AuthorSchwartz, Joanna C.

INTRODUCTION 1836 I. THE ILLUSORY DOCTRINAL BASIS FOR ZIGLAR'S HOSTILITY TO POLICY CLAIMS 1839 A. The Role of Policy in Early Bivens Cases 1840 B. Ziglar's Misrepresentation of Meyer and Malesko 1842 C. The Role of Policy Post-Malesko 1845 II. THE ZIGLAR COURT'S NOVEL DISDAIN FOR POLICY REFORM THROUGH CONSTITUTIONAL TORTS 1847 A. The Role of Policy Under [section] 1983 1848 B. Policy Claims Against Federal Officials 1851 C. The Court's Longstanding Vision of Deterrence 1852 III. CONFUSED APPLICATION OF ZIGLAR'S POLICY HOSTILITY 1856 A. Navigating the Policy Spectrum in Light of Ziglar 1858 B. Defendants Entitled to Claim the Policy Exemption 1862 IV. DEFINING ZIGLAR'S POLICY EXEMPTION IN LIGHT OF REMEDIAL ALTERNATIVES 1863 CONCLUSION 1867 INTRODUCTION

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1) the Supreme Court recognized the right to sue federal officials for damages when they have violated constitutional protections. (2) By 1980, the Court had recognized a right to bring a Bivens claim in three distinct settings. (3) But in the decades since, the Court has progressively limited this power to sue. (4) Under today's two-step approach, courts first inquire whether the claim arises in a settled context--that is, whether it is sufficiently similar to the Court's three prior decisions recognizing a Bivens action for damages. (5) If so, then the action can proceed. If, however, the court perceives the context as "new," then it should ask if special factors counsel hesitation in the recognition of a right to sue. (6) The tendency in recent Supreme Court decisions has been to view narrowly the scope of established rights to sue, first finding almost all contexts "new," and then invoking the more searching special factors analysis. In addition, the Court has enunciated a growing list of special factors that inform judicial restraint. The upshot is that litigants are often barred from seeking Bivens relief, even when the factual differences between their claims and prior Bivens cases appear trivial. (7)

In Ziglar v. Abbasi, (8) the Court redefined more contexts as "new" and added considerably to the special factors analysis. (9) Facing a challenge to the constitutionality of the detention policy that the Department of Justice and the Federal Bureau of Investigation ("FBI") developed in response to the 9/11 attacks in New York City, the Ziglar Court narrowly defined settled law and treated the claims in question as arising in a "new context." (10) Turning to the second question, the Ziglar Court gave voice to a long list of special factors, including the burden and distraction of litigation, the presence of national security concerns, and the threat of personal liability. (11) For these and other reasons, the Court found that the responsibility for recognizing a right to challenge detention policies via damages suits fell to Congress and was not the proper subject of a Bivens action. (12)

Ziglar's laundry list of special factors, though somewhat familiar, included an entirely novel consideration--an expression of concern that the claims in question sought to challenge national detention policy as formulated by high-ranking executive branch officials. (13) According to the plaintiffs, the officials in question, Attorney General John Ashcroft, FBI Director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, collaborated in the development and implementation of the government's hold-until-cleared policy. (14) Under the terms of the policy, as alleged by the plaintiffs, Arab and South Asian Muslim men detained after 9/11 were confined in extremely harsh conditions until they were cleared of any connection to the terrorist attacks and then deported. (15) Many of the men sought damages under Bivens, both from the jailers who implemented the policy and from the high-ranking executive branch architects of the policy. (16) But the Court viewed these challenges to the government's detention policy as an inappropriate use of the Bivens action. (17) Unlike settled uses of Bivens litigation to challenge individual instances of "discrimination or law enforcement overreach," the Court characterized the detention policy claims as seeking to contest "large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners." (18)

The Ziglar Court rested its hostility to policy-based Bivens claims on three different considerations. First, the Court suggested that Bivens claims had never served as a "a proper vehicle for altering an entity's policy," (19) but instead had served "to deter the officer." (20) Second, the Court indicated that damages actions challenging government policy were an improper way to influence policies, worrying that the "burden and demand of litigation" might distract high level officials from meeting the needs of their position. (21) The worry was said to reflect both the practicalities of discovery as well as the potential for judicial interference "with sensitive functions of the Executive Branch." (22) In Ziglar itself, these concerns were amplified by the Court's tendentious claim that the risk of damages liability, more so than injunctive relief, might "cause an official to second-guess difficult but necessary decisions concerning national-security policy" because of the supposed risk of personal financial loss. (23) Finally, the Court suggested, alternative remedial methods--such as habeas petitions and claims for injunctive relief--were better suited than Bivens claims to challenge government policies. (24)

In this Essay, we offer three arguments against the Ziglar Court's suggestion that plaintiffs may not seek damages for injuries caused by an unconstitutional federal government policy. We begin in Part I by examining the purported doctrinal roots of the hostility to policy-based claims. Rather than finding it well grounded in prior decisions, we show that Ziglar's policy concern represents a novel, indeed wholly unprecedented, departure from prior law. Part II shows that Ziglar s concern with the costs of policy-based damages claims contravenes the assumptions on which the Court has built its rules of government accountability. Recognizing that damages actions can be brought to challenge state and local government policies, the Court has assumed that these suits can influence government practices through a variety of pressures. The Court's assertion in Ziglar that damages actions may be an inappropriate means of contesting unlawful government practices represents a dramatic break with these prior decisions. Part III offers a more practical objection: the Ziglar Court does not offer clear guidance about what constitutes a policy decision inappropriate for resolution as a Bivens claim. Lower courts have disagreed about how to apply Ziglar's policy concern and, at least in some circuits, Ziglar appears to threaten the viability of even well-settled forms of Bivens liability.

Part IV offers our most charitable understanding of Ziglar--as an invocation of the Court's longstanding preference for alternative remedial measures, including habeas and injunctive relief, as a means of addressing unconstitutional policies. But we also explain why the Court's asserted preference for remedial alternatives, while perhaps attractive on the page, is less desirable on the ground. For one thing, lower courts demonstrate equal confusion about the availability of remedial alternatives as about the boundaries of the policy exception in Ziglar. In addition, the Court has made the remedial alternatives it touts in Ziglar virtually impossible to achieve because it has erected doctrinal barriers against obtaining those alternative remedies. In the end, we conclude that the limitation on policy-based claims cannot be coherently applied in ways that accomplish the Ziglar Court's stated goal of preserving a viable Bivens action to deter unconstitutional conduct. We therefore suggest that the Court abandon its attempt to limit the applicability of Bivens in cases challenging government policies. Whatever one might say for the Court's sundry explanations for limiting Bivens, the Ziglar Court's concern with policy-based claims lacks merit.


    We begin with a focus on the Court's suggestion that its jurisprudence has long featured hostility to policy-based Bivens claims. Contrary to its insinuation, the Court had never questioned the availability of Bivens claims seeking damages for unconstitutional policies prior to Ziglar. Indeed, prior cases had suggested the opposite, namely that policy-based claims could be cognizable under Bivens. This reading of the caselaw is supported by the Office of the Solicitor General's contemporaneous briefing, which had never argued that Bivens was flat out unavailable where claims were based on unconstitutional policies. (25) If anything, both the Court and the government had long assumed that, while policy-based claims might implicate the personal involvement requirement or the qualified immunity defense, Bivens claims brought against individuals directly responsible for unconstitutional policies would otherwise be available.

    1. The Role of Policy in Early Bivens Cases

      The Supreme Court's decisions in the 1970s and 1980s routinely assumed that Bivens cases were available to challenge policies. (26) Some opinions during this time period did question whether Bivens defendants sued for their policy decisions were entitled to absolute or qualified immunity. But the Court's focus on immunity only underscores the presumed availability of policy-based damages claims. (27) In Butt v. Econornou, (28) for example, the Court made clear that a federal official could not avoid liability for violations of the federal Constitution, even when he was making decisions at the policy level. (29) Even when an official could claim authorization...

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