June 19, 2017

Supreme Court Decides Ziglar v. Abbasi, No. 15-1358.

On June 19, 2017, the United States Supreme Court decided Ziglar v. Abbasi, No. 15-1358, which was consolidated with Ashcroft v. Abbasi, No. 15-1359 and Hasty v. Abbasi, No. 15-1363, holding that detention-policy claims arising out of post-September 11 detentions could not go forward in a Bivens action seeking civil remedies, that a prisoner-abuse claim against an assistant warden must be examined under a special-factors analysis to decide whether a Bivens action for civil remedies could go forward, and that executive officials and wardens are entitled to qualified immunity for claims under 42 U.S.C. § 1985(3).

In the wake of the September 11 attacks, the federal government took into custody hundreds of “illegal aliens” and held them pending determination of whether they had connections to terrorism. Some of the detainees sued “Executive Officials”—former Attorney General John Ashcroft, former FBI Direct Robert Mueller, and former INS Commissioner James Ziglar, as well as the “Wardens”—the warden and associate warden of the detention center where the detainees were held. The detainees sought damages under the implied cause of action theory adopted by the Supreme Court in Bivens v. Six Unknown Federal Narcotics Agents for claims related to the detention policy, for prisoner abuse, and for civil conspiracy under 42 U.S.C. § 1985(3). In the district court, motions to dismiss were granted as to some defendants and denied as to others. On appeal, the Second Circuit held the complaint was sufficient to proceed against the Executive Officials and Wardens.

The Supreme Court reversed as to all claims, except for the prisoner-abuse claim against the assistant warden, which was remanded. As to the detention-policy claim, the Supreme Court reasoned that a Bivens action is limited, and a court must consider the “special factors counselling hesitation” in deciding whether to extend Bivens. Here, the detention-policy claims allege that the officials violated the detainees’ due process and equal protection rights, and that the Wardens violated the Fourth and Fifth Amendments by subjecting the detainees to frequent strip searches. The Court examined whether the claims differed in a meaningful way from previous Bivens cases. Because the detention-policy claims bore little resemblance to earlier Bivens claims, the Court declined to extend the reach of Bivens to allow the detainees’ claim for damages to proceed.

The Court applied a different analysis for the claim against the assistant warden, was claimed to have violated the Fifth Amendment by allowing prison guards to abuse the detainees. Although the claim was similar to previous Bivens actions, the Second Circuit should still have conducted a special factors analysis to determine whether the claims differed meaningfully from earlier Bivens actions.

Finally, the Court concluded that the Executive Officials and Wardens were entitled to qualified immunity from the detainees’ claims under 42 U.S.C. § 1985(3), which alleged a civil conspiracy. The Court reasoned that the officials would not have known with sufficient certainty whether section 1985(3) prohibited their consultations.

Justice Kennedy delivered the opinion of the Court, except as to Part IV-B, in which Chief Justice Roberts and Justices Thomas and Alito joined. Justice Kennedy also delivered an opinion with respect to Part IV-B, in which Chief Justice Roberts and Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of the case.

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