Maher Arar is a Canadian who, while making a flight connection in New York, was removed from the United States to Syria, where he was tortured.
Mr. Arar eventually made it back to Canada, and began a lawsuit against US officials in the federal court system in New York. He alleged that he was the victim of the US federal policy of “extraordinary rendition.”
His suit was apparently tossed out on national security grounds by a three judge panel of the 2nd Circuit Court of Appeals.
His lawyers were working on a petition for a re-hearing en banc by the entire Court of Appeals, when, on its own motion, the Court announced that it would hold an en banc review: U.S Court to review Arar torture lawsuit.
The article makes it sound as if the Court’s decision to re-hear on their own motion is extraordinary, and bodes well for Mr. Arar’s ultimate success.
Any US law-talkin’ Dopers able to comment, on either the decision to review, or the implications for Mr. Arar’s chances of success?
U.S. Courts of Appeal are courts with between 6 (First Circuit) and 28 (Ninth Circuit) judges in regular active service, but which normally sit in panels of three judges, which often include senior (semi-retired) or visiting (from other circuits or district court) judges. Once a three judge panel rules on a case, the losing party can apply to have the case reheard en banc, by the entire court (though I believe the Ninth Circuit has nine judge “mini-banc” panel). In addition, the court can sua sponte (on its own motion) order a rehearing en banc.
One reason that this is so surprising is that the Second Circuit (covering New York, Vermont and Connecticut) is known as a court that grants en banc rehearings very rarely, and does so sua sponte even more rarely still. Essentially, the court has a corporate culture of not rehearing cases and letting the panel decisions stand.
A rehearing en banc requires that a majority of the judges in regular active service (12 in the case of the Second Circuit) vote for the rehearing. Under the rules, you can’t make a “motion” for rehearing en banc, but merely a “suggestion” that the court do so. It has to be a judge of the court that asks the remainder of the court to be polled.
What this all means is that (without a party even asking) a judge saw that the decision was significant enough to be worthy of reconsideration despite the corporate culture against it, and got half a dozen of his or her colleagues to agree.
Now this doesn’t mean that the decision will be reversed on rehearing, but it does mean that at least a majority of the court thought the decision worrisome enough to be heard again, something a judge usually doesn’t think if he or she thinks the decision came out right.
Thanks, Northern Piper.
Good news, and an excellent article for anyone who needs to catch up on Mr. Arar’s ordeal.
I can hope that the next administration will do what the present one should have done a long time ago.