Circuit declines en banc review in Turkmen detention case

A few months ago, the Court of Appeals said that a man could sue the United States Attorney General for constitutional violations resulting from his restrictive detention on account of his ethnic background. That 2-1 ruling is now the subject of a debate at the Court of Appeals, which has decided not to hear the case en banc.

The case is Turkmen v. Hasty. The order denying en banc review was issued on December 11. Turkmen is a case growing out of the government's response to the 9/11 attacks. As Judges Pooler and Wesley write in declining to the hear case again, "The Attorney General is alleged to have endorsed the restrictive detention of a number of men who were Arabs or Muslims or both—or those who appeared to fit those categories—that resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue."

En banc means the whole court. Three judges hear each case. Overall, 13 judges sit on the Court of Appeals (not including judges on senior status). If an issue is important enough, all 13 will re-hear a case. But that is a rare occurrence, usually happening maybe once per year. When en banc review is denied, the judges in dissent from that order usually complain that the Second Circuit does not grant en banc review enough.

Writing for the judges who want to take up this case again, Judge Jacobs says, "The panel decision raises questions of exceptional importance meriting further review. These concern our court’s faithful adherence to controlling Supreme Court precedent respecting (1) the narrow scope of Bivens actions, (2) the broad shield of qualified immunity, and (3) the pleading standard for plausible claims." The dissenters want the courts to defer more to the Executive Branch on matters of national security in a post-9/11 world, and question whether the Second Circuit in this case properly extended (the usually narrow) Bivens liability to this case. (Bivens says the federal government can be sued for constitutional violations in certain circumstances). The judges also want to reconsider whether the defendants are entitled to qualified immunity, which gets defendants off the hook if they are accused of violating rights that were not entirely clear at the time.

According to the dissenting judges, other Circuits have reach a contrary conclusion on whether Bivens can apply in a case like this. "The panel decision puts this court at odds not only with these sister circuits, but also with controlling Supreme Court precedent in the following three areas of law." This means the judge are inviting the government to seek Supreme Court review. And I sure they will do so.