Ziglar v. Abbasi

Supreme Court of the United States · 2017 · Federal Courts

582 U.S. 120 (2017)

Updated August 1, 2026

Federal CourtsBivens limitsBivensimplied cause of actionspecial factors counselling hesitationnew contextnational securityseparation of powers

Facts

After the September 11 attacks, the federal government detained certain aliens under a hold-until-cleared policy if the FBI considered them "of interest" or was uncertain about their status. Respondents, six men of Arab or South Asian descent, were held for three to eight months in harsh conditions at the Metropolitan Detention Center in Brooklyn, including prolonged cell confinement, constant lighting, restricted communication, and frequent strip searches. They sued former Attorney General Ashcroft, former FBI Director Mueller, former INS Commissioner Ziglar, and MDC wardens Hasty and Sherman, alleging Fifth Amendment due process and equal protection violations, Fourth and Fifth Amendment violations relating to strip searches and abuse, and a conspiracy under § 1985(3). The complaint also alleged that Warden Hasty knew of and allowed guard abuse of detainees.

Issue

Whether the Court should imply a Bivens damages remedy for detainees' constitutional claims challenging high-level post-September 11 detention policies and for the prisoner-abuse claim against Warden Hasty, and whether the officials were entitled to qualified immunity on the § 1985(3) conspiracy claim.

Rule

A court may not extend Bivens to a new context if the case differs in a meaningful way from prior Supreme Court Bivens cases and if special factors counsel hesitation. A context is new whenever it is meaningfully different from previous Bivens cases, including differences in officer rank, right at issue, scope of official action, legal mandate, available judicial guidance, risk of interference with other branches, or other special factors. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, or if there is an alternative remedial structure, courts must refrain from creating the remedy. Qualified immunity protects officials unless the unlawfulness of their conduct was clearly established at the time.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After coordinated bomb threats in Chicago, senior officials at the Department of Homeland Security ordered all noncitizens arrested in the sweep to be housed under highly restrictive conditions until a central review team cleared them. One detainee later sues those officials for damages under the Fifth Amendment, arguing the policy was punitive and discriminatory.

Should a federal court recognize a damages remedy under Bivens?

Explanation. Expansion of Bivens is a disfavored judicial activity. A case presents a new context whenever it differs in a meaningful way from the Court’s prior approved Bivens contexts. A challenge to broad detention policy formulated by senior officials in response to a major security event is meaningfully different from the prior approved contexts and raises special factors, including intrusion into executive policymaking and national-security concerns. Therefore the court should not create a damages remedy. (Derived from Ziglar v. Abbasi (2017).)