Petition for Writ of Certiorari — Mynor Abdiel Tun-Cos, et al., Petitioners v. B. Perrotte, et al.
Supreme Court briefNov 20, 2019
Ask Donna
What actually matters in this document.
Text
1a
APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT
___________
No. 18-1451
___________
MYNOR ABDIEL TUN-COS; JOSÉ PAJARITO SAPUT; LUIS VELASQUEZ PERDOMO; EDER
AGUILAR ARITAS; EDUARDO MONTANO FERNÁNDEZ; PEDRO VELASQUEZ PERDOMO; JOSÉ
CÁRCAMO; NELSON CALLEJAS PEÑA; GERMÁN
VELASQUEZ PERDOMO,
Plaintiffs - Appellees,
v.
B. PERROTTE, ICE Agent; T. OSBORNE, ICE Agent;
D. HUN YIM, ICE Agent;
P. MANNEH, ICE Agent; A. NICHOLS, ICE Agent,
Defendants - Appellants.
CHRIS BURBANK; SETH M. M. STODDER; MEGAN H. MACK; MARGO SCHLANGER; PAUL W.
VIRTUE; LAWYERS COMMITTEE FOR CIVIL
RIGHTS UNDER LAW,
Amici Supporting Appellee.
_____________
2a
Appeal from the United States District Court for the
Eastern District of Virginia, at Alexandria. Anthony
John Trenga, District Judge. (1:17-cv-00943-AJTTCB)
_____________
Argued: December 11, 2018
Decided: April 26, 2019
_____________
Before NIEMEYER and QUATTLEBAUM, Circuit
Judges, and DUNCAN, Senior Circuit Judge.
_____________
Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Quattlebaum and Senior Judge Duncan
joined.
_____________
ARGUED: Anne Murphy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellants. David Meir Zionts, COVINGTON &
BURLING LLP, Washington, D.C., for Appellees. ON
BRIEF: Chad A. Readler, Acting Assistant Attorney
General, Mary Hampton Mason, Senior Trial Counsel,
Paul E. Werner, Trial Attorney, Torts Branch, Barbara L. Herwig, H. Thomas Byron III, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; G. Zachary Terwilliger,
United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellants. Daniel E. Johnson, Mark H. Lynch, José E.
3a
Arvelo, Brandon H. Johnson, Daniel T. Grant,
Michelle S. Willauer, COVINGTON & BURLING
LLP, Washington, D.C.; Simon Y. Sandoval-Moshenberg, Nicholas C. Marritz, Hallie N. Ryan, LEGAL
AID JUSTICE CENTER, Falls Church, Virginia, for
Appellees. Jon M. Greenbaum, Myesha Braden, Samuel
Weiss,
Michael
Huggins,
LAWYERS’
COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
Washington, D.C.; Shira A. Scheindlin, New York,
New York; Caitlin Bellis, UNIVERSITY OF CALIFORNIA IRVINE SCHOOL OF LAW – IMMIGRANT
RIGHT CLINIC, Irvine, California, for Amicus Lawyer’s Committee for Civil Rights Under Law. Nicolas
G. Keller, New York, New York, Matthew E. Price,
JENNER & BLOCK LLP, Washington, D.C., for
Amici Chris Burbank, Seth M. M. Stodder, Megan H.
Mack, Margo Schlanger, and Paul Virtue.
_____________
NIEMEYER, Circuit Judge:
Nine Latino men, who lived in areas of Northern
Virginia that were home to many residents of Latino
ethnicity, commenced this action against several Immigration and Customs Enforcement (“ICE”) agents.
They seek money damages to redress the ICE agents’
alleged violations of their rights under the Fourth and
Fifth Amendments, alleging that the ICE agents (1)
stopped and detained them without a reasonable, articulable suspicion of unlawful activity; (2) invaded
their homes without a warrant, consent, or probable
cause; and (3) seized them illegally. To state a cause
of action for damages, they rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), which held that the victim of a
4a
Fourth Amendment violation by federal officers had
an implied constitutional claim for damages.
The ICE agents filed a motion to dismiss, challenging the plaintiffs’ reliance on Bivens and also
asserting qualified immunity. While the district court
assumed that the plaintiffs’ action presents a “‘modest
extension’ in a ‘new context’ for the application of a
Bivens remedy,” it denied the ICE agents’ motion, concluding that a Bivens remedy “should be recognized in
this case.” It also denied the ICE agents qualified immunity.
Applying the Supreme Court’s recent jurisprudence on Bivens actions, we reverse, concluding that a
Bivens remedy is not available in the circumstances of
this case. Where there is no statute authorizing a
claim for money damages, “it is a significant step under separation-of-powers principles” for a court to
impose damages liability on federal officials. Ziglar v.
Abbasi, 137 S. Ct. 1843, 1857 (2017). In such cases,
“[t]he question is who should decide whether to provide for a damages remedy, Congress or the courts?”
Id. at 1857 (cleaned up). “The answer most often will
be Congress.” Id. Indeed, in the course of repeatedly
declining to provide a Bivens remedy in recent years,
the Supreme Court has now made clear that “extend[ing] Bivens liability to any new context or new
category of defendants” is highly “disfavored.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (cleaned up).
We thus conclude that, because the plaintiffs seek to
extend Bivens liability to a context the Supreme Court
has yet to recognize and there are “special factors
counselling hesitation in the absence of affirmative
action by Congress,” Abbasi, 137 S. Ct. at 1857
(cleaned up), the plaintiffs’ action for damages should
5a
be dismissed. Therefore, we reverse the district court’s
order denying the ICE agents’ motion to dismiss and
remand with instructions to dismiss the plaintiffs’ action.
I
In their complaint, the plaintiffs challenge the legality of stops, detentions, and home invasions that
they experienced on February 8 and February 17,
2017.
As alleged in the complaint, on February 8, ICE
agents stopped one of the plaintiffs as he was leaving
his home and asked if he knew a man in a photo that
the agents showed him. When the plaintiff denied
knowing the man, the agents demanded that the
plaintiff take them into his home. The agents then collected all of the other persons in the home, asked them
the same question, and received the same response.
They then arrested six residents and took them to an
ICE facility in Lorton, Virginia. After ten hours, the
agents released the six on bond. Removal proceedings
under the Immigration and Nationality Act (“INA”)
were then initiated against those six, who are now
plaintiffs in this action.
On February 17, ICE agents blocked a car with
four Latino men in it as they were pulling out of a
parking space, demanding that they provide identification. The ICE agents then showed the detained men
photos of two men, whom one of the detained men recognized. The agents then directed the detained men to
go to their apartment, where the agents arrested and
frisked two of them and took them to an ICE facility
in Fairfax, Virginia. After they were released, removal
proceedings under the INA were initiated against
6a
those two men, who are also now plaintiffs in this action.
In their initial complaint for damages, the two
plaintiffs arrested on February 17 alleged violations
of the Fourth and Fifth Amendments. They also asserted that the arrests on that date “did not occur in a
vacuum,” citing a recent Executive Order which “was
represented by the Trump administration as an effort
to ‘take the shackles off’ ICE agents in their enforcement activities.” (Citation omitted). As the complaint
alleged:
ICE agents across the country have been encouraged to stop individuals without
reasonable suspicion, pursuant to the Trump
Administration’s efforts to “take the shackles
off” ICE agents to free them from “what they
went through in the last administration.” In
contrast to the Obama Administration’s immigration enforcement policies and practices,
which discouraged ICE agents from stopping
individuals absent reasonable suspicion that
the individuals had violated federal law, . . .
[the] Executive Order and implementing guidance from [the Department of Homeland
Security] have encouraged a broader set of enforcement policies that “no longer will exempt
classes or categories of removable aliens from
potential enforcement.”
(Citations omitted). The initial complaint also
alleged that “[u]nder the Obama Administration, ICE
agents carried out immigration arrests at [the same
apartment complex] multiple times a year, but generally arrested only those persons whom they had come
7a
to arrest . . . [and] generally did not engage in collateral arrests of third persons.” They alleged that under
the Trump Administration, by contrast, “ ICE agents
have dramatically increased the number and scope of
enforcement actions” at the apartment complex and
that “[t]hese enforcement actions have included numerous collateral arrests,” including the arrests of the
two plaintiffs.
Several months later, the plaintiffs filed an
amended complaint, which added the events that occurred on February 8, 2017, and the additional seven
plaintiffs involved in those events, one of whom was a
U.S. citizen. The amended complaint again alleged
claims for the unreasonable searches and seizures of
the plaintiffs, in violation of the Fourth Amendment,
and equal protection claims under the Fifth Amendment. It also eliminated all references to the Trump
Administration’s immigration enforcement policy. In
both complaints, the plaintiffs demanded compensatory and punitive damages, relying on Bivens.
The ICE agents filed a motion to dismiss on the
ground that a Bivens action is not available in the context of this case. The agents also asserted qualified
immunity.
The district court rejected both arguments and denied the motion. First, the court concluded that the
plaintiffs stated “cognizable Bivens claims, as those
claims were against persons properly considered federal law enforcement officers under circumstances
that sufficiently approximated those within the recognized contours of that remedy.” Applying the
framework articulated by the Supreme Court in
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the court first
8a
assessed whether the case arose in a “new Bivens Context,” noting that “[t]he alleged conduct in this case
ha[d] the recognizable substance of Fourth Amendment violations” but that the agents “[were] ICE
agents, rather than traditional law enforcement officers, . . . and were purporting to operate under a
different ‘statutory or other legal mandate’ than the
officials referenced in Abbasi.” (Quoting Abbasi, 137
S. Ct. at 1860). For those reasons, the court “assumed
that this case present[ed] a ‘modest extension’ in a
‘new context’ for the application of a Bivens remedy”
and therefore went on to evaluate whether “special
factors” counseled against extending Bivens by inquiring “whether ‘(1) Congress ha[d] not already provided
an exclusive statutory remedy; (2) there [were] no special factors counselling hesitation in the absence of the
affirmative action by Congress; and (3) there [was] no
explicit Congressional declaration that money damages not be awarded.’” (Quoting Hall v. Clinton, 235
F.3d 202, 204 (4th Cir. 2000)).
After noting that the ICE agents “d[id] not contend that Congress ha[d] already provided an
exclusive statutory remedy . . . or that there [was] an
‘explicit Congressional declaration that money damages not be awarded,’” the district court concluded
that the issue “reduce[d] to whether any ‘special factors’ counsel[ed] against extending an implied right of
action within the context of this case.” The court then
reasoned that the plaintiffs “are not challenging an
entity’s policy” but are rather “claiming straightforward violations of their Fourth and Fifth Amendment
rights based on [the ICE agents’] conduct.” And while
ICE agents, rather than traditional federal law enforcement officers, were involved, the court concluded
9a
that the agents “nevertheless fall within the broad
category of federal law enforcement officers, whose
conduct raises the same issues and concerns as in
Bivens.” As for the ICE agents’ argument that “Congress’s intent to preclude a Bivens damages remedy
[could] be found in its failure to provide for an explicit
remedy in the [INA] while otherwise ‘aggressively’
legislating in the immigration area,” the court reasoned that while that argument would have force if
Congress had provided a lesser remedy for this sort of
violation, “Congress has provided no remedy whatsoever.” (Emphasis added). The court concluded that
“Congress’s silence in this context does not reliably reflect any Congressional intent to preclude a Bivens
damage remedy, particularly given the longstanding
judicial recognition of a Bivens remedy for the types of
Fourth and Fifth Amendment claims asserted in this
case.” The court thus ultimately concluded that “there
[were] no special factors that would counsel against
[allowing] a Bivens remedy for Plaintiffs’ claims” and
accordingly allowed the plaintiffs to pursue their
Bivens claims against the ICE agents.
The district court also rejected the ICE agents’
claim of qualified immunity. The ICE agents asserted
that the complaint failed to allege “with the required
specificity” the involvement of each ICE agent. The
court disagreed, concluding that the plaintiffs “alleged
at this stage each [ICE agent’s] involvement with a
sufficient level of factual specificity to give ‘fair notice’
of the claims asserted against each individual and the
conduct relied on for those claims,” and that, as such,
the ICE agents “are not entitled to qualified immunity
on the ground that the plaintiffs have failed to state
with specificity each [ICE agent’s] involvement.”
10a
(Quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 545 (2007)).
From the district court’s order dated April 5, 2018,
denying their motion, the ICE agents filed this interlocutory appeal. See Wilkie v. Robbins, 551 U.S. 537,
549 n.4 (2007).
II
At its core, the plaintiffs’ complaint alleges that
ICE agents, in the context of enforcing the INA, violated their Fourth Amendment rights in stopping
them, detaining them, and entering their home, and
their Fifth Amendment rights in discriminating
against them based on their ethnicity. They seek
money damages under Bivens.
Such conduct, if engaged in by state officials, could
give rise to a cause of action under 42 U.S.C. § 1983.
But § 1983 does not provide a cause of action against
federal officials, and there is no analogous statute imposing damages liability on federal officials. In 1971,
however, the Supreme Court decided Bivens, holding
that, even absent statutory authorization, a man who
had alleged that federal narcotics officers had
searched his apartment and arrested him for alleged
narcotics violations without a warrant or probable
cause and that the officers had used unreasonable
force in so doing could sue those officers on an implied
claim for money damages under the Fourth Amendment. See Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388, 389–98 (1971).
In the decade following Bivens, the Court decided two other cases in which it held that,
notwithstanding the lack of a statutory cause of action, an implied damages remedy was available to
11a
redress certain constitutional violations. In the first,
Davis v. Passman, 442 U.S. 228 (1979), the Court held
that the equal protection component of the Fifth
Amendment’s Due Process Clause provided a damages remedy for an administrative assistant who
alleged that a Congressman fired her because she was
a woman. See id. at 248–49. And in the second, Carlson v. Green, 446 U.S. 14 (1980), the Court held that
the Eighth Amendment’s Cruel and Unusual Punishments Clause provided a damages remedy for the
estate of a prisoner who died due to the alleged failure
of federal jailers to treat his asthma. See id. at 19.
In the almost 40 years since Carlson, however, the
Court has declined to countenance Bivens actions in
any additional context. See Chappell v. Wallace, 462
U.S. 296, 297 (1983) (refusing to recognize a Bivens
remedy where enlisted servicemen alleged that their
officers discriminated against them based on race);
Bush v. Lucas, 462 U.S. 367, 390 (1983) (refusing to
recognize a Bivens remedy where a federal employee
alleged that his supervisor violated his First Amendment rights); United States v. Stanley, 483 U.S. 669,
671–72 (1987) (refusing to recognize a Bivens remedy
where a serviceman alleged that military officers violated his substantive due process rights); Schweiker v.
Chilicky, 487 U.S. 412, 414 (1988) (refusing to recognize a Bivens remedy for alleged violations of
procedural due process by Social Security officials);
FDIC v. Meyer, 510 U.S. 471, 473–74 (1994) (refusing
to recognize a Bivens remedy where an employee alleged that he was wrongfully terminated by a federal
agency in violation of due process); Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 63 (2001) (refusing to recognize a Bivens remedy where a prisoner alleged that a
12a
private prison operator violated his Eighth Amendment rights); Wilkie, 551 U.S. at 541 (refusing to
recognize a Bivens remedy where a landowner alleged
that officials from the Bureau of Land Management
violated the Due Process Clause); Minneci v. Pollard,
565 U.S. 118, 120 (2012) (refusing to recognize a
Bivens remedy where prisoners alleged that guards at
a privately operated federal prison violated their
Eighth Amendment rights).
The Court’s most recent guidance on the continued
availability of Bivens actions came in Ziglar v. Abbasi,
where the Court expressed open hostility to expanding Bivens liability and noted that “in light of the
changes to the Court’s general approach to recognizing implied damages remedies, it is possible that the
analysis in the Court’s three Bivens cases might have
been different if they were decided today.” 137 S. Ct.
at 1856. The plaintiffs in Abbasi — aliens who were
detained and held in the aftermath of the September
11 terrorist attacks — brought an action against certain executive officials and the wardens of the facility
in which they were held, alleging Fourth and Fifth
Amendment violations premised on the harsh conditions of their confinement and alleged abuse by prison
guards. Id. at 1851–53. The Court held that no Bivens
remedy was available for the conditions-of-confinement claims and accordingly concluded that those
claims should be dismissed. See id. at 1858–63. And it
remanded the prisoner abuse claims, holding that the
lower court had erred in concluding that such claims
arose in the same context as Carlson and had therefore failed to engage in the proper analysis. See id. at
1865. The Abbasi Court explained its outlook by noting that when Bivens, Davis, and Carlson were
13a
decided, “the Court followed a different approach to
recognizing implied causes of action than it follows
now.” Id. at 1855. More expansively, it stated:
[I]n light of the changes to the Courts’
general approach to recognizing implied
damages remedies, it is possible that the
analysis in the Court’s three Bivens
cases might have been different if they
were decided today. To be sure, no congressional enactment has disapproved of
these decisions. And it must be understood that this opinion is not intended to
cast doubt on the continued force, or even
the necessity, of Bivens in the searchand- seizure context in which it arose.
Bivens does vindicate the Constitution
by allowing some redress for injuries,
and it provides instruction and guidance
to federal law enforcement officers going
forward. The settled law of Bivens in this
common and recurrent sphere of law enforcement, and the undoubted reliance
upon it as a fixed principle in the law, are
powerful reasons to retain it in that
sphere.
Given the notable change in the Courts’
approach to recognizing implied causes
of action, however, the Court has made
clear that expanding the Bivens remedy
is now a “disfavored” judicial activity. Iqbal, 556 U.S., at 675. This is in accord
with the Courts’ observation that it has
“consistently refused to extend Bivens to
14a
any new context or new category of defendants.” [Malesko, 534 U.S. at 68].
Indeed, the Court has refused to do so for
the past 30 years.
Id. at 1856–57. Importantly, the Court emphasized
that the question of whether to provide a Bivens remedy should be informed and limited by separation-ofpowers principles:
When a party seeks to assert an implied
cause of action under the Constitution itself, just as when a party seeks to assert
an implied cause of action under a federal
statute,
separation-of-powers
principles are or should be central to the
analysis. The question is “who should decide” whether to provide for a damages
remedy, Congress or the courts? Bush,
462 U.S. at 380.
The answer most often will be Congress.
When an issue “‘involves a host of considerations that must be weighed and
appraised,’” it should be committed to
“‘those who write the laws’” rather than
“‘those who interpret them.’” Id. (quoting
United States v. Gilman, 347 U.S. 507,
512–13 (1954)). In most instances, the
Court’s precedents now instruct, the
Legislature is in the better position to
consider if “‘the public interest would be
served’” by imposing a “‘new substantive
legal liability.’” Schweiker, 487 U.S. at
426–27 (quoting Bush, 462 U.S. at 390).
As a result, the Court Has urged “caution” before “extending Bivens remedies
15a
into any new context.” Malesko, 534 U.S.
at 74.
Id. at 1857 (emphasis added).
Drawing from these principles and the prior cases
in which it declined to extend Bivens, the Court then
clarified the framework that now must be applied in
determining whether a Bivens remedy is available
against federal officials. See 137 S. Ct. at 1857–60.
First, courts must inquire whether a given case presents a “new Bivens context.” If the context is not new
— i.e., if the case is not “different in [any] meaningful
way” from the three cases in which the Court has recognized a Bivens remedy, id. at 1859 — then a Bivens
remedy continues to be available. But if the context is
new, then courts must, before extending Bivens liability, evaluate whether there are “special factors
counselling hesitation in the absence of affirmative action by Congress.” Id. at 1857 (emphasis added)
(cleaned up). If any such “special factors” do exist, a
Bivens action is not available.
The Court has made clear that, for a case to be “different in a meaningful way from [the three] previous
Bivens cases,” a radical difference is not required. Abbasi, 137 S. Ct. at 1859. Indeed, the Abbasi Court,
“without endeavoring to create an exhaustive list,”
provided several examples of “meaningful differences,” some of which are quite minor:
A case might differ in a meaningful way
because of the rank of the officers involved; the constitutional right at issue;
the generality or specificity of the official
action; the extent of judicial guidance as
to how an officer should respond to the
16a
problem or emergency to be confronted;
the statutory or other legal mandate under which the officer was operating; the
risk of disruptive intrusion by the Judiciary into the functioning of other
branches;or the presence of potential
special factors that previous Bivens
cases did not consider.
Id. at 1859–60; see also id. at 1865 (“The differences between [the Abbasi plaintiffs’ prisoner abuse
claims] and the one in Carlson are perhaps small, at
least in practical terms. Given this Court’s expressed
caution about extending the Bivens remedy, however,
the new-context inquiry is easily satisfied” (emphasis
added)).
And in determining whether “special factors” are
present to counsel hesitation in expanding Bivens,
courts must consider “whether the Judiciary is well
suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing
a damages action to proceed.” Abbasi, 137 S. Ct. at
1857–58. If a factor exists that “cause[s] a court to hesitate before answering that question in the
affirmative,” then a Bivens remedy is unavailable. Id.
at 1858. “In sum, if there are sound reasons to think
Congress might doubt the efficacy or necessity of a
damages remedy as part of the system for enforcing
the law and correcting a wrong, then courts must refrain from creating the remedy in order to respect the
role of Congress in determining the nature and extent
of federal-court jurisdiction under Article III.” Id. (emphasis added).
17a
III
Applying these principles to the case before us, we
address first whether this case arises in a new Bivens
context — a context distinct from the contexts in the
Supreme Court’s three Bivens cases. If the case does
arise in a new context, we must then inquire as to
whether there are “special factors counselling hesitation in the absence of affirmative action by Congress.”
Abbasi, 137 S. Ct. at 1857 (cleaned up).
A
The ICE agents contend that because this case
arises in the immigration context — i.e., because it
concerns ICE agents’ enforcement of the INA, rather
than traditional law enforcement officers’ enforcement of the criminal law, as in Bivens — it presents a
new Bivens context. The plaintiffs respond that while
this may be a difference, it is not a meaningful one, as
required by Abbasi. Indeed, they contend that this
case arises “squarely” in the same “search-and-seizure
context ‘in which [Bivens] arose’” (quoting Abbasi, 137
S. Ct. at 1856) and that, like in Bivens, the instant
action is against individual line-level officers for violations of the Fourth Amendment. In addition, the
plaintiffs argue that their allegations concern actions
taken prior to the commencement of any removal proceeding under the INA and therefore that the INA is
not relevant to the Bivens inquiry.
Agreeing with the ICE agents, we conclude that
the plaintiffs’ position fails to reckon with the Supreme Court’s specific guidance regarding the newcontext inquiry. Following that guidance, we find that
several of the differences identified in Abbasi are present in this case.
18a
First, “the statutory or other legal mandate under
which the officer[s] [were] operating” is distinct. Abbasi, 137 S. Ct. at 1860. The ICE agents were not
enforcing the criminal law, as in Bivens, but rather
were enforcing the immigration law of the INA. See
id. The plaintiffs attempt to trivialize this difference,
arguing at a general level that because the ICE agents
are “federal law enforcement officers” alleged to have
“committed unconstitutional searches and seizures,”
this case arises in the same context as Bivens regardless of the statutory mandate under which the ICE
agents were operating. Arguing at so general a level,
however, not only ignores the language of Abbasi, it
also fails to appreciate the substantively distinct aspects of immigration enforcement. Immigration
enforcement is by its nature addressed toward noncitizens, which raises a host of considerations and
concerns that are simply absent in the majority of traditional law enforcement contexts. Indeed, the
Supreme Court has recognized as such and has distinguished between immigration enforcement and
criminal law enforcement in the past. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1050–51 (1984) (holding that the criminal-law exclusionary rule does not
apply in removal proceedings); cf. id. at 1044 (noting
that “[m]ost arrests of illegal aliens away from the
border occur during farm, factory, or other workplace
surveys. Large numbers of illegal aliens are often arrested at one time, and conditions are understandably
chaotic”). And more generally, the INA takes an approach to enforcement that is distinct from the
approach taken by criminal laws, favoring arrest and
detention for the purpose of removal from the United
States, while the criminal law imposes incarceration
for the distinct purposes stated in 18 U.S.C. § 3553(a).
19a
Also, enforcement of the immigration laws implicates broad policy concerns distinct from the
enforcement of criminal law. Indeed, the plaintiffs recognized as much in their initial complaint, pointing
out the significance of the Trump Administration’s immigration policy to their case and emphasizing the
differences between the policies of the Obama Administration and the Trump Administration:
In contrast to the Obama Administration’s immigration enforcement policies
and practices, which discourage ICE
agents from stopping individuals absent
reasonable suspicion that the individuals had violated federal law, the January
25, 2017 Executive Order [of the Trump
Administration] and implementing guidance from [the Department of Homeland
Security] have encouraged a broader set
of enforcement priorities that “no longer
will exempt classes or categories of removable
aliens
from
potential
enforcement.”
(Citing Department of Homeland Security memoranda from the two Administrations).
In addition, as part of the new-context analysis,
the Abbasi Court “refused to extend Bivens to any . . .
new category of defendants,” and pointed out categories that had been found to be meaningfully distinct
from the three Bivens cases, such as “federal employer[s],” “military officers,” “Social Security
officials,” a “federal agency,” a “private prison operator,” “officials from the Bureau of Land Management,”
and “prison guards at a private prison.” Abbasi 137 S.
Ct. at 1857 (emphasis added). So it is in this case that
20a
the plaintiffs seek to extend Bivens liability to a new
category of defendants — ICE agents, who are
charged with the enforcement of the immigration
laws.
Further, the plaintiffs’ Fifth Amendment claims
have no analogue in the Supreme Court’s prior Bivens
cases. In effect, the plaintiffs attempt to wed the Fifth
Amendment equal protection claim of Davis v. Passman, which concerned a Congressman firing his
female secretary, see 442 U.S. at 230–31, with the
Fourth Amendment claim of Bivens. But such hybridization cannot alter the fact that the plaintiffs’ claim
of discrimination “bear[s] little resemblance to the
three Bivens claims the Court has approved in the
past.” Abbasi, 137 S. Ct. at 1860.
In short, as the Abbasi Court noted, “even a modest
extension is still an extension” for purposes of the
new-context analysis, 137 S. Ct. at 1864, and the district court was correct in recognizing this in its
opinion. Because the plaintiffs seek to extend Bivens
liability to a new context, we must now inquire as to
whether there are any “special factors counselling
hesitation [in extending Bivens liability] in the absence of affirmative action by Congress.” Id. at 1857.
B
In determining whether “special factors” are present, we focus on whether Congress might doubt the
need for an implied damages remedy. See Abbasi, 137
S. Ct. at 1858.
Arguing that “special factors” do exist in this case,
the ICE agents point to the complex and comprehensive nature of the INA, as well as the “sheer size” of
21a
the immigration system. They emphasize that Congress omitted a private damages remedy for
constitutional violations arising from immigration enforcement and investigations while pervasively
regulating other aspects of immigration policy and argue that this suggests that Congress intended to
exclude such a remedy. The Judiciary’s recognition of
such a remedy absent statutory authorization would
thus, according to the ICE agents, raise grave separation-of-powers concerns. In addition, the ICE agents
point to immigration’s relation to foreign policy and
diplomacy and contend that the plaintiffs’ action, in
purpose and effect, seeks to alter immigration enforcement policy, which is a role for the Executive, not the
Judiciary.
The plaintiffs, by contrast, argue that they are only
challenging “run-of-the-mill, unconstitutional law enforcement activity by individual law enforcement
agents” and that “this case is not about the U.S. ‘immigration system’” as such. The plaintiffs also
emphasize that, while the INA does provide “various
procedural mechanisms to individuals who have been
placed in removal proceedings,” the INA “does not provide a remedial scheme for violations committed by
immigration officials outside of removal proceedings.”
(Quoting Diaz-Bernal v. Myers, 758 F. Supp. 2d 106,
218 (D. Conn. 2010)).
Again, we conclude that the plaintiffs’ position
fails to take account of the Supreme Court’s specific
instructions about extending Bivens claims. As the
ICE agents argue, because immigration enforcement
is, at bottom, about ensuring that only those foreign
nationals who are legally authorized to be in the
United States remain present here, such enforcement
22a
has “the natural tendency to affect diplomacy, foreign
policy, and the security of the nation, which . . . counsel hesitation in extending Bivens.” Mirmehdi v.
United States, 689 F.3d 975, 983 (9th Cir. 2012)
(cleaned up); see also Abbasi, 137 S. Ct. 1861–62 (concluding that plaintiffs’ claims would “of necessity
require an inquiry into sensitive issues of national security” and that this fact “counsell[ed] hesitation ‘in
the absence of affirmative action by Congress.’” (citation omitted)); cf. Vanderklok v. United States, 868
F.3d 189, 209 (3d Cir. 2017) (“[T]he role of the TSA in
securing public safety is so significant that we ought
not create a damages remedy in this context”).
Moreover, immigration enforcement is “a context
in which Congress has designed its regulatory authority in a guarded way, making it less likely that
Congress would want the Judiciary to interfere.” See
Abbasi, 137 S. Ct. at 1858 (citing Chappell, 462 U.S.
at 302 (military); Stanley, 483 U.S. at 679 (same);
Meyer, 510 U.S. at 486 (public purse); Wilkie, 551 U.S.
at 561–62 (federal land)). Indeed, Congress took steps
to ensure that the protections it provided in the INA
would be exclusive of any additional judicial remedy.
See 8 U.S.C. § 1252(b)(9) (“Judicial 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 . . . shall be
available only in judicial review of a final order under
this section”); id. § 1252(g) (“Except as provided in this
section . . . , no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute
23a
removal orders against any alien”); id. § 1226(e) (limiting court review of the Attorney General’s decisions
to arrest and detain aliens).
In the same vein, where Congress has provided “an
alternative remedial structure . . . , that alone may
limit the power of the Judiciary to infer a new Bivens
cause of action.” Abbasi, 137 S. Ct. at 1858. And the
INA does indeed contain such a remedial structure.
See, e.g., 8 C.F.R. § 287.8 (establishing “standards for
enforcement activities” conducted under the INA); id.
§ 287.10 (providing for an “[e]xpedited internal review
process” of alleged violations of the standards established in § 287.8); id. §§ 236.1(d), 1003.38 (providing
persons detained under the INA an adversarial bond
hearing, with a right to appeal); 8 U.S.C. § 1229a(b)
(adversarial removal hearing); id. § 1252 (judicial review of removal orders); see also Alvarez v. ICE, 818
F.3d 1194, 1206 (11th Cir. 2016) (“The [INA] is ‘an
elaborate remedial system that has been constructed
step by step, with careful attention to conflicting policy considerations’” (quoting Bush, 462 U.S. at 388));
De La Paz v. Coy, 786 F.3d 367, 375–78 (5th Cir. 2015)
(detailing the INA’s “comprehensive regulation of all
immigration related issues,” including provisions
“specifically designed to protect the rights of illegal aliens,” and concluding that the INA “comprises . . . an
elaborate remedial scheme [that] precludes creation of
a Bivens remedy”).
The plaintiffs are correct that the protections provided by the INA do not include a money damages
remedy and often do not redress constitutional violations that occur apart from removal proceedings. But
this misses the point, for the relevant question “is not
what remedy the court should provide for a wrong that
24a
would otherwise go unredressed” but instead
“whether an elaborate remedial system . . . should be
augmented by the creation of a new judicial remedy.”
Bush, 462 U.S. at 388; see also Chilicky, 487 U.S. at
421–22 (“The absence of statutory relief for a constitutional violation . . . does not by any means
necessarily imply that courts should award money
damages against the officers responsible for the violation”).
Congress’s legislative actions in this area persuasively indicate that Congress did not want a money
damages remedy against ICE agents for their allegedly wrongful conduct, as indicated by its frequent
amendment of the INA and its repeated refusal to provide a damages remedy. See, e.g., REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 302; Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546;
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214; Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978;
Immigration Reform and Control Act of 1986, Pub. L.
No. 99-603, 100 Stat. 3359; Act of Oct. 20, 1976, Pub.
L. No. 94-571, 90 Stat. 2703; Act of Oct. 3, 1965, Pub.
L. No. 89-236, 79 Stat. 911; see also De La Paz, 786
F.3d at 377 (“Despite its repeated and careful attention to immigration matters, Congress has declined to
authorize damage remedies against individual agents
involved in civil immigration enforcement. The institutional silence speaks volumes and counsels strongly
against judicial usurpation of the legislative function”). And “legislative action suggesting that
Congress does not want a damages remedy is itself a
factor counseling hesitation.” Abbasi, 137 S. Ct. at
25a
1865; see id. at 1862 (concluding that, as regarded the
plaintiffs’ conditions-of-confinement claims, Congress’s failure to provide a damages remedy was
instructive given its “frequent and intense” interest in
the response to the September 11 attacks); id. at 1865
(reasoning that, as regarded the plaintiffs’ prisoner
abuse claims, Congress’s failure to provide “a
standalone damages remedy against federal jailers” in
the Prison Litigation Reform Act, which was enacted
after Carlson, arguably “suggests Congress chose not
to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment”).
Finally, Bivens actions “have never [been] considered a proper vehicle for altering an entity’s policy.”
Malesko, 534 U.S. at 74. Yet, this is what the plaintiffs
appear to want. Allegations that they made in their
initial complaint specifically targeted the Trump Administration’s immigration enforcement policy with
the purpose of altering it, even though they attempted
in their amended complaint to distance themselves —
at leastovertly — from alleging such a purpose, surely
to avoid this very discussion. But their purpose was
undoubtedly not abandoned, as betrayed by their extensive challenge to policy in their initial complaint
based on the same facts and by their contention that
the Trump Administration’s policy gave rise to the
conduct that they alleged in both complaints was illegal. See United States v. McKeon, 738 F.2d 26, 31 (2d
Cir. 1984) (“The law is quite clear that [superseded]
pleadings constitute the admissions of a party- opponent and are admissible in the case in which they were
originally filed as well as in any subsequent litigation
involving that party. A party thus cannot advance one
version of the facts in its pleadings, conclude that its
26a
interests would be better served by a different version,
and amend its pleadings to incorporate that version,
safe in the belief that the trier of fact will never learn
of the change in stories”). This attack on executive policy represents yet another “special factor counselling
hesitation.” Abbasi, 137 S. Ct. at 1860.
*
*
*
At bottom, we conclude that the plaintiffs’ complaint seeks to extend the Bivens remedy to a new
context and that the application of Bivens to this new
context causes us to hesitate, as it raises the substantial question of whether Congress would want the
plaintiffs to have a money damages remedy against
ICE agents for their allegedly wrongful conduct when
enforcing the INA. Accordingly, we conclude that no
Bivens remedy is available. Because of this ruling, we
do not reach the ICE agents’ claim of qualified immuity. See Wilkie, 551 U.S. at 549 n.4.
We therefore reverse the district court’s order
denying the ICE agents’ motion to dismiss and remand to the district court with instructions to dismiss
the plaintiffs’ action.
REVERSED
AND
INSTRUCTIONS
REMANDED
WITH
27a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MYNOR ABDIEL TUN-COS et al.,
Plaintiffs,
v.
B. PERROTTE et al.,
Defendants.
Civil Action No. 17-cv-943 (AJT/TCB)
ORDER
This matter is before the Court on Defendants’ Motion to Dismiss the First Amended Complaint [Doc.
No. 38] (the “Motion”). The Court held a hearing on
the Motion on January 26, 2018, following which it
took the matter under advisement. For the reasons
28a
stated herein, Defendants’ Motion is DENIED as to all
Plaintiffs. 1
I. BACKGROUND
This Bivens 2 action, filed on August 23, 2017,
challenges the legality of stops and home invasions on
two occasions. Defendants are agents of the Immigration and Customs Enforcement (“ICE”) who are
alleged to have conducted the illegal stops and
searches while operating as an ICE “Fugitive Operations Team.” Am. Compl. ¶ 2. More specifically, seven
Plaintiffs 3 allege that on February 8, 2017 in Arlington, Virginia, Defendants engaged in an early
morning “home invasion,” ostensibly in search of a
particular person, and after completing that search
without finding that person, Defendants arrested six
1 Also pending before the Court is Plaintiffs’ Motion for Leave to
File Notice of Supplemental Authority Regarding Defendants’
Motion to Dismiss, [Doc. No. 47] which the Court will grant.
2 Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
3 These Plaintiffs include Pedro Velasquez Perdomo, Luis Ve-
lasquez Perdomo, German Velasquez Perdomo, Eder Aguilar
Aritas, Nelson Callejas Peña, Eduardo Montano Fernández, and
Jose Cárcamo who were added as Plaintiffs by way of an
Amended Complaint on November 16, 2017. See [Doc. No. 25].
On December 22, 2017, the Court held a hearing on Defendants’
Motion to Strike the Seven Additional Plaintiffs from the
Amended Complaint. The Court denied that motion without prejudice to any future motions to sever claims for trial or in limine
evidentiary motions. [Doc. No. 35].
29a
of these seven Plaintiffs, 4 who were taken to an ICE
facility where they were detained for approximately
ten hours. Id. ¶¶ 31, 49, 51. They were also served
with a Notice to Appear dated February 8, 2017 “at a
time and place to be set.” [Doc. No. 39-3] (“Defs.’ Mem.
in Support, Ex. 3”).
The remaining two Plaintiffs, Mynor Tun-Cos
and Jose Saput, allege that during an early morning
February 17, 2017 encounter in Annandale, Virginia,
Defendants unlawfully stopped them in their vehicle,
asked for and received identification, 5 and then demanded a search of Saput’s nearby apartment to find
“the Houx-Hernandez brothers.” Amend. Compl. ¶¶
55-62. Once there, Defendants searched the apartment and after completing the search without locating
the Houx-Herandez brothers, arrested these two
Plaintiffs and took them to an ICE detention facility
in Lorton, Virginia in an unmarked van. Id. ¶¶ 62-63,
65, 67. They were subsequently released with instructions to return for periodic check-ins with ICE
officials. Id. ¶ 67.
All Plaintiffs assert two Bivens claims - one for
violation of Plaintiffs’ Fourth Amendment rights,
claiming that they were illegally stopped and their
homes illegally searched, and one for violation of the
Plaintiffs’ equal protection rights under the Fifth
4 Plaintiff Cárcamo was the only Plaintiff present during this en-
counter who not arrested and taken to an ICE facility. Amend.
Compl. ¶ 49.
5 Identification was provided by the Plaintiffs but not another
occupant.
30a
Amendment, claiming that they were targeted for illegal searches because of their Latino ethnicity. Id. ¶¶
1-4. Defendants move to dismiss the Amended Complaint on the grounds that under Section 242 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. §
1252, the Court lacks subject matter jurisdiction as to
the claims of all Plaintiffs except Cárcamo because of
the pending immigration removal proceedings against
those Plaintiffs. See 8 U.S.C. § 1252(b)(9). Alternatively, Defendants seek dismissal of the Amended
Complaint against all Plaintiffs on the grounds that
the Bivens remedy should not be extended to the constitutional claims asserted in this action; and that in
any event, they are entitled to qualified immunity.
Upon consideration of the Motion, the memoranda and exhibits in support thereof and in
opposition thereto, the arguments of counsel at the
January 26, 2018 hearing, and for the reasons stated
below, the Court concludes that (1) it has subject matter jurisdiction over the Plaintiffs’ Bivens claims; (2)
Plaintiffs have stated cognizable Bivens claims, as
those claims are against persons properly considered
federal law enforcement officers under circumstances
that sufficiently approximate those within the recognized contours of that remedy; and (3) Defendants are
not entitled to qualified immunity at this time with
respect to those claims, as Plaintiffs have sufficiently
alleged clear violations of a known constitutional
right.
II. STANDARD OF REVIEW
Pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure, a party may challenge a court’s
31a
subject matter jurisdiction in an action as an affirmative defense. A party may present a Rule 12(b)(1)
motion by contending either that a complaint fails to
allege facts upon which subject matter jurisdiction
can be based or that the jurisdictional allegations of
the complaint are not true. Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982). Once subject matter jurisdiction has been challenged, plaintiff, as the party
asserting jurisdiction, has the burden of proving that
subject matter jurisdiction does in fact exist. Piney
Run Preservation Ass’n v. Cty. Comm’rs of Carroll
Cty., 523 F.3d 453, 459 (4th Cir. 2008). When subject
matter jurisdiction is challenged on the grounds that
the complaint fails to allege facts sufficient to establish subject matter jurisdiction, “all the facts alleged
in the complaint are assumed true and the plaintiff,
in effect, is afforded the same procedural protection as
he would receive under a Rule 12(b)(6) consideration.”
Id. The Court is also required to regard the pleadings’
allegations as evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment. Adams, 697
F.2d at 1219; Trentacosta v. Frontier Pacific Aircraft
Indus., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) ). If a
district court lacks subject matter jurisdiction over an
action, the action must be dismissed. U.S. ex rel.
Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009).
A Rule 12(b)(6) motion to dismiss tests the legal
sufficiency of the complaint. See Randall v. United
States, 30 F.3d 518, 522 (4th Cir. 1994); Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1994). A claim should be dismissed “if, after accepting
all well-pleaded allegations in the plaintiffs complaint
32a
as true ... it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling
him to relief.” Edwards v. City of Goldsboro, 178 F.3d
231, 244 (4th Cir. 1999); see also Trulock v. Freeh, 275
F.3d 391, 405 (4th Cir. 2001). In considering a motion
to dismiss, “the material allegations of the complaint
are taken as admitted,” Jenkins v. McKeithen, 395
U.S. 411, 421 (1969) (citations omitted), and the court
may consider exhibits attached to the complaint,
Fayetteville Investors v. Commercial Builders, Inc.,
936 F. 2d 1462, 1465 (4th Cir. 1991).
III. ANALYSIS
Defendants move to dismiss this action on the
grounds that the (1) INA has eliminated the Court’s
subject matter jurisdiction over all of Plaintiffs’ constitutional claims except those of Plaintiff Cárcamo;
(2) the Court should not extend the Bivens remedy to
the constitutional claims against these Defendants,
given the context and the special factors and considerations related to that context; and (3) in any event,
Defendants are entitled to qualified immunity.
A. The Court has subject matter jurisdiction
over Plaintiffs’ Bivens claims.
Removal proceedings are pending against all
Plaintiffs but Cárcamo; and Defendants contend that
in light of those proceedings the Court does not have
jurisdiction over these Plaintiffs’ Bivens claims.
Section 242 of the INA, 8 U.S.C. § 1252, contains two provisions that restrict a district court’s
jurisdiction. Section 1252(a)(5) assigns “sole and exclusive jurisdiction” to the federal courts of appeals for
33a
judicial review of an order of removal. 6 Section
1252(b)(9), governing the “Consolidation of Questions
for Judicial Review,” provides in pertinent part that
“with respect to review of an order of removal under
subsection (a)(1), 7 ... all questions of law and fact, including the interpretation and application of
constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove an
alien from the United States ... shall be available only
in judicial review of a final order under this section.”
8 U.S.C. § 1252(b)(9). 8 The issue here is whether “the
6 Section 1252(a)(5) provides in pertinent part as follows:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any
other habeas corpus provision, and sections 1361 and
1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this
section shall be the sole and exclusive means for judicial review of an order of removal entered or issued
under any provision of this chapter . . . . (emphasis
added).
7 Section 1252(a)(1) provides in pertinent part that “[j]udicial re-
view of a final order of removal . . . is governed only by chapter
158 of Title 28 [titled Orders of Federal Agencies; Review]
8
Section 1252(b)(9) provides as follows:
(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection (a)(1), the following requirements apply:
***
34a
questions of law and fact” embodied in Plaintiffs’
Fourth and Fifth Amendment Bivens claims “aris[e]
from any action taken or proceeding brought to remove [Plaintiffs] from the United States.” See 18
U.S.C. § 1252(b)(9).
In I.N.S. v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court considered the scope of § 1252(b)(9). The
Court explained that “[ Section 1252(b)(9)’s] purpose
is to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals, but it
applies only ‘with respect to review of an a order of
removal under subsection (a)(1).’ ” St. Cyr, 533 U.S.
at 313 (alterations omitted) (quoting 8 U.S.C. §
1252(b)(9) ). 9
(9) Judicial review of all questions of law and fact, including the interpretation and application of
constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove
an alien from the United States under this subchapter
shall be available only in judicial review of a final order
under this section. Except as otherwise provided in this
section, no court shall have jurisdiction, by habeas corpus
under section 2241 or Title 28 or any other habeas corpus
provision, by section 1361 or 1651 of such title, or by any
other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
(emphasis added).
9 In St. Cyr, the Court considered whether the Court had subject
matter jurisdiction over a criminal habeas petition by an alien
who challenged his removability without the opportunity for a
35a
Applying the reasoning of St. Cyr, the lower
courts have concluded that § 1252(b)(9) does not apply to a variety of claims that do not challenge or
implicate the validity of a final order of removal
(whether or not yet issued). For example, in Singh v.
Gonzales, 499 F. 3d 969, 978 (9th Cir. 2007), the Ninth
Circuit concluded that § 1252(b)(9) did not deprive the
district court of jurisdiction over an ineffective assistance of counsel claim presented within a habeas
action, since the relief obtainable, if successful, was
limited to restarting the 30 day period to appeal a final order of removal to the court of appeals, rather
waiver of inadmissibility at the discretion of the Attorney General. Distinguishing between “judicial review” and “habeas
review,” the Court concluded that it had subject matter jurisdiction. St. Cyr., 533 U.S. at 313. Congress subsequently amended
§ 1252 (b)(9) in the REAL ID Act by adding language that explicitly included habeas petitions within its scope. Real ID Act of
2005, Pub.L. 109–13, 119 Stat. 231. That amendment, however,
did not affect the basis for the Court’s conclusion that §
1252(b)(9) applies only to a review of an a order of removal under
subsection (a)(1). See Singh v. Gonzales, 499 F. 3d 969, 978 (9th
Cir. 2007) (“The language added by the REAL ID Act does nothing to change or undermine that analysis [in St. Cyr].”);
Chezazeh v. Attorney General of the United States, 666 F.3d 118,
132 (11th Cir. 2012) (“Although St. Cyr issued prior to the REAL
ID Act, the REAL ID Act did not modify § 1252(b) or the instruction that § 1252(b)(9) applies only [w]ith respect to review or an
order of removal under section (a)(1).”) (citations omitted) (alteration in original).
36a
than invalidating an order of removal. 10 The Third
and Eleventh Circuits have likewise concluded that §
1252(b)(9) does not apply where, rather than challenge an order of removal, the challenge is based on
there being no order of removal. See Chehazeh v. U.S.
Atty. Gen., 666 F.3d 118, 131 (3d Cir. 2012) (“[T]he Supreme Court has noted that § 1252(b)(9) is subject to
limitations of § 1252(b), and therefore, ‘applies only
with respect to review of an order of removal under
subsection (a)(1).’ ”) (quoting St. Cyr, 533 U.S. at 313)
(alterations omitted); Madu v. U.S. Atty. Gen., 470
F.3d 1362, 1367 (11th Cir. 2006) (“Because we find
that [petitioner] does not challenge a final administrative order of removal or seek review of a removal
order, neither section 106(c) nor section 1252(a)(5) apply to this case.”) (internal quotation marks omitted).
To the extent that courts have concluded that claims
not directly challenging an order of removal are nevertheless within the scope of § 1252(b)(9), it has been
with respect to claims, such as a right to counsel
claim, that affect centrally the integrity of the removal
proceedings. See, e.g., Aguilar v. United States, 510
F.3d 1, 13 (1st Cir. 2007); J.E.F.M. v. Lynch, 837 F.3d
1026, 1035 (9th Cir. 2016).
In Aguilar, the First Circuit considered in
depth the scope of § 1252(b)(9). On the one hand, it
10 In reaching that conclusion, the court noted that according to
the legislative history § 106 of the REAL ID Act “ ‘would not preclude habeas review over challenges to detention that are
independent of challenges to removal orders. Instead, the bill
would eliminate habeas review only over challenges to removal
orders.’ ” Singh, 499 F. 3d at 978 (quoting H.R.Rep. No. 109-72,
at 175H.R.Rep. No. 109-72, at 175, 2005 U.S.C.C.A.N. 240, 299).
37a
rejected the contention that § 1252(b)(9) applies only
to “singular orders of removal or to removal proceedings simpliciter” and therefore does not apply to
claims based on actions that occurred before the institution of any formal removal proceedings. Aguilar,
510 F.3d at 9. On the other hand, it emphasized that
§ 1252(b)(9) is not “limitless in its scope.” Id. at 10.
The Court of Appeals recognized that while “[t]he
words ‘arising from’ do not lend themselves to precise
application, ... those words are not infinitely elastic”
and “cannot be read to swallow all claims that might
somehow touch upon, or be traced to, the government’s efforts to remove an alien.” Id. at 10. (internal
citations omitted). Overall, it concluded that “Congress’s choice of phrase suggests it did not intend §
1252(b)(9) to sweep within its scope claims with only
a remote or attenuated connection to the removal of
an alien.” Id. “Courts consistently have recognized
that the term ‘arising from’ requires more than a weak
or tenuous connection to a triggering event.” Id. (citations omitted). Noting, as the Ninth Circuit did in
Singh, that Congressional intent, as reflected in legislative history, was to create an exception for claims
“independent” of removal, the First Circuit characterized § 1252(b)(9) as a “judicial channeling provision,
not a claim - barring one.” Id. at 11. The First Circuit
therefore concluded that “ ‘arising from’ in section
1252(b)(9) . , , exclude[s] claims that are independent
of, or wholly collateral to, the removal process. Among
others, claims that cannot effectively be handled
through the available administrative process fall
within that purview.” Id. It also found relevant in determining the scope of § 1252(b)(9) whether its
application would “foreclose all meaningful judicial
review.” Id. at 14 (quoting Thunder Basin Coal Co.
38a
v. Reich, 510 U.S. 200, 212-13 (1994) (internal quotation marks omitted) ). With these principles in mind,
the First Circuit concluded that § 1252(b)(9) deprived
the district court of jurisdiction over a right to counsel
claim since that claim was “part and parcel of the removal proceeding itself.” Id. at 13 (“So viewed, an
alien’s right to counsel possesses a direct link to, and
is inextricably intertwined with, the administrative
process that Congress so painstakingly fashioned.”).
In short, the First Circuit viewed the right to counsel
claim as inseparable from the validity of any order of
removal that might issue from that proceeding. Id. at
13-14. It concluded otherwise, however, with respect
to the plaintiffs’ Fifth Amendment substantive due
process claims based on the treatment of their minor
children. 11 Id. at 19. It also cited with approval its
earlier decision that challenges to the legality of detention are not barred by § 1252(b)(9) and surmised
that constitutional challenges regarding the availability of bail would likewise fall outside that section’s
reach. Id. at 12.
In Jennings v. Rodriguez, 138 S. Ct. 830 (2018),
the Supreme Court recently considered how to determine under § 1252(b)(9) whether a legal question
“aris[es] from any action taken or proceeding brought
to remove an alien from the United States.” Considering that issue within the context of a Bivens claim
challenging an alien’s detention during immigration
removal proceedings without the opportunity for a
bail hearing, a majority of the Court concluded that §
11 The Court dismissed these claims, however, for failure to state
a claim. Id. at 24.
39a
1252(b)(9) did not deprive the district court of jurisdiction over those claims, albeit on different rationales.
Echoing but not citing the decision in St. Cyr, three
justices (Justices Ginsburg, Breyer, and Sotomayor),
in an otherwise dissenting opinion, concluded that §
1252(b)(9) did not apply because it “by its terms applies only ‘[w]ith respect to review of an order of
removal under [ § 1252(b)(9)].’ ” Id. at 876 (Breyer, J.,
dissenting) (alteration in original) (quoting 8 U.S.C.
§ 1252(b) ).
In Part II of the Court’s plurality opinion, two
other justices (Chief Justice Roberts and Justice Kennedy) concluded that § 1252(b)(9) did not deprive the
Court of jurisdiction based on essentially a causation
analysis. See id. at 839-41. In that regard, the plurality opinion “assume[d] for the sake of argument that
the actions taken [to detain without a bail hearing] . . .
constitute ‘actions taken to remove them from the
United States’ ” and with that assumption, identified
the dispositive issue as “whether the legal questions
that we must decide ‘arise from’ the actions taken to
remove these aliens.” Id. at 840 (alterations omitted)
(quoting 8 U.S.C. § 1252(b)(9) ). The plurality opinion
conceded that the legal question could be viewed in
that fashion “in the sense that if those actions had
never been taken, the aliens would not be in custody
at all.” Id. It rejected, however, that “expansive interpretation” because “cramming judicial review of those
questions into the review of final removal orders
would be absurd.” Id. Moreover, such an “expansive
interpretation of § 1252(b)(9) would lead to staggering
results[,]” including eliminating any review at all
since “[b]y the time a final order of removal was eventually entered, the allegedly excessive detention
40a
would have already taken place. And of course, it is
possible that no such order would ever be entered in a
particular case, depriving the detainee of any meaningful chance for judicial review.” Id. Under the
plurality opinion, the issue is not whether absent removal proceedings, the alien would have been
subjected to the challenged conduct but whether the
specific claims at issue, i.e., “the legal questions” in
the case, “arise from” the specific actions taken to remove the alien. 12 Overall, the plurality opinion
concluded that “it was not necessary for us to attempt
to provide a comprehensive interpretation. For present purposes, it is enough to note that [the detained
aliens] are not asking for review of an order of removal; they are not challenging the decision to detain
them in the first place or to seek removal; and they
are not even challenging any part of the process by
12 Within the context of the legal questions presented in Jen-
nings, the plurality opinion articulated this causation
differentiation as follows: “the applicability of § 1252(b)(9) turns
on whether the legal questions that we must decide arise from
the actions taken to remove these aliens.” Jennings, 138 S. Ct.
at 840 (emphasis added). There, the plurality opinion concluded
that the legal questions related to the decision not to afford a bail
hearing after detention were “too remote from the actions taken
to fall within the scope of § 1252(b)(9).” Id. Under this analysis,
it would appear that the plurality opinion in substance incorporates concepts that in other contexts recognize the difference
between “but-for transaction causation” (i.e., absence removal
proceedings, the alien would not have been subjected to the challenged conduct) and “loss causation” (i.e., the challenged conduct
issues directly out of some action necessary to the process of removing an alien).
41a
which their removability will be determined.” Id. at
841.
In a third opinion, Justice Thomas, joined by
Justice Gorsuch, concluded that § 1252(b)(9) did deprive the Court of jurisdiction, since even construing
§ 1252(b)(9) narrowly, “detention is an ‘action taken to
remove’ an alien.” Id. at 855 (Thomas, J.) (alterations
omitted) (quoting 18 U.S.C. § 1252(b)(9) ). He also considered misplaced the plurality’s concerns over
barring claims “far afield from removal” since
“[u]nlike detention during removal proceedings, those
actions [that the plurality viewed as too remote] are
neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my
conclusion that § 1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in
pursuit of the lawful objective of removal) says nothing about whether it also covers claims about
inhumane treatment, assaults, or negligently inflicted
injuries during detention (actions that go beyond the
Government’s lawful pursuit of its removal objectives).” Id. 13
Here, Plaintiffs claim that their Fourth and
Fifth Amendment rights were violated when certain
of the Plaintiffs were illegally targeted and stopped
13 Because his analysis is also premised on a sufficiently direct
link to the removal process, Justice Thomas’ analysis departs
from the plurality opinion not so much in its methodology but
rather in its assessment concerning how directly related the bail
hearing was to an action necessary for the authorized purpose of
removing an alien, i.e., detention. See Jennings, 138 S. Ct. at 85359 (Thomas, J.).
42a
and their homes illegally invaded. Based on those allegations, they are seeking damages. They “are not
asking for review of an order of removal; they are not
challenging the decision to detain them in the first
place or to seek removal; and they are not even challenging any part of the process by which their
removability will be determined.” Id. at 841. Likewise,
they are not challenging conduct that is “congressionally authorized nor meant to ensure that an alien can
be removed.” Id. at 855 (Thomas, J., concurring in
part). Rather, they are challenging “actions that go beyond the Government’s lawful pursuit of its removal
objectives.” Id. While the challenged conduct arguably
would not have happened absent the institution of removal proceedings, Defendants’ alleged violations of
Plaintiffs’ Fourth and Fifth Amendment rights are not
“a direct link to, and . . . inextricably intertwined
with, the administrative process that Congress so
painstakingly fashioned” or “part and parcel of the removal proceeding itself.” Aguilar, supra at 13. Two
Plaintiffs have raised in substance their Fourth and
Fifth Amendment claims in their removal proceedings
for the purpose of suppressing certain evidence. See
Defs.’s Ex. 1; Defs.’s Ex. 2. 14 But simply because the
14 See Defs.’ Ex. 1 (“Tun-Cos Mot. to Suppress Evid. & Term.
Procs., at 7-12; Defs.’ Ex. 2 (“Saput Mot. To Suppress Evid. &
Term. Procs.,” at 7-12 to Suppress Evidence and Terminate Proceedings”). Specifically. Plaintiffs Jose Saput and Mynor TunCos moved for suppression of evidence obtained as a result of Defendants’ unlawful seizure, interrogation, and detention of
Plaintiffs. contending Defendants had neither reasonable suspicion to justify a seizure nor reasonable suspicion to interrogate
them and that Defendants’ actions were based solely on Plaintiffs
43a
Defendants’ conduct may have consequences within
the removal proceedings does not equate their claims
with those that “arise from” an action or proceeding to
remove an alien. Further, the legal question to be considered during the removal proceedings in connection
with the two Plaintiffs’ motion for suppression is
somewhat different than under Bivens, as reflected by
the legal standards applicable to those respective
claims 15 as well as Plaintiffs’ request for damages
against ICE agents sued in their individual capacity.
In short, Plaintiffs’ success or lack of success in this
action will have absolutely no effect on the removal
proceedings, which cannot in any event grant Plaintiffs the relief they seek. For all the above reasons,
race, ethnicity, or perceived national origin. Defs.’s Ex. 1, 2; Defs.’
Ex. 2, 2.; cf. Am. Compl. ¶ 3 (“Defendant ICE agents violated
Plaintiffs’ clearly established constitutional rights by detaining
them at length without a reasonable, articulable suspicion” that
Plaintiff had violated any law but rather Defendants conducted
the unlawful searches and seizures on the basis Plaintiffs “appeared to be of Latino race or ethnicity.”).
15 Plaintiffs’ motion to suppress in their immigration proceedings
will be assessed by an “egregiousness” standard, See YanezMarquez v. Lynch, 789 F.3d 434, 450 (4th Cir. 2015) (“the exclusionary rule applies in removal proceedings to egregious
violations of the Fourth Amendment”); whereas, Plaintiffs’
Fourth Amendment claims will be assessed under the standard
of reasonableness. See INS v. Delgado, 466 U.S. 210, 215 (1984);
see also United States v. Mendenhall, 446 U.S. 544, 554 (1980).
44a
Plaintiffs’ claims are outside the scope of
1252(b)(9). 16
§
B. Plaintiffs have adequately alleged a plausible Bivens claim.
Defendants alternatively seek dismissal on the
grounds that the Bivens remedy Plaintiffs assert has
not been recognized by the Supreme Court under the
circumstances of this case and an extension of Bivens
in this case is unwarranted under established jurisprudence.
The Supreme Court recently outlined the following analysis for determining whether a claim
arises in a new Bivens context:
If the case is different in a meaningful way from
previous Bivens cases decided by this Court, the context is new. Without endeavoring to create an
exhaustive list of differences that are meaningful
enough to make a given context a new one, some examples might prove instructive. A case might differ in
16 In concluding that
§ 1252(b)(9) does not deprive the Court of
jurisdiction over the Plaintiffs’ claims, the Court joins other district courts that have uniformly reached the same conclusion
with respect to comparable claims. See, e.g., Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 123 (D. Conn. 2010) (finding jurisdiction
even with the existence of a final order since constitutional
claims did not arise out of the order of removal); see also Escobar
v. Gaines, No. 3-11-0994, 2014 WL 4384389, at *2 (M.D. Tenn.
Sept. 4, 2014) (finding court’s jurisdiction not stripped by §
1252(b)(9) over plaintiffs’ Bivens claims).
45a
a meaningful way because of the rank of officers involved; the constitutional right at issue; the generality
or specificity of the official action; the extent of judicial
guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory
or other legal mandate under which the officer was
operating; the risk of disruptive intrusions by the Judiciary into the functioning of other branches; or the
presence of potential special factors that previous
Bivens cases did not consider.
Ziglar v. Abbassi, 137 S. Ct. 1843, 1859-60
(2017). In determining whether a Bivens remedy
should be recognized in that case, the Court in Abbassi compared the respondents’ claims 17 to already
recognized Bivens claims 18 and noted that a new context arises in cases where “even a modest extension”
exists. Id. at 1864.
17 At issue in Abbassi were claims challenging the confinement
conditions imposed on illegal aliens pursuant to a high-level executive policy formulated in response to a terrorist attack.
Abbassi, 137 S. Ct. at 1860. The Supreme Court concluded that
those claims were significantly different and therefore a “new
context” than that in which Bivens had been previously applied.
Id.
18 The Supreme Court referenced “a claim against FBI agents for
handcuffing a man in his own home without a warrant; a claim
against a Congressman for firing his female secretary; and a
claim against prison officials for failure to treat an inmate’s
asthma.” (citing Davis v. Passman, 442 U.S. 228 (1979), Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and
Carlson v. Green, 446 U.S. 14 (1980) ).
46a
The alleged conduct in this case has the recognizable substance of Fourth Amendment violations.
Nevertheless, Defendants are ICE agents, rather than
traditional law enforcement officers, federal workplace supervisors, or prison officials and were
purporting to operate under a different “statutory or
other legal mandate” than the officials outlined in the
“traditional” Bivens claims referenced in Abbassi. For
these reasons, the Court assumes that this case presents a “modest extension” in a “new context” for the
application of a Bivens remedy and will therefore determine whether “(1) Congress has not already
provided an exclusive statutory remedy; (2) there are
no ‘special factors counseling hesitation in the absence
of the affirmative action by Congress; and (3) there is
no ‘explicit congressional declaration’ that money
damages not be awarded.” Hall v. Clinton, 235 F.3d
202, 204 (4th Cir. 2000) (quoting Bivens, 403 U.S. at
396-97).
Defendants do not contend that Congress has
already provided an exclusive statutory remedy for
Plaintiffs’ constitutional claims or that there is an “explicit congressional declaration that money damages
not be awarded.” The issue then reduces to whether
any “special factors” counsel against extending an implied right of action within the context of this case. As
identified in Abbassi, special factors include, among
others, whether Plaintiffs’ claims are the “proper vehicle for altering an entity’s policy,” Abbassi, 137 S.
Ct. at 1860; whether Plaintiffs’ challenges raise “separation-of-powers” concerns, id. at 1857 (internal
quotation marks omitted); and whether Congress’s interest has been “frequent and intense[,]” id. at 1862
(internal quotation marks omitted). Based on all the
47a
facts and circumstances involved with Plaintiffs’
claims, there are no “special factors” that counsel
against recognizing a Bivens remedy for the constitutional violations alleged in this case.
First, Plaintiffs are not challenging an entity’s
policy. 19 Rather, they are claiming straight-forward
violations of their Fourth and Fifth Amendment
rights based the Defendants’ conduct. Moreover, while
Defendants are ICE agents, they nevertheless fall
within the broad category of federal law enforcement
officers, whose conduct raises the same issues and
concerns as in Bivens. 20 Second, Plaintiffs’ claims do
not raise the same separation-of-power concerns that
in Abbassi counseled against the recognition of a
Bivens remedy. Lastly, Congress has not provided an
explicit remedy for Plaintiffs’ claims, nor has it precluded damages. In fact, the Supreme Court in Bivens
itself found significant that there was “no explicit congressional declaration that persons injured by a
federal officer’s violation of the Fourth Amendment
19 Defendants contend otherwise, based on the reference to Pres-
ident Trump’s immigration policy in the original Complaint.
That reference has been eliminated in the superseding Amended
Complaint, which does not base Plaintiffs’ claims on any such
policy. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th
Cir. 2001) (“an amended pleading ordinarily supersedes the original and renders it of no legal effect”) (internal quotation marks
omitted).
20 In this regard, Plaintiffs allege that during the alleged confron-
tations, some of the Defendants repeatedly identified themselves
as “the police.” See e.g., Am. Compl. ¶¶ 21, 22.
48a
may not recover money damages for the agents.” See,
e.g., Bivens, 403 U.S. at 397. 21 Defendants argue that
Congress’s intent to preclude a Bivens damages remedy can be found in its failure to provide for an explicit
damages remedy in the INA, while otherwise “aggressively” legislating in the immigration area. However,
while Congress can preclude a lesser remedy than a
Bivens action, here Congress has provided no remedy
whatsoever. Congress’s silence in this context does not
reliably reflect any Congressional intent to preclude a
Bivens damages remedy, particularly given the long
standing judicial recognition of a Bivens remedy for
the types of Fourth and Fifth Amendment claims asserted in this case. For these reasons, there are no
special factors that would counsel against a Bivens
remedy for Plaintiffs’ claims.
C. Defendants are not entitled to Qualified Immunity.
The doctrine of qualified immunity shields government officials from civil liability when their
conduct “‘does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.’ ” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) ). Whether the invocation of qualified immunity is appropriate therefore requires
courts to assess whether there was a violation of a constitutional right and whether the “right in question”
is one that is “ ‘clearly established.’ ” Vance v.
Rumsfeld, 701 F.3d 193, 197 (4th Cir. 2012) (quoting
21 Footnote missing.
49a
Pearson, 555 U.S. at 243). Whether a “clearly established” right has been violated is to be determined
within the specific context of the case and depends on
“[whether] it was clear to a reasonable officer that the
conduct in which he allegedly engaged was unlawful
in the situation he confronted.” Merchant v. Bauer,
677 F.3d 656, 662 (4th Cir. 2012) (quoting Figg v.
Schroeder, 312 F.3d 625, 635 (4th Cir. 2002) ). Further, government officials are entitled to qualified
immunity in cases where a plaintiff does not “plead
that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Defendants claim that they are entitled to
qualified immunity in their personal capacities on the
grounds that (1) Plaintiffs Saput and Tun Cos fail to
allege facts that make plausible that Defendants committed a clearly established Fourth Amendment
violation during the February 17, 2017 incident; (2)
the remaining Plaintiffs fail to allege with the required specificity each Defendant’s involvement in the
February 8, 2017 incident; and (3) all Plaintiffs have
failed to adequately plead a violation of the Fifth
Amendment.
1. Plaintiffs Saput and Tun Cos sufficiently allege “clearly established”
violations of the Fourth Amendment
during the February 17, 2017 incident.
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV.
Defendants concede for the purposes of the Motion
that an investigatory stop occurred, but that it was
50a
not unreasonable and therefore was not constitutionally infirm. At a minimum, Defendants contend that
under the circumstances alleged, they did not violate
a known, clearly established constitutional right.
Under the Fourth Amendment reasonableness
analysis, law officials “may initiate a brief investigatory stop if the officer had reasonable suspicion to
believe that ‘criminal activity may be afoot.’ ” United
States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968) ). “An investigatory stop must be justified by some objective
manifestation that the person stopped is, or is about
to be, engaged in criminal activity” and must be limited to satisfy the officer’s suspicion. United States v.
Cortez, 449 U.S. 411, 417(1981) (citations omitted); see
also Illinois v. Caballes, 543 U.S. 405, 407 (2005). The
Amended Complaint alleges facts sufficient to make
plausible that Fourth Amendment violations occurred. As alleged, Defendants pulled over Plaintiffs
Saput and Tun Cos based on their ethnicity and without reasonable suspicion that either was engaged in
criminal activity, and then engaged in what Plaintiffs
essentially allege was a pretextual investigation and
search based on their purporting to search for the
Houx-Hernandez brothers. See Am. Compl. ¶¶ 55, 61,
63, 79-81; see also United States v. Sundiata, 3 F.
Supp. 2d 682, 686 (E.D. Va. 1998) (“[R]ace is not a
proper basis for an investigatory stop . . . .”). Based on
the allegations, these Plaintiffs have alleged facts that
make plausible that Defendants lacked an “objective
manifestation” of illegality when they stopped and
questioned these Plaintiffs and violated a “clearly established” right by seizing and detaining these
Plaintiffs on the account of their race.
51a
2. Plaintiffs sufficiently allege with specificity each Defendants’ involvement in
the February 8, 2017 incident.
Plaintiffs have alleged at this stage each Defendants’ involvement with a sufficient level of factual
specificity to give “fair notice” of the claims asserted
against each individual and the conduct relied on for
those claims. 22 Plaintiffs allege that all Defendants
participated in either the February 8, 2017 or February 17, 2017 incidents; and to the extent the Amended
Complaint fails to allege Defendants’ full names as to
each incident, they have been identified based on the
information reasonably available to the Plaintiffs and
with sufficient specificity to provide notice to each Defendant of the claims asserted. 23 See Am. Compl. ¶¶
2, 18. For these reasons, Defendants are not entitled
to qualified immunity on the ground that the Plaintiffs have failed to state with specificity each
Defendants’ involvement.
3. All Plaintiffs have adequately alleged
Fifth Amendment violations.
22 A complaint satisfies the notice requirement of the pleading
requirement if it “ ‘give[s] the defendants] fair notice of what the
... claim is on the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson,
355 U.S. 41 (1957) ).
23 Plaintiffs allege that they have identified the Defendants as
they appear on their 1-213 form. Am. Comp. ¶ 18, n. 1 (“A Form
1-213 is an official record routinely prepared by an immigration
officer at the time of the initial processing of an individual suspected of being unlawfully present in the United States.”).
52a
Plaintiffs have also adequately pleaded that
they were discriminated against on the basis of race
or ethnicity. The law is well settled that the equal protection component of the Due Process Clause of the
Fifth Amendment “prohibit[s] the United States from
invidiously discriminating between individuals or
groups.” Washington v. Davis, 426 U.S. 229, 239
(1976) (citing Bolling v. Sharpe, 347 U.S. 497 (1954) ).
Specifically, Plaintiffs allege that Defendants intentionally “targeted, questioned, and seized Plaintiffs”
because of their “race, ethnicity, and/or perceived national origin.” Am. Compl. ¶ 85. Plaintiffs’ claims are
supported by their factual allegations that Defendants continued to detain them even though none of the
Plaintiffs resembled the suspects they were looking
for “other than that they all appear[ed] to be men of
Latino race or ethnicity.” Id. ¶ 64. As to Plaintiff Cárcamo, one Defendant asked if there were “other
Spanish families” living in the neighborhood, as the
Defendants questioned, searched, and seized Plaintiffs without reasonable, articulable suspicion that
they had violated the law. Id. ¶ 77. Based on the allegations, Plaintiffs have alleged facts sufficient to
make plausible their claims of Fifth Amendment violations.
IV. CONCLUSION
For the reasons stated above, the Court has
subject matter jurisdiction as to all claims by all
Plaintiffs, Plaintiffs have stated a Bivens claim
against the Defendants, and Defendants are not entitled to qualified immunity based on the allegations of
the Amended Complaint. Accordingly, it is hereby
53a
ORDERED that Plaintiffs’ Motion for Leave to
File Notice of Supplemental Authority Regarding Defendants’ Motion to Dismiss. [Doc. No. 47] be, and the
same hereby is, GRANTED; and it is further
ORDERED that Defendants’ Motion to Dismiss the First Amended Complaint [Doc. No. 38] be,
and the same hereby is, DENIED.
The Clerk is directed to forward copies of this
Order to all counsel of record.
s/ Anthony J. Trenga
Anthony J. Trenga
United States District Judge
Alexandria, Virginia
April 5, 2018
54a
APPENDIX C
FILED: August 22, 2019
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________
No. 18-1451
(1:17-cv-00943-AJT-TCB)
___________
Mynor Abdiel Tun-Cos, José Pajarito Saput, Luis Velasquez Perdomo, Eder Aguilar Aritas, Eduardo
Montano Fernández, Pedro Velasquez Perdomo, José
Cárcamo, Nelson Callejas Pena, and Germán Velasquez Perdomo,
v.
Plaintiffs-Appellees
B. Perrotte, T. Osborne, D. Hun Yim, P. Manneh,
and A. Nicholas
Defendants-Appellants
___________
ORDER
___________
The petition for rehearing en banc was circulated
to the full court. No judge requested a poll under Fed.
R. App. P. 35. The court denies the petition for rehearing en banc.
For the Court
s/ Patricia S. Connor, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.