UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------x EHAB ELMAGHRABY and JAVAID IQBAL, Plaintiffs, - against - No. 04 Civ. 1809 (JG) (CLP) JOHN ASHCROFT, Attorney General of the United States, et al., Defendants. --------------------------------------------------------------x PLAINTIFFS’ MEMORANDUM OFLAW INOPPOSITIONTODEFENDANT ATTORNEYGENERALJOHNASHCROFT’S MOTIONTODISMISS THE URBAN JUSTICE CENTER and KOOB & MAGOOLAGHAN Haeyoung Yoon (HY-8962) Alexander A. Reinert (AR-1740) Attorneys for Plaintiffs Attorneys for Plaintiffs 666 Broadway, 10 th Floor 19 Fulton Street, Suite 408 New York, New York 10012 New York, New York 10038 Tel: 646-459-3003 Tel: 212-406-3095 [email protected][email protected]Case 1:04-cv-01809-JG-SMG Document 117-2 Filed 01/31/2005 Page 1 of 33
Transcript
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK--------------------------------------------------------------x
EHAB ELMAGHRABY and JAVAID IQBAL,
Plaintiffs,- against - No. 04 Civ. 1809 (JG) (CLP)
JOHN ASHCROFT, Attorney Generalof the United States, et al.,
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT ATTORNEY GENERAL JOHN ASHCROFT’S MOTION TO DISMISS
THE URBAN JUSTICE CENTER and KOOB & MAGOOLAGHAN
Haeyoung Yoon (HY-8962) Alexander A. Reinert (AR-1740)Attorneys for Plaintiffs Attorneys for Plaintiffs666 Broadway, 10th Floor 19 Fulton Street, Suite 408New York, New York 10012 New York, New York 10038Tel: 646-459-3003 Tel: [email protected][email protected]
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
I. DEFENDANT IS NOT ENTITLED TO QUALIFIED IMMUNITY......................3
A. Standard of Review......................................................................................3
B. Defendant Ashcroft Is Not Entitled to Qualified Immunity on Plaintiffs’ Procedural Due Process Claim (Count II)....................................................4
C. Defendant Is Not Entitled to Qualified Immunity on Plaintiffs’ First Amendment and Equal Protection Claims (Counts XI and XII)..................9
II. THIS COURT MAY ASSERT PERSONAL JURISDICTION OVERDEFENDANT ASHCROFT..................................................................................12
IV. PLAINTIFFS STATE A CLAIM FOR VIOLATIONS OF RFRA AND 42 U.S.C.§ 1985(3)................................................................................................................16
A. Plaintiffs State A Claim Under RFRA.......................................................16
B. Plaintiffs Adequately Pleads Violations of Their Clearly EstablishedRights Under 42 U.S.C. §1985(3)..............................................................18
V. PLAINTIFFS’ STATE A CLAIM UNDER ATCA...............................................19
A. This Court Has Subject Matter Jurisdiction over Plaintiffs’ ATCAClaim..........................................................................................................20
B. Plaintiffs’ ATCA Claim Should Proceed Against Defendant Ashcroft….20
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PRELIMINARY STATEMENT
This Memorandum of Law is submitted on behalf of plaintiffs Ehab Elmaghraby and
Javaid Iqbal in opposition to defendant John Ashcroft’s motion to dismiss plaintiffs’ First
Amended Complaint (“Compl.”). Defendant puts forth the following arguments in support of
dismissing the complaint: (1) he is entitled to qualified immunity from liability; (2) this Court
may not exercise personal jurisdiction over him; (3) the Immigration and Nationality Act
(“INA”) deprives this Court of jurisdiction over plaintiffs’ Bivens claims; (4) plaintiffs do not
state claims for relief under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §
2000bb and42 U.S.C. § 1985(3); and (5) this Court lacks jurisdiction over plaintiffs’ claims
under the Alien Tort Claims Act (“ATCA”).1
1In many ways, defendant Ashcroft’s arguments are similar to those already made by defendantsKathleen Hawk Sawyer and Dennis Hasty in their previously filed motions to dismiss. Therefore, whereappropriate and in the interest of brevity, plaintiffs will refer the Court to their Memorandum of Law inOpposition to Defendant Dennis Hasty and Kathleen Hawk Sawyer’s Motions to Dismiss (“Pls. Mem. of Law in Opp. to Defs. Hasty and Sawyer”).
Defendant’s first argument rests either on a combination assertions of fact that are not
contained in the complaint and defendant’s failure to credit the truth of plaintiffs’ allegations. As
this Court already has recognized, see Order in Turkmen v. Ashcroft, 02 Civ. 2307 (E.D.N.Y.
Dec. 3, 2004), at this stage of the proceedings, defendant cannot establish qualified immunity
without accepting the truth of all the facts alleged in the complaint. Defendant’s second
argument misconstrues the basis for asserting personal jurisdiction over defendant, and his third
argument is misplaced because plaintiffs are not challenging any conduct related to immigration
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proceedings. Defendant’s remaining arguments are similar to those that have been raised by
other defendants, and for many of the reasons already explained by plaintiffs, should not succeed
here. For these reasons, defendant’s motion should be denied.
STATEMENT OF FACTS
The Court’s familiarity withthe conditions of confinement experienced by plaintiffs
while detained at the Metropolitan Detention Center (“MDC”) is assumed. (Pls. Mem. of Law in
Opp. to Defs. Hasty and Sawyer 1–3.) For the purposes of this motion, however, it is necessary
to specify the specific bases for liability against defendant Ashcroft.
Contrary to a theme running throughout defendant’s brief, plaintiffs do not only seek to
hold defendant accountable for his approval of the policy of holding plaintiffs in highly
restrictive conditions until “cleared” by the FBI and his failure to establish deadlines for the
clearance policy. (Compl. ¶¶ 69, 74.) Defendant also “knew of, condoned, and willfully and
maliciously agreed to subject” plaintiffs to the ADMAX SHU conditions of confinement, “as a
matter of policy, solely on account of [plaintiffs’] religion, race, and/or national origin and for no
legitimate penological interest.” (id. ¶ 96) And defendant “willfully and maliciously designed a
policy whereby individuals such as Plaintiffs were arbitrarily designated to be confined in the
ADMAX SHU without providing any individual determination as to whether such designation
was appropriate or should continue.” (id. ¶ 97) This policy of arbitrarily confining plaintiffs to
the ADMAX SHU “bore no relationship to legitimate security concerns” and “constituted
unjustified punishment … and amounted to the willful, malicious, and unnecessary infliction of
pain and suffering.” (id. ¶ 98) Finally, defendant was aware of the unlawful conditions of
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confinement at the MDC, and he specifically targeted plaintiffs for mistreatment because of their
race, religion, and national origin. (id. ¶¶ 195, 198)
ARGUMENT
I. DEFENDANT IS NOT ENTITLED TO QUALIFIED IMMUNITY
A. Standard of Review
As plaintiffs already have established, the pleading requirements contemplated by the
Federal Rules of Civil Procedure contemplate that all plaintiffs’ factual allegations must be
construed to be true at this stage, without regard to whether they are “conclusory.”2 (Pls. Mem.
of Law in Opp. to Defs. Hasty and Sawyer 3–7.) The standard does not change when defendants
bring a motion to dismiss for qualified immunity. Indeed, the Supreme Court has made clear that
it will not “revise established rules that are separate from the qualified immunity defense.”
Crawford-El v. Britton, 523 U.S. 574, 595 (1998); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980).
Defendant nonetheless implies that only “nonconclusory” allegations are to be credited at
this stage, (Mem. of Law in Support of Mot. to Dismiss Claims Against Def. Ashcroft (“Def.
Ashcroft Br.”) 6), but the cases defendant cites do not support this proposition. The Supreme
Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001), nowhere relies on a distinction
between “conclusory” and “nonconclusory” pleadings. It states, in fact, that at the summary
judgment stage, after discovery has been completed, the first question is whether there was a
violation of a constitutional right “on the facts alleged,” and the second question is whether such
2Plaintiffs also dispute defendant’s characterization of the Complaint’s allegations as being “conclusory.”(E.g., Br. for Ashcroft 16 n.8, 17.)
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a right was clearly established. Id. at 200. Defendant cannot colorably maintain that, at the
motion to dismiss stage, the Court should give less weight to the facts as alleged by plaintiffs.
Similarly, defendant’s reliance on Back v. Hastings On Hudson Union Free School Dist.,
365 F.3d 107 (2d Cir. 2004), is misplaced. That case also was decided on summary judgment
after discovery, and states clearly that qualified immunity is to be judged upon the facts as
alleged by the plaintiff. Id. at 129–30. No alleged distinction between “conclusory” and
“nonconclusory” allegations played a role in its decision. Like other defendants, Attorney
General Ashcroft neither accounts for, nor even cites, the controlling decisions in Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002) and McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004).
Nor does Mitchell v. Forsyth, 472 U.S. 511 (1975), change any of this analysis. That
case, decided after discovery was completed, rejected the Attorney General’s argument that he is
entitled to absolute immunity instead of qualified immunity where national security interests are
implicated. Id. at 521–24. The Court was not concerned with the possibility that–even where
decisions regarding national security were at stake– the Attorney General “may on occasion have
to pause to consider whether a proposed course of action can be squared with the Constitution
and laws of the United States.” Id. at 524. The subtext of defendant’s principal argument that
the “extraordinary” circumstances after September 11 rendered all of his actions reasonable,
without regard to their constitutionality or legality (Def. Ashcroft Br. 9–15), is simply an attempt
to invoke the absolute immunity rejected in Mitchell.
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B. Defendant Ashcroft Is Not Entitled to Qualified Immunity on Plaintiffs’ Procedural Due Process Claim (Count II)
Defendant begins his argument as to plaintiffs’second cause of action by failing to
account for all of the allegations plaintiffs have made in their complaint, suggesting that plaintiffs
have only alleged that defendant established the “hold until cleared” policy and that he failed to
establish deadlines for the clearance process. (Def. Ashcroft Br. 7–8.) Plaintiffs’ have, however,
also alleged that defendant was aware of the conditions of confinement on the ADMAX SHU.
(Compl. ¶ 96.) And plaintiffs have alleged that defendant designed a policy of arbitrarily
confining plaintiffs in the ADMAX SHU without an individual determinations as to the
appropriateness of such placement, for no legitimate purpose (indeed, for a discriminatory
purpose), and contrary to BOP regulations.3 (Complaint ¶¶ 96, 97.) This in itself is sufficient to
state a procedural due process claim, as defendant concedes that due process requires adherence
to BOP regulations, (Def. Ashcroft Br. 15) and the law establishes that plaintiffs could not have
been detained in the ADMAX SHU unless for legitimate reasons. Bell v. Wolfish, 441 U.S. 520,
540 (1979).
3Plaintiffs have not alleged that the FBI determined when plaintiffs could be released to generalpopulation. (Def. Ashcroft Br. 9.) Plaintiffs have only alleged that defendant and others established thepolicy of keeping “high interest” detainees in punitive conditions of confinement, and that the FBI was aware that their categorization of detainees affected their conditions of confinement. (Compl. ¶¶ 69–71,73.)
The remainder of defendant’s argument is essentially a defense based on speculation
about the alleged threat posed by plaintiffs to this country’s national security. Defendant
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inappropriately invites the Court to consider numerous facts that are nowhere contained in the
complaint, and go far beyond defendant’s invitation to the Court to take judicial notice of the
“extraordinary circumstances” of September 11. In his argument, defendant asserts that
plaintiffs’ detention served “substantial national security interests,” (Def. Ashcroft Br. 10), that
plaintiffs were “unlawful aliens” atthe time of their detention (id. 12), that plaintiffs posed
“unprecedented security concerns” (id.), that plaintiffs could have been in danger from other
detainees in general population (id.), that plaintiffs were “connected with terrorist activities”
(id.), that disclosing information about plaintiffs would have “compromised the FBI’s terrorist
investigation,” (id. 13), and that the MDC’s decision to place plaintiffs in ADMAX SHU was
“driven by national security and foreign threat concerns” (id.). None of these facts is alleged in
the complaint and therefore cannot support defendant’s motion to dismiss.
Nor can defendant succeed by eliding the distinction between the FBI’s designation that
plaintiffs were of “high interest” and defendant’s apparent assumption that they thus represented
a “threat” beyond the expertise of prison officials. (Def. Ashcroft Br. 13.) First, plaintiffs are
entitled to see discovery to show that, to the extent that they were perceived as “threats” to
national security, such perception was firmly rooted not in any FBI designation (which was itself
based on irrational and illegitimate stereotyping (Complaint ¶ 48)), but upon defendant’s own
unlawful biases. Second, even accepting for the moment that defendant had some reason, other
than unlawful biases, to consider plaintiffs a “threat,” the regulations, as defendant readily
argues, are more than sufficient for prison officials to make a determination as to the reality of
that threat and whether it justifies administrative segregation. Defendant even had the power to
issue special administrative measures if he had reason to believe there was “a substantial risk that
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a prisoner's communications or contacts with persons could result in death or serious bodily
injury to persons, or substantial damage to property that would entail the risk of death or serious
bodily injury to persons.” 28 C.F.R. § 501.3 (a). Even in these cases, however, detainees are
given the right to seek a review of the determination. 28 C.F.R. § 501.3 (e).
Defendant will thus have to show, through discovery, that placement in detention
vindicated a purpose connected to plaintiffs’ “high interest” designation. Defendant cannotask
the Court to resolve that question at this stage, given the intensely factual nature of the inquiry.
Certainly defendant is not entitled to the inference that the “high interest” designation was
equivalent to a security threat designation that eliminated any need for due process.
Indeed, as far back as 1982, prison officials were scolded for putting a pretrial detainee
with an “alleged but unsubstantiated affiliation with a terrorist organization” in administrative
detention where she had not engaged in any prohibited act or demonstrated herself to be a threat
to security. Boudin v. Thomas, 533 F. Supp. 786, 791 (S.D.N.Y. 1982). In so doing the court
noted that the MCC had housed other detainees “allegedly linked with terrorist organizations
without resorting to the oppressive conditions” of administrative detention absent adequate
reasons. Id. Even those suspected of involvement in the first World Trade Center bombing have
been accorded the due process that was denied to plaintiffs. United States v. Suleiman, No 96
Cr. 933, 1997 WL 220308, *1–2 (S.D.N.Y. April 1, 1997). The court in Suleiman was faced
with an argument similar to that made by several defendants–that a terrorist suspect should be
segregated from general population for his own safety–but the court rejected the argument
because there was no evidence to support it in the record. Id. at *2. In so doing the court gave no
deference to the fact that prison administrators baldly stated that he should be kept in detention
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for “high security” reasons. Id. at *2. See also United States v. Lopez, 327 F. Supp. 2d 138, 143
(D. P.R. 2004) (rejecting administrative detention in absence of any evidence for government’s
assumption that “inmates facing the death penalty are inherently more prone to disrupt the
orderly running of the institution if they remain in the general population”).
Defendant disregards the admonition that “[d]ue deference does not mean blind
deference.” United States v. Gotti, 755 F. Supp. 1159, 1164 (E.D.N.Y. 1991). A court simply
will not accept “any statement of reason offered by a correction official,” withoutlooking at the
evidence in support of reason. Id. However, here defendant asks for the same absolute deference
that was denied by the court in Gotti.
Defendant makes a number of additional arguments that cannot be credited at this stage.
For instance, defendant argues that the emergency of September 11 made the individualized
determinations contemplated by the regulations unworkable. (Def. Ashcroft Br. 12–13.) But
even if this claim is borne out by further discovery, defendant will still have to show that
plaintiffs’ placement in ADMAX SHU was justified by legitimate security or penological
reasons. Defendant’s argument that “[r]egulations written in peacetime cannot circumscribe the
government’s discretion at a time of national emergency from foreign threats” (Def. Ashcroft Br.
14) is betrayed by the lack of support for this remarkable proposition4 and its conflict with
4In support of this contention, defendant cites a decades-old Third Circuit case which is ofquestionable relevance here. United States v. Butenko, 494 F.2d 593, 601 (3d Cir. 1974) (en banc).
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defendant’s own argument that plaintiffs’ detention was justified under valid BOP regulations.5
(Ashcroft Br. 12.)
5And even if the regulations were suspended during a time of national emergency, plaintiffs havean independent constitutional right to be free of arbitrary and irrational administrative detention. See Bell,441 U.S. at 539 (pretrial detainees may not be subject to restriction which is not reasonably related to alegitimate goal).
Defendant clearly seeks to justify the punitive treatment of plaintiffs on grounds that must
await discovery. Indeed, the case law that intersperses defendant’s bald allegations about
plaintiffs’ threat to national security only confirms that the justification for defendant’s conduct
must be tested through discovery. See Bell v. Wolfish, 441 U.S. 520 (1979) (assessing
legitimacy of government’s justification after full trial); Hewitt v. Helms, 459 U.S. 460 (1983)
(summary judgment); Mitchell, supra (decided on summary judgment); Brosseau v. Haugen, 125
S. Ct. 596 (2004) (per curiam) (decided on summary judgment).
Defendant ultimately asks this Court to leap from the threat posed by 9/11 to the
conclusion that plaintiffs were connected to that threat. (Def. Ashcroft Br. 11–12.) However,
plaintiffs’ allegation is quite the opposite: namely that they were targeted for irrational and
illegitimate reasons, their color and their creed. This is the heart of plaintiffs’ case: that even in
times of emergency there are fundamental principles that cannot be sacrificed. As the Supreme
Court recently reminded:
It is during our most challenging and uncertain moments that our Nation’s
commitment to due process is most severely tested; and it is in those times that we must
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preserve our commitment at home to the principles for which we fight abroad. See
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-165 (1963) (“The imperative necessity
for safeguarding these rights to procedural due process under the gravest of emergencies
has existed throughout our constitutional history, for it is then, under the pressing
exigencies of crisis, that there is the greatest temptation to dispense with guarantees
which, it is feared, will inhibit governmental action.”)Hamdi v. Rumsfeld, 124 S. Ct.
2633, 2648 (2004).
Defendant asks this Court to thrust those principles aside based on assertions of fact that
are nowhere contained in plaintiffs’ complaint. The motion to dismiss stage is not the
appropriate stage to test defendant’s assertions, however.
C. Defendant Is Not Entitled to Qualified Immunity on Plaintiffs’ First Amendment
and Equal Protection Claims (Counts XI and XII)
Defendant’s argument concerning plaintiffs’ discrimination claims under the First
Amendment and the Equal Protection Clause is based on a fundamental misreading of the First
Amended Complaint. Defendant labors under the misimpression that plaintiffs have failed to
allege in their complaint that defendant imposed a policy based on race, religion, and national
origin discrimination. Plaintiffs clearly have alleged such a policy. (Compl. ¶ 96.) Therefore,
defendant is simply incorrect that plaintiffs “cannot seriously contend that the Attorney General
sought them out and detained them, not on suspicion of their having connections to possible
terrorism, but because he sought to discriminate against them on religious or ethnic grounds.”
(Def. Ashcroft Br. 18.)
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With this clarification, defendant’s remaining contentions cannot stand. They are
essentially the same arguments made by defendants Hasty and Hawk Sawyer, which are not
colorable. As plaintiffs already have shown, it was clearly established in 2001 that pretrial
detainees may not be subjected to administrative detention on the basis of race or religion, absent
any other legitimate penological interest. (Pls. Mem. of Law in Opp. to Defs. Hasty and Sawyer
28–30, 34 n.25). And the existence of regulations that permit plaintiffs to practice their religious
faith is not particularly relevant to plaintiffs’ claim against defendant, which is not based on the
MDC’s failure to accommodate plaintiffs’ religious beliefs, but on the confinement of plaintiffs
in punitive conditions of confinement because of their religion. (Compl. ¶ 232.)
Defendant concedes that plaintiffs have alleged that the FBI’s classification was made
based on race, national origin, and religion, but argue that this only implies that “in many
(perhaps most) other cases,” the FBI’s classification was actually based on evidence of terrorist
involvement. (Def. Ashcroft Br. 17.) Defendant’s argument is unsupported by the pleadings and
of questionable logic and relevance. Even if other detainees were classified based on something
other than irrational considerations, it does not follow that such classifications involved evidence
of terrorist involvement. Nor does the possibility that other detainees were classified on facts
other thanrace, religion, and national origin support defendant’s argument that plaintiffs’
treatment was not motivated by discriminatory animus.6
6Defendant argues that plaintiffs are not positioned “to know whether a person’s detention was basedon evidence of involvement in terrorist activity.” (Def. Ashcroft Br. 17.) Defendant cannot avoid discovery by claiming that the Court should look behind plaintiffs’ allegations to determine whether plaintiffs are in a “position to know” whether the allegations are true. Defendant has an affirmative burdenin making a qualified immunity argument, and cannot support his motion by doubting the truth ofplaintiffs’ allegations.
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Defendant’s final attempt to justify the discriminatory treatment of plaintiffs by the
“legitimate role of distinction based on nationality in immigration law” is misplaced. By this
lawsuit, plaintiffs do not contest the government’s authority to arrest or detain them on criminal
charges, or to remove them from this country. Instead, plaintiffs contend that how they were
treated while they were detained on criminal charges was unlawful and based on defendant’s
discriminatory animus. Plaintiffs do not contend that during this period of detention they were
placed in removal proceedings or charged with violating immigration laws. Whatever the power
of the Executive to discriminate in the application of immigration law, there has never been a
suggestion that pretrial criminal detainees may be discriminated against on the basis of their
nationality, religion, or race. And even if distinctions based on nationality have a legitimate
place in immigration law, defendant does not and cannot argue that distinctions based on religion
or race have the same legitimate place.7
7Defendant’s statutory qualified immunity claims are based on the same argumentsmade insupport of dismissing plaintiffs’ constitutional claims. Accordingly, for the same reason that qualified immunity is improper as to the constitutional claims, dismissal of the statutory claims on qualifiedimmunity grounds is inappropriate.
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II. THIS COURT MAY ASSERT PERSONAL JURISDICTION OVER DEFENDANTASHCROFT
Defendant assumes that plaintiffs seek to establish personal jurisdiction on an agency
theory, underN.Y. C.P.L.R. § 302(a)(2). However, much like plaintiffs’ allegations as to
defendant Hawk Sawyer, here plaintiffs rely on the well-established authority to assert personal
jurisdiction where a defendant directs activity toward New York and the plaintiffs’ cause of
action arises out of that transaction. For the same reasons that personal jurisdiction is proper as
to defendant Hawk Sawyer under N.Y. C.P.L.R. § 302(a)(1), therefore, it is proper as to
defendant Ashcroft. (Pls. Mem. of Law in Opp. to Defs. Hasty and Sawyer 9–10). Moreover,
plaintiffs have made an initial threshold showing sufficient to seek discovery as to the extent
defendant’s contacts with New York State. Newbro v. Freed, 03 Civ. 10308, 2004 WL 691392,
*3 (S.D.N.Y. March 31, 2004) (federal court may issue limited discovery order if plaintiff has
“established that his jurisdictional position is not frivolous”).
III. PLAINTIFFS’ BIVENS ACTIONS ARE NOT PRECLUDED BY THE IMMIGRATION AND NATIONALITY ACT
Defendant argues that the Immigration and Nationality Act (“INA”) prohibits this Court’s
assertion of subjection matter jurisdiction over plaintiffs’ claims insofar as they are challenging
their detention pending removal. Plaintiffs, however, unlike plaintiffs in Turkmen v. Ashcroft,
02 Civ. 2307, are not challenging their detention pending removal. Moreover, plaintiffs were
detained at the MDC as pretrial detainees, and not as immigration detainees awaiting an
adjudication of removal proceedings or removal. As such, the INA and any remedial scheme the
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INA affords to immigration detainees are inapplicable to all claims plaintiffs have alleged against
defendant.8 To the extent that defendant argues that the INA’s remedial scheme constitutes a
“special factor” to preclude plaintiffs from seeking a Bivens remedy, defendant, again,
misconstrues the complaint.
Defendant also contends that “national security considerations” in the aftermath of
September 11 should constitute a “special factor counseling against creation of a Bivens
remedy.” (Def. Ashcroft Br. 22.) It is, however, unclear whether defendant is arguing that
plaintiffs are seeking to “expand Bivens into new contexts” with the purported challenge to their
detention pending removal or with their claims for violations of their constitutional rights. If
defendant maintains the former, again, he misconstrues the complaint. If defendant maintains the
latter, his argument is misplaced.
8All of the authority discussed by defendant refers to actions taken by the Attorney General inconnection with removal. Defendant relies on 8 U.S.C. § 1252(a)(B)(ii) to argue that judicial review ofdiscretionary decisions or actions of the Attorney General is precluded. (Def. Ashcroft Br. 20-21.) Thediscretion Section 1252(a)(B)(ii) affords defendant, however, is limited to his decisions or actionsspecified under 8 U.S.C. §§1151 et. seq, which only relates to immigration matters. Thus, Section1252(a)(B)(ii), as with the other authority cited by defendants, does not foreclose plaintiffs’ Bivensremedy.
Thirty years ago, the Supreme Court first recognized in Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971) that a violation of the Fourth Amendment by federal
officers gives rise to an implied private action for damages under the Fourth Amendment. Since
then, it has become well-settled that violations of the Fifth Amendment’s Equal Protection and
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Due Process Clauses are cognizable under Bivens. E.g., Davis v. Passman, 442 U.S. 228 (1979)
(recognizing Bivens action for gender discrimination claim under equal protection component of
the Due Process Clause). Courts have also recognized Bivens actions for free exercise claims
under the First Amendment. E,g, Salahuddin v. Dalsheim, No. 94 Civ. 8730, 1996 WL 384898,
*12 (S.D.N.Y. July 9, 1996) (denying qualified immunity for a claim for substantial burden on
exercise of religion in violation of the First Amendment.).
In fashioning a Bivens remedy, courts must consider whether there exist “special factors
counseling hesitation in the absence of affirmative action by Congress.” Bivens, 403 U.S. at 396.
In determining the presence of special factors, courts have looked to the existence of an
alternative remedial scheme or explicit statutory prohibition against the relief sought. Schweiker
v. Chilicky, 487 U.S. 412, 421 (1988); Bush v. Lucas, 462 U.S. 367, 368 (1983) (an existence of
an administrative review process crafted by Congress provided meaningful redress and thereby
militated against the creation of a Bivens remedy).
Plaintiffs’ claims for violations of their constitutional rights fall squarely into permissible
Bivens actions. Moreover, there are no special factors counseling against plaintiffs maintaining a
Bivens action. There is no explicit statutory prohibition against the relief being sought here, and
there is no alternative remedial scheme for plaintiffs to pursue.
Defendant’s contention that his “decisions” about “national security concerns” in the
aftermath of September 11 constitute special factors counseling against recognition of plaintiffs’
action is not supported by the case law he relies upon. Defendant first relies on Beattie v. Boeing
Co., 43 F. 3d 559 (10th Cir. 1994). In Beattie, an employer of a private company, Boeing, which
had a contract with the U.S. Air Force to build two aircrafts for use by the President, alleged that
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the denial of security clearance to work in the area of Air Force based on his off-duty political
activities was a violation of the First Amendment right to free speech. Id. at 563. The court
declined to recognize a Bivens action against Boeing on the basis that access to the Air Force is
analogous to a security clearance, to which no one has a “right,” and “the grant or denial of a
security clearance are the province of the Executive Branch.” Id. at 565. This case is clearly
distinguishable, where plaintiffs have alleged numerous violations of their rights in the context of
conditions of confinement, which is not the exclusive “province” of the Executive.
With Beattie, defendant implies that any action on the part of defendant, even if it is
violative of the Constitution, can be justified as a special factor counseling against recognition of
a Bivens action as long as he belongs to the Executive Branch and invokes “national crisis.”
This implication is refuted by a longstanding principle the Supreme Court recently affirmed in
Hamdi v. Rumsfeld, supra, which involved a challenge of detention of a United States citizen as
an enemy combatant without due process. The Court declared that “as threat to the national
security of the United States during ongoing international conflict, history and common sense
teach us that an unchecked system of detention carries the potential to become a means of
oppression and abuse ofothers who do not present that sort of threat.” 124 S. Ct. at 2647.
Defendant’s implication further runs counter to the core purpose of Bivens, which was “to deter
individual officers from committing constitutional violations.” Correctional Services v. Malesko,
534 U.S. 61, 71 (2001).
Similarly, defendant’s reliance on Chappell v. Wallace, 462 U.S. 296 (1983) and United
States v. Stanley, 483 U.S. 669 (1987) are equally flawed. Both cases involved military
personnel who alleged violations of their constitutional rights against their superior officers. In
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Chappell, service men alleged racial discrimination in duty assignments and performance
evaluations. 462 U.S. at 297. The Supreme Court declined to recognize a Bivens claim because
the military personnel are subject to a “special and exclusive system of military justice,” which
was created by Congress with explicit grant of plenary authority given by the Constitution. Id. at
299–300. In reaching its holding, the Court underscored the fundamental difference in the
existence of two separate systems of justice for military personnel and civilians. Id. at 300 (“[N]o
military organization can function without strict discipline and regulation that would be
unacceptable in a civilian setting.”). In Stanley, a member of the military sought a Bivens
remedy for the injuries he sustained as a result of being secretly administered doses of lysergic
acid diethylamide (LSD). 483 U.S. at 671. Affirming the reasoning the Supreme Court reached
in Chappell, the Court held that “congressionally uninvited intrusion into military affairs by the
judiciary is inappropriate,” Id. at 683, and therefore any injuries arising out of activities “incident
to service” are not entitled to a Bivens remedy, Id. at 685. As the Supreme Court pointed out in
Chappell, the existence of special factors counseling against Bivens actions for military
personnel does not apply to constitutional violations alleged by civilians.
IV. PLAINTIFFS STATE A CLAIM FOR VIOLATIONS OF RFRA AND 42 U.S.C. §1985(3)
A. Plaintiffs State A Claim Under RFRA
Defendant argues that plaintiffs fail to state a cause of action under RFRA,
because he cannot violate RFRA by discriminating on the basis of an individual’s religious
beliefs, and because the placement of plaintiffs in ADMAX SHU did not “substantially burden”
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their ability to practice their religion. (Def. Ashcroft Br. 22–23.) Defendant’s argument is based
on a faulty initial premise concerning RFRA’s reach. As an initial matter, plaintiffs already have
established that discrimination on the basis of religious belief violates the Free Exercise Clause,
even when the discrimination does not directly affect the victim’s ability to practice his or her
religion. (Pls. Mem. of Law in Opp. to Defs. Hasty and Sawyer 28–29.) Moreover, RFRA
incorporates a definition of “exercise of religion” that is less rigorous than what is required for
First Amendment claims. The definition of what constitutes an “exercise of religion” under
RFRA is contained in the Religious Land Use and Institutionalized Persons Act of 2000, 42
U.S.C. §§ 2000-cc, et seq. (“RLUIPA”). See 42 U.S.C. § 2000bb-2(4) (referring to 42 U.S.C. §
2000cc-5). RLUIPA, in turn, defines “religious exercise” as “any exercise of religion, whether or
not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). This
definition is substantially broader than the definition incorporated by the First Amendment. See,
Defendant’s argument rests on the inference that the State does not “put substantial
pressureon an adherent to modify his behavior and to violate his beliefs” by subjecting the
adherent to harsher conditions of confinement than individuals who practice a different religion.
Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (internal quotation marks omitted). But
RFRA’s prohibition on government conduct that burden’s religious practice, even where the
conduct is the outcome of generally applicable rules, 42 U.S.C. § 2000bb-1(a), creates the strong
inference that RFRA intended to protect against intentional discriminatory conduct as well.
Finally, even if RFRA’s reach only extends to government conduct that directly interferes with
plaintiffs’ religious exercise, an issue of fact remains as to whether plaintiffs will be able to show
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that the consequences of being confined in the ADMAX SHU (such as their isolation from group
prayer on Friday and the interruption of their prayers) substantially burdened their exercise of
religion.9
B. Plaintiffs Adequately Pleads Violations of Their Clearly Established RightsUnder 42 U.S.C. §1985(3)
Defendant makes two arguments as to why plaintiffs’ claims under 42 U.S.C. §1985(3)
(Count 16 and 17) should be dismissed: (1) plaintiffs have failed to allege defendant’s
involvement in violation of their clearly established rights; and (2) Section 1985(3) does not
reach misconduct committed by federal officers. Defendant’s second argument is foreclosed by
Griffin v. Beckenridge, 403 U.S. 88 (1971) and will not be discussed in detail here. (See Pls.
Mem. of Law in Opp. to Defs. Hasty and Sawyer 41–43.)
To make out a violation of 42 U.S.C. § 1985(3), a plaintiff must allege and prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the
United States. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828-829 (1983). With
respect to the second element, a plaintiff must show that the conspiracy was motivated by some
9With respect to defendant’s claim that RFRA does not reach his conduct in an individual capacity, RFRA clearly applies to an “official (or other person acting under color of law) of the United States.” 42 U.S.C. § 2000bb-2(1). Plaintiffs have alleged that defendant was acting under color of law.(Compl. ¶ 46.)
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racial, or perhaps other class-based, invidiously discriminatory animus to deprive one of equal
protection, or of equal privileges and immunities under the laws. Id.
To survive a motion to dismiss on a conspiracy claim, a plaintiff “‘must provide some
factual basis supporting a meeting of the minds, such that defendants entered into an agreement,
express or tacit, to achieve the unlawful end.’” Webb v. Goord, 340 F.3d 105, 110 (2d Cir.
2003) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346, 362 (S.D.N.Y. 2000) (citation
omitted)). Plaintiffs are also required to allege “with at least some degree of particularity, overt
acts which defendants engaged in which were reasonably related to the promotion of the claimed
conspiracy.” Thomas v. Roach, 165 F. 3d 137, 147 (2d Cir. 1999).
Plaintiffs have adequately alleged defendant’s involvement in the conspiracy to
discriminate against plaintiffs on account of their race, national origin, and religious beliefs.
Plaintiffs have alleged that defendants discussed and agreed with other named defendants to
subject plaintiffs to highly restrictive conditions of confinement without affording any due
process as a matter of policy because of their race, national origin and religious beliefs. (Compl.
¶¶ 69, 74, 96, 97). Plaintiffs have also adequately alleged defendant’s discriminatory treatment
of plaintiffs by alleging that plaintiffs were Arab Muslim men, and that they were placed in
restrictive confinement and subjected to harsher conditions of confinement than those prisoners
in general population on account of their race, national origin and religious beliefs. See supra
Part I.F; see also White v. Frank,680 F. Supp. 629, 640 (S.D.N.Y. 1988) (finding plaintiff’s
allegation that he is black, the defendants are white, and that race was the motivation for the
alleged conspiracy was sufficient to make out racial animus).
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V. PLAINTIFFS STATE A CLAIM UNDER ATCA
Defendant makes two terse arguments as to why plaintiffs’ claim under ATCA (Count
21) should be dismissed: (1) that plaintiffs have failed to make out a violation of international
law; and (2) that the United States should be substituted as the defendant in plaintiffs’claim
under ATCA.
A. This Court Has Subject Matter Jurisdiction over Plaintiffs’ ATCA Claim
As plaintiffs already have discussed in detail, their claim for a right to be free from cruel,
inhuman and degrading treatment fall into the class of international norms the Supreme Court
recently held to be permissible basis for causes of action under Sosa v. Alvarez-Machain, 124 S.
Ct. 2739 (2004). (Pls. Mem. of Law in Opp. to Defs. Hasty and Sawyer 46–47.) Therefore, this
Court has subject matter jurisdiction over their ATCA claim.
B. Plaintiffs’ ATCA Claim Should Proceed Against Defendant Ashcroft
Defendant also contends that pursuant to 28 U.S.C. §2679(d)(1), the United States should
be substituted as defendant in plaintiffs’ claim under ATCA. Although it is not stated explicitly,
defendant is asserting that Section 2679, which codified the Federal Employees Liability Reform
and Tort Compensation Act of 1988, confers immunity on him by making an FTCA action
against the United States the exclusive remedy for plaintiffs’ claim under ATCA. See 28 U.S.C.
§ 2679(b)(1); United States v. Smith, 499 U.S. 160, 163 (1991) (“the Federal Employees
Liability Reform and Tort Compensation Act of 1988 confers absolute immunity by making an
FTCA action against the Government the exclusive remedy for torts committed by Government
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employees in the scope of their employment.”).
Defendant overlooks Section 2679(b)(2) which expressly preserves federal employee
liability for a civil action “which is brought for a violation of a statute of the United States under
which such action against an individual is otherwise authorized.” 28 U.S.C. §2679(b)(2)(B).
This exception was intended to ensure thatSection 2679(b)(1) “did not alter available relief for
violations of federal statutes for which there is a private right of action.” Woods v. McGuire, 954
F. 2d 388, 391 (6th Cir. 1992) (citing H.R. Rep. No. 700, 100th Cong., 2d Sess. at 7). In Sosa,
the Supreme Court held that ATCA is a federal statute that permits a private right of action based
on international norms that have a definite content and widespread acceptance. 124 S. Ct. at
2761-2762. Thus, so long as plaintiffs’ claim to be free from cruel, inhuman and degrading
treatment satisfy the understanding reached by the Supreme Court in Sosa, plaintiffs’ claim under
ATCA fall squarely in the express exception of Section 2679(b)(2)(B).10 In Jama v. United
States Immigration and Naturalization Service, the court applied this reasoning, and denied INS
officials’ request for dismissal of a claim to be free from cruel, inhuman and degrading treatment
under ATCA on the grounds that they are not entitled to immunity in their individual capacities.
10 In Smith, the Supreme Court addressed whether §2679 immunizes a federal employee doctorfrom liability for malpractice committed in a foreign country where the Gonzales Act, 10 U.S.C. § 1089,which provides the Government to be substituted as defendant in suits against military medical personnelfor torts committed within the scope of their employment. 499 U.S. at 162. While the central issue theSmithCourt addressed was “whether, by designating the FTCA as the ‘exclusive remedy,’ [§2679(b)(1)] precludes an alternative mode of recovery against a Government employee in cases where the FTCA itselfdoes not provide a means of recovery,” and did not question the lower court’s determination that the Gonzales Act would not immunize the federal employee doctor from a malpractice suit, the Court in dictastated that “the Gonzales Act functions solely to protect military medical personnel from malpracticeliability; it does not create rights in favor of malpractice plaintiffs.” Id. at 172. The Court’s understanding of the Gonzalez Act is instructive here to the extent that ATCA is distinguishable from the Gonzalez Act inthat as long as plaintiffs’ claim satisfy the understanding of ATCA’s reach expressed by the Supreme Court in Sosa, ATCA is a federal status that “creates rights in favor” of plaintiff and thus fall under the express exception of §2679(b)(2)(B).
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22 F. Supp. 2d 353, 365 (D.N.J. 1998).
CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that the Court deny defendant’s
motion to dismiss.
Dated: New York, New YorkJanuary 14, 2005
Respectfully Submitted,
THE URBAN JUSTICE CENTER and KOOB & MAGOOLAGHAN
By: s:/Haeyoung Yoon By: s:/Alexander A. ReinertHaeyoung Yoon (HY-8962) Alexander A. Reinert (AR-1740)
Attorneys for Plaintiffs Attorneys for Plaintiffs666 Broadway, 10th Floor 19 Fulton Street, Suite 408New York, New York 10012 New York, New York 10038Tel: 646-459-3003 Tel: [email protected][email protected]
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