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ZIGLAR v. ABBASI ET AL. (2017)
United States Supreme Court
ZIGLAR v. ABBASI ET AL. (2017)
No. 15-1358
Argued: January 18, 2017 Decided: June 19, 2017
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,
Held: The judgment is reversed in part and vacated and remanded in part.
789 F. 3d 218, reversed in part and vacated and remanded in part.
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. 6-14.
(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 Amendment's 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,
(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. I. Case Co. v. Borak,
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,
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 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. 14-23.
(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. 15-17.
(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,
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 Government's response to the September 11 attacks, they necessarily require an inquiry into national-security issues. National-security policy, however, is the prerogative of Congress and the President, and courts are "reluctant to intrude upon" that authority absent congressional authorization. Department of Navy v. Egan,
The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents' detention policy claims to proceed under Bivens. Pp. 17-23.
3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents' prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitutional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judicial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative remedies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court's expressed caution about extending the Bivens remedy, this context must be regarded as a new one. Pp. 23-26.
4. Petitioners are entitled to qualified immunity with respect to respondents' claims under 42 U. S. C. §1985(3). Pp. 26-32.
(a) Assuming that respondents' allegations are true and well pleaded, the question is whether a reasonable officer in petitioners' position would have known the alleged conduct was an unlawful conspiracy. The qualified-immunity inquiry turns on the "objective legal reasonableness" of the official's acts, Harlow v. Fitzgerald,
(b) Here, reasonable officials in petitioners' positions would not have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clearly established law on the issue whether agents of the same executive department are distinct enough to "conspire" with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach consensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to "conspire" in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that reasonable officers in petitioners' positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29-32.
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 concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined. Sotomayor, Kagan, and Gorsuch, JJ., took no part in the consideration or decision of the cases.
Opinion of the Court
582 U. S. ____ (2017)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
Nos. 15-1358, 15-1359 and 15-1363
JAMES W. ZIGLAR, PETITIONER 15-1358 v. AHMER IQBAL ABBASI, et al. JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, et al., PETITIONERS 15-1359 v. AHMER IQBAL ABBASI, et al. DENNIS HASTY, et al., PETITIONERS 15-1363 v. AHMER IQBAL ABBASI, et al.on writs of certiorari to the united states court of appeals for the second circuit
[June 19, 2017]
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 under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents,
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,
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,
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. 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 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, respondents alleged that petitioners detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment. Third, respondents alleged that the Wardens subjected them to punitive strip searches unrelated to any legitimate penological interest, in violation of the Fourth Amendment and the substantive due process component of the Fifth Amendment. Fourth, respondents alleged that the Wardens knowingly allowed the guards to abuse respondents, in violation of the substantive due process component 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. Respondents alleged that petitioners conspired with one another to hold respondents in harsh conditions because of their actual or apparent race, religion, or national origin.
C
The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Court of Appeals affirmed in most respects as to the Wardens, though it held that the prisoner abuse claim against Sherman (the associate warden) should have been dismissed. 789 F. 3d, at 264-265. As to the Executive Officials, however, the Court of Appeals reversed, reinstating respondents' claims. Ibid. As noted above, Judge Raggi dissented. She would have held that only the prisoner abuse claim against Hasty should go forward. Id., at 295, n. 41, 302 (opinion concurring in part in judgment and dissenting in part). The Court of Appeals declined to rehear the suit en banc, 808 F. 3d, at 197; and, again as noted above, Judge Raggi joined a second dissent along with five other judges, id., at 198. This Court granted certiorari. 580 U. S. ___ (2016).
II
The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent.
A
In 1871, Congress passed a statute that was later codified at Rev. Stat. §1979, 42 U. S. C. §1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.
In 1971, and against this background, this Court decided Bivens. The Court held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures. See
In the decade that followed, the Court recognized what has come to be called an implied cause of action in two cases involving other constitutional violations. In Davis v. Passman,
B
To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now. During this "ancien regime," Alexander v. Sandoval,
These statutory decisions were in place when Bivens recognized an implied cause of action to remedy a constitutional violation. Against that background, the Bivens decision held that courts must "adjust their remedies so as to grant the necessary relief" when "federally protected rights have been invaded."
C
Later, the arguments for recognizing implied causes of action for damages began to lose their force. In cases decided after Bivens, and after the statutory implied cause-of-action cases that Bivens itself relied upon, the Court adopted a far more cautious course before finding implied causes of action. In two principal cases under other statutes, it declined to find an implied cause of action. See Piper v. Chris-Craft Industries, Inc.,
Following this expressed caution, the Court clarified in a series of cases that, when deciding whether to recognize an implied cause of action, the "determinative" question is one of statutory intent. Sandoval,
The decision to recognize an implied cause of action under a statute involves somewhat different considerations than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself. When Congress enacts a statute, there are specific procedures and times for considering its terms and the proper means for its enforcement. It is logical, then, to assume that Congress will be explicit if it intends to create a private cause of action. With respect to the Constitution, however, there is no single, specific congressional action to consider and interpret.
Even so, it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation. When determining whether traditional equitable powers suffice to give necessary constitutional protection--or whether, in addition, a damages remedy is necessary--there are a number of economic and governmental concerns to consider. Claims against federal officials often create substantial costs, in the form of defense and indemnification. Congress, then, has a substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government. In addition, the time and administrative costs attendant upon intrusions resulting from the discovery and trial process are significant factors to be considered. In an analogous context, Congress, it is fair to assume, weighed those concerns in deciding not to substitute the Government as defendant in suits seeking damages for constitutional violations. See 28 U. S. C. §2679(b)(2)(A) (providing that certain provisions of the Federal Tort Claims Act do not apply to any claim against a federal employee "which is brought for a violation of the Constitution").
For these and other reasons, the Court's expressed caution as to implied causes of actions under congressional statutes led to similar caution with respect to actions in the Bivens context, where the action is implied to enforce the Constitution itself. Indeed, in light of the changes to the Court's general approach to recognizing implied damages remedies, it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today. To be sure, no congressional enactment has disapproved of these decisions. And it must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.
Given the notable change in the Court's approach to recognizing implied causes of action, however, the Court has made clear that expanding the Bivens remedy is now a "disfavored" judicial activity. Iqbal,
For example, the Court declined to create an implied damages remedy in the following cases: a First Amendment suit against a federal employer, Bush v. Lucas,
When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is "who should decide" whether to provide for a damages remedy, Congress or the courts? Bush,
The answer most often will be Congress. When an issue " 'involves a host of considerations that must be weighed and appraised,' " it should be committed to " 'those who write the laws' " rather than " 'those who interpret them.' " Ibid. (quoting United States v. Gilman,
This Court has not defined the phrase "special factors counselling hesitation." The necessary inference, though, is that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a "special factor counselling hesitation," a factor must cause a court to hesitate before answering that question in the affirmative.
It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case.
Sometimes there will be doubt because the case arises in a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere. See Chappell, supra, at 302 (military); Stanley, supra, at 679 (same); Meyer, supra, at 486 (public purse); Wilkie, supra, at 561-562 (federal land). And sometimes there will be doubt because some other feature of a case--difficult to predict in advance--causes a court to pause before acting without express congressional authorization. In sum, 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, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.
In a related way, if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress has created "any alternative, existing process for protecting the [injured party's] interest" that itself may "amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie, supra, at 550; see also Bush, supra, at 385-388 (recognizing that civil-service regulations provided alternative means for relief); Malesko,
III
It is appropriate now to turn first to the Bivens claims challenging the conditions of confinement imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. The Court will refer to these claims as the "detention policy claims." The detention policy claims allege that petitioners violated respondents' due process and equal protection rights by holding them in restrictive conditions of confinement; the claims further allege that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The term "detention policy claims" does not include respondents' claim alleging that Warden Hasty allowed guards to abuse the detainees. That claim will be considered separately, and further, below. At this point, the question is whether, having considered the relevant special factors in the whole context of the detention policy claims, the Court should extend a Bivens-type remedy to those claims.
A
Before allowing respondents' detention policy claims to proceed under Bivens, the Court of Appeals did not perform any special factors analysis at all. 789 F. 3d, at 237. The reason, it said, was that the special factors analysis is necessary only if a plaintiff asks for a Bivens remedy in a new context. 789 F. 3d, at 234. And in the Court of Appeals' view, the context here was not new. Id., at 235.
To determine whether the Bivens context was novel, the Court of Appeals employed a two-part test. First, it asked whether the asserted constitutional right was at issue in a previous Bivens case. 789 F. 3d, at 234. Second, it asked whether the mechanism of injury was the same mechanism of injury in a previous Bivens case. 789 F. 3d, at 234. Under the Court of Appeals' approach, if the answer to both questions is "yes," then the context is not new and no special factors analysis is required. Ibid.
That approach is inconsistent with the analysis in Malesko. Before the Court decided that case, it had approved a Bivens action under the Eighth Amendment against federal prison officials for failure to provide medical treatment. See Carlson,
That, however, was not the controlling analytic framework in Malesko. Even though the right and the mechanism of injury were the same as they were in Carlson, the Court held that the contexts were different.
For similar reasons, the holding of the Court of Appeals in the instant suit is inconsistent with this Court's analytic framework in Chappell. In Davis, decided before the Court's cautionary instructions with respect to Bivens suits, see supra, at 11-12, the Court had held that an employment-discrimination claim against a Congressman could proceed as a Bivens-type action. Davis,
The proper test for determining whether a case presents 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. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
In the present suit, respondents' detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil. Those claims bear 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. See Bivens,
B
After considering the special factors necessarily implicated by the detention policy claims, the Court now holds that those factors show that whether a damages action should be allowed is a decision for the Congress to make, not the courts.
With respect to the claims against the Executive Officials, it must be noted that a Bivens action is not "a proper vehicle for altering an entity's policy." Malesko, supra, at 74. Furthermore, a Bivens claim is brought against the individual official for his or her own acts, not the acts of others. "The purpose of Bivens is to deter the officer." Meyer,
Even if the action is confined to the conduct of a particular Executive Officer in a discrete instance, these claims would call into question the formulation and implementation of a general policy. This, in turn, would necessarily require inquiry and discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged. These consequences counsel against allowing a Bivens action against the Executive Officials, for the burden and demand of litigation might well prevent them--or, to be more precise, future officials like them--from devoting the time and effort required for the proper discharge of their duties. See Cheney v. United States Dist. Court for D. C.,
A closely related problem, as just noted, is that the discovery and litigation process would either border upon or directly implicate the discussion and deliberations that led to the formation of the policy in question. See Federal Open Market Comm. v. Merrill,
In addition to this special factor, which applies to the claims against the Executive Officials, there are three other special factors that apply as well to the detention policy claims against all of the petitioners. First, respondents' detention policy claims challenge more than standard "law enforcement operations." United States v. Verdugo-Urquidez,
National-security policy is the prerogative of the Congress and President. See U. S. Const., Art. I, §8; Art. II, §1, §2. Judicial inquiry into the national-security realm raises "concerns for the separation of powers in trenching on matters committed to the other branches." Christopher v. Harbury,
For these and other reasons, courts have shown deference to what the Executive Branch "has determined . . . is 'essential to national security.' " Winter v. Natural Resources Defense Council, Inc.,
There are limitations, of course, on the power of the Executive under Article II of the Constitution and in the powers authorized by congressional enactments, even with respect to matters of national security. See, e.g., Hamdi v. Rumsfeld,
Even so, the question is only whether "congressionally uninvited intrusion" is "inappropriate" action for the Judiciary to take. Stanley,
Furthermore, in any inquiry respecting the likely or probable intent of Congress, the silence of Congress is relevant; and here that silence is telling. In the almost 16 years since September 11, the Federal Government's responses to that terrorist attack have been well documented. Congressional interest has been "frequent and intense," Schweiker, supra, at 425, and some of that interest has been directed to the conditions of confinement at issue here. Indeed, at Congress' behest, the Department of Justice's Office of the Inspector General compiled a 300-page report documenting the conditions in the MDC in great detail. See 789 F. 3d, at 279 (opinion of Raggi, J.) (noting that the USA PATRIOT Act required "the Department's Inspector General to review and report semi-annually to Congress on any identified abuses of civil rights and civil liberties in fighting terrorism"). Nevertheless, "[a]t no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit." Schweiker,
This silence is notable because it is likely that high-level policies will attract the attention of Congress. Thus, when Congress fails to provide a damages remedy in circumstances like these, it is much more difficult to believe that "congressional inaction" was "inadvertent." Id., at 423.
It is of central importance, too, that this is not a case like Bivens or Davis in which "it is damages or nothing." Bivens, supra, at 410 (Harlan, J., concurring in judgment); Davis,
Indeed, the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately; yet this damages suit remains unresolved some 15 years later. (As in Bell and Preiser, the Court need not determine the scope or availability of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.) In sum, respondents had available to them " 'other alternative forms of judicial relief.' " Minneci, 565 U. S., at 124. And when alternative methods of relief are available, a Bivens remedy usually is not. See Bush,
There is a persisting concern, of course, that absent a Bivens remedy there will be insufficient deterrence to prevent officers from violating the Constitution. In circumstances like those presented here, however, the stakes on both sides of the argument are far higher than in past cases the Court has considered. If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office.
On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril. Cf. Stanley, supra, at 681 (noting that the special-factors analysis in that case turned on "how much occasional, unintended impairment of military discipline one is willing to tolerate"). The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents' detention policy claims to proceed under Bivens.
IV
A
One of respondents' claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC's warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.
The warden argues, as an initial matter, that the complaint does not " 'state a claim to relief that is plausible on its face.' " Iqbal,
The complaint alleges that guards routinely abused respondents; that the warden encouraged the abuse by referring to respondents as "terrorists"; that he prevented respondents from using normal grievance procedures; that he stayed away from the Unit to avoid seeing the abuse; that he was made aware of the abuse via "inmate complaints, staff complaints, hunger strikes, and suicide attempts"; that he ignored other "direct evidence of [the] abuse, including logs and other official [records]"; that he took no action "to rectify or address the situation"; and that the abuse resulted in the injuries described above, see supra, at 4. These allegations--assumed here to be true, subject to proof at a later stage--plausibly show the warden's deliberate indifference to the abuse. Consistent with the opinion of every judge in this case to have considered the question, including the dissenters in the Court of Appeals, the Court concludes that the prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation if a Bivens remedy is to be implied.
Warden Hasty argues, however, that Bivens ought not to be extended to this instance of alleged prisoner abuse. As noted above, the first question a court must ask in a case like this one is whether the claim arises in a new Bivens context, i.e., whether "the case is different in a meaningful way from previous Bivens cases decided by this Court." Supra, at 16.
It is true that this case has significant parallels to one of the Court's previous Bivens cases, Carlson v. Green,
Yet even a modest extension is still an extension. And this case does seek to extend Carlson to a new context. As noted above, a case can present a new context for Bivens purposes if it implicates a different constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or if there are potential special factors that were not considered in previous Bivens cases. See supra, at 13.
The constitutional right is different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth. See
This case also has certain features that were not considered in the Court's previous Bivens cases and that might discourage a court from authorizing a Bivens remedy. As noted above, the existence of alternative remedies usually precludes a court from authorizing a Bivens action. Supra, at 14. And there might have been alternative remedies available here, for example, a writ of habeas corpus, Wolfish,
Furthermore, legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation. See supra, at 14. Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. See 42 U. S. C. §1997e. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. See Porter v. Nussle,
The differences between this claim and the one in Carlson are perhaps small, at least in practical terms. Given this Court's expressed caution about extending the Bivens remedy, however, the new-context inquiry is easily satisfied. Some differences, of course, will be so trivial that they will not suffice to create a new Bivens context. But here the differences identified above are at the very least meaningful ones. Thus, before allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other "sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy" in a suit like this one. Supra, at 15.
B
Although the Court could perform that analysis in the first instance, the briefs have concentrated almost all of their efforts elsewhere. Given the absence of a comprehensive presentation by the parties, and the fact that the Court of Appeals did not conduct the analysis, the Court declines to perform the special factors analysis itself. The better course is to vacate the judgment below, allowing the Court of Appeals or the District Court to do so on remand.
V
One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3). Unlike the prisoner abuse claim just discussed, this claim implicates the activities of all the petitioners--the Executive Officials as well as the Wardens--in creating the conditions of confinement at issue here.
The civil-conspiracy prohibition contained in §1985(3) was enacted as a significant part of the civil rights legislation passed in the aftermath of the Civil War. See Carpenters v. Scott,
A
The qualified immunity rule seeks a proper balance between two competing interests. On one hand, damages suits "may offer the only realistic avenue for vindication of constitutional guarantees." Harlow v. Fitzgerald,
The Court's cases provide additional instruction to define and implement that immunity. Whether qualified immunity can be invoked turns on the "objective legal reasonableness" of the official's acts. Harlow, supra, at 819. And reasonableness of official action, in turn, must be "assessed in light of the legal rules that were clearly established at the time [the action] was taken." Anderson, supra, at 639 (internal quotation marks omitted); see also Mitchell,
The Fourth Amendment provides an example of how qualified immunity functions with respect to abstract rights. By its plain terms, the Amendment forbids unreasonable searches and seizures, yet it may be difficult for an officer to know whether a search or seizure will be deemed reasonable given the precise situation encountered. See Saucier v. Katz,
It is not necessary, of course, that "the very action in question has previously been held unlawful." Anderson, supra, at 640. That is, an officer might lose qualified immunity even if there is no reported case "directly on point." Ashcroft, supra, at 741. But "in the light of pre-existing law," the unlawfulness of the officer's conduct "must be apparent." Anderson, supra, at 640. To subject officers to any broader liability would be to "disrupt the balance that our cases strike between the interests in vindication of citizens' constitutional rights and in public officials' effective performance of their duties." Davis v. Scherer,
In light of these concerns, the Court has held that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs,
B
Under these principles, it must be concluded that reasonable officials in petitioners' positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.
At least two aspects of the complaint indicate that petitioners' potential liability for this statutory offense would not have been known or anticipated by reasonable officials in their position. First, the conspiracy recited in the complaint is alleged to have been between or among officers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice). Second, the discussions were the preface to, and the outline of, a general and far-reaching policy.
As to the fact that these officers were in the same Department, an analogous principle discussed in the context of antitrust law is instructive. The Court's precedent indicates that there is no unlawful conspiracy when officers within a single corporate entity consult among themselves and then adopt a policy for the entity. See Copperweld Corp v. Independence Tube Corp.,
To be sure, this Court has not given its approval to this doctrine in the specific context of §1985(3). See Great American,
In addition to the concern that agents of the same legal entity are not distinct enough to conspire with one another, there are other sound reasons to conclude that conver-sations and agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under §1985(3). To state a claim under §1985(3), a plaintiff must first show that the defendants conspired--that is, reached an agreement--with one another. See Carpenters,
As indicated above with respect to other claims in this suit, open discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the Federal Government should pursue. See supra, at 17-18. Close and frequent consultations to facilitate the adoption and implementation of policies are essential to the orderly conduct of governmental affairs. Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the officials as individuals, the result would be to chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies. See Cheney,
These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Whether that contention should prevail need not be decided here. It suffices to say that the question is sufficiently open so that the officials in this suit could not be certain that §1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable officers in petitioners' positions would not have known with any certainty that the alleged agreements were forbidden by law. See Saucier,
* * *
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners' alleged conduct was proper, nor whether it gave decent respect to respondents' dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.
The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners' position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.
The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings.
It is so ordered.
Justice Sotomayor, Justice Kagan, and Justice Gorsuch took no part in the consideration or decision of these cases.
Opinion of Thomas, J.
582 U. S. ____ (2017)
Nos. 15-1358, 15-1359 and 15-1363
JAMES W. ZIGLAR, PETITIONER 15-1358 v. AHMER IQBAL ABBASI, et al. JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, et al., PETITIONERS 15-1359 v. AHMER IQBAL ABBASI, et al. DENNIS HASTY, et al., PETITIONERS 15-1363 v. AHMER IQBAL ABBASI, et al.on writs of certiorari to the united states court of appeals for the second circuit
[June 19, 2017]
Justice Thomas, concurring in part and concurring in the judgment.
I join the Court's opinion except for Part IV-B. I write separately to express my view on the Court's decision to remand some of respondents' claims under Bivens v. Six Unknown Fed. Narcotics Agents,
I
With respect to respondents' Bivens claims, I join the opinion of the Court to the extent it reverses the Second Circuit's ruling. The Court correctly applies our precedents to hold that Bivens does not supply a cause of action against petitioners for most of the alleged Fourth and Fifth Amendment violations. It also correctly recognizes that respondents' claims against petitioner Dennis Hasty seek to extend Bivens to a new context. See ante, at 24.
I concur in the judgment of the Court vacating the Court of Appeals' judgment with regard to claims against Hasty. Ante, at 29. I have previously noted that " 'Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.' " Wilkie v. Robbins,
II
As for respondents' claims under 42 U. S. C. §1985(3), I join Part V of the Court's opinion, which holds that respondents are entitled to qualified immunity. The Court correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence.
The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§1, 2, 17 Stat. 13. Although the Act made no mention of defenses or immunities, "we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them." Malley v. Briggs,
In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole,
In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely immune from a §1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity.
In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton,
Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in "interpret[ing] the intent of Congress in enacting" the Act. Malley, supra, at 342; see Burns, supra, at 493. Our qualified immunity precedents instead represent precisely the sort of "freewheeling policy choice[s]" that we have previously disclaimed the power to make. Rehberg v. Paulk,
In today's decision, we continue down the path our precedents have marked. We ask "whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted," ante, at 29 (internal quotation marks omitted), rather than whether officers in petitioners' positions would have been accorded immunity at common law in 1871 from claims analogous to respondents'. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.
Breyer, J., dissenting
582 U. S. ____ (2017)
Nos. 15-1358, 15-1359 and 15-1363
JAMES W. ZIGLAR, PETITIONER 15-1358 v. AHMER IQBAL ABBASI, et al. JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, et al., PETITIONERS 15-1359 v. AHMER IQBAL ABBASI, et al. DENNIS HASTY, et al., PETITIONERS 15-1363 v. AHMER IQBAL ABBASI, et al.on writs of certiorari to the united states court of appeals for the second circuit
[June 19, 2017]
Justice Breyer, with whom Justice Ginsburg joins, dissenting.
In Bivens v. Six Unknown Fed. Narcotics Agents,
It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance. See J. Pfander, Constitutional Torts and the War on Terror (2017) (canvassing the history of Bivens and cataloguing cases). Moreover, the courts, in order to avoid deterring federal officials from properly performing their work, have developed safeguards for defendants, including the requirement that plaintiffs plead "plausible" claims, Ashcroft v. Iqbal,
The plaintiffs before us today seek damages for unconstitutional conditions of confinement. They alleged that federal officials slammed them against walls, shackled them, exposed them to nonstop lighting, lack of hygiene, and the like, all based upon invidious discrimination and without penological justification. See ante, at 4-5. In my view, these claims are well-pleaded, state violations of clearly established law, and fall within the scope of longstanding Bivens law. For those reasons, I would affirm the judgment of the Court of Appeals. I shall discuss at some length what I believe is the most important point of disagreement. The Court, in my view, is wrong to hold that permitting a constitutional tort action here would "extend" Bivens, applying it in a new context. To the contrary, I fear that the Court's holding would significantly shrink the existing Bivens contexts, diminishing the compensatory remedy constitutional tort law now offers to harmed individuals.
I shall explain why I believe this suit falls well within the scope of traditional constitutional tort law and why I cannot agree with the Court's arguments to the contrary. I recognize, and write separately about, the strongest of the Court's arguments, namely, the fact that plaintiffs' claims concern detention that took place soon after a serious attack on the United States and some of them concern actions of high-level Government officials. While these facts may affect the substantive constitutional questions (e.g., were any of the conditions "legitimate"?) or the scope of the qualified-immunity defense, they do not extinguish the Bivens action itself. If I may paraphrase Justice Harlan, concurring in Bivens: In wartime as well as in peacetime, "it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy" "for the most flagrant and patently unjustified," unconstitutional "abuses of official power."
I
The majority opinion well summarizes the particular claims that the plaintiffs make in this suit. All concern the conditions of their confinement, which began soon after the September 11, 2001, attacks and "lasted for days and weeks, then stretching into months." Ante, at 1. At some point, the plaintiffs allege, all the defendants knew that they had nothing to do with the September 11 attacks but continued to detain them anyway in harsh conditions. Official Government policy, both before and after the defendants became aware of the plaintiffs' innocence, led to the plaintiffs being held in "tiny cells for over 23 hours a day" with lights continuously left on, "shackled" when moved, often "strip searched," and "denied access to most forms of communication with the outside world." Ante, at 4 (internal quotation marks omitted). The defendants detained the plaintiffs in these conditions on the basis of their race or religion and without justification.
Moreover, the prison wardens were aware of, but deliberately indifferent to, certain unofficial activities of prison guards involving a pattern of "physical and verbal abuse," such as "slam[ming] detainees into walls; twist[ing] their arms, wrists, and fingers; [breaking] their bones;" and subjecting them to verbal taunts. Ibid. (internal quotation marks omitted).
The plaintiffs' complaint alleges that all the defendants--high-level Department of Justice officials and prison wardens alike--were directly responsible for the official confinement policy, which, in some or all of the aspects mentioned, violated the due process and equal protection components of the Fifth Amendment. The complaint adds that, insofar as the prison wardens were deliberately indifferent to the unofficial conduct of the guards, they violated the Fourth and the Fifth Amendments.
I would hold that the complaint properly alleges constitutional torts, i.e., Bivens actions for damages.
A
The Court's holdings in Bivens, Carlson, and Davis rest upon four basic legal considerations. First, the Bivens Court referred to longstanding Supreme Court precedent stating or suggesting that the Constitution provides federal courts with considerable legal authority to use traditional remedies to right constitutional wrongs. That precedent begins with Marbury v. Madison, 1 Cranch 137 (1803), which effectively placed upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special. Chief Justice John Marshall wrote for the Court that
"[t]he very essence of civil liberty [lies] in the right of every individual to claim the protection of the laws, whenever he receives an injury." Id., at 163.
The Chief Justice referred to Blackstone's Commentaries stating that there
" 'is a general and indisputable rule, that where there is a legal right, there is also a legal remedy . . . [and that] it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.' " 1 Cranch, at 163.
The Chief Justice then wrote:
"The government of the United States has been emphatically termed a government of laws, and not of men. It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Ibid.
He concluded for the Court that there must be something "peculiar" (i.e., special) about a case that warrants "exclu[ding] the injured party from legal redress . . . [and placing it within] that class of cases which come under the description of damnum absque injuria--a loss without an injury." Id., at 163-164; but cf. id., at 164 (placing "political" questions in the latter, special category).
Much later, in Bell v. Hood,
"where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."
See also Bivens,
The Bivens Court reiterated these principles and confirmed that the appropriate remedial "adjust[ment]" in the case before it was an award of money damages, the "remedial mechanism normally available in the federal courts." Id., at 392, 397. Justice Harlan agreed, adding that, since Congress' "general" statutory "grant of jurisdiction" authorized courts to grant equitable relief in cases arising under federal jurisdiction, courts likewise had the authority to award damages--the "traditional remedy at law"--in order to "vindicate the interests of the individual" protected by the Bill of Rights. Id., at 405-407 (opinion concurring in judgment).
Second, our cases have recognized that Congress' silence on the subject indicates a willingness to leave this matter to the courts. In Bivens, the Court noted, as an argument favoring its conclusion, the absence of an "explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents." Id., at 397. Similarly, in Davis v. Passman, the Court stressed that there was "no evidence . . . that Congress meant . . . to foreclose" a damages remedy.
Third, our Bivens cases acknowledge that a constitutional tort may not lie when "special factors counse[l] hesitation" and when Congress has provided an adequate alternative remedy.
Fourth, as the Court recognized later in Carlson, a Bivens remedy was needed to cure what would, without it, amount to a constitutional anomaly. Long before this Court incorporated many of the Bill of Rights' guarantees against the States, see Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992), federal civil rights statutes afforded a damages remedy to any person whom a state official deprived of a federal constitutional right, see 42 U. S. C. §1983; Monroe v. Pape,
The Bivens Court also recognized that the Court had previously inferred damages remedies caused by violations of certain federal statutes that themselves did not explicitly authorize damages remedies.
As the majority opinion points out, this Court in more recent years has indicated that "expanding the Bivens remedy is now a 'disfavored' judicial activity." Ante, at 11 (quoting Iqbal,
Thus the Court, as the majority opinion says, repeatedly wrote that it was not "expanding" the scope of the Bivens remedy. Ante, at 11. But the Court nowhere suggested that it would narrow Bivens' existing scope. In fact, to diminish any ambiguity about its holdings, the Court set out a framework for determining whether a claim of constitutional violation calls for a Bivens remedy. See Wilkie, supra, at 549-550. At Step One, the court must determine whether the case before it arises in a "new context," that is, whether it involves a "new category of defendants," Malesko, supra, at 68, or (presumably) a significantly different kind of constitutional harm, such as a purely procedural harm, a harm to speech, or a harm caused to physical property. If the context is new, then the court proceeds to Step Two and asks "whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie,
Precedent makes this framework applicable here. I would apply it. And, doing so, I cannot get past Step One. This suit, it seems to me, arises in a context similar to those in which this Court has previously permitted Bivens actions.
B
1
The context here is not "new," Wilkie, supra, at 550, or "fundamentally different" than our previous Bivens cases, Malesko, supra, at 70. First, the plaintiffs are civilians, not members of the military. They are not citizens, but the Constitution protects noncitizens against serious mistreatment, as it protects citizens. See United States v. Verdugo-Urquidez,
Second, the defendants are Government officials. They are not members of the military or private persons. Two are prison wardens. Three others are high-ranking Department of Justice officials. Prison wardens have been defendants in Bivens actions, as have other high-level Government officials. One of the defendants in Carlson was the Director of the Bureau of Prisons; the defendant in Davis was a Member of Congress. We have also held that the Attorney General of the United States is not entitled to absolute immunity in a damages suit arising out of his actions related to national security. See Mitchell v. Forsyth,
Third, from a Bivens perspective, the injuries that the plaintiffs claim they suffered are familiar ones. They focus upon the conditions of confinement. The plaintiffs say that they were unnecessarily shackled, confined in small unhygienic cells, subjected to continuous lighting (presumably preventing sleep), unnecessarily and frequently strip searched, slammed against walls, injured physically, and subject to verbal abuse. They allege that they suffered these harms because of their race or religion, the defendants having either turned a blind eye to what was happening or themselves introduced policies that they knew would lead to these harms even though the defendants knew the plaintiffs had no connections to terrorism.
These claimed harms are similar to, or even worse than, the harms the plaintiffs suffered in Bivens (unreasonable search and seizure in violation of the Fourth Amendment), Davis (unlawful discrimination in violation of the Fifth Amendment), and Carlson (deliberate indifference to medical need in violation of the Eighth Amendment). Indeed, we have said that, "[i]f a federal prisoner in a [Bureau of Prisons] facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity." Malesko,
It is true that the plaintiffs bring their "deliberate indifference" claim against Warden Hasty under the Fifth Amendment's Due Process Clause, not the Eighth Amendment's Cruel and Unusual Punishment Clause, as in Carlson. But that is because the latter applies to convicted criminals while the former applies to pretrial and immigration detainees. Where the harm is the same, where this Court has held that both the Fifth and Eighth Amendments give rise to Bivens' remedies, and where the only difference in constitutional scope consists of a circumstance (the absence of a conviction) that makes the violation here worse, it cannot be maintained that the difference between the use of the two Amendments is "fundamental." See City of Revere v. Massachusetts Gen. Hospital,
Nor has Congress suggested that it wants to withdraw a damages remedy in circumstances like these. By its express terms, the Prison Litigation Reform Act of 1995 (PLRA) does not apply to immigration detainees. See 42 U. S. C. §1997e(h) ("[T]he term 'prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law . . . "); see also Agyeman v. INS, 296 F. 3d 871, 886 (CA9 2002) ("[W]e hold that an alien detained by the INS pending deportation is not a 'prisoner' within the meaning of the PLRA"); LaFontant v. INS, 135 F. 3d 158, 165 (CADC 1998) (same); Ojo v. INS, 106 F. 3d 680, 683 (CA5 1997) (same). And, in fact, there is strong evidence that Congress assumed that Bivens remedies would be available to prisoners when it enacted the PLRA--e.g., Congress continued to permit prisoners to recover for physical injuries, the typical kinds of Bivens injuries. See 28 U. S. C. §1346(b)(2); Pfander, Constitutional Torts, at 105-106.
If there were any lingering doubt that the claim against Warden Hasty arises in a familiar Bivens context, the Court has made clear that conditions-of-confinement claims and medical-care claims are subject to the same substantive standard. See Hudson v. McMillian,
I recognize that the Court finds a significant difference in the fact that the confinement here arose soon after a national-security emergency, namely, the September 11 attacks. The short answer to this argument, in respect to at least some of the claimed harms, is that some plaintiffs continued to suffer those harms up to eight months after the September 11 attacks took place and after the defendants knew the plaintiffs had no connection to terrorism. See App. to Pet. for Cert. in No. 15-1359, p. 280a. But because I believe the Court's argument here is its strongest, I will consider it at greater length below. See Part III-C, infra.
Because the context here is not new, I would allow the plaintiffs' constitutional claims to proceed. The plaintiffs have adequately alleged that the defendants were personally involved in imposing the conditions of confinement and did so with knowledge that the plaintiffs bore no ties to terrorism, thus satisfying Iqbal's pleading standard. See
2
Even were I wrong and were the context here "fundamentally different," Malesko,
The Court does not claim that the PLRA provides plaintiffs with a remedy. Ante, at 25-26. Rather, it says that the plaintiffs may have "had available to them" relief in the form of a prospective injunction or an application for a writ of habeas corpus. Ante, at 22. Neither a prospective injunction nor a writ of habeas corpus, however, will normally provide plaintiffs with redress for harms they have already suffered. And here plaintiffs make a strong claim that neither was available to them--at least not for a considerable time. Some of the plaintiffs allege that for two or three months they were subject to a "communications blackout"; that the prison "staff did not permit them visitors, legal or social telephone calls, or mail"; that their families and attorneys did not know where they were being held; that they could not receive visits from their attorneys; that subsequently their lawyers could call them only once a week; and that some or all of the defendants "interfered with the detainees' effective access to legal counsel." Office of Inspector General (OIG) Report, App. 223, 293, 251, 391; see App. to Pet. for Cert. in No. 15-1359, at 253a (incorporating the OIG report into the complaint). These claims make it virtually impossible to say that here there is an "elaborate, comprehensive" alternative remedial scheme similar to schemes that, in the past, we have found block the application of Bivens to new contexts. Bush,
There being no "alternative, existing process" that provides a "convincing reason" for not applying Bivens, we must proceed to Step Three. Wilkie, supra, at 550. Doing so, I can find no "special factors [that] counse[l] hesitation before authorizing" this Bivens action.
II
A
The Court describes two general considerations that it believes argue against an "extension" of Bivens. First, the majority opinion points out that the Court is now far less likely than at the time it decided Bivens to imply a cause of action for damages from a statute that does not explicitly provide for a damages claim. See ante, at 8-9. Second, it finds the "silence" of Congress "notable" in that Congress, though likely aware of the "high-level policies" involved in this suit, did not "choose to extend to any person the kind of remedies" that the plaintiffs here "seek." Ante, at 20-21 (internal quotation marks omitted). I doubt the strength of these two general considerations.
The first consideration, in my view, is not relevant. I concede that the majority and concurring opinions in Bivens looked in part for support to the fact that the Court had implied damages remedies from statutes silent on the subject. See
Nor is the second circumstance--congressional silence--relevant in the manner that the majority opinion describes. The Court initially saw that silence as indicating an absence of congressional hostility to the Court's exercise of its traditional remedy-inferring powers. See Bivens, supra, at 397; Davis,
B
The majority opinion also sets forth a more specific list of factors that it says bear on "whether a case presents a new Bivens context." Ante, at 16. In the Court's view, a "case might differ" from Bivens "in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specificity of the individual action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; [7] or the presence of potential special factors that previous Bivens cases did not consider." Ante, at 16. In my view, these factors do not make a "meaningful difference" at Step One of the Bivens framework. Some of them are better cast as "special factors" relevant to Step Three. But, as I see it, none should normally foreclose a Bivens action and none is determinative here. Consider them one by one:
(1) The rank of the officers. I can understand why an officer's rank might bear on whether he violated the Constitution, because, for example, a plaintiff might need to show the officer was willfully blind to a harm caused by lower ranking officers or that the officer had actual knowledge of the misconduct. And I can understand that rank might relate to the existence of a legal defense, such as qualified, or even absolute, immunity. But if--and I recognize that this is often a very big if--a plaintiff proves a clear constitutional violation, say, of the Fourth Amendment, and he shows that the defendant does not possess any form of immunity or other defense, then why should he not have a damages remedy for harm suffered? What does rank have to do with that question, namely, the Bivens question? Why should the law treat differently a high-level official and the local constable where each has similarly violated the Constitution and where neither can successfully assert immunity or any other defense?
(2) The constitutional right at issue. I agree that this factor can make a difference, but only when the substance of the right is distinct. See, e.g., Wilkie,
(3) The generality or specificity of the individual action. I should think that it is not the "generality or specificity" of an official action but rather the nature of the official action that matters. Bivens should apply to some generally applicable actions, such as actions taken deliberately to jail a large group of known-innocent people. And it should not apply to some highly specific actions, depending upon the nature of those actions.
(4) The extent of judicial guidance. This factor may be relevant to the existence of a constitutional violation or a qualified-immunity defense. Where judicial guidance is lacking, it is more likely that a constitutional violation is not clearly established. See Anderson v. Creighton,
(5) The statutory (or other) legal mandate under which the officer was operating. This factor too may prove relevant to the question whether a constitutional violation exists or is clearly established. But, again, assuming that it is, I do not understand why this factor is relevant to the existence of a damages remedy. See Stanley,
(6) Risk of disruptive judicial intrusion. All damages actions risk disrupting to some degree future decisionmaking by members of the Executive or Legislative Branches. Where this Court has authorized Bivens actions, it has found that disruption tolerable, and it has explained why disruption is, from a constitutional perspective, desirable. See Davis,
(7) Other potential special factors. Since I am not certain what these other "potential factors" are and, since the Court does not specify their nature, I would not, and the Court cannot, consider them in differentiating this suit from our previous Bivens cases or as militating against recognizing a Bivens action here.
C
In my view, the Court's strongest argument is that Bivens should not apply to policy-related actions taken in times of national-security need, for example, during war or national-security emergency. As the Court correctly points out, the Constitution grants primary power to protect the Nation's security to the Executive and Legislative Branches, not to the Judiciary. But the Constitution also delegates to the Judiciary the duty to protect an individual's fundamental constitutional rights. Hence when protection of those rights and a determination of security needs conflict, the Court has a role to play. The Court most recently made this clear in cases arising out of the detention of enemy combatants at Guantanamo Bay. Justice O'Connor wrote that "a state of war is not a blank check." Hamdi v. Rumsfeld,
We have not, however, answered the specific question the Court places at issue here: Should Bivens actions continue to exist in respect to policy-related actions taken in time of war or national emergency? In my view, they should.
For one thing, a Bivens action comes accompanied by many legal safeguards designed to prevent the courts from interfering with Executive and Legislative Branch activity reasonably believed to be necessary to protect national security. In Justice Jackson's well-known words, the Constitution is not "a suicide pact." Terminiello v. Chicago,
Moreover, Bivens comes accompanied with a qualified-immunity defense. Federal officials will face suit only if they have violated a constitutional right that was "clearly established" at the time they acted. Harlow,
Further, in order to prevent the very presence of a Bivens lawsuit from interfering with the work of a Government official, this Court has held that a complaint must state a claim for relief that is "plausible." Iqbal,
Finally, where such a claim is filed, courts can, and should, tailor discovery orders so that they do not unnecessarily or improperly interfere with the official's work. The Second Circuit has emphasized the "need to vindicate the purpose of the qualified immunity defense by dismissing non-meritorious claims against public officials at an early stage of litigation." Iqbal v. Hasty, 490 F. 3d 143, 158 (2007). Where some of the defendants are "current or former senior officials of the Government, against whom broad-ranging allegations of knowledge and personal involvement are easily made, a district court" not only "may, but 'must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that' " those officials " 'are not subjected to unnecessary and burdensome discovery or trial proceedings.' " Id., at 158-159. The court can make "all such discovery subject to prior court approval." Id., at 158. It can "structure . . . limited discovery by examining written responses to interrogatories and requests to admit before authorizing depositions, and by deferring discovery directed to high-level officials until discovery of front-line officials has been completed and has demonstrated the need for discovery higher up the ranks." Ibid. In a word, a trial court can and should so structure the proceedings with full recognition that qualified immunity amounts to immunity from suit as well as immunity from liability.
Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the Court's abolition, or limitation of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.
At the same time, there may well be a particular need for Bivens remedies when security-related Government actions are at issue. History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights. We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War I. See W. Rehnquist, All the Laws but One: Civil Liberties in Wartime 209-210, 49-50, 173-180, 183 (1998); see also Ex parte Milligan, 4 Wall. 2 (1866) (decided after the Civil War was over). The pages of the U. S. Reports themselves recite this Court's refusal to set aside the Government's World War II action removing more than 70,000 American citizens of Japanese origin from their west coast homes and interning them in camps, see Korematsu v. United States,
Can we, in respect to actions taken during those periods, rely exclusively, as the Court seems to suggest, upon injunctive remedies or writs of habeas corpus, their retail equivalent? Complaints seeking that kind of relief typically come during the emergency itself, when emotions are strong, when courts may have too little or inaccurate information, and when courts may well prove particularly reluctant to interfere with even the least well-founded Executive Branch activity. That reluctance may itself set an unfortunate precedent, which, as Justice Jackson pointed out, can "li[e] about like a loaded weapon" awaiting discharge in another case. Korematsu, supra, at 246 (dissenting opinion).
A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available. In such circumstances, courts have more time to exercise such judicial virtues as calm reflection and dispassionate application of the law to the facts. We have applied the Constitution to actions taken during periods of war and national-security emergency. See Boumediene,
As is well known, Lord Atkins, a British judge, wrote in the midst of World War II that "amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace." Liversidge v. Anderson, [1942] A. C. 206 (H. L. 1941) 244. The Court, in my view, should say the same of this Bivens action.
With respect, I dissent.
FOOTNOTES
Footnote 1
Together with No. 15-1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15-1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.
FOOTNOTES
Footnote 1
Although we first formulated the "clearly established" standard in Bivens cases like Harlow and Anderson, we have imported that standard directly into our 1871 Act cases. See, e.g., Pearson v. Callahan,
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ZIGLAR v. ABBASI ET AL., (2017)
No. 15-1358
Argued: January 18, 2017
Decided: June 19, 2017
Court: United States Supreme Court
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