Supreme Court Update: Ziglar v. Abassi (15-1359) and Hernandez v. Mesa (15-118)

June 28, 2017 Supreme Court Update

Greetings, Court Fans!

Told you we'd back soon. This time, we've got summaries of two decisions relating to the availability of the implied damages remedy for constitutional violations by federal officials announced in the Court's 1971 decision, Bivens v. Six Unknown Federal Narcotics Agents.

Ziglar v. Abassi (15-1359) and its two companion cases arose in 2002, when a group of non-citizen, mostly Arab men detained in the aftermath of September 11 sued the executive-branch officials responsible for the detention policy, as well as the wardens who oversaw their abuse during detention. After the men were cleared and deported, they brought suit asserting claims under the Fourth and Fifth Amendments and seeking damages under Bivens. As Justice Kennedy, writing for the Court, noted, the men's descriptions of their three to six months in detention (a description at least partially substantiated by a later OIG report) was "tragic," and included 23-hour confinement without access to the outside world (including, for a time, even legal counsel), punitive strip searches, and a torrent of physical, mental, and racially-tinged abuse. The district court dismissed the claims against the executive officials but allowed the claims against the wardens to proceed. The Second Circuit largely affirmed with respect to the wardens, but reinstated the claims against the executive officials.

The Court reviewed the case short-handed, with Justices Sotomayor and Kagan recused and Gorsuch not participating. Justice Kennedy took the lead for a four-Justice majority, which overturned the Second Circuit. He explained that the plaintiffs' claims against the executive officials were not viable because they "bear little resemblance to the three Bivens claims the Court has approved in the past," and that "expanding the Bivens remedy is now a ‘disfavored' judicial activity." Lingering on the separation-of-powers issues inherent in any judicially created remedy, the Court held that it is for Congress to determine when federal officials can be sued for money damages, and only in the rarest instance will an implied cause of action under Bivens bypass congressional silence.

To identify those rare instances, the Court outlined a two-step process: First, "if the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new." If so, courts must move on to an analysis of "special factors counseling hesitation." For the Court, "claims pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil" present a new context, even if based on conditions of confinement (which is arguably "old"). As for "special factors," the court was troubled by potential intrusion into the "sensitive functions" of the executive branch in national security matters, including "discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged." The Court concluded: "Were this inquiry to be allowed in a private suit for damages, the Bivens action would assume dimensions far greater than those present in Bivens itself, or in either of its two follow-on cases, or indeed in any putative Bivens case yet to come before the Court." Finally, Kennedy noted, potential "alternative remedies"—here, a federal habeas action or claim for an injunction—"alone may limit the power of the Judiciary to infer a new Bivens cause of action."

The Court did allow one claim to survive, at least temporarily: that against the wardens, for allegedly sanctioning abuse in violation of the Fifth Amendment. For the Court, that claim was at least closely related to its prior caselaw permitting a Bivens claim in the prisoner context. Nevertheless, the Court found the distinction between the Fifth Amendment pretrial detainee context and the Eighth Amendment prisoner context to be "meaningful" enough to send the issue back to the Second Circuit for a special factors analysis.

In a dissent that he read aloud from the bench, Justice Breyer, joined by Ginsburg, lambasted the majority for vitiating a time-sanctioned remedy that made federal and state officials equally accountable for civil rights violations. Breyer's headline: "If you are cold, put on a sweater, perhaps an overcoat, and maybe even turn up the heat. But don't set fire to the house." Rather than find Congress's silence "telling," as the majority did, the dissenters perceived "strong signs that [Congress] accepted Bivens actions as part of the law"—in particular, as a counterpart to the Federal Tort Claims Act and an analog to 42 U. S. C. §1983. In any case, Breyer wrote, "the context here is ‘not new'": The detainees claimed "familiar" injuries by government officials that were not "fundamentally different" from earlier Bivens claims. Nor was a habeas petition or prospective injunction a realistic alternative remedy for harms already suffered, particularly in light of the detainees' claim that they were refused access to counsel during periods of their detention. Finally, the dissent explained, a national security crisis should not be used as the ultimate "special factor" trump card. Not only "[s]hould Bivens actions continue to exist in respect to policy-related actions taken in time of war or national emergency," but that may be precisely when they are most needed.

Note: The last six pages of the Court's opinion are devoted to the detainees' other claim, under a Civil War-era statute forbidding conspiracy to violate equal protection. Here, the crux of the issue was a qualified immunity finding that led to a notable concurrence by Justice Thomas. Unlike his colleagues, who found qualified immunity because "potential liability for this statutory offense would not have been known or anticipated by reasonable officials in their position," Thomas wrote separately to "note [his] concerns with our growing qualified immunity jurisprudence" and, in particular, his fear that "[u]ntil 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."

The effect of Abassi was immediate, as the Court used it as an excuse to vacate and remand Hernandez v. Mesa (No. 15-118) for consideration of whether Bivens should apply. Hernandez presented a question that seemed plucked from a law school exam: Can a U.S. Border Patrol Agent be held liable for firing a shot in the U.S. that kills someone standing in Mexico? In 2010, a Mexican teenager and his friends were playing "touch-the-fence," during which they ran across a culvert separating the U.S. and Mexico, touched the border fence on the U.S. side, and then ran back to Mexico. The actual dividing line between the two countries lay in the middle of the culvert, however. A U.S. Border Patrol Agent arrived and detained one of the teenagers on the American side. He then saw the decedent standing on the Mexican side of the culvert, drew his gun, and shot him. The bullet hit decedent in the face, killing him.

The parents of the decedent sought damages under Bivens, alleging violations of the Fourth and Fifth Amendment. The District Court dismissed, and an en banc panel of the Fifth Circuit unanimously affirmed. The Fifth Circuit reasoned that the decedent had no Fourth Amendment rights because he was a Mexican citizen standing in Mexico with no voluntary connection to the United States. The Fifth Circuit then unanimously held that the Agent was entitled to qualified immunity on the Fifth Amendment claim because no case expressly addressed the unique facts of this cross-border shooting.

The Court vacated and reversed, instructing the Fifth Circuit that it should consider whether Bivens, as interpreted in Abassi, allowed this type of suit in the first place. While the Court noted that courts have often addressed the merits of a constitutional claim before considering whether a Bivens remedy is available, the Court felt this sequence was unwise under these circumstances, given the sensitive and novel issues at play. If there is no Bivens remedy available, then the court need not grapple with whether a Fourth Amendment claim has been stated. Rather than answer even this question, however, the Court left it to the Fifth Circuit on remand to undertake the "special factors" analysis outlined above. The Court also rejected the Fifth Circuit's qualified immunity analysis, noting that the Agent did not know the decedent's nationality or his connection to the United States at the time of the shooting. Thus, qualified immunity could not be established based on facts not known to the officer at the time.

Justice Thomas wrote a short dissent, arguing that the Court should address the Bivens issue instead of remanding, and hold that Bivens does not apply to a cross-border shooting.

Justice Breyer (joined by Justice Ginsburg) wrote a longer dissent, arguing that the decedent had Fourth Amendment rights even though he was standing in Mexico. Justice Breyer noted that the Court's precedents make clear that "questions of extraterritoriality turn on objective factors and practical concerns, not formalism." Running through those factors, he noted that (1) the defendant is a federal officer who knowingly shot from U.S. territory into a culvert at someone of unknown citizenship standing near the border, (2) the culvert itself is a special border-related area that the U.S. has long maintained and administered jointly with Mexico, and (3) international law recognizes special duties with regard to such natural borders. Justice Breyer noted that failing to apply the Fourth Amendment to such areas would produce anomalies, in that decedent's constitutional protections would evaporate the second he crossed an imaginary line. If he had been running from the bullet, one step would have been the difference between constitutional and unconstitutional. That should not be the case in Justice Breyer's view, and he also believed a reversal would entitle a plaintiff to an action for damages under Bivens.

We've got three cases left to review for you, so we'll be back at you before long.