Did the Second Circuit err in deciding that non-citizens’ Fifth Amendment claims did not require Bivens “new context” analysis, that the relevant government officials were not entitled to qualified immunity, and that those non-citizens’ claims met Ashcroft v. Iqbal pleading requirements?
This case first asks the Supreme Court to determine whether non-citizens’ claims against government officials who arrested them in connection with the September 11, 2001 attacks and subjected them to harsh conditions during their detention arose in a “new context” under Bivens. Second, it asks whether the government officials were erroneously denied qualified immunity, which would preclude the government officials’ liability for their involvement in the non-citizens’ arrest and detention. Third, this case asks whether the pleading requirements of Ashcroft v. Iqbal are satisfied where the pleading relies on hypothetical scenarios and assumed discriminatory intent. James W. Ziglar, the petitioner, argues that a Bivens remedy is not applicable in this case because Bivens applies to individual government officials’ behavior, not policy concerns such as national security and immigration. Ziglar also argues that the government officials’ actions were reasonable within the context, given the national security concerns, and that the government officials should, therefore, be precluded from liability for their actions. Lastly, Ziglar argues that the respondent Ahmer Iqbal Abbasi failed to demonstrate sufficient evidence to support his claim against the government officials. Meanwhile, Abbasi argues that harsh treatment in federal detention is not a new context under Bivens, that government officials are aware that the Equal Protection Clause categorically prohibits race-based government action, and that Abbasi’s claim satisfied Iqbal’s facial plausibility standard. The Supreme Court’s decision in this case will impact the balance between government officials’ qualified immunity and detained non-citizens’ constitutional rights.
Questions as Framed for the Court by the Parties
- Did the United States Court of Appeals for the Second Circuit, in finding that respondents' Fifth Amendment claims did not arise in a "new context" for purposes of implying a remedy under Bivens v. Six Unknown Named Agents Of The Federal Bureau Of Narcotics, 403 U.S. 388 (1971), err by defining "context" at too high a level of generality where respondents challenge the policy decisions taken in the immediate aftermath of the attacks of September 11, 2001, by petitioner James W. Ziglar, then the Commissioner of the United States Immigration And Naturalization Service, the then-Attorney General of the United States, and the then-Director of the Federal Bureau of Investigation regarding the conditions of confinement of persons illegally in the United States whom the FBI had lawfully arrested and detained in connection with its investigation of the September 11 attacks, each of whom came from the same part of the world as, and shared ethnic and religious affiliations with, the September 11 attackers (many of whom themselves were illegally in the United States), thereby implicating concerns regarding national security, immigration, and the separation of powers that strongly counsel against judicial creation of such a remedy?
- Did the court of appeals, in denying qualified immunity to petitioner Ziglar for his official actions in the immediate aftermath of the attacks of September 11, 2001, err: (A) by defining "established law" at too high a level of generality, thereby failing to recognize that clearly-established law did not make it apparent to all but the plainly incompetent or those who knowingly violate the law that Mr. Ziglar's specific conduct violated the rights of those detainees in the specific context of this case; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like petitioner Ziglar was not clearly established at the time in question, respondents nevertheless could maintain a§ 1985(3) claim against Mr. Ziglar so long as his conduct violated some other clearly established law?
- Did the court of appeals err in finding that respondents' Fourth Amended Complaint meets the pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), because that complaint relies on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with petitioner Ziglar's liability, but which are also consistent with the conclusion that Mr. Ziglar acted with a non-punitive and nondiscriminatory intent to detain in restrictive confinement aliens who were illegally in the United States and who had potential connections to those who had committed terrorist acts, thereby rendering respondents' claims implausible under Iqbal?
This case began over thirteen years ago when eight Arab and Muslim non-citizens brought a claim against high-ranking federal officials who were involved in the government’s investigation into the events of September 11, 2001, when al Qaeda’s attack on American soil caused the death of nearly 3,000 people. These non-citizens, who had been arrested on immigration charges, were detained in connection with investigations of the terrorist attacks though the non-citizens were never involved in terrorist activity. The non-citizens claimed that the conditions of their detention in the highly restrictive Metropolitan Detention Center violated their Fifth Amendment rights to substantive due process and equal protection.
After the September 11 attacks, the Federal Bureau of Investigation (FBI) created a hotline to obtain civilian information to identify the terrorists and prevent any other attacks. The FBI received thousands of tips in the first week alone, all of which the Director of the FBI, Robert Mueller, investigated. Moreover, the Attorney General at the time, John Ashcroft, ordered Mueller to vigorously question all males of Middle Eastern descent whose information they received through the hotline and who were between 18 and 40 years of age. Ashcroft also had the Immigration and Naturalization Service, headed by James Ziglar, point out individuals in violation of immigration laws that fit that description.
The government considered individual non-citizens as under suspicion of terrorism without investigation or knowledge that they had engaged in suspicious behavior. Ashcroft, Mueller, and Ziglar each received daily reports of the individuals arrested and detained despite the lack of information in connection with terrorism. The non-citizens where subjected to the “hold-until-cleared” policy that required that non-citizens remain in detention until the FBI affirmatively cleared them of terrorist connections. During their time in detention, the government officials conceived ways to exert maximum pressure on those detained in connection with the post-September 11 investigations.
The district court granted the government’s motion to dismiss the claim against the Department of Justice officials. The district court denied the motion to dismiss the claim against the Metropolitan Detention Center, however, based on the non-citizens’ substantive due process and equal protection claims. Both the non-citizens and government officials appealed different aspects of the ruling. While the appeal was pending, some of the non-citizens settled their cases against the government or withdrew their claims. Moreover, the Supreme Court decided Ashcroft v. Iqbal, 556 U.S. 662 (2009) altering pleading requirements for the non-citizens’ claims. The non-citizens re-pled their claims.
On appeal, the Second Circuit reinstated the non-citizens’ substantive due process and equal protection claims against the Department of Justice officials and determined that a Bivens remedy was available for each of the non-citizens’ Fifth Amendment claims. The Second Circuit also rejected the government officials’ assertion of qualified immunity. The court concluded that the federal case law as of 2001 clearly established that the government officials’ violated the non-citizens’ constitutional rights.
BIVENS AND OTHER RELEVANT PRECEDENT
First, the Supreme Court will decide if the “new context” standard under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), should be expanded to cover this type of case for purposes of finding a Fifth Amendment remedy. James W. Ziglar, John Ashcroft, Robert Mueller, Dennis Hasty, and James Sherman, the petitioners whose cases have been consolidated into one case to go before the Court, argue that the Court has been hesitant to broaden Bivens to cover novel contexts. In particular, Ziglar et al. claim that Bivens should not be extended without the consideration of “special factors.”
Ziglar et al. argue that both national security and immigration are special considerations that advise against finding a Fifth Amendment remedy in this case. Ziglar et al. claim that both special factors are primarily policy decisions, not the actions by “rogue” officials. Because Bivens applies to the constitutionality of singular officers’ behaviors, not dissuading policymakers’ actions, Ziglar et al. argue that a Bivens remedy should not apply to this context. Instead, Ziglar et al. contend that individuals challenging a flawed policy should bring a legal action under the Administrative Procedure Act or other comparable statute, not directly against the policy’s drafter.
Additionally, Ziglar et al. argue that Abbasi defines both “constitutional claim” and “mechanism of injury” with high generality, which fails to meet the “special factors” analysis under Bivens. In defining “context,” Ziglar et al. reference Davis v. Passman, 442 U.S. 228 (1979), which held that “punitive conditions without sufficient cause” are not sufficient to state a claim arises under an actionable context comparable to Bivens. In fact, Ziglar et al. argue that “implied causes of action” have been “disfavored” by the Court for over thirty-five years. Finally, Ziglar et al. claim that Abbasi’s context is not comparable to Carlson v. Green, 446 U.S. 14 (1980), concerning a prisoner whose medical needs were dismissed, giving rise to an Eighth Amendment Bivens claim. Ziglar et al. argue this because Carlson did not apply to prisoners broadly. Ziglar also argues that petitioners are atypical Bivens defendants because both Ashcroft and Mueller were acting in their role as policymakers.
Ahmer Iqbal Abbasi et al. respond that the “new context” Bivens analysis only applies under three circumstances. First, Abbasi et al. argue that a Bivens claim must be extended if a new constitutional right is asserted. Abbasi et al. argue that the Court has previously permitted a Bivens remedy for a Fifth Amendment claim. Additionally, Abbasi et al. refer to Bell v. Wolfish, 441 U.S. 520, 535–37 (1979), and Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), for support that a Bivens remedy has been extended to federal detainees contesting detention conditions. Second, Abbasi et al. posit that Bivens must be extended if there is a novel class of defendants. Abbasi et al. claim that all types of federal officials, including “high-level policymakers,” are a well-established class of defendants under Bivens. Finally, Abbasi et al. urge that a Bivens extension is required if there is a novel context that concerns separation of powers interests. Abbasi et al. argue that maltreatment in federal detainment is not a novel context under Bivens. Moreover, Abbasi claims that mere variations in fact, involvement of high-level officers, and immigration and national security implications are insufficient cause for requiring a Bivens extension.
Abbasi et al. argue that, even if Ziglar established that this case qualifies as a new context, the Court may still recognize a Bivens cause of action for remedy. Abbasi et al. contend that the Court can apply a two-part analysis: first, the Court asks if an alternate remedy exists that warrants judicial preclusion, and second, the Court asks, if an alternate remedy does not exist, then the Court considers special circumstances that guide an appropriate judicial remedy. While concerns about separation of powers are considered, Abbasi et al. argue that the Bivens objective, principally dissuading unconstitutional transgressions from individual officials, is a central part of the Court’s analysis. Nonetheless, Abbasi et al. contend that Bivens provides a better remedy for individuals harmed by a federal official because the unconstitutional acts by federal officers creates a greater level of harm than compensable under a state trespass statute.
CONFLICTS WITH QUALIFIED IMMUNITY
Second, the Court will determine if the former Attorney General and FBI Director are entitled to qualified immunity, precluding them from liability for their involvement in respondents’ detentions. Ziglar et al. claim that qualified immunity applies to the substantive-due-process, equal-protection, and statutory claims. Ziglar et al. maintain that the Saucier v. Katz, 533 U.S. 194, 202 (2001), analysis applies, where an officer is shielded from personal liability if his or her actions, though illegal, were reasonable within the context. Historically, Ziglar et al. argue that qualified immunity precludes liability for government officers who exercised their discretion in a reasonable, but ultimately erroneous, manner on “open legal questions.” Therefore, Ziglar et al. claim that there is insufficient evidence that Abbasi’s detention was unreasonable in light of the September 11th terrorist attacks.
Furthermore, Ziglar et al. argue that the Department of Justice (“DOJ”) defendants’ actions align with important policy interests, like hindering communication in furtherance of terrorist activity or obstructing governmental investigations. Also, Ziglar et al. maintain that the government does not need to establish an individualized cause for a suspect’s detention as long as detention is rationally tied to a “legitimate government objective.” Finally, Ziglar et al. claim that there is insufficient evidence to establish that national security was a pre-textual policy interest for discriminatory animus.
Even weighing national security interests, Abbasi et al. counter that their detention was an unreasonable act by federal officials and unconstitutional in light of Korematsu v.
United States, 323 U.S. 214 (1944). Abbasi et al. contend that Equal Protection cases have consistently established that government detention based on race, ethnicity, and religion is unconstitutional, concluding that any reasonable government official knows that “race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest.”
Even if qualified immunity applied, Abbasi et al. claims that fair warning precludes qualified immunity liability, where the law has clearly established a “general constitutional rule” that pertains to the particular contested act. Here, Abbasi maintains that the illegality of detention that is motivated by race, religion, or ethnicity, as well as requiring just cause for holding individuals under punitive conditions, has been clearly established by law for years.
THE IQBAL STANDARD
Third, the Court will address whether an unsupported assumption of discriminatory intent meets the pleading requirement established by Ashcroft v. Iqbal, 556 U.S. 662 (2009). Ziglar et al. argue that the plausibility of illegal conduct is insufficient to establish liability for a Bivens claim under the Iqbal standard. Furthermore, Ziglar et al. argue that claims of discriminatory intent do not meet the Iqbal standard if plausible alternative explanations exist, like detaining undocumented nonresidents unlawfully in the United States and pursuing an investigation into terrorist activity.
Ziglar et al. claim that the court of appeals adopted a list-merger theory, where undocumented noncitizens were indiscriminately detained for 9/11 investigation purposes, even though no reasonable belief of terrorism existed. Under the list-merger theory, Ziglar et al. argue that Abbasi failed to provide sufficient evidence that either Ashcroft or Mueller individually created or ratified a merge in the detainees listed.Second, Ziglar et al. argue that hold-until-cleared policy necessarily assumes that uncertainty will exist in the cause of a suspect’s arrest. Third, Ziglar et al. maintain that there is no evidence that detainees were transferred or directed to detention in the Administrative Maximum Special Housing Unit (“ADMAX SHU”). Nonetheless, Ziglar et al. argue that ADMAX SHU, a highly restrictive form of detention, can legally be used if a question of terrorism exists. Finally, Ziglar et al. argue that, even if officials were aware of the restrictive nature of ADMAX SHU detention, any detention was done in spite of adverse impact on a distinct group, not because of the adverse impact.
Abbasi et al. counter that the complaint does satisfy the Iqbal pleading standard. Abbasi et al. contend that the plaintiff standard is satisfied by showing “reasonable inference” that the defendant is liable for unlawful conduct, not by satisfying a heightened showing that the plaintiff’s claim is more plausible than any other alternative reason.
Finally, Abbasi et al. maintain that plaintiffs must establish “facial plausibility” in regards to the claim for relief, not the ultimate underlying factual assertion.
GOVERNMENT OFFICIALS’ QUALIFIED IMMUNITY VERSUS DETAINED NON-CITIZENS’ DUE PROCESS AND EQUAL PROTECTION OF RIGHTS
Four former Attorneys General and a public interest law firm (“the former Attorneys General”), in support of Ziglar et al., argue that the Supreme Court has previously recognized that requiring government officials to defend against damages claims for their actions taken during their employment imposes a significant burden on those officials. The former Attorneys General claim that this burden is emphasized when officials are working on cases involving national security. The former Attorneys General explain that national security concerns result in significant levels of public passion, which are then reflected in increased amounts of litigation. The former Attorneys General argue that the Supreme Court created the qualified immunity doctrine in response to the detrimental effects of this significant burden. The former Attorneys General elaborate by describing the qualified immunity doctrine, which provides government officials “an immunity from suit” by settling or finding a solution to insubstantial claims before discovery.
Further, the former Attorneys General argue that the Second Circuit’s and the non-citizens’ broad interpretation of due process protections directly conflicts with the Supreme Court’s qualified immunity laws. The former Attorneys General explain that the Due Process Clause generally prohibits government officials’ imposition of punishment on detainees prior to trial because such actions fail to serve any legitimate government objective. The former Attorneys General argue, however, that this broad interpretation of the Due Process Clause does not provide guidance in determining whether the due process rights of the detainees in this case have been violated and whether the evidence “clearly established” that the conditions they experienced served no legitimate objective given the national security concerns. The former Attorneys General also argue that at the time of the events of this case, imposing harsh conditions on detainees in response to national security crisis served legitimate government objectives. The former Attorneys General contend that an expansive interpretation of the detainee’s rights, like the Second Circuit’s approach, would mean that almost every allegation of harsh treatment or conditions of confinement would be considered a violation of the detainees’ rights and would hold government officials liable for their actions even during a national security crisis.
Abbasi et al., on the other hand, argue that individual liberty and national security can be reconciled within the legal framework. Abbasi et al. claim that the individual rights established through laws and the Constitution do not disappear in extraordinary times. Specifically, Abbasi et al. contend that delaying immigration hearings, cutting detainees’ communication with the outside world, and requiring officers to encourage suspected terrorists to cooperate “in any way possible” violate detained non-citizens’ substantive due process and equal protection rights. Abbasi et al. emphasize that those harsh conditions should not be imposed on persons without “individualized suspicion” because, without individualized suspicion as in this case, the harsh conditions become “arbitrary or purposeless in violation of the Due Process Clause.” Abbasi et al. argue that Ziglar has interpreted the non-citizens’ due process rights too narrowly in claiming that “official action is protected by qualified immunity unless the very action in question has previously been held unlawful.”
Abbasi et al. further argue that the Court has established rules regarding the deprivation of rights based on race, religion, ethnicity, or national origin. Abbasi et al. claim that, though officers of the law may not be personally responsible for detaining immigrants in harsh conditions for national security concerns, the Court could not allow individuals to be constitutionally subjected to those conditions as a result of their “perceived faith or race.” In other words, Abbasi et al.claim, “by treating [individuals of Middle Eastern descent] as suspected terrorists when they had no grounds for suspicion beyond race or religion, officers mistreated federal prisoners, imposing ‘punitive conditions [of confinement] without sufficient cause.’” Abbasi et al. clarify that just because individuals are immigrants or non-citizens, mistreatment in a federal prison does not present a different context and they should not be denied remedy.
- Garrett Epps, Do Counterterrorism Lawsuits Stand a Chance in Court?, The Atlantic, (October 14, 2016).
- Julian Hattem, Court rules Bush officials can be sued for post- 9/11 detentions, The Hill (June 17, 2015).
- Adam Liptak, Case Accusing Bush Officials of 9/11 Abuses Heads to Supreme Court, The New York Times (October 11, 2016).
- Ziglar v. Abbasi (formerly Turkmen v. Ashcroft), Center for Constitutional Justice (Last modified Dec. 22, 2016).