Lee v. Rosen

Court: U.S. Court of Appeals for the District of Columbia Circuit

Date Filed: Feb. 1, 2021

Background: In July 2019, Jason Lee, a former FBI intelligence officer, sued U.S. Attorney General William Barr, alleging that he had been denied a security clearance because of discrimination by polygraph examiners on the basis of his race and national origin.

The lawsuit includes four claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a 1971 U.S. Supreme Court ruling that recognized a cause of action against federal officers in their personal capacities for violating certain constitutional rights. In this case, one of the Bivens claims is based on an alleged First Amendment violation.

In granting the attorney general’s motion to dismiss in June 2020, the U.S. District Court for the District of Columbia Circuit suggested that Bivens relief may be broadly unavailable under the First Amendment, citing the Supreme Court’s 2017 ruling in Ziglar v Abbasi.

Our Position: The appeals court should ensure that its ruling does not broadly preclude Bivens relief for all First Amendment claims.

• Bivens remedies are an indispensable deterrent against violations of the newsgathering rights of the press, and they are especially important in light of recent arrests and uses of force against the press covering protests.
• Longstanding precedent supports the application of Bivens to First Amendment cases.
• In Abbasi, the Supreme Court ruled that when presented with a case of “new context” courts must consider how “special factors” could alter the recognition of a Bivens claim. The Court did not, however, rule that “new context” is determinative of whether Bivens relief is available at all.

Quote: “The recent arrests and uses of force against journalists engaged in lawful newsgathering by federal officers are precisely the type of constitutional violation where courts can and should recognize a cause of action under Bivens. The lower court’s reading of Abassi and Loumiet [v. United States] could, if adopted, exempt these claims from Bivens’ orbit, impairing the safety of journalists and the free flow of newsworthy information to the public.”

Related: The Reporters Committee submitted a friend-of-the-court brief In Black Lives Matter D.C. v. Trump, a lawsuit filed in response to the government’s violent crackdown on a June 1 protest outside the White House. In its brief, filed in December 2020, the Reporters Committee urged the D.C. District Court to reject a U.S. Park Police officer’s argument that Bivens remedies are broadly precluded under the First Amendment.

Update: On Oct. 29, 2024, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s decision granting a motion to dismiss Lee’s claims, finding that federal courts do not have jurisdiction to review security clearance determinations since those determinations are within the complete discretion of the executive branch.