Tuesday, October 11, 2016
SCOTUS grants cert to review 9/11 lawsuits; questions presented involve Bivens, qualified immunity & pleading standards
Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.
The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history).
[Update: During the cert-stage briefing and in the initial order granting certiorari, these three cases were captioned with Ibrahim Turkmen as the lead respondent (Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen). The docket and merits briefs now list Ahmer Iqbal Abbasi as the lead respondent.]
- Did the Court of Appeals, in finding that Respondents' Fifth Amendment claims did not arise in a "new context" for purposes of implying a remedy under Bivens v. Six Unknown, Named Agents Of The Federal Bureau Of Narcotics, 403 U.S. 388 (1971), err by defining "context" at too high a level of generality where Respondents challenge the actions taken in the immediate aftermath of the attacks of September 11, 2001, by Petitioner James W. Ziglar, then the Commissioner of the United States Immigration And Naturalization Service, the then-Attorney General of the United States, and the then-Director of the Federal Bureau of Investigation regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of the September 11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers?
- Did the Court of Appeals, in denying qualified immunity to Petitioner Ziglar for actions he took in the immediate aftermath of the attacks of September 11, 2001, regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of those attacks, err: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar's specific conduct was at the time clearly established, instead defining the "established law" at the high level of generality that this Court has warned against; and (2) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law?
- Did the Court of Appeals err in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims?
- Whether the judicially inferred damages remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), should be extended to the novel context of this case, which seeks to hold the former Attorney General and Director of the Federal Bureau of Investigation (FBI) personally liable for policy decisions made about nationalsecurity and immigration in the aftermath of the September 11, 2001 terrorist attacks.
- Whether the former Attorney General and FBI Director are entitled to qualified immunity for their alleged role in the treatment of respondents, because it was not clearly established that aliens legitimately arrested during the September 11 investigation could not be held in restrictive conditions until the FBI confirmed that they had no connections with terrorism.
- Whether respondents' allegations that the Attorney General and FBI Director personally condoned the implementation of facially constitutional policies because of an invidious animus against Arabs and Muslims are plausible, as required by Ashcroft v. Iqbal, 556 U.S. 662 (2009), in light of the obvious alternative explanation-identified by the Court in Iqbalthat their actions were motivated by a concern that, absent fuller investigation, the government would unwittingly permit a dangerous individual to leave the United States.
- Whether, as the Second Circuit held, the judicially implied cause of action for damages against individual officials recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), extends to this context.
- Whether qualified immunity was properly denied, notwithstanding the specific circumstances confronted by petitioners-including the FBI's terrorism designations for respondents-because the Constitution "clearly" prohibits any "condition of pretrial detention not reasonably related to a legitimate governmental objective," Pet. App. 57a-58a, or imposed "because of * * * race, ethnicity, religion, and/or national origin," id. at 72a-73a.
- Whether the allegations against Hasty and Sherman—such as the assertion that they "knew" the FBI's terrorism designations for respondents were wrong but imposed otherwise mandatory confinement conditions because they had discriminatory intent—are sufficiently plausible to state a claim under Ashcroft v. Iqbal, 556 U.S. 662 (2009).