Ziglar v. Abbasi

Supreme Court of the United States
582 U. S. ____ (2017) (2017)

ELI5:

Rule of Law:

An implied damages remedy under Bivens v. Six Unknown Fed. Narcotics Agents will not be extended to a new context if special factors counsel hesitation. Matters of national security policy, the risk of judicial intrusion into executive functions, and the availability of alternative remedies are considered special factors that caution against creating a Bivens remedy, particularly for claims challenging high-level policy decisions.

Facts:

Following the September 11, 2001 terrorist attacks, the U.S. government initiated a large-scale investigation.
As part of this investigation, federal officials implemented a "hold-until-cleared" policy for undocumented aliens deemed "of interest."
The respondents, six men of Arab or South Asian descent, were arrested on immigration violations and detained under this policy.
They were held for three to eight months at the Metropolitan Detention Center in Brooklyn in an Administrative Maximum Special Housing Unit.
The conditions of confinement were harsh, involving over 23 hours a day in small cells with constant light, frequent shackling and strip searches, limited communication, and alleged physical and verbal abuse by guards.
The men were eventually cleared of any connection to terrorism, released from the detention center, and removed from the United States.

Procedural Posture:

Respondents sued petitioners (federal officials) in the U.S. District Court for the Eastern District of New York for constitutional and statutory violations.
The District Court granted a motion to dismiss the claims against the high-level Executive Officials but denied the motion to dismiss the claims against the Wardens.
On interlocutory appeal, the U.S. Court of Appeals for the Second Circuit affirmed the ruling as to the Wardens but reversed the dismissal of the claims against the Executive Officials, allowing the entire case to proceed.
The Second Circuit denied the officials' petition for rehearing en banc.
The U.S. Supreme Court granted certiorari to review the Second Circuit's decision.

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Issue:

Does an implied damages remedy under Bivens extend to claims against federal executive officials for an alleged unconstitutional policy of detention and harsh confinement implemented in the wake of a national security crisis?

Opinions:

Majority - Justice Kennedy

No. An implied damages remedy under Bivens does not extend to these claims. Expanding the Bivens remedy is a 'disfavored' judicial activity, and courts must hesitate before creating such a remedy in a new context where special factors are present. This case presents a new context because it involves high-level national security policies, differing meaningfully from the ordinary law enforcement actions in prior Bivens cases. Several special factors counsel hesitation: 1) the claims challenge national security policy, a prerogative of the political branches; 2) allowing the suit would risk disruptive judicial intrusion into sensitive executive functions and deliberations, potentially chilling officials from taking necessary actions in future crises; 3) alternative remedies, such as injunctive relief or a writ of habeas corpus, were potentially available, so this was not a 'damages or nothing' situation; and 4) Congress's failure to authorize a damages remedy despite its awareness of these detention policies suggests its silence was a deliberate choice. Therefore, the decision to create such a remedy rests with Congress, not the courts.

Concurring - Justice Thomas

Yes, the Bivens remedy should not be extended. Bivens is a 'relic' of an era where the Court improperly assumed law-making powers and should be limited to the precise circumstances of the original cases, not extended. While joining the majority's reasoning on the detention policy claims, he would have reversed the prisoner abuse claim against Warden Hasty outright rather than remanding it. Additionally, he expressed growing concern with the Court's qualified immunity jurisprudence, arguing it has strayed from its historical common-law basis into a form of judicial policymaking that should be reconsidered.

Dissenting - Justice Breyer

Yes. The Bivens remedy should extend to these claims because this is not a new context. The respondents' claims of punitive confinement, physical abuse, and invidious discrimination are similar to the constitutional harms addressed in the original Bivens trilogy. Even if this were a new context, no special factors counsel hesitation, as alternative remedies like habeas corpus were likely unavailable due to a 'communications blackout' imposed on the detainees. The existing legal safeguards of qualified immunity and heightened pleading standards are sufficient to protect officials from frivolous suits without eliminating a remedy for clear constitutional violations. A damages action is particularly necessary to provide a check on executive power during times of national crisis when other branches may be overly deferential.

Analysis:

This decision significantly curtails the availability of Bivens remedies by establishing a broad definition of what constitutes a 'new context' requiring judicial hesitation. By treating any claim that differs 'in a meaningful way' from the original trilogy as new and defining 'special factors' to include national security, high-level policy, and separation of powers concerns, the Court makes it exceptionally difficult for plaintiffs to sue federal officials for damages. The ruling effectively insulates high-level executive policy decisions, particularly those made in the name of national security, from damages liability, shifting the authority to create such remedies almost exclusively to Congress. This reinforces a nearly forty-year trend of refusing to expand Bivens, thereby narrowing the path for redressing constitutional violations by federal officers.

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