2023-02-06 (47-2) CAIR Amicus Brief

Case: 21-56282, 02/06/2023, ID: 12647524, DktEntry: 47-2, Page 1 of 25
No. 21-56282
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
DENISE MEJIA,
Plaintiff-Appellee,
v.
WESLEY MILLER,
Defendant-Appellant,
and
UNITED STATES OF AMERICA,
Defendant.
USDC Central District of California

Hon. Stanley Blumenfeld, Jr.
Case No. 5:20-cv-01166-SB-SP
BRIEF OF AMICUS CURIAE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS IN SUPPORT OF
APPELLEE’S PETITION FOR REHEARING EN BANC
Todd Gregorian
Garner Kropp
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94014
Telephone: 415.875.2300
Facsimile: 415.281.1350
Attorneys for COUNCIL ON
AMERICAN-ISLAMIC RELATIONS
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1(a), the
undersigned counsel states that the Council on American-Islamic
Relations (CAIR) is not a publicly held corporation and does not have any
parent corporation, and that no publicly held corporation owns 10 percent
or more of stock in CAIR.
Dated: February 6, 2023 FENWICK & WEST LLP
By: /s/ Todd Gregorian

Todd Gregorian
Garner Kropp

ii
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT............................................ ii
INTEREST OF THE AMICUS CURIAE ................................................... 1
SUMMARY OF THE ARGUMENT ........................................................... 2
ARGUMENT ............................................................................................... 4
I. The watchlist requires individuals to engage with federal
agents in routine law enforcement situations. ................................ 4
A. The Government places innocent people on the
watchlist, turning their lives upside-down. ............................ 4
B. The Government subjects watchlistees to an
astonishing range of invasions of privacy,
humiliations, and other harms. ............................................... 7
II. Bivens damages are often the only available remedies for
watchlistees harmed by federal officers. .......................................... 9
III. The Supreme Court did not eliminate Bivens, so this
Court should not either. .................................................................. 13
A. A claim that presents a new “employing agency”
need not be meaningfully different from established
Bivens contexts. ...................................................................... 13
B. A webpage reporting mechanism is not an
alternative remedial structure that displaces Bivens. ......... 17
CONCLUSION ......................................................................................... 19
CERTIFICATE OF COMPLIANCE FOR BRIEFS ................................. 20
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics,
403 U.S. 388 (1971) ...................................................................... passim
Bush v. Lucas,
462 U.S. 367 (1983) .............................................................................. 17
Carlson v. Green,
446 U.S. 14 (1980) .................................................................... 12, 13, 14
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ................................................................................ 11
Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001) ................................................................................ 12
Egbert v. Boule,
142 S. Ct. 1793 (2022) .................................................................. passim
El Ali v. Barr,
473 F. Supp. 3d 479 (D. Md. 2020) ........................................................ 8
Elhady v. Bradley,
438 F. Supp. 3d 797 (E.D. Mich. 2020), rev’d, Elhady v.
Unidentified CBP Agents, 18 F.4th 880 (6th Cir. 2021)....................... 8
Elhady v. Kable,
993 F.3d 208 (4th Cir. 2021) .................................................. 4, 6, 10, 11
Elhady v. Piehota,
No. 1:16-cv-00375-AJT-JFA (E.D. Va. Sep. 23, 2016), ECF
No. 22 ................................................................................................ 5, 12
Hernandez v. Mesa,
140 S. Ct. 735 (2020) ............................................................................ 16
Ibrahim v. DHS,
912 F.3d 1147 (9th Cir. 2019) ............................................................ 6, 7
Kashem v. Barr,
941 F.3d 358 (9th Cir. 2019) .............................................................. 5, 9
iv
TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
Minneci v. Pollard,
565 U.S. 118 (2012) ........................................................................ 17, 18
Tanzin v. Tanvir,
141 S. Ct. 486 (2020) ................................................................ 11, 12, 19
United States v. Ameline,
409 F.3d 1073 (9th Cir. 2005) (en banc).............................................. 15
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) .............................................................. 13, 14, 15
STATUTES
18 U.S.C. § 3052........................................................................................ 15
18 U.S.C. § 4042........................................................................................ 16
49 U.S.C. § 114(d) ..................................................................................... 15
49 U.S.C. § 44926...................................................................................... 10
Federal Tort Claims Act ........................................................................... 12
Religious Freedom Restoration Act ......................................................... 12
RULES
Cir. R. 29-2 .................................................................................................. 2
Fed. R. App. P. 29(b) ................................................................................... 2
OTHER AUTHORITIES
49 C.F.R. § 1560.205 ................................................................................. 10
Reorg. Plan No. 2 of 1973, 38 F.R. § 15932 ............................................. 15
v
INTEREST OF THE AMICUS CURIAE1
Founded in 1994, the Council on American-Islamic Relations has a
mission to enhance understanding of Islam, protect civil rights, promote
justice, and ensure the constitutional rights of American Muslims.
American Muslims stand a better than average chance of being
detained by federal agents while traveling. Years of experience have
shown that the Government often targets innocent American Muslims
for surveillance, enhanced screening, and other measures, including
through the Government’s secretive Terrorism Screening Database,
known colloquially as the “watchlist.” CAIR has litigated a slew of cases
involving federal law enforcement agents violating American Muslims’
constitutional rights while they attempt to travel. From placing them in
freezing conditions after taking away items of clothing, to holding them
at gunpoint for no discernible reason, the federal agencies charged with
administering areas that implicate the watchlist have a history of
disregarding constitutional rights. When CAIR defends the rights of
individuals on the watchlist, obtaining a non-damages remedy for the
1Counsel for the parties have not authored this brief in whole or in part.
No one other than CAIR and CAIR’s counsel has contributed money that
was intended to fund preparing or submitting this brief.
1
harm inflicted is often impossible because victims have no information
about their watchlist status before they are deprived of their rights based
on that status. CAIR files this amicus brief in support of rehearing en
banc under Federal Rule of Appellate Procedure 29(b) and Ninth Circuit
Rule 29-2.
SUMMARY OF THE ARGUMENT
Federal law enforcement agencies have placed thousands of law-
abiding American Muslims on a secret terrorism watchlist. The
Government uses this watchlist to harass travelers and violate their
constitutional rights. These episodes range from the embarrassing and
inconvenient (excavating luggage) to the life-threatening (traffic stops at
gunpoint). Travelers have no way to challenge the watchlist
prophylactically; typically they have no idea that they are on the
watchlist until a confrontation with law enforcement. And after one of
these encounters, people on the watchlist have no effective recourse. They
may report the events to the Government, but the Government will not
tell them the result of any investigation (if it occurred) or even confirm if
the individual was on the watchlist to begin with. If a watchlistee sues
the federal agents under other causes of action, the Government often
2
will remove the plaintiff from the watchlist and argue the case is moot.
The threat of a claim under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides the only
effective deterrent against law enforcement abuse.
The Panel here eliminated Bivens claims in well-established
contexts, including some that routinely affect individuals on the
watchlist. Two portions of the Panel’s opinion endanger these claims.
First, the Panel held a case presents a “new context,” thus potentially
precluding a claim for damages under Bivens, whenever the defendant
officer’s employing agency differs from those in past Bivens cases. The
purpose of Bivens is to deter constitutional violations by federal law
enforcement officers and other federal officials, and the circumstances of
a case do not necessarily differ meaningfully just because an officer works
for the Drug Enforcement Administration, the Transportation Security
Administration, or any other agency charged with domestic law
enforcement. Second, the Panel held that the opportunity for the public
to fill out a website form to report complaints to the Government replaces
a Bivens claim, without evidence that these reports are an effective,
congressionally-approved remedial scheme. Individuals on the watchlist
3
may report air-travel-related abuses to the Government, but unless an
individual is on the most restrictive subset of the watchlist, the “No Fly
List,” the Government does not inform an individual of his or her
watchlist status or the disposition of the report. Merely allowing
individuals to send reports into a black box is not an effective remedy to
redress constitutional violations, nor does it deter future misconduct.
ARGUMENT
I. The watchlist requires individuals to engage with federal

agents in routine law enforcement situations.
A. The Government places innocent people on the

watchlist, turning their lives upside-down.
By executive order, the Government created the watchlist in 2003.
There is no congressional authorization for either the watchlist or the
umbrella agency that administers it, the Terrorist Screening Center
(TSC). The TSC coordinates with the National Counterterrorism Center,
the TSA, and CBP to administer the watchlist. The TSC shares its
surveillance information with state, county, city, college, and tribal law
enforcement agencies, as well as private entities like airlines, financial
institutions, and gun vendors.
Over one million individuals are on the watchlist, thousands of
them U.S. citizens. Elhady v. Kable, 993 F.3d 208, 213-14 (4th Cir. 2021).
4
The Government adds someone to the watchlist when it reasonably
suspects that the individual has engaged in “conduct constituting, in
preparation for, in aid of or related to, terrorism and terrorist activities.”
Kashem v. Barr, 941 F.3d 358, 365 (9th Cir. 2019). When determining
whether to add an individual to the watchlist, the Government may
consider an individual’s race, ethnicity, or beliefs or activities protected
by the First Amendment, like freedom of speech, free exercise of religion,
or freedom of peaceful assembly. See National Counterterrorism Center,
Watchlisting Guidance, 11 (March 2013), https://www.aclu.org/other/
march-2013-watchlist-guidance. The Government sweeps innocent
citizens into the watchlist because it only requires a reasonable suspicion
that an individual engaged in conduct purportedly “related to”
terrorism—conduct that is not necessarily unlawful in any way.2 The
Government’s dragnet operation disproportionately targets Muslims.
After an airline accidentally left the watchlist exposed to the public on
2The Government also treats travelers accompanying individuals on the

watchlist as guilty by association. CAIR represented a one-year-old baby
whose airline ticket bore the symbols “SSSS,” indicating he traveled with
an individual on the watchlist. The Government searched the baby and
his father and detained them for hours for questioning about terror
groups. See Am. Compl. at ¶¶ 165-72, Elhady v. Piehota, No. 1:16-cv-
00375-AJT-JFA, (E.D. Va. Sep. 23, 2016), ECF No. 22.
5
the Internet, researchers found that 10 percent of individuals on the
watchlist were named “Muhammed.” The #NoFly list is a #MuslimBan
list, Papers, Please! (Jan. 20, 2023), https://papersplease.org/wp/2023/
01/20/the-nofly-list-is-a-muslimban-list/#more-17583.
The Government frequently makes mistakes when selecting
individuals for the watchlist. It performs only a perfunctory review; the
Government approves 99 percent of nominations to the watchlist.
Elhady, 993 F.3d at 214. The results of this process would be comedic if
they were not so catastrophic to the affected individuals. In one case, the
Government added a Stanford PhD student to watchlist after she had
flown to present at an engineering conference in Malaysia. Ibrahim v.
DHS, 912 F.3d 1147, 1153 (9th Cir. 2019). The Government prohibited
her from flying back because an FBI agent had misunderstood the
instructions on the watchlist nomination form. Id. at 1157-58. While the
student sued to unwind this bureaucratic horror, the Government
doubled-down and prohibited her daughter, a U.S. citizen, from flying to
testify at the trial about this watchlist mistake. Id. at 1182. After a
decade of prohibiting the student from re-entering the United States, the
Government finally admitted it never should have placed her on the No
6
Fly List in the first place. Id. at 1153. It took years of discovery and a
trial for the Government to acknowledge its mistake. Watchlistees who
cannot sue the Government are left to suffer the abuse, even if they
should never be on the watchlist.
B. The Government subjects watchlistees to an

astonishing range of invasions of privacy,
humiliations, and other harms.
The problems are not just the Government’s placement of people on
the watchlist, but also the Government’s use of the watchlist. One of the
most visible examples is TSA airport screening. For individuals on the
watchlist, traveling by air can be a nightmare, if the TSC permits them
to fly at all. Before any watchlistee may travel by air, the TSA subjects
that individual to enhanced invasive searches, on top of the onerous
screening for all other passengers. The TSA may pat the watchlistee
down; physically search the watchlistee’s luggage, electronics, and shoes;
or test for traces of explosives.
CBP’s use of the watchlist at the border may be less visible but is
more consequential. Watchlistees are often handcuffed in front of
colleagues and family, interrogated, and detained for hours. These
encounters can occur at gunpoint. Detentions can be horrific—one person
7
on the watchlist was hospitalized from cold exposure after an hours-long
detention. See Elhady v. Bradley, 438 F. Supp. 3d 797, 804-05 (E.D. Mich.
2020), rev’d, Elhady v. Unidentified CBP Agents, 18 F.4th 880 (6th Cir.
2021).
Other law enforcement agencies also single out watchlistees. FBI
agents have confronted multiple CAIR clients on the watchlist without
attorneys present and tried to coerce them into becoming informants.
Federal agents have detained watchlistees for hours at airports, offered
to remove watchlistees from the watchlist in exchange for information,
and interrogated watchlistees in their homes. One of CAIR’s clients on
the watchlist was handcuffed and detained at a military base checkpoint,
when he was driving a rideshare trying to pick his rider. El Ali v. Barr,
473 F. Supp. 3d 479, 498 (D. Md. 2020). Agents often escalate these
situations into dangerous encounters, even though individuals placed on
the watchlist may have never committed any crime.
Through these interrogations—performed not only by TSC and
CBP but also FBI and sometimes local law enforcement—the
Government identifies associates of watchlistees and can subject them to
watchlist placement or burdensome screening as well. Once individuals
8
become aware that they are on the watchlist, they often opt to travel by
car or forgo international travel to avoid the shame of pre-flight
harassment.
II. Bivens damages are often the only available remedies for
watchlistees harmed by federal officers.
Without Bivens claims, watchlistees have no effective way to
prevent this misconduct or remedy the damage it causes. Because the
Government does not disclose watchlist status, individuals are unable to
challenge their placements preventatively, before these dangerous
encounters with law enforcement arise. Only a Bivens claim can remedy
the type of damage that federal agents inflict on watchlistees.3
Outside of court, the only administrative means even purporting to
resolve watchlistees’ travel-related complaints is the Department of
Homeland Security’s Traveler Redress Inquiry Program, otherwise
known as “DHS TRIP.” DHS TRIP is a catch-all online submission
system where any air traveler may file a report if they believe that they
3 The Government prohibits those on the “No Fly List” subset of the
watchlist from flying. Due to litigation of non-profit organizations like
CAIR, the Government now provides some additional information to
individuals on the No Fly List, including their watchlist status, following
a DHS TRIP report. See Kashem, 941 F.3d at 366. The Government does
not offer the same to watchlistees who are not on the No Fly List.
9
have “been improperly or unfairly delayed.” 49 C.F.R. § 1560.205. DHS
TRIP arose from Congress’s directive to create a redress system for
“individuals who believe they have been delayed or prohibited from
boarding a commercial aircraft.” 49 U.S.C. § 44926. Notably, DHS does
not tailor this system for watchlistees; 98 percent of reports have no
connection to the watchlist. Elhady, 993 F.3d at 215. And DHS TRIP does
not allow reporting unless the abuse was related to air travel, see 49
C.F.R. § 1560.205, meaning that this program does not even purport to
address the full scope of abuses faced by watchlistees.
Moreover, DHS TRIP offers no meaningful redress to watchlistees
for air travel. The Government shrouds its review of the report in secrecy,
provides no substantive response to the reporting individual, and does
not disclose the facts relied upon to place the individual on the watchlist.
Nor does it reveal the outcome of the DHS TRIP review. Unless the
individual is on the No Fly List, the most restrictive subset of the
watchlist, the Government does not even reveal the individual’s watchlist
status. Throughout this review, the Government is not required to
consider any exculpatory information—which would be difficult or
10
impossible for the individual to provide anyway, since the Government
never discloses its basis for placing someone on the watchlist.
As a result, the only real way to challenge their placement on the
watchlist and the resulting effects is to sue. But jurisdiction to obtain
injunctive relief often proves illusive. The Government will argue that
just because watchlist-like effects occur to individuals in the past, they
cannot establish future injury, citing cases such as City of Los Angeles v.
Lyons, 461 U.S. 95 (1983).4 Further, the Government often removes the
individual from the watchlist and argues that claims for injunctive relief
are moot, preventing constitutional challenges to the watchlist from ever
being litigated on their merits. See, e.g., Tanzin v. Tanvir, 141 S. Ct. 486,
489 (2020) (discussing the Government’s tactic of telling watchlistees
they “could now fly” after a year of litigation); Defs.’ Mot. to Dismiss 2d
4While the Government often argues that individual watchlistees cannot

establish future injury, the Government has argued also that
watchlistees cannot prophylactically challenge watchlist placement
before an injury occurs. While CAIR believes the ruling is flawed, the
Fourth Circuit held that watchlistees may not bring facial challenges to
the operation of the watchlist. Elhady, 993 F.3d at 224. Instead, plaintiffs
may only bring “individualized, case-by-case” claims of law enforcement
abuse at airports or at the border. Id. In combination, these arguments
prohibit watchlistees from challenging the watchlist preventively and
retroactively.
11
Am. Compl. at 6, Elhady v. Piehota, No. 1:16-cv-00375-AJT-JFA, (E.D.
Va. Apr. 4, 2022), ECF No. 395 (arguing that plaintiffs lacked standing
after removing all twenty-five plaintiffs from the watchlist).
Bivens thus remains the key source of law protecting the
constitutional rights of those on the watchlist. If the Government does
not purport to remove an individual from the watchlist, watchlistees have
few other remedies at their disposal. The Religious Freedom Restoration
Act permits an action for damages only when a federal agent burdens
religious exercise. Tanvir, 141 S. Ct. at 489. Whether watchlistees have
remedies under the Federal Tort Claims Act does not bear on
watchlistees’ use of Bivens claims. The Supreme Court has made “crystal
clear” that the Federal Tort Claims Act and Bivens serve as “parallel”
and “complementary” sources of liability. See Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001) (citing Carlson v. Green, 446 U.S. 14, 19-
20 (1980)). These causes of action rarely square with the unreasonable
searches and seizures and deprivation of due process that watchlistees
face at the hands of federal law enforcement. Conversely, a Bivens claim
is well-suited because deterring this kind of mistreatment by individual
officers is “[t]he purpose of Bivens.” See Malesko, 534 U.S. at 70. The
12
threat of damages “deter[s] the unconstitutional acts of individual
officers” when they confront watchlistees. See Egbert v. Boule, 142 S. Ct.
1793, 1806 (2022) (citation omitted).
III. The Supreme Court did not eliminate Bivens, so this Court
should not either.
A. A claim that presents a new “employing agency” need

not be meaningfully different from established Bivens
contexts.
The Supreme Court explicitly did not “cast doubt” on Bivens “in the
search-and-seizure context in which it arose.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1856 (2017). Law enforcement officers perform similar duties
across federal agencies, and this Court should not prohibit claims solely
because an offending officer does not work for two of the first federal
agencies that gave rise to Bivens claims.
The Supreme Court approved claims for damages against officers
from a predecessor of the DEA and from the Bureau of Prisons (BOP).
See Bivens, 403 U.S. at 397; Carlson, 446 U.S. at 18. A plaintiff may still
bring a claim based on “parallel circumstances,” so long she satisfies the
framework laid out in later cases. Egbert, 142 S. Ct. at 1809. A court may
find a case “meaningfully different” and deny a Bivens claim when the
suit would “frustrate Congress’s policymaking role.” Id. at 1803, 1805.
13
But when a court confronts not a challenge to policy, but only “individual
instances of discrimination or law enforcement overreach,” Abbasi, 137
S. Ct. at 1862, the suit may proceed. See Bivens, 403 U.S. at 398; Carlson,
446 U.S. at 16.
This Court should therefore not prohibit Bivens claims merely
because watchlistees interact with different law enforcement agencies.
The Panel distinguished the case at hand because the agent worked for
the Bureau of Land Management (BLM) rather than the BOP or DEA,
two agencies against which the Supreme Court approved Bivens claims.
See slip op. at 9; Bivens, 403 U.S. at 397; Carlson, 446 U.S. at 18. The
Panel reasoned that the mere fact that this case concerned a new
“employing agency” gave rise to a “new Bivens context.” Slip op. at 9. In
support, the Panel cited Justice Sotomayor’s dissent in Egbert, which
argued the “only arguably salient difference” in the facts was that the
defendant did not work for the DEA. See id. (citing Egbert, 142 S. Ct. at
1815). However, the majority opinion in Egbert did not view its holding
as resting on this distinction. Instead, the majority refused to recognize
the claim against CBP agents because it implicated “cross-border
security,” not because the agents did not work for the DEA or BOP. See
14
Egbert, 142 S. Ct. at 1806. Further, the Panel omitted the dissent’s
conclusion that a different employing agency is “too … trivial to create a
new Bivens context.” See id. at 1814-15 (internal quotations omitted). In
any event, a dissent’s concerns about a majority opinion is not grounds
for interpreting the majority opinion’s scope. “[A] dissenting Supreme
Court opinion is not binding precedent and ‘does not tell us how a
majority of the Court would decide.’” United States v. Ameline, 409 F.3d
1073, 1083 n.5 (9th Cir. 2005) (en banc) (quoting Purcell v. BankAtlantic
Fin. Corp., 85 F.3d 1508, 1513 (11th Cir. 1996)).
BLM’s legal mandate does not present a new context for a Bivens
claim. See Abbasi, 137 S. Ct. at 1860. The Panel saw no “reason to believe
that most federal agencies have the same or similar legal mandates.” See
slip op. at 9. Yet the Panel characterized BLM’s mandate as
“maintain[ing] order on federal lands.” Id. at 10. Most law enforcement
agencies, the BLM included, are charged with maintaining order. The
TSA maintains order during travel. See 49 U.S.C. § 114(d). The FBI
maintains order through criminal investigations. See 18 U.S.C. § 3052.
The DEA maintains order by controlling scheduled drugs. See Reorg.
Plan No. 2 of 1973, 38 F.R. § 15932, at Section 1. BOP maintains order of
15
our nation’s federal prison system, as well as some immigration detention
facilities. See 18 U.S.C. § 4042. Each of these entities has agents who may
carry weapons and make arrests, and abusing those powers gives rise to
approved Bivens claims. See Bivens, 403 U.S. at 397. While some
interactions with CBP may differ in a meaningful way from existing
Bivens contexts because they implicate foreign policy, Hernandez v.
Mesa, 140 S. Ct. 735, 743 (2020) and Egbert, 142 S. Ct. at 1805,
unreasonable searches and detention by the TSA at an airport does not
implicate policymaking. The FBI coercing watchlistees to become
informants without attorneys present does not call for congressional
input. Courts review this misconduct by rank-and-file law enforcement
frequently in other cases, be it through Section 1983 claims or through
motions to suppress evidence. “[T]he purpose of Bivens” is to deter
constitutional violations by individual federal officers—not to address
illegal behavior by DEA and BOP agents, while immunizing that same
behavior for every other federal agent. A different acronym on an officer’s
badge does not necessarily make a court ill-suited to adjudicate claims
against him.
16
B. A webpage reporting mechanism is not an alternative

remedial structure that displaces Bivens.
This Court should not rely on BLM’s own webpage to deny a Bivens
claim. To displace a Bivens claim, Congress must provide “what it
considers adequate remedial mechanisms.” Egbert, 142 S. Ct. at 1808
(citation omitted). A webpage to report misconduct neither deters
constitutional violations nor reflects Congress’s intent to do so.
Alternative remedies in lieu of Bivens must “provide roughly
similar incentives for potential defendants to comply with the
[Constitution].” Minneci v. Pollard, 565 U.S. 118, 130 (2012). A court will
not permit a Bivens claim in the face of an “elaborate remedial system
that has been constructed step by step, with careful attention to
conflicting policy considerations.” Bush v. Lucas, 462 U.S. 367, 388
(1983). The “focus” of this analysis “is whether the Government has put
in place safeguards to prevent constitutional violations from recurring.”
Egbert, 142 S. Ct. at 1806 (internal quotations omitted).
Much like DHS TRIP, BLM’s “remedy” is no remedy at all. The
Panel cited a single authority in holding that Denise Mejia had
“alternative remedies” for her injury: the BLM’s threadbare “Report
Misconduct” webpage. See slip op. at 10. The Panel cited no statute
17
indicating that Congress approved this webpage for victims to report
BLM misconduct. See id. The Panel also provided no evidence that this
webpage “provide[d] roughly similar incentives” as a Bivens claim to
protect constitutional rights. See id.; Minneci, 565 U.S. at 130. Nor could
it. Agencies operate these reporting systems like a black box. As
discussed above, DHS does not tell individuals if they are on the
watchlist. DHS does not tell individuals (watchlistees or non-
watchlistees) what it found when investigating the claim or whether any
further information from the individual would help. Similarly, BLM’s
reporting page provides no indicia of any investigation or redress against
the agent. Because agencies choose to withhold information from those
that report misconduct, there is no basis for this Court to determine that
these reporting systems deter agents from breaking the law, let alone
provide “adequate” deterrence that could displace a claim for damages
against an offending officer. See Egbert, 142 S. Ct. at 1807.
Unlike these web reports, a Bivens claim is not sent into the ether
when the victim clicks “submit.” A Bivens claim allows discovery on the
officer’s and agency’s information about the incident. A Bivens claim
allows a neutral fact-finder to probe the officer’s conduct and the merits
18
of the claim. And if successful, a Bivens claim imposes tangible
consequences through a damages award. “For certain injuries, such as
respondents’ wasted plane tickets, effective relief consists of damages,
not an injunction.” See Tanvir, 141 S. Ct. at 492. As a result, Bivens
deters constitutional violations far more than an agency-run webpage.
CONCLUSION
The Court should grant Mejia’s petition for rehearing en banc and
limit its opinion so that it does not eliminate claims against law
enforcement abuse in traditional Bivens contexts and in situations where
the Government does not provide adequate deterrence through other
systems.
Respectfully submitted,
Dated: February 6, 2023 FENWICK & WEST LLP
By: /s/ Todd Gregorian

Todd Gregorian
Garner Kropp

19
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[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
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Signature /s/ Todd Gregorian Date February 6, 2023

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2023-02-06 (47-2) CAIR Amicus Brief

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Case: 21-56282, 02/06/2023, ID: 12647524, DktEntry: 47-2, Page 1 of 25

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

USDC Central District of California

BRIEF OF AMICUS CURIAE COUNCIL ON

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1(a), the

undersigned counsel states that the Council on American-Islamic

parent corporation, and that no publicly held corporation owns 10 percent

or more of stock in CAIR.

Dated: February 6, 2023 FENWICK & WEST LLP

By: /s/ Todd Gregorian

Attorneys for COUNCIL ON

INTEREST OF THE AMICUS CURIAE1

Founded in 1994, the Council on American-Islamic Relations has a

mission to enhance understanding of Islam, protect civil rights, promote

justice, and ensure the constitutional rights of American Muslims.

American Muslims stand a better than average chance of being

detained by federal agents while traveling. Years of experience have

shown that the Government often targets innocent American Muslims

for surveillance, enhanced screening, and other measures, including

through the Government’s secretive Terrorism Screening Database,

known colloquially as the “watchlist.” CAIR has litigated a slew of cases

involving federal law enforcement agents violating American Muslims’

constitutional rights while they attempt to travel. From placing them in

freezing conditions after taking away items of clothing, to holding them

at gunpoint for no discernible reason, the federal agencies charged with

administering areas that implicate the watchlist have a history of

disregarding constitutional rights. When CAIR defends the rights of

individuals on the watchlist, obtaining a non-damages remedy for the

harm inflicted is often impossible because victims have no information

on that status. CAIR files this amicus brief in support of rehearing en

SUMMARY OF THE ARGUMENT

Federal law enforcement agencies have placed thousands of law-

abiding American Muslims on a secret terrorism watchlist. The

Government uses this watchlist to harass travelers and violate their

constitutional rights. These episodes range from the embarrassing and

inconvenient (excavating luggage) to the life-threatening (traffic stops at

gunpoint). Travelers have no way to challenge the watchlist

prophylactically; typically they have no idea that they are on the

watchlist until a confrontation with law enforcement. And after one of

these encounters, people on the watchlist have no effective recourse. They

the individual was on the watchlist to begin with. If a watchlistee sues

The threat of a claim under Bivens v. Six Unknown Named Agents of

effective deterrent against law enforcement abuse.

The Panel here eliminated Bivens claims in well-established

contexts, including some that routinely affect individuals on the

watchlist. Two portions of the Panel’s opinion endanger these claims.

precluding a claim for damages under Bivens, whenever the defendant

purpose of Bivens is to deter constitutional violations by federal law

enforcement officers and other federal officials, and the circumstances of

a case do not necessarily differ meaningfully just because an officer works

for the Drug Enforcement Administration, the Transportation Security

Administration, or any other agency charged with domestic law

to fill out a website form to report complaints to the Government replaces

a Bivens claim, without evidence that these reports are an effective,

congressionally-approved remedial scheme. Individuals on the watchlist

may report air-travel-related abuses to the Government, but unless an