Supreme Court Confronts Opportunity to Extend Bivens Remedies

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By Karissa Murphy, Staff Writer

On the morning of October 3, 2001, Anser Mehmood was asleep with his wife Uzma and their 1-year-old son when FBI and INS agents knocked on the door.[1] The officers searched Mehmood’s home, asked if he was “involved with a jihad,” and then arrested him.

Mehmood was a citizen of Pakistan and a devout Muslim.[2] He entered the United States in 1989 on a business visa, along with his wife and their children.[3] After his visa expired, Mehmood stayed in the United States with his family, purchased a home in New Jersey, and began a successful trucking business.[4] Mehmood was one of hundreds of Arab and Muslim men who were arrested and detained in the wake of 9/11, even though most were never involved in terrorist activity.[5]

Following September 11, 2001, the FBI and other agencies within the Department of Justice (DOJ) began an investigation aimed at identifying the 9/11 perpetrators.[6] Robert Muller, then-Director of the FBI, personally administered the Pentagon/Twin Towers Bombings investigation (PENTTBOM).[7] In conjunction with PENTTBOM, John Ashcroft, then-Attorney General, established the Strategic Information and Operations Center (SIOC) Working Group.[8] This group included representatives from the FBI, the INS, the Deputy Attorney General’s office, and other agencies.[9] The group met daily and its duties included coordinating information and evidence among the agencies.[10]

Ashcroft and Muller developed a policy whereby any Arab or Muslim man encountered during the investigation of any tips received — and discovered to be a non-citizen who had violated the terms of his visa — was arrested.[11] Ashcroft also created a “hold-until-cleared” policy, which mandated that arrested individuals be detained until the FBI affirmatively clears them of terrorist ties.[12] The tips that the FBI received varied in quality and reliability, but Muller nonetheless ordered that all of them be investigated, even if they were implausible on their face.[13]

In many cases, the FBI did not even attempt to determine whether these individuals were linked to terrorism until after the clearance process was complete.[14] Therefore, even those who had no ties to terrorism, like Mehmood, were still labeled “of interest” and detained for up to eight months.[15] Ultimately, 762 detainees were placed on the INS Custody List and were subject to the hold-until-cleared policy.[16]

Those arrested and detained were held at the Metropolitan Detention Center (MDC) in the Administrative Maximum Special Housing Unit (ADMAX SHU), a particularly restrictive type of SHU not found in most prison facilities.[17] Detainees were placed in small cells for over 23 hours a day; strip-searched every time they were removed from or returned to their cells; were denied sleep by bright lights that were left on 24 hours a day; were not provided basic hygiene items; and were prohibited from accessing MDC handbooks which explained how to file complaints about mistreatment.[18]

The MDC staff also subjected the detainees to frequent physical and verbal abuse. For instance, upon arrival at MDC, Mehmood was “dragged from the van by several correctional officers, who threw him into walls on his way into the facility,” and broke his left hand in the process.[19] The officers also referred to the Muslim men with derogatory names, mocked them while they prayed, and refused to give them a copy of the Koran.[20]

In April 2002, the detainees brought a class action against many high-ranking government officials, including John Ashcroft and Robert Muller — alleging a number of constitutional violations.[21] The plaintiffs sought to sue the government officials in their personal capacities pursuant to Bivens v. Six Unknown Federal Narcotics Agents.[22] Under Bivens, the Supreme Court recognized “for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.”[23] The main motivations for the Court in creating this new type of federal litigation was to provide a remedy for those with no alternative and to deter federal officers from committing constitutional violations.[24]

In the years following Bivens, which involved violations of the Fourth Amendment, the Supreme Court also extended the remedy to violations of the cruel and unusual punishment clause of the Eighth Amendment, and the equal protection component of the Fifth Amendment.[25] Essentially, a Bivens remedy was thought to be the federal equivalent of a §1983 action. In recent years, however, the Court has consistently worked to limit Bivens, making it much more restrictive and harder to obtain than its State counterpart. Specifically, the Supreme Court has refused to extend the remedy to any new context or category of defendants.[26] Even if the claim falls in the same context to which a Bivens remedy has previously been extended, the Court may still deny the remedy. This will occur if there is an alternative remedial system available (even one that does not provide for monetary damages) or if there are any special factors counseling hesitation.[27]

In the aforementioned class action, the U.S. District Court for the Eastern District of New York granted in part and denied in part the officials’ motion to dismiss.[28] Specifically, the court dismissed the claims regarding the length of confinement, but it allowed the other constitutional claims to proceed.[29] Both plaintiffs and defendants appealed various aspects of that ruling.

The Second Circuit affirmed in part, reversed in part, and remanded.[30] The court held that a Bivens remedy was available for claims of punitive conditions of confinement but that the remedy was not available for the free exercise claims under the First Amendment.[31] The court also held that the Attorney General and the Director of the FBI were not liable under Bivens for ordering the detention of those individuals, even if the detainees were subjected to punitive conditions of detention. This is because the arrest and detention mandate did not require subordinates to apply excessively restrictive conditions to detainees.[32]

The Supreme Court granted certiorari to hear the case on October 11, 2016. Last month, on January 18, 2017, the Court heard oral arguments on the issue. The arguments focused on how broadly a “context” should be defined in regard to Bivens and whether the government defendants are entitled to qualified immunity.[33]

This case, now called Ziglar v. Abbasi, offers the Supreme Court the opportunity to keep Bivens remedies alive. For those like Mehmood, a Bivens remedy is important to provide not only monetary relief where there may not be an alternative remedy available, but also to provide future deterrence for federal officers in violating constitutional rights of citizens. If the Supreme Court continues to follow its trend from the last three decades, however, Bivens may be eliminated altogether.



[1] Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015).

[2] Id. at 299.

[3] Id.

[4] Id.

[5] Id. at 228.

[6] Id. at 227.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 227.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 228.

[18] Id.

[19] Id. at 229.

[20] Id. at 228.

[21] Turkmen v. Ashcroft, 915 F. Supp. 2d 314 (E.D.N.Y. 2013).

[22] Id. at 325.

[23] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

[24] Id. at 409.

[25] See Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980).

[26] See Wilkie v. Robbins, 551 U.S. 537 (2007).

[27] See Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001).

[28] Turkmen v. Ashcroft, 915 F. Supp. 2d 314 (E.D.N.Y. 2013).

[29] Id.

[30] Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015).

[31] Id. at 236.

[32] Id. at 233.

[33] Ziglar v. Abbasi, 137 S. Ct. 615 (2017).

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