Ziglar v. Abbasi

PETITIONER: James W. Ziglar
RESPONDENT: Ahmer Iqbal Abbasi, et. al.
LOCATION: U.S. Court of Appeals for the Second Circuit

DOCKET NO.: 15-1358
LOWER COURT: United States Court of Appeals for the Second Circuit

GRANTED: Oct 11, 2016
ARGUED: Jan 18, 2017

Ian H. Gershengorn - for petitioners in 15-1358 and 15-1359
Jeffrey A. Lamken - for petitioners in 15-1363
Rachel Meeropol - for respondents

Facts of the case

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.


  1. How broadly should “context” be defined for the purpose of determining whether claims arose in a “new context” in regards to holding a government official as personally liable for committing a Constitutional violation?

  2. Are the government defendants in these cases entitled to qualified immunity from liability?

  3. Do the injuries in these cases meet the pleading standards of Ashcroft v. Iqbal--requiring that a complaint allege sufficient facts to state a plausible claim?

Media for Ziglar v. Abbasi

Audio Transcription for Oral Argument - January 18, 2017 in Ziglar v. Abbasi

John G. Roberts, Jr.:

We'll hear argument next this morning in case 15-1358, Ziglar v. Abbasi. Mr. Gershengorn. IN NOS. 15-1358 AND 15-1359.

Ian H. Gershengorn:

Mr. Chief Justice, and may it please the Court: This case marks the return of Iqbal as Plaintiffs seek to hold essentially the same defendants liable for the same actions arising in the same extraordinary circumstances in the wake of the September 11 terrorist attacks. All of the judges below concluded that Plaintiffs' core theory is squarely foreclosed by Iqbal. But the Second Circuit majority then formulated its own list merger theory of liability, premising liability on the alleged decision of Attorney General Ashcroft to merge the New York list of detainees, which had not been fully vetted, with the INS list, thereby continuing the hold-until-cleared policy for detainees on both lists. Bivens' liability does not attach here for at least three reasons. First, the Bivens remedy should not be extended to national security and immigration policy decisions by senior officials in the wake of the September 11 attacks.

If the damages remedy is to be imposed, it's for Congress, not this Court, to do so. Second, the list merger theory suffers from the same pleading deficiencies that this Court identified in Iqbal itself.

Among other things, there is an obvious alternative and noninvidious explanation of the list merger decision.

Given the uncertainty about the status of detainees on the New York list, the list merger was undertaken to avoid the inadvertent or premature release of a dangerous terrorist. And third, the defendants here violated no clearly established right.

It would not have been clear to every reasonable defendant that merging the lists in the wake of the 9/11 attacks would be unconstitutional rather than risking premature release of a detainee on the New York list. I think the easiest way for this Court to resolve this case is through the Iqbal pleading theory. But given this Court's admonition that the existence of the Bivens remedy is an antecedent question that the Court should address first, let me start there.

Ruth Bader Ginsburg:

But you -- you seem to be assuming that the whole case is about the merging of the New York list with the other list, but I thought that this was -- this case was identified as a prison conditions case.

Ian H. Gershengorn:

So, Your Honor, that broader theory was raised below.

It was rejected by every judge to consider it below, the district court and the panel majority, and it -- it is also, I think, beyond the -- it's not within the scope of the question presented. But even if -- if -- and I think the reason that it was barred below is because it squarely foreclosed by -- by Iqbal, both on the substantive due process claim and on the equal protection claim. On the substantive due process claim, what we have is an -- a -- a facially-valid constitutional policy to -- to -- that could be applied to individuals with individualized suspicion of terrorism. And if you look at the allegations in the complaint, and these are paragraphs 61 and 65 of the complaint, all that is alleged is that Ashcroft and Mueller met regularly with a -- this is on page 274A of the appendix to the petition -- that in the -- and this is paragraph 61 -- that Ashcroft and Mueller met with a small group of officials to exert maximum pressure on the individuals arrested, and then in paragraph 65, on the next page, that the punitive conditions in which the MDC and class members were placed were the direct result of the strategy. There is no allegation that Ashcroft and Mueller or Ziglar created the punitive conditions, or that they required the putative conditions.

They had the right, as the Second Circuit itself held, and the district court held, to presume that the policy would be implemented lawfully. The only real theory that survives, I think, Your Honor, really is the list merger theory, and that theory fails.

I think it's critical to understand in that context how the case -- how the situation looked to the Attorney General -- to Attorney General Ashcroft who's alleged to be the decisionmaker. I'll come back to the -- to the failure of the complaint to allege that he was the decisionmaker, but even taking that, what he faced was the New York list which involved aliens, all of whom were out of status, and had been picked up in the course of the Pent-Bomb investigation. He knew that not all of those aliens had had individualized suspicion determinations, but that some may well have had ties nexus to terrorism, and he knew that the conditions of confinement would be lawful.

It is not disputed that those would be lawful as to those with individualized suspicion. Faced with that situation, the Second Circuit majority found that the list merger decision could only explained by putative intent or by discriminatory intent. But there is an obvious alternative explanation for the decision that Attorney General Ashcroft would have faced in deciding to merger the list, is that you couldn't tell who was and who was not had -- who did and who did not have a potential link to terrorism.

And in that situation, a decision to hold everyone until cleared, to apply the hold-until-cleared policy is best explained, not by invidious intent, but by the desire to avoid the premature and inadvertent release of a dangerous terrorist.

Stephen G. Breyer:

This went on for several months, eight months.

Ian H. Gershengorn:

I think the list merger decision is early on in the --

Stephen G. Breyer:

Yes, but weren't --

Ian H. Gershengorn:

And that's where --

Stephen G. Breyer:

-- weren't they held for eight months?

Ian H. Gershengorn:

They were held longer, and there's no doubt that the clear --

Stephen G. Breyer:

No I can --

Ian H. Gershengorn:

-- longer than it should.

Stephen G. Breyer:

So I can understand after a bomb attack.

I can understand after a bomb attack and 3,000 people are killed.

I can understand that the first reaction of the law enforcement authorities is, pick up anybody you might think is connected, and we'll worry about the rest of it later. Now, eight months? Now, what they do allege is that Ashcroft and Mueller knew that the FBI had not developed any reliable evidence -- that's paragraph 67 -- tying the plaintiffs to terrorism, but authorized their prolonged detention, in restrictive conditions, and Mueller, it says, ordered that they be kept in INS custody, and including the restrictive conditions, even after local offices reported.

Ah, they don't say reported to whom, so that is a point in your favor, but that there was no reason to suspect them of terrorism. But I think, fairly read, they are saying -- they -- okay.

They authorized it.

They knew that some of these people had no information against them, but the answer is pick up anybody who might have a connection, and then just keep them there? I mean, that's what's worrying me a lot.

And why doesn't that at least state an allegation? Suppose it had been five years.

Suppose it had been ten years.

I mean, we all know the problems with that and -- and if you know it, I can see it for a day, two days.