            Case: 11-14240   Date Filed: 11/07/2013   Page: 1 of 12


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 11-14240
                        ________________________

                  D.C. Docket No. 6:10-cv-00280-ACC-GJK



ANESH GUPTA,

                                                Plaintiff - Appellant,

versus

RICHARD T MCGAHEY,
Senior Special Agent, U.S. Immigration
and Customs Enforcement,
TIMOTHY WARGO,
Supervisory Special Agent, US Immigration
and Customs Enforcement (ICE),
JOHN KAUFMAN,
Special Agent, US Immigration
 and Customs Enforcement (ICE),

                                                Defendants - Appellees,

U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, et al.,

                                                Defendants.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________
                Case: 11-14240       Date Filed: 11/07/2013        Page: 2 of 12


                          ORDER ON REHEARING EN BANC

Before CARNES, Chief Judge, TJOFLAT, DUBINA, BARKETT, HULL,
MARCUS, WILSON, PRYOR, MARTIN, and JORDAN, Circuit Judges. *

BY THE COURT:

       A member of this Court in active service having requested a poll on whether

this case should be reheard by the Court sitting en banc, and a majority of the

judges in active service on this Court having voted against granting a rehearing en

banc, IT IS ORDERED that the Suggestion of Rehearing En Banc is DENIED.




                                                     __________________________
                                                     CHIEF JUDGE




       *
          As an active judge of this Court at the time the en banc poll was conducted, Judge
Barkett participated in this case. See Fed. R. App. P. 35, 11th Cir. IOP 7. Because she retired
from service on September 30, 2013, she did not participate in the consideration of this case after
that date.
                                                 2
               Case: 11-14240        Date Filed: 11/07/2013      Page: 3 of 12


WILSON, Circuit Judge, concurring in the denial of rehearing en banc:

       I was on the panel that heard and decided this appeal. While I do not join

Judge Martin’s strong dissent, I agree that Bivens relief should not be categorically

denied whenever the government can tangentially relate the alleged violation to

removal proceedings. I also agree that if our opinion had cut off Bivens relief in

this manner, then this appeal would present a question of “exceptional importance”

justifying consideration by the entire court. Fed. R. App. P. 35, 11th Cir. R. 35-

3. Ultimately, I do not join the dissent because I do not believe this is what our

panel opinion does.

       Far from announcing a categorical rule that “shield[s] from federal judicial

oversight” a range of “law enforcement abuse” that is only tangentially related to

removal proceedings, Dissenting Op. at 6, our panel opinion merely affirmed the

district court’s determination that it lacked subject matter jurisdiction “to allow a

Bivens action in this context,” Gupta v. McGahey, 709 F.3d 1062, 1064 (11th Cir.

2013) (emphasis added).1 This context involved arrest, detention, searches, and

seizures directly related to removal proceedings and the offense that prompted

officials to deem removal proceedings necessary. There was no evidence of

pretext. There was no evidence of egregious conduct. There was no evidence that


       1
         Our panel opinion explicitly and consistently narrowed the scope of its holding to “this
context.” On appeal, Gupta “also argues that the district court should have recognized his Bivens
action in this context.” Gupta, 709 F.3d at 1064 (emphasis added).
                                                3
              Case: 11-14240     Date Filed: 11/07/2013    Page: 4 of 12


the searches and seizures were unrelated to the desire to remove Gupta, though to

be sure there was an additional purpose of promoting public safety. In this

instance, critically, the animating goal of the officers was to remove Gupta.

      The dissent states that our decision has no limiting principles, Dissenting

Op. at 6, but that is merely because the case did not present us with an opportunity

to establish limiting principles. Indeed, limiting principles are mandated by one of

the most basic tenets of our constitutional jurisprudence: “[W]here there is a legal

right, there is also a legal remedy by suit or action at law, whenever that right is

invaded.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (internal

quotation marks omitted). And this court has established that even aliens subject

to removal proceedings have rights under the Constitution. See Lapaix v. U.S.

Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per curiam) (noting that aliens

are entitled to due process of the law in removal proceedings); Garcia v. Att’y Gen.

of U.S., 329 F.3d 1217, 1223 (11th Cir. 2003) (per curiam) (noting that aliens

“have the right to effective assistance of counsel at deportation proceedings”).

      If a future case arises where removal proceedings are used as pretext to

shield law enforcement abuses from federal judicial oversight, or where the

conduct is more egregious, or where it is less related to the commencement of

removal proceedings, then we will have occasion to announce limiting principles

consistent with well-established jurisprudence. Should the scenario come along


                                           4
              Case: 11-14240      Date Filed: 11/07/2013    Page: 5 of 12


where an alien is, for example, physically beaten during the course of what ought

to be a peaceful arrest arising from a decision to commence removal proceedings,

judicial review would likely be necessary because I am able to discern no

mechanism within the INA’s administrative scheme to remedy the wrong. See,

e.g., Turkmen v. Ashcroft, 915 F. Supp. 2d 314, 353 (E.D.N.Y. 2013) (holding that

the INA administrative scheme provides no appropriate remedy for detainees

whose religious rights have been “intentionally and maliciously” violated). In such

circumstances, our panel opinion does not constitute precedent that will

unconditionally bar aliens from seeking relief from egregious constitutional

violations.

      Nothing in our opinion states that it should be read as broadly as Judge

Martin suggests, and I take the words “in this context” as an express

acknowledgment that the rule applied in our panel’s opinion should be limited by

the facts of the case. Our opinion held that for “‘any . . . claim . . . arising from the

decision or action by the Attorney General to commence [removal] proceedings,’”

§ 1252(g) bars federal court jurisdiction. Gupta, 709 F.3d at 1065 (quoting 8

U.S.C. § 1252(g)). The dissent fears that our panel’s opinion will be erroneously

extended—perhaps based on the broad scope of the word “any” but without

accounting for the limiting words “arising from”—beyond the factual scenario at

issue in this case. If and when that error is made, we will have occasion to correct


                                            5
                Case: 11-14240       Date Filed: 11/07/2013        Page: 6 of 12


the error and set limiting principles with more precision. 2 Our panel’s decision is

correct in this limited context.




       2
          Without announcing any such principles—because, again, this case does not present us
with the opportunity to do so—I note that law enforcement brutality and pretextual arrests do not
“arise from” a decision to “commence [removal] proceedings” because such activities are
entirely unnecessary to accomplish removal. Thus, if those activities occur, it cannot be said that
they arose from the decision to commence removal proceedings even though they would be
tangentially related to removal.
                                                 6
              Case: 11-14240     Date Filed: 11/07/2013    Page: 7 of 12


MARTIN, Circuit Judge, dissenting from the denial of rehearing en banc:

      I respectfully dissent from the denial of rehearing en banc. In Mr. Gupta’s

case, the Panel concluded that 8 U.S.C. § 1252(g) bars us from considering his

Fourth and Fifth Amendment Bivens claims. However, the panel opinion does not

explain why this is so. Indeed, the panel opinion is so bare of analysis that its

discussion of this point cites no cases—not even Reno v. American-Arab Anti-

Discrimination Committee, which is the seminal Supreme Court case addressing

§ 1252(g)’s scope. 525 U.S. 471, 119 S. Ct. 936 (1999) (AADC). Thus, relying

upon little more than bald assertions and self-reinforcing statements, the panel

opinion closes the courthouse doors to a broad swath of tort and constitutional

claims. I believe Mr. Gupta’s case deserves more thorough consideration. Beyond

that, this case presents such important and novel issues that en banc rehearing is

necessary and appropriate.

                                           I.

      First, I cannot agree with the Panel’s conclusion that 8 U.S.C. § 1252(g)

unambiguously bars our consideration of Mr. Gupta’s claims because they arise

from “action[s] taken to commence proceedings.” Of course it is true § 1252(g)

provides that “no court shall have jurisdiction to hear any cause or claim . . .

arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against any alien.”


                                           7
              Case: 11-14240     Date Filed: 11/07/2013    Page: 8 of 12


However, it is hard to understand how the decisions to arrest Mr. Gupta, to detain

him, and to search his home and automobile were related in any way to the

commencement of removal proceedings against him.

      In AADC, the Supreme Court warned us repeatedly that § 1252(g) is to be

read narrowly. The Court instructed us that § 1252(g) does not apply to the

“universe of deportation claims.” 525 U.S. at 482, 119 S. Ct. at 943. Instead,

§ 1252(g) “applies only to three discrete actions that the Attorney General may

take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or

execute removal orders.’” Id. (quoting 8 U.S.C. § 1252(g)). Indeed to emphasize

and illustrate this point, the Supreme Court listed a number of decisions and

actions for which Article III jurisdiction would lie. Id. (noting that courts still can

review “the decisions to open an investigation, to surveil the suspected violator, to

reschedule the deportation hearing, to include various provisions in the final order

that is the product of the adjudication, and to refuse reconsideration of that order”).

This list illustrates how § 1252(g) is not a “shorthand way of referring to all claims

arising from deportation proceedings.” Id.

      Especially in light of the Supreme Court’s mandate to read § 1252(g)

narrowly, I dispute the Panel’s finding that Mr. Gupta’s claims all arose from

actions to commence proceedings. We know that, for example, the

commencement of proceedings did not require the actions taken by law


                                           8
              Case: 11-14240     Date Filed: 11/07/2013    Page: 9 of 12


enforcement against Mr. Gupta here. See 8 U.S.C. § 1226(a) (explaining that in

most circumstances, “an alien may be arrested and detained pending a decision on

whether the alien is to be removed from the United States.” (emphasis added)); 8

C.F.R. § 236.1(b)(1) (“At the time of issuance of the notice to appear . . . the

respondent may be arrested and taken into custody . . . .” (emphasis added)). We

also know from the Record of Deportable Alien and Notice of Appearance that Mr.

Gupta lost his immigration status in July 2009, weeks before the claims asserted in

his Bivens action materialized. Said another way, even if Mr. Gupta had never

been arrested or detained, and even if his things had not been searched and seized,

the removal proceedings against him could and would have still begun (in the

language of the statute “commenced”).

      It is also important to keep in mind that barring Mr. Gupta’s claims here

does nothing to further the limited purposes of the § 1252(g) jurisdictional bar. In

AADC, the Supreme Court explained that § 1252(g) was strictly designed to shield

prosecutorial discretion from review, as opposed to any and all executive action

tangentially related to the commencement of proceedings. 525 U.S. at 485 n.9,

119 S. Ct. at 944 n.9 (“It was the acts covered by § 1252(g) that had prompted

challenges to the Attorney General’s exercise of prosecutorial discretion.”). In

particular, § 1252(g) was “specifically directed at the deconstruction,

fragmentation, and hence prolongation of removal proceedings.” Id. at 487, 119 S.


                                           9
             Case: 11-14240     Date Filed: 11/07/2013    Page: 10 of 12


Ct. at 945. Mr. Gupta’s Bivens claims, however, do not in any way challenge the

Attorney General’s discretion to commence removal proceedings. Nor would Mr.

Gupta’s suit prolong his removal proceedings or delay his removal, because he can

continue to litigate his civil rights claims from abroad if he is removed before the

litigation is over. Based on these things, I do not agree that Mr. Gupta’s claims are

barred by § 1252(g).

                                          II.

      Setting aside for now the question of whether the Panel arrived at the proper

result for Mr. Gupta, it is the Panel’s cursory approach in deciding his case that is

most troubling. The panel opinion states that Mr. Gupta’s claims fall into two

categories: (1) actions taken to secure Mr. Gupta and (2) those taken to prevent

potential danger to Disney World, as a Critical Infrastructure asset. Then without

explanation or analysis, the Panel simply concludes that both of these categories

are easily classified as “actions” that “commence[d] removal proceedings.” As

I’ve said, this portion of the opinion contains no case citations, not even to AADC,

which is the leading case on the interpretation of § 1252(g). Because the opinion

reflects no analysis or meaningful reasoning, the result it reaches seems obvious

and easy.

      However, the problem presented by Mr. Gupta’s case does not lend itself to

an easy or self-evident result. In fact, courts considering this issue have broken


                                          10
             Case: 11-14240      Date Filed: 11/07/2013    Page: 11 of 12


both ways. Compare Khorrami v. Rolince, 493 F. Supp. 2d 1061, 1068 (N.D. Ill.

2007) (claims for illegal arrest and detention barred by § 1252(g) because they are

a “direct outgrowth” of the decision to commence proceedings), with Parra v.

Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (noting that § 1252(g) did not bar

alien’s habeas claim concerning detention); Diaz-Bernal v. Myers, 758 F. Supp. 2d

106, 125 (D. Conn. 2010) (holding that Fourth Amendment claims against raid

officers did not involve commencement, adjudication, or execution of removal

proceedings); El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 266 (D.

Conn. 2008) (holding that decision to detain and arrest is “discrete” from the

decision to commence removal proceedings). Very few courts have found—like

the panel opinion—that the questions involved here are “unambiguous” based on a

plain reading of § 1252(g). See, e.g., Humphries v. Various Fed. USINS Emps.,

164 F.3d 936, 942–43 (5th Cir. 1999) (“In determining whether any of Humphries’

remaining claims . . . ‘arise from’ certain decisions or actions, we find little

assistance in the precise language of the statute. Congress has provided no explicit

definition of the phrase ‘arising from,’ and courts have not always agreed on its

plain meaning.” (alterations omitted)); Khorrami, 493 F. Supp. 2d at 1068–69 (“I

note that I am not at all certain that this is the type of claim Congress sought to bar

when it enacted § 1252(g).”). Based on this statute’s potential for conflicting

interpretations, an en banc rehearing would have been helpful to produce an


                                           11
              Case: 11-14240     Date Filed: 11/07/2013        Page: 12 of 12


opinion that more fully explains itself, thus giving meaningful guidance to courts

and future litigants, even if it arrived at the same result.

                                           III.

      To summarize, I dissent to the denial of en banc review because I am

concerned about the potential implications of the panel opinion. It lacks limiting

principles to such an extent that I fear it could be read to bar federal courts from

considering any tort or constitutional claims arising during a search or an arrest, so

long as the government claims it is tangentially related to the decision to

commence removal proceedings. It does not take a particularly active imagination

to envision the types of law enforcement abuse that could be shielded from federal

judicial oversight as a result of this decision. See Webster v. Doe, 486 U.S. 592,

603, 108 S. Ct. 2047, 2053 (1988) (warning that serious constitutional questions

would arise if a “federal statute were construed to deny any judicial forum for a

colorable constitutional claim”).

      At a minimum, those who come to our federal courts to claim their rights

under our Constitution should have a more thorough explanation about why Article

III judges are barred from hearing even valid claims. We can and should do better.




                                            12
