Amir Meshal v. Chris Higgenbotham
420 U.S. App. D.C. 1
| D.C. Cir. | 2015Background
- Amir Meshal, a U.S. citizen, alleges FBI agents detained, interrogated, threatened (rendition/torture) and moved him across Kenya, Somalia, and Ethiopia for ~4 months in 2007 during an alleged terrorism investigation; he was never charged and later returned to the U.S.
- Meshal sued individual FBI agents under Bivens for violations of the Fourth Amendment (unlawful detention) and Fifth Amendment (due process; threats/coercion) seeking damages.
- The district court accepted the factual sufficiency of Meshal’s constitutional claims but dismissed the suit, holding a Bivens remedy was unavailable in this national‑security / extraterritorial context.
- The D.C. Circuit panel affirmed, applying the Supreme Court’s two-step Bivens framework: (1) recognize whether the claim arises in a new context; (2) if new, decline relief where an alternative remedy exists or special factors counsel hesitation.
- The court treated this as a new Bivens context (law‑enforcement counterterrorism investigation conducted abroad) and held that two special factors—national security/foreign policy sensitivity and extraterritoriality—together counsel against implying a damages remedy; no alternative statutory remedy existed.
- Concurrence (Kavanaugh) emphasized separation of powers and wartime/national security considerations; dissent (Pillard) argued congressional practice and judicial tools (state secrets, sealed/in‑camera procedures) do not justify categorical denial of Bivens relief and would have allowed Meshal’s claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens applies to alleged constitutional violations by federal agents abroad in a terrorism investigation | Meshal: classic Bivens claims (Fourth/Fifth against FBI agents) — damages necessary where no statute provides relief | Government: novel context—national security + extraterritoriality—special factors counsel hesitation; intrusion into foreign/intel matters | Held: New context; Bivens not available because special factors (national security/foreign policy sensitivity plus extraterritoriality) counsel against implying a remedy |
| Whether absence of an alternative remedy requires courts to imply Bivens | Meshal: no statutory alternative; damages or nothing compels Bivens | Gov: even absent alternative, courts must decline Bivens when special factors present | Held: No; absence of alternative does not overcome special factors that counsel hesitation |
| Whether U.S. citizenship of plaintiff compels recognition of Bivens for extraterritorial harms | Meshal: citizenship should weigh strongly in favor of remedy | Gov: citizenship does not override special factors involving national security and foreign policy | Held: Citizenship does not overcome special‑factor concerns; it is not dispositive |
| Whether congressional history (FTCA/Westfall Act/Torture Victim Protection Act) ratifies or forecloses Bivens | Meshal: congressional inaction/acquiescence and FTCA carve‑outs indicate ratification or at least do not preclude Bivens | Gov: Congress’s statutory scheme and exclusions show deference to political branches on foreign affairs; leave remedy to Congress/Supreme Court | Held: Congressional materials are ambiguous and do not overcome precedent and special‑factor considerations; courts should defer to Congress or the Supreme Court for any expansion |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of an implied Fourth Amendment damages remedy)
- Davis v. Passman, 442 U.S. 228 (extension of Bivens to certain due process/ employment contexts)
- Carlson v. Green, 446 U.S. 14 (Bivens remedy for Eighth Amendment prison abuse; Congress’s role in remedy design)
- Wilkie v. Robbins, 551 U.S. 537 (refusal to extend Bivens to new contexts where special factors counsel hesitation)
- Iqbal v. Ashcroft, 556 U.S. 662 (Bivens/context analysis; pleading standards and new‑context inquiry)
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (presumption against extraterritorial application of U.S. law)
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (statutory extraterritoriality principles)
- Wilson v. Libby, 535 F.3d 697 (D.C. Cir.) (declining Bivens in national security/intelligence setting)
- Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir.) (no Bivens where case implicates military/national security special factors)
- Arar v. Ashcroft, 585 F.3d 559 (2d Cir.) (en banc) (refusal to recognize Bivens for alleged rendition/torture in national security context)