Turkmen v. Hasty
808 F.3d 197
2d Cir.2015Background
- Plaintiffs are detainees held after 9/11 at the Metropolitan Detention Center (MDC) who challenge restrictive confinement conditions and allege discriminatory, punitive treatment tied to being Arab or Muslim.
- Plaintiffs sued senior Executive Branch officials, including the Attorney General and the FBI Director, seeking Bivens damages for an alleged ‘‘MDC confinement policy’’ and alleged ratification of field agents’ rogue conduct.
- The panel allowed some Bivens-based claims to proceed against the Attorney General and FBI Director; defendants sought rehearing en banc.
- An en banc poll of active Second Circuit judges resulted in a 6–6 split; rehearing en banc was therefore denied.
- Concurring judges (Pooler, Wesley) support moving the case forward, emphasizing plausible allegations that senior officials ratified discriminatory, abusive practices at MDC.
- Dissenting judges (Jacobs et al.) argue the panel decision conflicts with Supreme Court precedent limiting Bivens, protects qualified immunity, and enforces Iqbal’s plausibility pleading standard — and therefore the case merits en banc rehearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens damages remedy extends to alleged executive policy/ratification by AG/FBI Director after 9/11 | Turkmen: senior officials can be sued for creating/ratifying a restrictive MDC policy that caused discriminatory harm | Gov: Bivens should not be extended to policy-based national-security/immigration actions; such extension is disfavored and for Congress | Panel allowed plausible Bivens claims to proceed against AG and FBI Director; en banc rehearing denied (split court) |
| Whether qualified immunity shields senior officials for detention-policy decisions made after 9/11 | Turkmen: conduct was unlawful and plausibly alleged to be motivated by discriminatory intent or unjustified punishment | Gov: no clearly established right forbidding these restrictive conditions in this national-security context; officials entitled to qualified immunity | Dissenters argue qualified immunity should apply; panel denied immunity for some claims; en banc rehearing denied |
| Whether plaintiffs pleaded plausible discriminatory intent under Ashcroft v. Iqbal | Turkmen: pleadings and incorporated documents (Inspector General report, media) sufficiently allege ratification and discriminatory purpose | Gov: allegations are speculative, conclusory, and inconsistent with Iqbal; disparate impact insufficient | Panel found some pleadings plausible; dissent contends Iqbal defeats those pleadings; en banc rehearing denied |
| Whether courts should extend Bivens given national-security, immigration, and separation-of-powers concerns | Turkmen: factual circumstances and alleged ratification justify judicially implied damages remedy | Gov: extending Bivens into national-security/immigration policy is inappropriate; Congress is better suited to decide remedies | Dissenters urge en banc review to prevent extension; majority (on rehearing) denied rehearing en banc |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (established judicially implied damages remedy for constitutional violations by federal agents)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: allegations must plausibly show discriminatory intent; Bivens extension disfavored)
- Bell v. Wolfish, 441 U.S. 520 (1979) (pretrial detention conditions must be reasonably related to legitimate objectives)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (courts must carefully consider whether Bivens is the proper remedy; extension usually unjustified)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (national-security/immigration contexts may warrant heightened deference to political branches)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity requires clearly established law for the specific context)
- Plumhoff v. Rickard, 572 U.S. 765 (2014) (qualified immunity protects officials from suit, not just liability)
- Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (refusing to extend Bivens to post-9/11 national-security detention claims)
- Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012) (declining to extend Bivens in similar post-9/11 context)