Ashcroft v. Abbasi

Ashcroft v. Abbasi, Nos. 15-1358, 15-1359 & 15-1363

The Supreme Court has accepted certiorari to determine, among other issues, whether a Bivens damages remedy is available to noncitizens who were arrested on civil immigration charges and thereafter subjected to the most restrictive conditions of administrative segregation that exist in the federal prison system. Although they were detained in the weeks following the tragic attacks of September 11, 2001, they were not actually suspected of terrorism. Nonetheless, under orders from then-Attorney General Ashcroft and others, they were treated as if the FBI had reason to believe they had ties to terrorist activity, simply because they were (or appeared to be) Arab or Muslim, and were encountered – even coincidentally – in the course of a terrorism investigation.

In its decision below, the Second Circuit held that, with respect to their 4th Amendment claims, their detention did not present a new “context” for a Bivens action and that allowing these claims to go forward would not extend Bivens. The Solicitor General sought certiorari from this decision. While the case does not involve CBP agents or officers, it is included here because the Supreme Court’s decision could impact the extent to which Bivens remains an available remedy in cases that do involve CBP agents.

On January 18, 2017, this case was argued in front of the Supreme Court. On June 19, 2017, the Supreme Court issued its decision. The Court held that Bivens did not extend to respondents’ claims and reversed the Court of Appeals’ decision with respect to the respondents’ 4th Amendment claim.

The Court reasoned that if there is a meaningful difference between a case and a previous Bivens case “then the context is new.” After giving a non-exhaustive list of possible meaningful differences, the Court determined that the claims at issue in this case bore “little resemblance” to past Bivens claims. Since the Court concluded that the case presented a “new Bivens context,” it went on to determine whether “special factors” counseled against recognizing a Bivens remedy.

The Court found that at least three special factors counseled against extending Bivens. These special factors were (1) that respondents’ claims would lead to an inquiry into sensitive national security issues; (2) that Congressional refusal to “extend to any person the kind of remedies that respondents seek,” despite its knowledge of the conditions at the detention facility at issue, was a telling indication of its intent not to allow damages remedies; and (3) that other remedies were available to respondents’ besides damages, including injunctive relief and possibly a writ of habeas corpus. In the presence of these factors, and despite its professed sympathy for the respondents, the Court determined that it is better for Congress to undertake “the proper balance” between deterring constitutional violations and allowing government officials to make national security decisions.

Counsel: Rachel A. Meeropol | Center for Constitutional Rights

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