Yesterday, the Supreme Court decided Ziglar v. Abbasi, an important case curbing lawsuits against former government officials for purported abuse of federal detainees. Some will view this decision as an important protection for former executive officials against judicial Monday-morning quarterbacking. Critics will see it as another hurdle to preventing lawless actions taken in the name of national security in time of war or national emergency.
The story of the case begins right after 9/11. Overwhelmed with bogus tips and worried about what might come next, the FBI arrested 700 people for violation of immigration regulations and detained anyone “of interest” without bail for months. Arrestees included six men of Arab or South Asian descent who were held in Brooklyn, New York’s Metropolitan Detention Center under horrible conditions, including physical and verbal abuse by their guards.
The six men sued three executive officials (then-Attorney General John Ashcroft, then-FBI Director Robert Mueller, and then-Commissioner of the U.S. Immigration and Naturalization Service James Ziglar) for designing the detention policy and the Detention Center’s warden and associate warden (Dennis Hasty and James Sherman) for the harsh conditions. They sought damages for violations of their Fourth and Fifth Amendment rights under Bivens v. Six Unknown Federal Narcotics Agents (1971) and 42 U.S.C. § 1985(3) for conspiracy to violate their constitutional rights. The district court dismissed the claims against Ashcroft, Mueller, and Ziglar but preserved the rest; the Second Circuit reinstated the claims against the executive officials.
A six-justice Court (Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch had not yet taken his seat) sided 4-2 against the plaintiffs, remanding one claim and dismissing the rest. Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justice Alito in full, and in part by Justice Thomas. The Court held that the Second Circuit:
- was wrong to create a Bivens remedy against the executive officials for purported harms resulting from their official detention policy;
- should have considered “special factors” the Court has enumerated before extending Bivens against Hasty; and
- should have dismissed the § 1985 claims on qualified immunity grounds.
Justice Thomas wrote a separate opinion concurring on (1) and (2) and concurring in the judgment for (3). Justice Breyer dissented on all three points, joined by Justice Ginsburg, but he does not discuss (3) in any detail.
The Majority Opinion
In the Court’s view, Bivens and the two cases extending it—Davis v. Passman (1979) and Carlson v. Green (1980)—are aberrations and products of a no-longer popular legal school of thought. The Court no longer believes, as it did in the mid-twentieth century, that it is appropriate to imply private rights of action into statutes to effectuate their purposes. Inventing causes of action for constitutional violations is also perilous: it forces Congress to decide whether to indemnify the officials, and “the discovery and trial process” imposes “time and administrative costs” (p. 10).
The Court then introduces a two-part framework for assessing Bivens claims. If plaintiffs are not applying Bivens to a “new context,” they can proceed. If plaintiffs are applying Bivens to a new context, the courts must ask if there are “special factors counseling hesitation”—that is, “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong” (pp. 12–13).
Bivens claims against the executive officials
The Court applies this framework to the Bivens claim against Ashcroft, Mueller, and Ziglar. This is a “novel” application of Bivens, the Court finds, because it has never before extended Bivens to cover lawsuits against executive officials for designing a detention policy in response to a terrorist attack.
Thus the Court must proceed to the “special factors” analysis. These factors counsel against extending Bivens, for six reasons.
- Bivens is meant to discourage illegal acts by individual federal officers, not stop illegal federal policies;
- litigation would distract high-level executive officials from their duties;
- litigation would threaten confidentiality of Executive Branch discussions;
- courts should not get ahead of Congress in creating Bivens remedies for actions taken during national security crises;
- Congress has known about the abuses complained of in the suit for years and chose not to create a cause of action; and
- the plaintiffs could have used, and future plaintiffs will able to seek injunctive and perhaps habeas relief at the time of their detainment.
All this outweighs the need to hold executive officials accountable for their actions during war.
Bivens claims against Warden Hasty
The plaintiffs allege Hasty was “deliberately indifferen[t] to the[ir] abuse” in detention. The Court first finds that their allegations are plausible for Rule 12(b)(6) purposes. But the Court remands to the Second Circuit to do a “special factors” test because this case is not quite like Carlson, which concerned indifference to a prisoner’s medical needs, for three reasons.
- Carlson involved the Eighth Amendment; this case involves the Fifth;
- plaintiffs might have been able to seek injunctive or habeas relief; and
- the Prison Litigation Reform Act (PLRA), which may occupy the field of prisoner abuse suits, does not allow abused prisoners to seek damages from jail wardens.
§ 1985(3) claims and qualified immunity
The Court finally rejects the § 1985(3) claims against all of the defendants on qualified immunity grounds (here, the Court speaks only for a plurality; Justice Thomas writes separately on this issue). Qualified immunity immunizes from suit officials who did not “violate clearly established law” (p. 28). The Court determines that the Second Circuit should have extended qualified immunity here because:
- it’s not clear that executive officials within a single department (Justice) can conspire for § 1985 purposes; and
- a § 1985(3) conspiracy claim must allege agreement between the parties, so allowing these suits to proceed might discourage executive branch officials from consulting with one another.
Justice Thomas’s Partial Concurrence and Concurrence in the Judgment
Justice Thomas makes one brief point and a longer one. First, he thinks Bivens is simply outdated and should never be extended, he but joins with the Court to form a majority view. Second, the Court should change its qualified immunity jurisprudence. Rather than use the “clearly violate established law” standard, the Court should hold that officials are immune from suit only if the common law in 1871 would have immunized them.
However, Justice Thomas does not explain how 1871 common law immunity doctrine would resolve this case; he just wants the Court to reconsider qualified immunity.
Justice Breyer’s Dissent
Justice Breyer sees the Bivens line of cases as less aberrational and less costly than the majority. In his view, Bivens’s central holding—“that the Constitution provides federal courts with considerable legal authority to use traditional remedies to right constitutional wrongs” (p. 5)— goes back to Marbury v. Madison. He also thinks it would be odd to allow suits against state officials under § 1983 for constitutional violations while barring such suits against federal officials.
Justice Breyer argues that the majority got the Bivens framework wrong. The Court is right to ask first if the case involves a “new context.” If not, the Court should allow plaintiffs to proceed. If so, the Court should then consider whether there is another remedial scheme available. If not, the Court should do the “special factors” analysis. In this case, Justice Breyer believes a new context is not at issue, that no other adequate remedial scheme is available, and that no special factors caution hesitation. Unlike the majority, he lumps all the Bivens claims together.
This case does not involve a “new context” because it is not “fundamentally different” from previous cases. “If an arrestee can bring a claim of excessive force (Bivens itself), and a convicted prisoner can bring a claim for denying medical care (Carlson), someone who has neither been charged nor convicted with a crime should also be able to challenge abuse that causes him to need medical care” (p. 12). He is unwilling to distinguish this case from Bivens and Carlson on national security grounds when some of the plaintiffs were detained through mid-2002. Justice Breyer would therefore not dismiss the constitutional claims. And he agrees with the lower court on qualified immunity for the § 1985(3) claims, though he does not go into more detail.
He then argues in the alternative that the Court also got the “alternative remedy” and “special factors” analysis wrong. The PLRA does not provide a remedy to people detained on immigration charges, and injunctive and habeas relief may not have been available and would not have given them “redress for harms they have already suffered” (p. 14).
Because there is no alternative remedy, he turns to the special factors analysis. Justice Breyer first refutes the Court’s “two general considerations” that caution against extending Bivens: the Court’s recent hostility to statutory implied causes of action, and Congress’s unwillingness to create a remedy for the post-9/11 purported abuses. There is reason to extend Bivens even if the Court chooses not to create new causes of action, and congressional silence can also be spun as approval of Bivens. He then rejects as irrelevant the seven specific factors that the Court mentions in passing, including the defendants’ rank, the constitutional right underlying their claim, and the fact that that the plaintiffs are challenging a general policy.
The majority’s best argument, he thinks, is that it is inappropriate to authorize Bivens for actions taken during war and national emergencies. But Justice Breyer thinks that under the majority analysis these risks are overblown, for four reasons:
- constitutional protections already take into account countervailing “public necessity,” and what “is unreasonable and illegitimate in time of peace may be reasonable and legitimate in time of war” (p. 21);
- qualified immunity and Ashcroft v. Iqbal’s heightened pleading standard will prevent excessive judicial harassment;
- the Court does not recognize vicarious liability suits; and
- “courts can, and should, tailor discovery orders so that they do not unnecessarily or improperly interfere with the official’s work” (p. 22).
By contrast, there are “far too many instances where the executive or legislative branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights” (p. 23). It’s better to preserve Bivens damages remedies “after emotions have cooled.” If plaintiffs can only seek injunctive and habeas relief during the crisis, they will lose far too often, generating harmful precedents that will be used to threaten rights in the future.