Ziglar v. Abbasi (15-1358)

argument 15-1358

Ziglar v. Abbasi

Supreme Court of the United States 57 min 3 speakers 8 chapters transcribed 5 days ago official recording ↗

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Why does the Court say the plaintiffs’ core theory is foreclosed by Iqbal?

John G. Roberts 0:00

We'll hear argument next this morning in case 151358,

Noel J. Francisco 0:03

Ziegler v. Abbasi. Mr. 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 11th terrorist attacks. All of the judges below concluded that plaintiff's 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.

Noel J. Francisco 0:48

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 11th attacks. If a 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 non-invidious 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.

Noel J. Francisco 1:31

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 redress first, let me start there.

Unknown 2:01

But 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.

Noel J. Francisco 2:18

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 is also, I think, beyond the — it's not within the scope of the question presented. But even if — and I think the reason that it was barred below is because it's squarely foreclosed 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 a facially valid constitutional policy 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,

Noel J. Francisco 3:20

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 muller or ziegler created the punitive conditions or that they required the punitive technicians 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 situation looked to Attorney General Ashcroft, who's alleged to be the decision maker. I'll come back to the failure of the complaint to allege that he was the decision maker, but even taking that,