Ziglar v. Abbasi, Nos. 15–1358

• Court: United States Supreme Court
• Writing for the Court: Justice KENNEDY delivered the opinion of the Court, except as to Part IV–B.
• Citation: 137 S.Ct. 1843,198 L.Ed.2d 290
• Parties: James W. ZIGLAR, Petitioner v. Ahmer Iqbal ABBASI, et al. John D. Ashcroft, Former Attorney General, et al., Petitioners v. Ahmer Iqbal Abbasi, et al. Dennis Hasty, et al., Petitioners v. Ahmer Iqbal Abbasi, et al.
• Docket Number: Nos. 15–1358,15–1363.,15–1359
• Decision Date: 19 June 2017

137 S.Ct. 1843
198 L.Ed.2d 290

James W. ZIGLAR, Petitioner
v.
Ahmer Iqbal ABBASI, et al.

John D. Ashcroft, Former Attorney General, et al., Petitioners
v.
Ahmer Iqbal Abbasi, et al.

Dennis Hasty, et al., Petitioners
v.
Ahmer Iqbal Abbasi, et al.

Nos. 15–1358
15–1359
15–1363.

Supreme Court of the United States

Argued Jan. 18, 2017.
Decided June 19, 2017.

Ian H. Gershengorn, Acting Solicitor General, for Petitioners in Nos. 15–1358 and 15–1359.

Jeffrey A. Lamken, Washington, DC, for Petitioners in No. 15–1363.

Rachel Meeropol, New York, NY, for Respondents.

Clifton S. Elgarten, Shari Ross Lahlou, Kate M. Growley, Crowell & Moring LLP, Washington, DC, for Dennis Hasty.

Jeffrey A. Lamken, Michael G. Pattillo, Jr., Eric R. Nitz, James A. Barta, MoloLamken LLP, Washington, DC, Britt Hamilton, Sara E. Margolis, MoloLamken LLP, New York, NY, Debra L. Roth, Julia H. Perkins, Shaw Bransford & Roth, Washington, DC, for James Sherman.

Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Douglas N. Letter, Barbara L. Herwig, H. Thomas Byron III, Michael Shih, Attorneys, Department of Justice, Washington, DC, for Petitioners John D. Ashcroft, et al.

William Alden McDaniel, Jr., Ballard Spahr LLP, Baltimore, MD, for Petitioner James W. Ziglar.

Nancy L. Kestenbaum, Joanne Sum–Ping, Jennifer L. Robbins, Matthew Q. Verdin, Covington & Burling LLP, New York, NY, David M. Zionts, Covington & Burling LLP, Washington, DC, Rachel A. Meeropol, Michael Winger, Baher A. Azmy, Shayana Kadidal, Center for Constitutional Rights, Alexander A. Reinert, New York, NY, for Respondents.

Justice KENNEDY delivered the opinion of the Court, except as to Part IV–B.

After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court.

The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages

137 S.Ct. 1852

under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. § 1980, 42 U.S.C. § 1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.

The suit was commenced in the United States District Court for the Eastern District of New York. After this Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a fourth amended complaint was filed; and that is the complaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of interlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel—and a second unsigned dissent from the court's declining to rehear the suit en banc, joined by Judge Raggi and five other judges—the Court of Appeals ruled that the complaint was sufficient for the action to proceed against the named officials who are now before us. See Turkmen v. Hasty, 789 F.3d 218 (2015) (panel decision); Turkmen v. Hasty, 808 F.3d 197 (2015) (en banc decision).

The Court granted certiorari to consider these rulings. 580 U.S. –––– (2016). The officials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioners here. The former detainees who seek relief under the fourth amended complaint are the respondents. The various claims and theories advanced for recovery, and the grounds asserted for their dismissal as insufficient as a matter of law, will be addressed in turn.

I

Given the present procedural posture of the suit, the Court accepts as true the facts alleged in the complaint. See Iqbal, 556 U.S., at 678, 129 S.Ct. 1937.

A

In the weeks following the September 11, 2001, terrorist attacks—the worst in American history—the Federal Bureau of Investigation (FBI) received more than 96,000 tips from members of the public. See id., at 667, 129 S.Ct. 1937. Some tips were based on well-grounded suspicion of terrorist activity, but many others may have been based on fear of Arabs and Muslims. FBI agents "questioned more than 1,000 people with suspected links to the [September 11] attacks in particular or to terrorism in general." Ibid .

While investigating the tips—including the less substantiated ones—the FBI encountered many aliens who were present in this country without legal authorization. As a result, more than 700 individuals were arrested and detained on immigration charges. Ibid. If the FBI designated an alien as not being "of interest" to the investigation, then he or she was processed according to normal procedures. In other words the alien was treated just as if, for example, he or she had been arrested at the border after an illegal entry. If, however, the FBI designated an alien as "of interest" to the investigation, or if it had doubts about the proper designation in a particular case, the alien was detained subject to a "hold-until-cleared policy." The aliens were held without bail.

Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropolitan

137 S.Ct. 1853

Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing Unit (or Unit) of the MDC. The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in " ‘tiny cells for over 23 hours a day.’ " 789 F.3d, at 228. Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—any time they were moved, as well as at random in their cells.

Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of "physical and verbal abuse." Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.

B

Respondents are six men of Arab or South Asian descent. Five are Muslims. Each was illegally in this country, arrested during the course of the September 11 investigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released respondents were removed from the United States.

Respondents then sued on their own behalf, and on behalf of a putative class, seeking compensatory and punitive damages, attorney's fees, and costs. Respondents, it seems fair to conclude from the arguments presented, acknowledge that in the ordinary course aliens who are present in the United States without legal authorization can be detained for some period of time. But here the challenge is to the conditions of their confinement and the reasons or motives for imposing those conditions. The gravamen of their claims was that the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions.

As relevant here, respondents sued two groups of federal officials in their official capacities. The first group consisted of former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar. This opinion refers to these three petitioners as the "Executive Officials." The other petitioners named in the complaint were the MDC's warden, Dennis Hasty, and associate warden, James Sherman. This opinion refers to these two petitioners as the "Wardens."

Seeking to invoke the Court's decision in Bivens, respondents brought four claims under the Constitution itself. First, 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. Second,...