October 31st, 2017 by Rieders Travis in Civil Rights

Ziglar v. Abbasi, 582 U.S. ___ (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, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.

The 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.

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. This is in accord with the Court’s observation that it has “consistently refused to extend Bivens to any new context or new category of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001). Indeed, the Court has refused to do so for the past 30 years.

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.

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, 403 U. S. 388; Davis, 442 U. S. 228; Chappell, 462 U. S. 296. The Court of Appeals therefore should have held that this was a new Bivens context. Had it done so, it would have recognized that a special factors analysis was required before allowing this damages suit to proceed. 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.

For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens. 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 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.

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.

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.

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, 533 U. S., at 202. Petitioners are entitled to qualified immunity with respect to the claims under 42 U. S. C. §1985(3).

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.