06-4216-cv Arar v. Ashcroft 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (In Banc Rehearing: December 9, 2008 Decided: November 2, 2009) 9 10 Docket No. 06-4216-cv 11 12 - - - - - - - - - - - - - - - - - - - - - -x 13 14 MAHER ARAR, 15 16 Plaintiff-Appellant, 17 18 - v.- 19 20 JOHN ASHCROFT, Attorney General of the 21 United States, LARRY D. THOMPSON, 22 formerly Acting Deputy Attorney General, 23 TOM RIDGE, Secretary of Homeland Security, 24 J. SCOTT BLACKMAN, formerly Regional 25 Director of the Regional Office of 26 Immigration and Naturalization Services, 27 PAULA CORRIGAN, Regional Director of 28 Immigration and Customs Enforcement, 29 EDWARD J. MCELROY, formerly District 30 Director of Immigration and Naturalization 31 Services for New York District, and now 32 Customs Enforcement, ROBERT MUELLER, 33 Director of the Federal Bureau of 34 Investigation, John Doe 1-10, Federal 35 Bureau of Investigation and/or Immigration 36 and Naturalization Service Agents, and JAMES 37 W. ZIGLAR, formerly Commissioner for 38 Immigration and Naturalization Services, 39 United States, 40 41 Defendants-Appellees. 42 43 - - - - - - - - - - - - - - - - - - - -x 1Before: JACOBS, Chief Judge, McLAUGHLIN,** CALABRESI, * 2 CABRANES, POOLER, SACK,** SOTOMAYOR,*** PARKER,** 3 RAGGI, WESLEY, HALL, and LIVINGSTON, Circuit 4 Judges. KATZMANN, Circuit Judge, took no part in 5 the consideration or decision of the case. 6 7 JACOBS, C.J., filed the majority opinion in which MCLAUGHLIN, 8 CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON, JJ., joined. 9 10 CALABRESI, J., filed a dissenting opinion in which POOLER, SACK, 11 and PARKER, JJ., joined. 12 13 POOLER, J., filed a dissenting opinion in which CALABRESI, SACK, 14 and PARKER, JJ., joined. 15 16 SACK, J., filed a dissenting opinion in which CALABRESI, POOLER, 17 and PARKER, JJ., joined. 18 19 PARKER, J., filed a dissenting opinion in which CALABRESI, 20 POOLER, and SACK, JJ., joined. 21 22 23 Appeal from a judgment of the United States District Court 24 for the Eastern District of New York (Trager, J.) dismissing 25 Plaintiff-Appellant Maher Arar’s complaint against John * Senior Circuit Judge McLaughlin was a member of the initial three-judge panel that heard this appeal and is therefore eligible to participate in in banc rehearing. See 28 U.S.C. § 46(c)(1). ** Senior Circuit Judges Calabresi, Sack, and Parker, who assumed senior status during the course of in banc proceedings, are entitled to participate pursuant to 28 U.S.C. § 46(c)(2). *** The Honorable Sonia Sotomayor, who was originally a member of the in banc panel and who participated in oral argument, was elevated to the Supreme Court on August 8, 2009. 2 1 Ashcroft, the Attorney General of the United States; Tom Ridge, 2 the Secretary of Homeland Security; Robert Mueller, the Director 3 of the Federal Bureau of Investigation; and others. Arar v. 4 Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006). Arar alleges 5 that he was detained while changing planes at Kennedy Airport in 6 New York (based on a warning from Canadian authorities that he 7 was a member of Al Qaeda), mistreated for twelve days while in 8 United States custody, and then removed to Syria via Jordan 9 pursuant to an inter-governmental understanding that he would be 10 detained and interrogated under torture by Syrian officials. 11 12 Arar’s complaint alleges violations of the Torture Victim 13 Protection Act (“TVPA”) and the Fifth Amendment. The District 14 Court dismissed the complaint. Id. at 287-88. A three-judge 15 panel of this Court unanimously held that: (1) the District 16 Court had personal jurisdiction over Thompson, Ashcroft, and 17 Mueller; (2) Arar failed to state a claim under the TVPA; and 18 (3) Arar failed to establish subject matter jurisdiction over 19 his request for a declaratory judgment. Arar v. Ashcroft, 532 20 F.3d 157 (2d Cir. 2008). A majority of the panel also dismissed 21 Arar’s Bivens claims, with one member of the panel dissenting. 22 Id. After in banc rehearing, the panel opinion is vacated and 3 1 the judgment of the district court is affirmed. 2 DAVID COLE (Maria Couri LaHood, 3 Jules Lobel, Katherine Gallagher, on 4 the brief), Center for 5 Constitutional Rights, New York, NY; 6 Joshua S. Sohn (on the brief), DLA 7 Piper US LLP, New York, NY, for 8 Plaintiff-Appellant. 9 10 JONATHAN F. COHN, Deputy Assistant 11 Attorney General (Gregory G. Katsas, 12 Assistant Attorney General; Benton 13 J. Campbell, United States Attorney; 14 Larry Lee Gregg, R. Joseph Sher, 15 Dennis C. Barghaan, Assistant United 16 States Attorneys; Mary Hampton 17 Mason, Jeremy S. Brumbelow, U.S. 18 Department of Justice, Civil 19 Division, Torts Branch; Barbara L. 20 Herwig, Robert M. Loeb, Michael 21 Abate, U.S. Department of Justice, 22 Civil Division, Appellate Staff, on 23 the brief), for Defendant-Appellee 24 John Ashcroft, the official capacity 25 Defendants-Appellees, and the United 26 States. 27 28 JEREMY A. LAMKEN (John J. Cassidy, 29 Jamie S. Kilberg, Paul J. Nathanson, 30 on the brief), Baker Botts L.L.P., 31 Washington D.C.; Stephen L. Braga 32 (on the brief), Ropes & Gray L.L.P., 33 Washington D.C., 34 for Defendant-Appellee Larry D. 35 Thompson. 36 37 Robin L. Goldfaden, American 38 Civil Liberties Union Foundation, 39 Immigrants’ Rights Project, San 40 Francisco, CA, for Amici Curiae 41 American Civil Liberties Union and 42 New York Civil Liberties Union in 43 support of Plaintiff-Appellant. 4 1 Burt Neuborne, New York, NY, for 2 Amici Curiae Norman Dorsen, Helen 3 Hershkoff, Frank Michelman, Burt 4 Neuborne, and David L. Shapiro, in 5 support of Plaintiff-Appellant. 6 7 Michael B. De Leeuw, Dale E. Ho, 8 Jonathan J. Smith, Fried, Frank, 9 Harris, Shriver & Jacobson LLP, New 10 York, NY, for Amicus Curiae NAACP 11 Legal Defense & Educational Fund, 12 Inc. in support of Plaintiff- 13 Appellant. 14 15 Sidney S. Rosdeitcher, Paul, 16 Weiss, Rifkind, Wharton & Garrison 17 LLP, New York, NY, for Amici Curiae 18 Retired Federal Judges in support of 19 Plaintiff-Appellant. 20 21 Nancy Morawetz, New York University 22 School of Law, New York, NY, for 23 Amici Curiae Law Professors in 24 support of Plaintiff-Appellant. 25 26 Alexander Yanos, Freshfields 27 Bruckhaus Deringer US LLP, New York, 28 NY, for Amicus Curiae Redress Trust 29 in support of Plaintiff-Appellant. 30 31 32 33 DENNIS JACOBS, Chief Judge: 34 35 Maher Arar appeals from a judgment of the United States 36 District Court for the Eastern District of New York (Trager, J.) 37 dismissing his complaint against the Attorney General of the 38 United States, the Secretary of Homeland Security, the Director 39 of the Federal Bureau of Investigation, and others, including 5 1 senior immigration officials. Arar alleges that he was detained 2 while changing planes at Kennedy Airport in New York (based on a 3 warning from Canadian authorities that he was a member of Al 4 Qaeda), mistreated for twelve days while in United States 5 custody, and then removed to Syria via Jordan pursuant to an 6 inter-governmental understanding that he would be detained and 7 interrogated under torture by Syrian officials. The complaint 8 alleges a violation of the Torture Victim Protection Act 9 (“TVPA”) and of his Fifth Amendment substantive due process 10 rights arising from the conditions of his detention in the 11 United States, the denial of his access to counsel and to the 12 courts while in the United States, and his detention and torture 13 in Syria. 14 The district court dismissed the complaint (with leave to 15 re-plead only as to the conditions of detention in the United 16 States and his access to counsel and the courts during that 17 period) and Arar timely appealed (without undertaking to amend). 18 Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006). A three- 19 judge panel of this Court unanimously held that: (1) the 20 District Court had personal jurisdiction over Thompson, 21 Ashcroft, and Mueller; (2) Arar failed to state a claim under 22 the TVPA; and (3) Arar failed to establish subject matter 6 1 jurisdiction over his request for a declaratory judgment. Arar 2 v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). A majority of the 3 panel also dismissed Arar’s Bivens claims, with one member of 4 the panel dissenting. Id. The Court voted to rehear the appeal 5 in banc. We now affirm. 6 We have no trouble affirming the district court’s 7 conclusions that Arar sufficiently alleged personal jurisdiction 8 over the defendants who challenged it, and that Arar lacks 9 standing to seek declaratory relief. We do not reach issues of 10 qualified immunity or the state secrets privilege. As to the 11 TVPA, we agree with the unanimous position of the panel that 12 Arar insufficiently pleaded that the alleged conduct of United 13 States officials was done under color of foreign law. We agree 14 with the district court that Arar insufficiently pleaded his 15 claim regarding detention in the United States, a ruling that 16 has been reinforced by the subsequent authority of Bell Atlantic 17 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Our attention is 18 therefore focused on whether Arar’s claims for detention and 19 torture in Syria can be asserted under Bivens v. Six Unknown 20 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) 21 (“Bivens”).