Robert Mueller.
Robert Mueller. (Photo: Diego M. Radzinschi/ALM)

The U.S. Supreme Court on Tuesday agreed to decide whether a 14-year-old suit should go forward against former George W. Bush attorney general John Ashcroft and former FBI director Robert Mueller III based on their roles in the post-Sept. 11 roundup and detention of Muslim, Arab and South Asian men.

In Ashcroft v. Turkmen, the Obama administration had asked the high court to review a June 2015 decision by the U.S. Court of Appeals for the Second Circuit that reinstated claims by eight men and a potential class of 80. The plaintiffs alleged the former Bush officials purposely and unconstitutionally directed their detentions in harsh and abusive conditions due to their race, religion or national origin.

Justices Sonia Sotomayor, a former Second Circuit judge, and Elena Kagan, a former U.S. solicitor general, did not participate in the high court’s decision to review the case. Their potential recusals from the case could set the stage for a six-justice court to decide the outcome if the vacancy caused by the death of Justice Antonin Scalia remains unfilled through early next year.

The justices on Tuesday also added another potentially high profile case: Hernandez v. Mesa, a challenge stemming from a U.S. Border Patrol agent’s shooting of a 15-year-old Mexican boy on Mexican soil.

In the Ashcroft petition, the Obama administration argued that the Second Circuit was wrong—in the context of the Sept. 11 investigations—to allow Ashcroft, Mueller and other Justice department officials to be sued in their individual capacities for violations of constitutional rights under the 1971 high court decision Bivens v. Six Unknown Named Agents.

The Second Circuit is “the first circuit to permit such a damages remedy to be pursued ‘against executive branch officials for national security actions taken after the 9/11 attacks,’” then-Solicitor General Donald Verrilli Jr. wrote in the petition.

The Obama administration also challenges the appellate court’s ruling that Ashcroft and Mueller, now a partner at Wilmer Cutler Pickering Hale and Dorr, were not entitled to qualified immunity for their alleged role in the treatment of those detained. The government also contends the allegations that the former officials personally condoned the detentions because of “invidious animus” against Arabs and Muslims are not “plausible.”

The justices set the plausibility standard in a similar case, Ashcroft v. Iqbal, in 2009. The court ruled 5-4 then that Javaid Iqbal, a Pakistani Muslim and post Sept. 11-detainee, failed to plead sufficient facts to support his claim of intentional, unlawful discrimination.

From Verrilli’s petition:

Based on conclusory allegations and after-the-fact inferences drawn in the chambers of appellate judges, the court of appeals concluded that the nation’s highest-ranking law-enforcement officers—a former Attorney General of the United States and former Director of the FBI—may be subjected to the demands of litigation and potential liability for compensatory and even punitive damages in their individual capacities because they could conceivably have learned about and condoned the allegedly improper ways in which their undisputedly constitutional policies were being implemented by lower-level officials during an unprecedented national-security crisis.

Representing the Turkmen plaintiffs, Rachel Meeropol of the Center for Constitutional Rights, had urged the justices to deny review.

“The petitions instead boil down to a request for a new and remarkable form of immunity, one in which the clearly unconstitutional actions of federal officials are untouchable so long as they occur in temporal proximity to a national tragedy,” Meeropol wrote.

The justices also granted review in two related petitions raising similar issues. Ballard Spahr’s William McDaniel Jr. filed a petition on behalf of former Immigration and Naturalization Service commissioner James Ziglar, and  MoloLamken’s Jeffrey Lamken filed on behalf of former wardens of the Metropolitan Detention Center in Brooklyn.

The Second Circuit decision stemmed from a lawsuit filed in 2002 by the Center for Constitutional Rights. The center charged that the plaintiffs and other detainees were placed in solitary confinement, some for up to eight months, even though they were only charged with civil immigration violations like overstaying a visa or working without authorization.

The lawsuit has yet to go to trial.

Fourth Amendment at the border

In Hernandez, the border shooting case, the parents of Sergio Hernandez, represented by Deepak Gupta of Washington’s Gupta Wessler, are asking the high court to overturn a decision by the U.S. Court of Appeals for the Fifth Circuit.

The appeals court said the Fourth Amendment’s protection against excessive deadly force did not apply because their son was a Mexican citizen with no significant voluntary connection to the United States and he was killed on Mexican territory.

The justices have directed the parties also to brief whether Hernandez’s claim against border patrol agent Jesus Mesa could be brought under their 1971 decision in Bivens.

The Obama administration had urged the justices to deny review.