agent of the morning’s interview and provided contact

information for the FBI to use. The agent then informed

Velguth that Khorrami had been cleared by the Chicago

FBI and was free to leave.

Suddenly, the situation deteriorated. An FAA security

agent burst into the office and ripped Khorrami’s airport

security I.D. from around his neck. Other government

agents appeared, now from the INS as well as the FBI.

This time, Khorrami was interrogated for twelve hours,

and the proceedings were not polite. An INS agent directly

accused Khorrami of taking part in the terrorist attacks,

saying “I know you’re one of them.” The INS agent also

accused him of entering into a phony marriage and threat-

ened to cancel his visa. When Khorrami asked why, the

agent’s reply was “Because I feel like it, I can and will do

it,” then added “You’re a Muslim and you’re fair game.”

When reminded that the President himself had told

Americans not to jump to conclusions and discriminate

against Muslims, the agent replied “Didn’t you see him

wink when he said that?”

After midnight (by this time September 18), Khorrami

was taken to Milwaukee FBI headquarters for further

questioning. Khorrami’s advance parole was canceled

and he was given a Notice to Appear. He was then

hauled off to the Waukesha County Jail around four or five

o’clock in the morning.

4 No. 07-2755

Mrs. Khorrami stayed in contact with FBI and INS agents

throughout her husband’s detention. On the night of

September 18, she was told that the Chicago FBI had asked

that Dr. Khorrami be removed from the suspect list. She

also received a call from the FBI in Washington con-

firming that his name would be removed from that list

and assuring her that the FBI would rescind the letter

canceling Dr. Khorrami’s advance parole.

The very next day, the INS agent who had canceled Dr.

Khorrami’s advance parole returned to interrogate him

some more. He admitted that he had canceled the parole

in order to assist the FBI, which wanted to detain

Khorrami but did not have sufficient evidence to continue

to do so.

Still detained, Dr. Khorrami was questioned yet again

on September 21 by two FBI agents. They hooked him up

to a lie detector, and one of the agents signed off as a

witness. The “witness” then left the room at the request of

the agent conducting the interrogation. Khorrami was

told to sign a blank confession, and the agent threatened

to send him back to Iran, put him in a dungeon, and

prevent him from ever seeing his wife again. When the

results were unsatisfactory to the questioner, he knocked

Dr. Khorrami to the floor, then kicked him repeatedly.

After the interrogation, a prison guard called the prison

doctor, who treated Khorrami for bloody urine. Khorrami

was also later treated for suicidal tendencies, and had

chest pains.

At the same time as Dr. Khorrami was suffering through

this interrogation, Mrs. Khorrami was told that her hus-

No. 07-2755 5

band’s name should not have been on any “watch lists.”

The next morning, September 22, she was informed that

the FBI in Washington had cleared Dr. Khorrami’s name

from all watch lists. Their theory had been that the flight

school where Khorrami taught was connected to some

of the hijackers, but the connection was refuted on Septem-

ber 21 and this information was publicized in newspapers

the next day.

Dr. Khorrami was moved to DuPage County Jail on

September 24. Throughout the months of September and

October, an immigration judge (“IJ”) denied his

attempts to post bail, relying on the INS’s assertion that an

IJ has no authority to reconsider an INS bail determination.

It was not until November 14 that the INS, at a hearing

before the IJ, produced an affidavit from Michael Rolince,

Section Chief of the FBI’s International Terrorism Opera-

tions Section, describing why the FBI was investigating

Dr. Khorrami in connection with the terrorist attacks (“the

Affidavit”). Among other reasons given, the Affidavit

repeated the connection to the flight school in Florida

and also asserted that Khorrami had resided in an apart-

ment building in which one of the September 11 hijackers

also resided. The Affidavit indicated that the FBI also

found suspicious Khorrami’s “underemployment,” as

well as the $100,000 in savings he had amassed (with the

help of an inheritance from his parents, who passed away

before 1997).

At this point, the situation unraveled fairly quickly. On

November 26, an FBI agent—one of the two with whom

Khorrami had spoken voluntarily on September 17—

6 No. 07-2755

confirmed to Mrs. Khorrami that the link to the flight

school had been shown to be of no importance shortly

after the attacks, contrary to the assertions in Rolince’s

Affidavit. On December 11, the Chicago FBI office wrote

to the INS stating that the FBI had discovered that there

was also an error in the alleged connection to the apart-

ment building as of September 18, again contradicting

one of the key assertions in the Rolince Affidavit. The

letter was submitted to the IJ on December 12, and

Khorrami was released on December 14. On February 17,

2002, Khorrami suffered a nonfatal heart attack. He had

had a clean bill of health before his detention, having

passed an FAA physical examination for fitness to fly.

Finally, on June 24, 2004, the IJ found Khorrami to be

removable, but granted him the adjustment of status he

had requested in 2000, making him a permanent resident

based on his marriage to a U.S. citizen. Meanwhile, on

September 17, 2003, he filed this lawsuit, alleging that he

had been detained based on a false affidavit filed by a

public official, and that this violated his due process

rights under the Fifth Amendment. He asserted a right

to sue under Bivens v. Six Unknown Named Agents of the

FBI, 403 U.S. 388 (1971). The Government moved to dis-

miss on grounds of qualified immunity and failure to

state a claim. The district court granted the motion under

F ED. R. C IV. P. 12(b)(6) with respect to all parts of the

case except for those relying on the Fifth Amendment;

it explicitly declined to rule on the qualified immunity

motion. The Government has now brought an inter-

locutory appeal seeking a ruling that qualified immunity

No. 07-2755 7

existed and that the remainder of the case in any event

should have been dismissed.

II

The primary weakness of the Government’s appeal is

that the order that might have supported appellate juris-

diction over this appeal does not exist. The Government’s

brief premises appellate jurisdiction on Behrens v. Pelletier,

516 U.S. 299 (1996). Behrens establishes that “an order

rejecting the defense of qualified immunity at either the

dismissal stage or the summary judgment stage is a ‘final’

judgment subject to immediate appeal.” 516 U.S. at 307.

The district court, however, did not reject the qualified

immunity defense. Instead, it explicitly set the claim

aside to be adjudicated later, stating that “these attacks

on Plaintiff’s complaint are premature.”

Unless the district court delays so long in ruling that

the delay becomes a de facto denial, a decision not to rule

on a motion is just that: inaction. This follows from the

general rule the Supreme Court has acknowledged for-

bidding interlocutory appeals in situations where “unre-

solved issues of fact” remain or the district court has not

even “tentatively decide[d] anything about the merits of

the claim.” Switzerland Cheese Ass’n, Inc. v. E. Horne’s

Market, Inc., 385 U.S. 23, 25 (1966). See also Carson v.

American Brands, Inc., 450 U.S. 79, 84 (1981); Gardner v.

Westinghouse Broadcasting Co., 437 U.S. 478, 482 (1978). In

all of these cases, the Court has kept a tight rein on dif-

ferent statutes that permit interlocutory appeals. As the

8 No. 07-2755

Court noted in Gardner, “[t]he exception [to finality created

by 28 U.S.C. § 1292(a)(1)] does not embrace orders that

have no direct or irreparable impact on the merits of the

controversy. The order in this case, like the order in

Switzerland Cheese, had no such impact; it ‘in no way

touch[ed] on the merits of the claim but only relate[d] to

pretrial procedures . . . .’ Id. at 25 [quoting from Switzerland

Cheese].” Gardner, 437 U.S. 482.

This court has applied those principles to other settings.

For example, in IDS Life Ins. Co. v. SunAmerica, Inc., 103

F.3d 524 (7th Cir. 1996), the defendants wanted to take

an appeal even though the district court had not yet

ruled on a motion to stay proceedings pending arbitra-

tion. We held that deferral cannot be treated as the equiva-

lent of an appealable denial unless the party wishing to

appeal can show “unjustifiable delay coupled with irrepa-

rable injury if an immediate appeal is not allowed.” Id. at

526; see also Continental Cas. Co. v. Staffing Concepts, Inc.,

No. 07-2475, 2008 WL 3013408 (7th Cir. Aug. 6, 2008). In

our view, the same rule also applies here. Any doubt on

the matter is resolved by a look at Johnson v. Jones, 515

U.S. 304 (1995). There the Court found no appellate juris-

diction over an attempted appeal from a denial of qualified

immunity. The problem was that the appeal turned not

on questions of law, but instead on “the existence, or

nonexistence, of a triable issue of fact.” Id. at 316. More

generally, Johnson stands for the proposition that an

interlocutory appeal is inappropriate where substantial

steps remain to be taken in the district court before the

facts, and hence the applicable law, are brought into

focus. As Johnson holds, when the existence of qualified

No. 07-2755 9

immunity turns on facts particular to a given case, the

district court has tools available that will allow it to

preserve the defendant’s right to a speedy determination

whether he or she must bear the burdens of litigation

while at the same time allowing plaintiffs with colorable

claims to proceed with their complaints. If the district

court has not yet issued an order ruling on the qualified

immunity assertion, it is difficult, if not impossible, for

an appellate court to intervene. Appellate courts do not

sit to prescribe motions calendars for district courts.

The Government concedes that these are the governing

principles, but it argues that this is one of those rare

cases in which delay is effectively a denial. Such a con-

clusion, however, fails to take into account what really

happened. We cannot see how the delay here was unjusti-

fied given the district court’s finding that it was premature

to rule on the qualified immunity defense. The Govern-

ment claimed that Rolince was entitled to qualified im-

munity because, it said, it was “implausible” that he

knew of the falsity of the facts asserted in his Affidavit.

That kind of defense depends entirely on facts that have

not yet been explored: Who reviewed the Affidavit before

it went to the IJ? Were there communication problems

among the Milwaukee, Chicago, and Washington offices

of the FBI? Was the discovery that the associations with

the flight school and apartment building had no meaning

communicated to the field offices? These are not issues

that a district court is able to decide as a matter of law at

this early stage of the litigation. “Appeal rights cannot

depend on the facts of a particular case.” Carroll v. United

States, 354 U.S. 394, 405 (1957). The district court was

10 No. 07-2755

well within its rights to set aside the immunity question

for later.

Moreover, no irreparable harm was caused by the

court’s scheduling decision. The Government contends

that qualified immunity is the right to be free from all

burdens of litigation, period. That statement goes too

far. See Johnson, 515 U.S. at 317-18. Qualified immunity is

the right to be free at the earliest point at which the

court can be sure that the government official’s conduct

did not violate clearly established statutory or constitu-

tional rights that any reasonable person would have

known applied to the situation at hand. If a person was

entitled to immunity, then a degree of irreparable injury

occurs if the case is mistakenly allowed to go to trial. See

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The entitle-

ment is an immunity from suit rather than a mere defense

to liability; and like an absolute immunity, it is effectively

lost if a case is erroneously permitted to go to trial.”) (first

emphasis in original, second added). Even in that situa-

tion, if the court belatedly realizes that immunity

should have been granted, it can still spare the defendant

from the burden of damages. (This assumes that the

standards for granting qualified immunity differ in

significant respects from those governing liability on the

merits. It is possible that the Supreme Court may throw

further light on that subject in Pearson v. Callahan, No. 07-

751, cert. granted, Mar. 24, 2008, which will consider

whether Saucier v. Katz, 533 U.S. 194 (2001), should be

overruled. Because our case concerns appellate jurisdic-

tion, we see no need to hold it for Pearson.)

No. 07-2755 11

In the event of a brief pretrial postponement of a quali-

fied immunity argument at the same time as the court

is considering a motion under Rule 12(b)(6), the district

court is the only judicial tribunal that may revisit the

issue. While this will embroil the defendant official for

a brief time in the litigation, there is no way to avoid

these burdens altogether and at the same time conduct

the litigation in a way that is fair and orderly to both

parties. The fact that the Supreme Court has recognized

that more than one appeal from an order denying qualified

immunity is permissible, see Behrens, 516 U.S. at 306-07,

shows that the Court recognizes that a certain amount

of pretrial activity, including the discovery necessary to

prepare a motion for summary judgment (or defend

against one), is inevitable.

All of what we have just said may have been true before

the Supreme Court decided Bell Atlantic Corp. v. Twombly,

127 S.Ct. 1955 (2007), the Government concedes, but, in

its view, Twombly changed everything. A complaint must

now include “enough facts to state a claim to relief that

is plausible on its face.” Id. at 1974. In an interlocutor y

appeal from a denial of qualified immunity, the first

question is “whether or not certain given facts showed a

violation of ‘clearly established law.’ ” Johnson, 515 U.S. at

311; see also Mitchell, 472 U.S. at 528 n.9 (“We emphasize

at this point that the appealable issue is a purely legal one:

whether the facts alleged . . . support a claim of violation

of clearly established law.”). Whether or not the district

court had anything to say about it, the Government

asserts that we can look at the complaint for ourselves

and decide whether Khorrami can make such a showing.

12 No. 07-2755

This is not an appropriate way to proceed. Taken as a

general proposition, it would invite interlocutory appeals

on qualified immunity issues before anyone even pre-

sented the argument to the district court. The fact that

appellate review from decisions to dismiss cases under

F ED. R. C IV. P. 12(b)(6) is de novo does not mean that

litigants are entitled to bypass the district court altogether.

Even if this were permissible, moreover, nothing

in Twombly suggests that Khorrami’s complaint is inade-

quate for this purpose. Khorrami’s allegations about

Rolince’s knowledge are plausible, and only discovery

will show whether they are correct. Whether Rolince in

fact was aware, unaware, or reckless has yet to be

shown, but those facts need not be pleaded in the com-

plaint. See Erickson v. Pardus, 127 S.Ct. at 2200. The Gov-

ernment suggests that perhaps a higher pleading

standard is appropriate in a qualified immunity case, but

the Supreme Court has squarely rejected that proposition.

See Crawford-El v. Britton, 523 U.S. 574, 594-96 (1998).

Nothing in the Second Circuit’s decision in Benzman v.

Whitman, 523 F.3d 119 (2d Cir. 2008), requires a different

outcome. In Benzman, the former Administrator of the

Environmental Protection Agency, Christine Todd Whit-

man, appealed from the district court’s decision denying

her motion to dismiss on grounds of qualified immunity.

As it was required to do under Saucier, the court first

considered whether, taking the facts as the plaintiffs had

pleaded them, a Bivens claim was available at all and

whether the facts described the violation of a constitu-

tional right. It was in this context that the court com-

mented that “a bare allegation that the head of a Govern-

No. 07-2755 13

ment agency, guided by a relevant White House office,

knew that her statements were false and ‘knowingly’

issued false press releases is not plausible in the absence of

some supporting facts.” Id. at 129. It concluded that

“arguably inadequate management of a vast agency of

17,000 employees is not a basis for constitutional tort

liability.” Id. (emphasis in original). We understand this

only as a holding that the facts pleaded, taken as true,

could not support a finding of a constitutional violation.

(It is also worth noting that the Second Circuit did not

address the relation between this holding and appellate

jurisdiction: it had nothing to say about appellate juris-

diction at all.)

In our case, the complaint accuses Rolince of perjury. The

Government does not deny that, if true, the facts Khorrami

alleged—that Rolince perjured himself—would demon-

strate a violation of clearly established law. See Napue v.

Illinois, 360 U.S. 264, 269 (1959) (holding that a conviction

based on testimony known to be false violated the Consti-

tution). Only in its supplementary brief does it assert

that a reasonable FBI agent might think the false connec-

tions between the flight school and the apartment were

harmless if the rest of the facts would be sufficient to

justify the agency’s concerns. This reasoning makes no

sense to us, unless we are being asked to assume that

FBI agents think nothing of swearing out false affidavits

on penalty of perjury, see 18 U.S.C. §§ 1621, 1623, which

is certainly not an assumption we are willing to make.

If Khorrami is correct, Rolince may have violated his

rights and independently broken the law.

14 No. 07-2755

Before concluding, we note that Rolince has not raised a

claim of absolute (rather than qualified) immunity, and so

nothing we say should be understood as a ruling on

that theory. In Briscoe v. LaHue, 460 U.S. 325 (1983), the

Supreme Court held that witnesses who allegedly gave

perjured testimony at a criminal trial were absolutely

immune from later suit under 42 U.S.C. § 1983. Id. at 333.

This court recognized that the absolute immunity

extends to a police officer’s participation in pretrial

proceedings, in Curtis v. Bembenek, 48 F.3d 281, 284 (7th Cir.

1995); see also Giffin v. Summerlin, 78 F.3d 1227, 1230-31

(7th Cir. 1995) (relying on Indiana law, and holding that

it would apply the Briscoe rule to affidavits as well).

Whether this model fits Rolince’s actions is yet to be

determined. The relevant questions would include

whether Rolince made the statements Khorrami is attack-

ing during the pre-judicial phase of these proceedings, see

Malley v. Briggs, 475 U.S. 335 (1986); whether Rolince

should be characterized as a “witness”; and whether

an immigration court is the kind of tribunal the rule

contemplates.

In the end, the Government is trying to conflate its

argument over pleading standards with the argument

over qualified immunity. Orders denying qualified im-

munity (when they exist) and rulings denying Rule 12(b)(6)

motions are subject to different rules for appellate juris-

diction. In the end, we have before us only an attempted

appeal from a presumed denial of qualified immunity. We

repeat that the lack of a ruling from the district court under

these circumstances is not the functional equivalent of a

denial of the motion. We also find it procedurally unac-

No. 07-2755 15

ceptable to rule on the sufficiency of the complaint

through the back door, using the Government’s theory

that a complaint that fails to allege a constitutional viola-

tion clearly enough to satisfy Twombly is all that it needs

in order to appeal. Khorrami’s story is plausible enough

that we can conclude that he properly alleged a violation

of clearly established law by someone acting under color

of law. That showing, in turn, is sufficient to satisfy us

that no interlocutory appeal is authorized here: there was

no order denying qualified immunity, no constructive

denial resulted, and the issue was not sufficiently con-

cluded to allow for another form of interlocutory appeal.

The appeal is therefore D ISMISSED for want of appellate

jurisdiction.

8-27-08