SCOTUS Finds Aliens Detained after 9/11 Have No Implied Cause of Action in Suit Against Government Officials

Implied Cause of Action



On June 19, 2017, the Supreme Court of the United States issued a decision in Ziglar v. Abbasi, 528 U.S. __ (2017) [PDF version]. The case concerned six alien plaintiffs who were detained in federal custody for long periods in the aftermath of the September 11, 2001, terrorist attacks, and who sought to bring suit for alleged violations of their constitutional rights by several Executive Branch officials and by the wardens at their detention facility. In so doing, they asked courts to extend the Supreme Court's important decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) [PDF version], wherein the Court found an implied cause of action (to bring a lawsuit) against Federal Government officials for an alleged Fourth Amendment violation. Additionally, the respondents in Ziglar v. Abbasi also brought one statutory claim against the Federal Government officials.

Writing for an unusual 4-Justice majority, Justice Anthony Kennedy delivered the opinion of the court, rejecting the extension of Bivens to the claims involving government policy and the statutory claim. The Court remanded the respondents' prisoner abuse claims for further consideration of the issue of the applicability of Bivens. Justices Sonia Sotomayor and Elena Kagan recused themselves (both were involved in the case prior to joining the Supreme Court), and Justice Neil Gorsuch had not yet joined the Court when it heard oral arguments. Justice Clarence Thomas wrote an opinion concurring in part and concurring in judgment. Justice Stephen Breyer wrote the dissenting opinion and was joined by Justice Ruth Bader Ginsburg.

In this article, we will examine the Opinion of the Court in Abbasi, briefly note the concurring and dissenting opinions, and examine what the precedent will mean going forward.

Opinion of the Court: Justice Kennedy

Part I-A: Facts of Post 9/11 Detention

Immediately following the September 11, 2001, terrorist attacks, the FBI received more than 96,000 tips from the public. Justice Kennedy explained that many of these tips were based on “well-grounded suspicion of terrorist activity,” but other tips may have been based on fear of Arabs and Muslims.

In the course of investigating tips, the FBI encountered many aliens who were present in the United States without legal authorization. As a result, more than 700 aliens were arrested and detained on civil immigration charges. Most of these 700 aliens were processed in accord with normal immigration procedures. However, the aliens who were designated by the FBI as being “of interest” to an investigation were subject to a “hold-until-cleared-policy.”

The respondents in Ziglar were among the 84 aliens who were subject to the “hold-until-cleared-policy.” They were detained at the Metropolitan Detention Center (MDC) in New York City. The defendants alleged that they were subject to harsh detention conditions both due to Bureau of Prisons (BOP) policy and outside of that policy. Under official BOP policy, the complaint alleged that the respondents were held in tiny cells for over 23 hours each day, were forbidden to keep anything in their cells, and were subject to numerous strip searches. They alleged that they were subject to physical and emotional abuse by the prison guards, which falls outside the scope of official BOP policy.

Part I-B: Clams of Respondents

The respondents were six men of Arab or South Asian descent, with five being Muslim. Each of them was arrested for being in the United States illegally during the September 11 investigation. They were all detained in the Administrative Maximum Special Housing Unit for three to eight months. They were removed from the United States upon their release.

The respondents sued on their own behalf and on the behalf of a putative class (other aliens detained under similar circumstances). Their challenge was not based on being detained in and of itself, but on the alleged conditions of their confinement and the Government's motive in imposing such conditions. The respondents claimed that the Government had no reason to suspect that they had connection to terrorism and no legitimate reason to hold them for so long under such harsh conditions.

The respondents sued two groups of Federal officials in their official capacities. The first group consisted of then-Attorney General John Ashcroft, Federal Bureau of Investigations (FBI) Director Robert Mueller, and Immigration and Naturalization Service (INS) Commissioner James Ziglar (henceforth “Executive Officials”). The second group consisted of wardens at the MDC (“Wardens”).

The respondents sought to use the Supreme Court's decision in Bivens in bringing the lawsuit. They advanced the following four constitutional claims:

1. The petitioners (Executive Officials and Wardens) detained them in harsh pretrial conditions for a punitive purpose in violation of the due process component of the Fifth Amendemnt;
2. The petitioners detained them in harsh conditions because of their actual or apparent race, religion, or national origin in violation of the equal protection clause of the Fifth Amendment;
3. The Wardens subjected them to punitive strip searches unrelated crime-prevention interest in violation of both the Fourth Amendment and the substantive due process component of the Fifth Amendment; and
4. The Wardens knowingly allowed the guards to abuse them in violation of the substantive due process component of the Fifth Amendment.

The respondents also brought a statutory civil conspiracy claim under 42 U.S.C. 1985(3). The respondents alleged that the petitioners conspired with one another to hold them under harsh conditions on account of their actual apparent, race, religion, or national origin, thus constituting a conspiracy to violate their equal protection rights.

Part I-C: Procedural History

In the initial proceedings, a Federal District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. On appeal, a three-judge panel United States Court of Appeals for the Second Circuit affirmed the District Court in Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015) [PDF version], in all but one respect with regard to the Wardens, but reversed the District Court regarding the Executive Officials, thereby reinstating the claims of the respondents against the Executive Officials. The Supreme Court agreed to hear the case on appeal from the Second Circuit decision.

Part II-A Thru C: Implied Cause of Action Precedent

Justice Kennedy began his analysis by considering whether the petitioners could be sued for damages under Bivens.

Under 42 U.S.C. 1983, an injured person may sue for money damages if a state official violates his or her constitutional rights. The statute was originally passed in 1871. Congress did not create a parallel statute for situations in which an injured person alleges that a Federal official violated his or her constitutional rights. In the 100 years prior to the Supreme Court's decision in Bivens, Congress has not provided any cause of action or remedy for plaintiffs whose rights were violated by the Federal Government.

This provided the background for the Court in 1971 when it decided Bivens. In Bivens, the Court held that, even absent statutory authorization, it would enforce a damages remedy for persons injured by federal officers who violated the Fourth Amendment prohibition against unreasonable searches and seizures. See Bivens 404 U.S., at 397. In that decision, the Court noted that the Fourth Amendment does not explicitly provide for money damages. However, because Congress had not explicitly foreclosed such remedies, the Court held that there was accordingly no reason for the judiciary to hesitate from providing them. Id., at 396-397. The Court authorized the remedy under the principle of federal jurisdiction.

In subsequent cases, the Court expanded on Bivens in recognizing what is now called an implied cause of action. In Davis v. Passman, 442 U.S. 228 (1979) [PDF version], it held that a woman who sued a Congressman for firing her because she was a woman was entitled to a damages remedy under the Fifth Amendment Due Process Clause for gender discrimination. In Carlson v. Green, 446 U.S. 14 (1980) [PDF version], the Court held that a prisoner's estate that sued federal jailers for failure to treat the prisoner's asthma was entitled to damages under the Eighth Amendment Cruel and Unusual Punishments Clause for failure to provide adequate medical treatment. In Carlson, the Court held that a Bivens remedy will not be available if there are “special factors counseling hesitation in the absence of affirmative action by Congress.” See 446 U.S., at 18.

Justice Kennedy noted that Bivens, Davis, and Carlson are the only occasions on which the Court has recognized an implied damages remedy under the Constitution.

Justice Kennedy explained, citing to several Supreme Court decisions from the 1960s, that the Court had, prior to Bivens, considered it the proper function of the judiciary to read statutes (note that this is distinguishable from interpreting the Constitution) in such a way as to “provide such remedies as are necessary to make effective” the purpose of the statute. See J.I. Case Co. v. Borak, 377 U.S. 426, 322 (1964) [PDF version]. Bivens was the first case to extend this interpretive framework to constitutional violations. Justice Kennedy noted that some scholars had considered it possible that the Court would eventually extend the implied cause of action remedy permitted in Bivens to the extent that it would create a Federal analogue to 42 U.S.C. 1983.

However, Justice Kennedy explained that “the arguments for recognizing implied causes of action for damages began to lose their force.” Citing to several decisions from the 1970s, Justice Kennedy noted that the Court became cautious in finding implied causes of action, hewing more closely to the clear statement of the statutory language. In Alexander v. Sandoval, 532 U.S. 275, 286 (2001) [PDF version], the Court held that the determinative question is that of congressional intent as evinced by the statute itself. In that decision, Justice Antonin Scalia, writing for a five-Justice majority, stated that if the text of the statute itself does not display an intent to create a private remedy, then “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” As set forth in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 24 (1979) [PDF version], where a statute does not provide for a private clause of action, courts may not create one.

However, Justice Kennedy would distinguish the issue of determining whether a statute contains an implied cause of action from whether a provision of the Constitution does. He noted that it is logical to assume that Congress would be explicit in creating a private clause of action. However, Congressional action is not required to implement an implied cause of action under a constitutional provision. Nevertheless, Justice Kennedy took the position that “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.” Among other points, Justice Kennedy observed that claims against federal officials entail significant monetary and administrative costs to the Federal Government and significant liabilities to the Government and its employees. Justice Kennedy suggested that this was the reason for the Court's caution in extending Bivens. In a series of cases dating back to the 1980s, the Court has consistently declined to extend Bivens to finding implied causes of action in constitutional provisions other than fourth amendment search and seizure. In general, the Court has found that Congress should ordinarily be the branch to provide for causes of action for constitutional violations committed by the Federal Government.

Part III-A and B: Detention Policy Claims Cannot be Challenged Under Bivens

In this portion of the opinion, Justice Kennedy considered whether Bivens relief could be extended to the respondents' detention policy claims. This includes all claims save for the claim that the Wardens permitted prison guards to abuse the detainees and the single statutory (non-constitutional) claim.

In Part III-A, Justice Kennedy noted that the Second Circuit failed to perform any “special factors analysis,” as set forth in Carlson. In short, this means that the Second Circuit did not consider whether there were special factors suggesting that extending Bivens relief to the detention policy claims was inappropriate. The Second Circuit's reasoning had been that it did not consider the plaintiffs to be asking for Bivens remedies in a new context.

However, Justice Kennedy concluded that the test employed by the Second Circuit in determining that the claims of the respondents were not novel was inconsistent with the Supreme Court decision in Corp v. Malesko, 534 U.S. 61, 74 (2001) [PDF version]. In Malesko, a plaintiff sought relief against a private prison operator in similar circumstances to those in Carlson, except in Carlson the prison was not run by a private operator. The factual issue in both cases was similar: The failure to provide adequate medical treatment. However, due to the differing circumstances, the Court found that special factors were present in Malesko which led to the conclusion that Bivens relief should not be extended. The Court also found that the Second Circuit's approach was inconsistent with Chappell v. Wallace, 462 U.S. 296 (1983) [PDF version]. Chappell concerned an employment-discrimination claim that was similar in nature to the situation in Davis, wherein the Court had extended Bivens relief. However, instead of the claim being against a Congressman, the claim in Chappell was against the military. Applying Carlson, the Court found that special factors were present in Chappell that weighed against extending Bivens relief where such relief was appropriate in Davis regarding an otherwise similar discrimination suit.

Justice Kennedy explained that a case presents a new Bivens context if it is different in a meaningful way from previous Bivens cases decided by the Court. Justice Kennedy provided several examples of factors that could make a case meaningfully different:

Rank of the officers involved;
Constitutional right at issue;
Generality or specificity of official action;
Extent of judicial guidance as to how officer should respond to the problem;
Emergency to be confronted;
Statutory or other legal mandate under which the officer was operating;
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 accordance with the principles discussed above, Justice Kennedy held that the claims brought forth by the respondents were different than those brought in any previous Bivens case.

Having determined that the claims in the instant case were novel, Justice Kennedy moved to apply the “special factors” analysis. He would find that special factors weighed against extending Bivens to the claims of the respondents.

First, citing to Malesko, 534 U.S., at 74, Justice Kennedy explained that a Bivens action is not “a proper vehicle for altering an entity's policy.” Citing to other cases, Justice Kennedy also noted that Court precedent provides that Bivens claims cannot be brought against an official “for the acts of others.” Regarding Executive Branch officials specifically, Justice Kennedy noted that the claims of the respondents “would call into question the formulation and implementation of a general policy.” Referencing the litigation and discovery that would ensure were the Bivens claim allowed to proceed, Justice Kennedy found that this constituted a special factor “counsel[ing] against allowing a Bivens action against the Executive Officials…” He added that allowing the action to proceed would “border upon or directly implicate the discussion and deliberations that led to the formation of the policy in question.” He concluded by holding that these factors all weigh against allowing the Bivens claims to proceed against the Executive Officials.

Justice Kennedy next found that special factors apply to the detention policy claims raised against the petitioners. First, Justice Kennedy noted that the detention policy claims challenged more than standard “law enforcement operations.” United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990) [PDF version]. Justice Kennedy noted that the claims would require an inquiry “into sensitive issues of national security.” To this effect, Justice Kennedy explained that under the Constitution, “[n]ational-security policy is the prerogative of the Congress and President.” Citing to Department of Navy v. Egan, 484 U.S. 518, 530 (1988) [PDF version], Justice Kennedy observed that courts are generally deferential to the Executive on national security except where Congress specifically provides otherwise. (Note that Justice Kennedy also cited to several cases showing that this deference is not absolute, albeit appropriate in the instant case.) Finally, Justice Kennedy concluded that Congressional silence was quite possibly intentional, and that this possibility counseled hesitation under Bivens, 403 U.S., at 396. Justice Kennedy added that Congress has not taken any action on this issue in the 16 years subsequent to the September 11 attacks.

Interestingly, Justice Kennedy left open the un-briefed question of whether the respondents could have challenged their confinement conditions with a contemporaneous petition for a writ of habeas corpus.

Part IV-A and B: Remand to Apply Special Factors Analysis to Prisoner Abuse Claims

Justice Kennedy then moved to assess the respondents' prisoner abuse claims against the MDC warden under Bivens, noting that they required different analysis. Specifically, the claim was that Dennis Hasty, warden of the MDC, had violated the Fifth Amendment by allowing prison guards to abuse the respondents.

Justice Kennedy noted that the claims against Hasty were similar to those at issue in Carlson. However, Justice Kennedy stated that “even a modest extension is still an extension.” Because the respondents in the instant case alleged that their Fifth Amendment rights were violated -Carlson concerned the Eighth Amendment — Justice Kennedy held that the instant case arose in a new Bivens context with regard to the prisoner abuse claims. In making this finding, Justice Kennedy recognized other small but significant differences between the claims brought in Carlson and those in the instant case. As a result, the majority held that the Second Circuit had erred in not conducting a special factors analysis before applying Bivens to the prisoner abuse claims. In so doing, Justice Kennedy noted several factors that may suggest that special factors weigh against extending Bivens here.

In part IV-B of the opinion, Justice Kennedy opted to vacate the judgment of the lower court and remand to the District Court for special factors analysis. Justice Clarence Thomas, who joined the rest of Justice Kennedy's opinion, did not join part IV-B, taking the position that it should not have been remanded for further consideration. However, Justice Thomas concurred in judgment in order to ensure that Justice Kennedy's opinion — which he described as closest to his own approach — would have the majority.

Part V-A and B: Qualified Immunity Leads to Rejection of Statutory Claim

Part V concerned the final claim of the respondents, that the petitioners should be subject to liability for civil conspiracy under 42 U.S.C. 1985(3). This claim implicated both the Executive Officials and the Wardens. This claim does not implicate Bivens, but rather the Court's precedents on qualified immunity.

Justice Kennedy explained that the civil-conspiracy provision in 42 U.S.C. 1985(3) was enacted as part of a slate of post-Civil War legislation. The statute imposes liability where two or more persons conspire to deprive any person or a class of persons of the equal protection of the laws.

Justice Kennedy explained that the Court has held that Government officials are entitled to what is called “qualified immunity” “with respect to 'discretionary functions' performed in their official capacities.” The qualified immunity jurisprudence seeks to strike a balance between protecting the rights of individuals and ensuring that the government may make discretionary decisions relating to open legal questions. Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) [PDF version].

Citing to Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) [PDF version], Justice Kennedy explained that in determining whether a government official may invoke qualified immunity, it must consider the “objective legal reasonableness” of the official's acts. Under Anderson v. Creighton, 483 U.S. 635, 639 (1987) [PDF version], this inquiry must be made in light of the rules that were clearly in effect at the time the official action occurred. Also under Anderson, the unlawfulness of the official's action “must be apparent.” Id. at 640. In Davis v. Scherer, 468 U.S. 183, 195 (1984) [PDF version], the Court explained that subjecting officers to a higher standard of liability would run the risk of harming the ability of public officials to perform their duties.

Under Malley v. Briggs, 475 U.S. 335, 341 (1986) [PDF version], the Court held that qualified immunity protects all officials except in the following cases:

1. Where the officials are “plainly incompetent”; or
2. Where the officials “knowingly violate the law.”

Applying the Court's precedents, Justice Kenned stated that “it must be concluded that reasonable officials in the petitioners' positions would not have known, and could not have predicted, that [42 U.S.C.] 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.” To support this conclusion, Justice Kennedy noted two aspects of the alleged conspiracy:

1. The conspiracy was alleged to have been between or among officers in the same branch of Government (Executive) and same Department (Department of Justice); and
2. The discussions in the alleged conspiracy were the preface to, and outline of, a general and far reaching policy.

Regarding the second point, Justice Kennedy drew an analogue to antitrust law in citing to Copperweld Corp v. Independence Tube Corp., 467 U.S. 752, 769-771 (1984) [PDF version], wherein the Court affirmed the principle that there can be no unlawful conspiracy when officers within a single corporate entity consult among themselves to adopt policy for the entity. In short, the principle is that two agents from the same legal entity making an agreement does not constitute an agreement between two or more separate individuals. However, while finding the analogy pertinent to the complaint in the instant case, Justice Kennedy opted to limit its scope, stating that “[n]othing in this opinion should be interpreted as either approving or disapproving the intracorporate-conspiracy doctrine's application in the context of an alleged [42 U.S.C.] 1985(3) violation.”

Justice Kennedy then appealed again to the concern he expressed in Part III of the opinion regarding the potentially chilling effect of extending Bivens such that it subjected internal policy deliberations of the Executive Branch to extensive litigation. Citing to Cheney v. United States District Court for D.C., 542 U.S. 367, 383 (2004) [PDF version], Justice Kennedy referenced the need for confidential communications among Executive Branch officials.

Justice Kennedy ultimately rejected the 42 U.S.C. 1985(3) claim because a reasonable officer in the position of the petitioners would not have known that the alleged conduct was an unlawful conspiracy.

Justice Kennedy's Conclusion

Justice Kennedy stated that, if the facts alleged by the respondents were true, what happened to them would be “tragic.” However, he noted that the question before the Court was not whether the allegations were true or, if so, whether the conduct was proper, but whether the respondents could bring suit against the Executive Officials and Wardens. For the foregoing reasons, Justice Kennedy reversed the Second Circuit in its entirety, except for the remand on the prisoner abuse claim against Warden Hasty.

Concurring Opinion: Justice Clarence Thomas

As we noted, Justice Thomas declined to join the one portion of Justice Kennedy's provision remanding the prisoner abuse claims for further consideration. However, Justice Thomas concurred in judgment anyway in order to ensure that there would be a controlling judgment.

The rest of Justice Thomas's concurring opinion deals with the 42 U.S.C. 1985(3) claim. He joined the Opinion of the Court in full because “[t]he Court correctly applies our precedents, which no party has asked us to reconsider.” However, Justice Thomas wrote separately to argue that the Court's precedents on qualified immunity have the wrong focus, in that they have been unmoored from the common-law that informed the relevant statutes. Justice Thomas took the position that the Court should reconsider its qualified immunity jurisprudence in an appropriate case to “shift the focus of our inquiry to whether immunity existed at common law.”

Dissent: Justice Stephen Breyer

Justice Stephen Breyer wrote the dissenting opinion, joined by Justice Ruth Bader Ginsburg. Justice Breyer would have affirmed the Second Circuit in full, allowing the respondents to bring their claims against the Executive Officials and Wardens.


Abbasi likely brings to a close the case of several alien post September 11 detainees who brought suit against several officials in the Department of Justice regarding their alleged mistreatment. The decision continues the Court's cautious approach in extending Bivens and finding implied causes of action in constitutional provisions. Interestingly, it is certainly the most significant Bivens case tangentially related to immigration.

An alien in detention should consult with an experienced immigration attorney immediately. An attorney will be able to consider each case individually and work to ensure that his or her client's interests are protected. An experienced attorney will also be able to consider claims of mistreatment or government misconduct and determine whether there is an avenue for seeking remedies.

We look forward to writing more about the issues in this case, including key points of the concurring and dissenting opinions, in the future.