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Media Alerts - Meshal v. Higgenbotham - D.C. Circuit
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October 26, 2015
  Meshal v. Higgenbotham - D.C. Circuit
Headline: Split D.C. Circuit panel holds Bivens action unavailable where underlying conduct occurred outside the United States.

Area of Law: National Security Law; Bivens; Fourth and Fifth Amendments

Issue(s) Presented: Whether a U.S. citizen may file a Bivens action against U.S. agents for alleged detention, interrogation, and torture occurring in three African countries.

Brief Summary: Appellant Amir Meshal, a U.S. citizen and resident, traveled to Somalia in 2006 and fled to Kenya after violence erupted. Kenyan authorities detained him in 2007, and U.S. officials subsequently began a four-month interrogation of Meshal in Somalia, Kenya, and Ethiopia during which agents allegedly tortured him and deprived him of access to counsel. Upon his release without charges, Meshal filed an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages for violation of his Fourth and Fifth Amendment rights. The U.S. District Court for the District of Columbia granted the government's motion to dismiss, concluding that a Bivens action was not available for U.S. citizens alleging maltreatment in the name of "intelligence gathering, national security, or military affairs." Meshal appealed.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed. The D.C. Circuit first noted that, since the 1971 issuance of Bivens, the Supreme Court had declined to extend Bivens in several contexts, concluding either that Congress had provided an alternative remedy or that "special factors counseled hesitation." The D.C. Circuit observed that the national security context counseled just such hesitation and cited its own precedents and cases from the Second, Fourth, and Seventh Circuits that declined to recognize a Bivens action where there was a perceived danger of obstructing U.S. national security policy.

The D.C. Circuit concluded that Meshal's claim - involving a potential damages remedy for actions occurring in a terrorism investigation conducted overseas - involved a new application of Bivens and implicated the extraterritorial application of constitutional protections, both of which dictated restraint in the absence of clear congressional action. The court rejected arguments of amici that the absence of any alternative remedy required recognition of a Bivens claim. Because recognition of any remedy would raise sensitive separation of powers concerns and might jeopardize U.S. antiterrorism interests abroad, the court left the determination to Congress and refused to imply a right of action. The court was not swayed by Meshal's U.S. citizenship, reasoning that "special factors counseling hesitation" did not turn on the identity of the plaintiff. Finally, the court rejected arguments of amici that congressional actions in 1973 and 1988 had served to ratify the Bivens action, reasoning that Congress could merely have thought Bivens was a constitutionally required decision it was not free to legislate away. The court concluded that Congress was best situated to provide a remedy if warranted and that, if the court was misconstruing Bivens, a course correction could come from the Supreme Court.

Judge Kavanaugh concurred separately, underscoring that it would anomalous to apply Bivens extraterritorially when the courts had not applied statutory causes of action for constitutional torts extraterritorially. He urged that Congress, not judges, had to decide whether to enact a cause of action covering Meshal's circumstances.

Judge Pillard dissented. She noted that Meshal was a U.S. citizen suing ordinary Bivens defendants, FBI agents. She believed that, because national security concerns were overstated, there were no "special factors" counseling hesitation in this case. Finally, she concluded that congressional action subsequent to 1971 had recognized Bivens and signified acquiescence in Bivens actions for cases like Meshal's.

For the full text of the opinion, please see$file/14-5194.pdf

Panel: Brown, Kavanaugh, and Pillard

Argument Date: May 1, 2015

Date of Issued Opinion: October 23, 2015

[B}Docket Number: 14-5194

Decided: Affirmed.

Case Alert Author: Elizabeth Earle Beske

Counsel: Jonathan Hafetz, Arthur B. Spitzer, and Hina Shamsi for appellant. Henry C. Whitaker, Ronald C. Machen Jr., Matthew M. Collette, and Mary H. Mason for appellees.

Patricia A. Heffernan, Ronald C. Machen, Jr., Elizabeth Trosman, Elizabeth H. Danello, and John P. Dominguez for Appellee.

Author of Opinion: Brown

Concurrence: Kavanaugh

Dissent: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 10/26/2015 12:13 PM     DC Circuit  

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