case law update

Supreme Court: Bivens Remedy Not Extended to Post-9/11 Detainment and Treatment Claims Made by Detainees

Following the terrorist attacks on September 11, 2001, the FBI ordered hundreds of illegal aliens to be taken into custody to determine whether the detainees had connections to terrorism.

Recently, the Supreme Court reviewed claims made by several detainees with respect to the FBI’s post-September 11 practices.

Respondents were six men of Arab or South Asian descent. Each were arrested during the course of the FBI’s September 11 investigation, subjected to a hold-until-cleared policy, and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondents were held in the Administrative Maximum Special Housing Unit (SHU) of the MDC.

Pursuant to Bureau of Prisons policy, detainees were held in tiny cells for over 23 hours a day, had little opportunity for exercise or recreation, were forbidden to keep anything in their cells, were denied access to most forms of communication, and were frequently strip searched. Guards also engaged in physical and verbal abuse, slammed detainees into walls, twisted their arms, wrists and fingers, broke their bones, referred to them as terrorists, threatened them, made humiliating sexual comments to them, and insulted their religion. 

After being released from MDC, respondents were removed from the United
States. They brought suit against petitioners, who included the former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (executive officials), and against the then MDC Warden and then Associate Warden (wardens). 

Respondents brought four claims pursuant to the Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Respondents alleged that petitioners detained them in harsh pretrial conditions for a punitive purpose in violation of the substantive due process component of the Fifth Amendment, and because of their actual or apparent race, religion, or national origin in violation of the equal protection component of the Fifth Amendment; that the wardens subjected them to punitive strip searches in violation of the Fourth Amendment and the substantive due process component of the Fifth Amendment; and that the wardens knowingly allowed the guards to abuse them in violation of the substantive due process component of the Fifth Amendment. Respondents also brought a claim under 42 U.S.C. § 1985(3), and alleged that petitioners conspired with one another to hold them in harsh conditions because of their actual or apparent race, religion, or national origin.

The district court dismissed the claims against the executive officials and allowed the claims against the wardens. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision with respect to the wardens. The court of appeals then reversed the district court’s decision with respect to the executive officials and reinstated the respondents’ claims. Petitioners filed a petition for a writ of certiorari on May 9, 2016, and the Supreme Court granted the petition on October 11, 2016.

Justice Kennedy delivered the opinion of the Court. The Supreme Court first addressed whether the detention policy claims at issue presented a new context under Bivens. If a case is different in a meaningful way from previous Bivens cases decided by the Court, then the claims present a new Bivens context. The court of appeals did not find that the respondents presented a new Bivens context when they challenged the conditions of confinement imposed on them pursuant to the high-level executive policy, and allowed the respondents’ claims to proceed under Bivens.

Here, the Supreme Court determined that respondents presented a new Bivens context. The Court found that the respondents’ detention policy claims had little resemblance to the three Bivens claims the Court has approved in the past: “a claim against FBI agents for handcuffing a man in his own home without a warrant a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate’s asthma.” Bivens, 403 U.S. 388; Davis v. Passman, 442 U.S. 228 (1979); Chappell v. Wallace, 462 U.S. 296 (1983). 

When a new Bivens context is recognized, a special factors analysis is required before allowing the damages suit to proceed. Since the court of appeals failed recognize a new Bivens context here, it did not conduct a special factors analysis. The Court ruled that the special factors showing whether a damages action should be allowed is “a decision for Congress to make, not the courts.”

Still, it mentioned several factors that should be considered. In regard to the claims against the executive officials, the Court noted that a Bivens action is not a “proper vehicle for altering” the FBI’s policies. With respect to other special factors that apply to the claims against all petitioners, the Court considered that the claims inquire into national security. It noted that “[n]ational-security policy is the prerogative of the Congress and the President,” not the courts. Likewise, the Court found it “telling” that Congress has failed to provide a damages remedy given the amount of time that has passed since September 11, 2001. The Court also stated that respondents had other alternative forms of judicial relief. The respondents could have challenged individual instances of discrimination or law enforcement overreach. Further, the respondents could have sought a habeas corpus remedy that would have provided a faster and more direct route to relief than a suit for damages. Instead, the respondents challenged large-scale policy decisions.

The Court then considered the respondents’ claims of prisoner abuse against the Warden in violation of the Fifth Amendment. The court of appeals held that the substantive standard for the sufficiency of the claims was whether the warden showed “deliberate indifference” to prisoner abuse. The Court concluded that the prisoner abuse allegations against the Warden state a plausible ground to find a constitutional violation if a Bivens remedy were implied.

The Warden contended that Bivens should not extend to this instance of alleged prisoner abuse. The Court looked at whether the claim arose under a new Bivens context. It noted that the case had “significant parallels” to a previous Bivens case, Carlson v. Green, 446 U.S. 14 (1980). In that case, the Court allowed a Bivens claim for prisoner mistreatment. Still, the Court found that the constitutional right is different here because Carlson was predicated on the Eighth Amendment and this claim was predicated on the Fifth Amendment. Because this a new context under Bivens, the court of appeals should have performed a special factors analysis before allowing the claim to proceed. The Court declined to perform the special factors analysis, vacated the court of appeals’ judgment, and remanded this claim.

Lastly, the Court reviewed the respondents’ claim that petitioners are subject to liability for civil conspiracy under 42 U.S.C. §1985(3). The Court, assuming the claims to be “true and well pleaded,” found that the petitioners were entitled to qualified immunity on this claim. The Court stated that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Thus, the Court found that the law the respondents sought to invoke could not be clearly established and reasonable officers in the in the petitioners’ positions would not have known, and could not have predicted, that § 1985(3) prohibited their consultations and the resulting policies that caused the injuries alleged.

Read the full case: Ziglar v. Abbassi


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.




Posted in Case Law Update

Tags: FBI, Supreme Court, Bivens


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