__ U.S. __ (2017), 15-1358, Ziglar v. Abbasi

Docket Nº:15-1358, 15-1359, 15-1363
Citation:__ U.S. __, 137 S.Ct. 1843, 198 L.Ed.2d 290, 85 U.S.L.W. 4360, 26 Fla.L.Weekly Fed. S 655
Opinion Judge:Kennedy, Justice
Party Name:JAMES W. ZIGLAR, Petitioner (No. 15-1358) v. AHMER IQBAL ABBASI, et al
Attorney:Ian H. Gershengorn argued the cause for petitioners in No. 15-1358 and No. 15-1359. Jeffrey A. Lampken argued the cause for petitioners in No. 15-1363. Rachel Meeropol argued the cause for respondents.
Judge Panel:Kennedy, J., delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, in which Roberts, C. J., and Thomas and Alito, JJ., joined, and an opinion with respect to Part IV-B, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed an opinion concurring in part and ...
Case Date:June 19, 2017
Court:United States Supreme Court

Page __

__ U.S. __ (2017)

137 S.Ct. 1843, 198 L.Ed.2d 290, 85 U.S.L.W. 4360, 26 Fla.L.Weekly Fed. S 655

JAMES W. ZIGLAR, Petitioner (No. 15-1358)



Nos. 15-1358, 15-1359, 15-1363

United States Supreme Court

June 19, 2017 [*]

[137 S.Ct. 1846] Argued January 18, 2017


Turkmen v. Hasty, 789 F.3d 218, (2d Cir. N.Y., June 17, 2015)


[137 S.Ct. 1847] [198 L.Ed.2d 298] In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facility's warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional violations under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, alleging that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U.S.C. § 1985(3), which forbids certain conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit affirmed in most respects as to the Wardens but reversed as to the Executive Officials, reinstating respondents' claims.

Held: The judgment is reversed in part and vacated and remanded in part.

[198 L.Ed.2d 299] 789 F.3d 218, reversed in part and vacated and remanded in part.

[137 S.Ct. 1848] Justice Kennedy delivered the opinion of the Court, except as to Part IV-B, concluding:

1. The limited reach of the Bivens action informs the decision whether an implied damages remedy should be recognized here. Pp. ___ - ___, 198 L.Ed.2d, at 305-310.

(a) In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendments prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens -type remedies twice more, in a Fifth Amendment gender-discrimination case, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15. These are the only cases in which the Court has approved of an implied damages remedy under the Constitution itself. Pp. ___ - ___, 198 L.Ed.2d, at 305-306.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to " provide such remedies as are necessary to make effective" a statute's purpose. J.

  1. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423. The Court has since adopted a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the " determinative" question is one of statutory intent. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517. If a statute does not evince Congress' intent " to create the private right of action asserted," Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well-settled law in its own context, but expanding the Bivens remedy is now considered a " disfavored" judicial activity. Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis. The question is whether Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct. 2404, 76 L.Ed.2d 648. Most often it will be Congress, for Bivens will not be extended to a new context if there are " 'special factors counselling hesitation in the absence of affirmative action by Congress.' " Carlson, supra, at 18, 100 S.Ct. 1468, 64 L.Ed.2d 15. If there are 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, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary's [198 L.Ed.2d 300] power to infer a new

Bivens cause of action. Pp. ___ - ___, 198 L.Ed.2d, at 306-310.

2. Considering the relevant special factors here, a Bivens -type remedy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These " detention policy claims" include the allegations that petitioners violated respondents' due process and equal protection rights by holding them in restrictive conditions [137 S.Ct. 1849] of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. ___ - ___, 198 L.Ed.2d, at 310-316.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents' detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. ___ - ___, 198 L.Ed.2d, at 310-312.

(b) The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Officials, a Bivens action is not " a proper vehicle for altering an entity's policy," Correctional Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal,

supra, at 676, 129 S.Ct. 1937, 173 L.Ed.2d 868. Even an action confined to the Executive Officers' own discrete conduct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v. United States Dist. Court for D. C., 542 U.S. 367, 382, 124 S.Ct. 2576, 159 L.Ed.2d 459. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U.S. 681, 701, 117 S.Ct. 1636, 137 L.Ed.2d 945.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the...

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