When an issue involves a host of considerations that must be weighed and appraised, it should be committed to those who write the laws rather than those who interpret them. In most instances, judicial precedents now instruct, the legislature is in the better position to consider if the public interest would be served by imposing a new substantive legal liability. As a result, judicial precedent urges caution before extending Bivens remedies into any new context. Judicial precedents now make clear that a Bivens remedy will not be available if there are special factors counselling hesitation in the absence of affirmative action by Congress.
The respondents in this case are a group of male, non-U.S. citizens, most of whom are Muslim of Middle Eastern origin who were detained after the September 11, 2001 attacks and treated as “of interest” in the government’s investigation of these events. In their original claims, the plaintiffs alleged that they were detained without notice of the charges against them or information about how they were determined to be “of interest,” that their access to counsel and the courts was interfered with, and that they were subjected to excessively harsh treatment during their detention. They also asserted that their race, ethnicity, and national origin played a determinative role in the decision to detain them. The plaintiffs sued a number of government officials and argued that the government used their status as non-citizens to detain them when the government’s real purpose was to investigate whether they were terrorists and that the conditions of their confinement violated their Constitutional rights to due process and equal protection. After a series of motions to dismiss, the district court dismissed the claims regarding the length of confinement but allowed the constitutional claims to proceed. Both the plaintiffs and defendants appealed various aspects of that ruling. While that appeal was pending, some of the plaintiffs settled their claims against the government and the U.S. Supreme Court decided Ashcroft v. Iqbal, which held that a complaint must allege sufficient facts to be plausible on its face and to allow a court to draw the reasonable inference that the defendant is liable for the claimed conduct. Based on these events, the U.S. Court of Appeals for the Second Circuit dismissed the length of confinement claims but remanded the conditions of confinement claims and allowed the plaintiffs to amend their complaint. The appellate court again dismissed some of the claims and allowed others to proceed.
Are the government defendants in these cases entitled to qualified immunity from liability?
The Court held that Bivens v. Six Unknown Named Agents established an implied right of action to sue a federal official for money damages when the official violated constitutional rights. However, the Court had declined to extend the Bivens precedent because Congress had not enacted a statute that allowed for this type of remedy. Therefore, in order to respect the separation of powers, the situations in which a court determined that there was an implied right of action for monetary damages against a federal official should be rare. If there were “special factors counselling hesitation,” a court should not determine that a Bivens remedy was available. Although the Court had not defined “special factors,” they must be present in cases in which is is doubtful that Congress intended to allow for money damages against federal officials. Based on this background, for the purposes of determining whether a Bivens claim arises in a “new context” and must be subject to a special factors analysis, the term “context” should be defined narrowly. Because this case differed in a meaningful way from those that the Court has decided under Bivens previously, it arose in a new context and the special factors analysis should apply. The national security, policy, and separations of powers concerns here were all special factors that counseled against a determination that a Bivens implied right of action was appropriate in this case. The Court also determined that the government officials in this case were entitled to qualified immunity because reasonable officials in their positions would not have known that their conduct was unlawful under clearly established law regarding how a conspiracy applies to a governmental entity.