In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,1×1. 403 U.S. 388 (1971). the Supreme Court held that federal officers could be sued for damages based on violations of Fourth Amendment rights, even in the absence of a statutory cause of action.2×2. See id. at 397. The Court subsequently extended the availability of Bivens remedies to plaintiffs seeking damages for a variety of constitutional violations.3×3. See Carlson v. Green, 446 U.S. 14, 23 (1980) (Eighth Amendment); Davis v. Passman, 442 U.S. 228, 234 (1979) (Fifth Amendment). However, the Court has not expanded the availability of Bivens suits at any time during the past two decades,4×4. Erwin Chemerinsky, Federal Jurisdiction 639 (6th ed. 2012). and circuit courts have responded by proceeding cautiously when determining whether to allow Bivens claims to go forward.5×5. See, e.g., Stephen I. Vladeck, Essay, The New National Security Canon, 61 Am. U. L. Rev. 1295, 1313–17 (2012). Recently, in Meshal v. Higgenbotham,6×6. 804 F.3d 417 (D.C. Cir. 2015), reh’g en banc denied, No. 14-5194, 2016 BL 29006 (D.C. Cir. Feb. 2, 2016). the D.C. Circuit held that Amir Meshal, a U.S. citizen who was allegedly unconstitutionally detained, interrogated, and tortured by FBI agents abroad, could not seek damages under Bivens. The outcome in Meshal was consistent with the long line of cases disfavoring Bivens remedies, but the court’s analysis has interesting implications for future Bivens suits. The D.C. Circuit inquired into whether Meshal’s claims implicated a new Bivens context and clearly separated the analysis of that “predicate” question from the subsequent discussion of whether to extend the remedy. This approach avoided methodological ambiguity and provided plaintiffs with a potential route to victory that the district court’s approach had rendered uncertain. However, the court’s assertion that “national security” and “extraterritoriality” are indicative of a “new context” limits the utility of this approach for plaintiffs and could foreshadow further erosion of plaintiffs’ ability to secure damages under Bivens.
Amir Meshal is a Muslim U.S. citizen.7×7. See Complaint for Damages & Declaratory Relief at 1, Meshal v. Higgenbotham, 47 F. Supp. 3d 115 (D.D.C. 2014) (No. 1:09-cv-02178). Meshal’s claims were adjudicated on a motion to dismiss. See Meshal, 47 F. Supp. 3d at 117. Accordingly, for the purposes of this discussion, Meshal’s allegations are accepted as true. See id. According to Meshal’s complaint, in 2006, he traveled to Somalia in order to gain a broader understanding of Islam.8×8. Complaint for Damages & Declaratory Relief, supra note 7, at 8. At the time, an Islamic governing body controlled Mogadishu and its surrounding areas. See id. at 7–8. Shortly after Meshal’s arrival, hostilities erupted between two opposing factions.9×9. Id. at 10. Meshal, fearing for his safety, fled to the Kenyan border,10×10. See id. at 10–11. where he was apprehended by Kenyan soldiers and then imprisoned in Nairobi.11×11. Id. at 12–13. U.S. government officials became aware of Meshal’s location shortly thereafter.12×12. Id. at 14. In February 2007, three of the defendants — FBI Agents Chris Higgenbotham and Steve Hershem, and John Doe 1 — made contact with Meshal.13×13. Id. at 15–16. Over the next four months, the defendants detained and interrogated Meshal, seeking to uncover a connection with al Qaeda.14×14. Id. at 22, 40–41. John Doe 2 was also involved in the interrogations. See id. at 35–37. During the interrogations, the defendants threatened to “make [Meshal] disappear,” told him that “even your grandkids are going to be affected by what you did,” and threatened to hand Meshal over to Egyptian interrogators, who “had ways of making [him] talk.”15×15. See id. at 22–23. During this period, Meshal was transferred among several African countries and subjected to extremely harsh conditions of confinement.16×16. Id. at 28. Following mounting media scrutiny and the involvement of Meshal’s congressman, Meshal was returned to the United States in May 2007.17×17. Id. at 39–41. During his period of detention, he lost approximately eighty pounds.18×18. Id. at 41.
Meshal commenced a Bivens suit in the U.S. District Court for the District of Columbia in November 2009.19×19. See id. at 1, 4, 51. He argued that the defendants’ conduct had violated his substantive and procedural due process rights under the Fifth Amendment and his right not to be subjected to unreasonable seizure under the Fourth Amendment.20×20. Id. at 43, 45, 47; see also U.S. Const. amends. IV, V. Judge Sullivan granted the defendants’ motion to dismiss.21×21. Meshal v. Higgenbotham, 47 F. Supp. 3d 115, 120 (D.D.C. 2014). The court also dismissed a separate claim brought under the Torture Victim Protection Act. Id. at 123 n.5. The court first concluded that Meshal had “stated a plausible violation” of his constitutional rights.22×22. Id. at 120. It next applied the “two-step process to determine whether a Bivens remedy is available”23×23. Id. at 122. that the Supreme Court articulated in Wilkie v. Robbins.24×24. 551 U.S. 537 (2007). Under this analysis, a court first determines whether an existing alternative process for protecting the interest in question “amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.”25×25. Id. at 550 (citing Bush v. Lucas, 462 U.S. 367, 378 (1983)). If it does not, the court next makes “the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.”26×26. Id. (quoting Bush, 462 U.S. at 378). Applying this analysis, the court determined that there was no alternative remedy available; in Meshal’s case, the remedy had to be “damages or nothing.”27×27. Meshal, 47 F. Supp. 3d at 123 (quoting Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring)). Yet the court concluded that Meshal’s claim failed at the second step: special factors counseled against applying a Bivens remedy. Three circuits, including the D.C. Circuit, had established that “when a citizen’s rights are violated in the context of military affairs, national security, or intelligence gathering, Bivens is powerless to protect him.”28×28. Id. at 130; see also Vance v. Rumsfeld, 701 F.3d 193, 200 (7th Cir. 2012) (en banc); Doe v. Rumsfeld, 683 F.3d 390, 395–96 (D.C. Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 552 (4th Cir. 2012). While Judge Sullivan expressed dismay at this outcome, he concluded that binding precedent compelled dismissal.29×29. Meshal, 47 F. Supp. 3d at 130 (characterizing Meshal’s claims as “candidly embarrassing” for the U.S. government (quoting Doe v. Rumsfeld, No. 1:08-CV-1902, 2012 WL 3890944, at *2 (D.D.C. Sept. 7, 2012))).
The U.S. Court of Appeals for the District of Columbia Circuit affirmed. Writing for the panel, Judge Brown30×30. Judge Brown was joined by Judge Kavanaugh. asserted that in order to determine whether a Bivens action should proceed, a court must first determine whether the action would “extend the remedy to a new context.”31×31. Meshal, 804 F.3d at 423. While acknowledging that Meshal’s claim involved neither a new constitutional right nor a new category of defendants, the court nevertheless concluded that the claim presented a new context for two reasons: First, it “involve[d] . . . a criminal terrorism investigation conducted abroad.”32×32. Id. at 424. Second, it “involve[d] . . . the extraterritorial application of constitutional protections.”33×33. Id. Next, Judge Brown applied the two-part Wilkie test. While acknowledging that Meshal had no alternative remedy, the court concluded that the “special factors” of national security and extraterritoriality counseled against extending a Bivens remedy to this new context.34×34. Id. at 425–26. Noting that the special factors analysis is meant to answer “the question of who should decide whether . . . a remedy should be provided,”35×35. Id. at 425 (quoting Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985)). Judge Brown concluded that the confluence of these two factors strongly suggested that Congress should decide whether a remedy is appropriate.36×36. See id. at 426–27.
Judge Kavanaugh concurred. He emphasized the impact of judicial conclusions regarding the scope of Bivens remedies on the United States’ ability to conduct the ongoing war against terrorism.37×37. See id. at 429, 431 (Kavanaugh, J., concurring). Framing the core point of contention between the majority and the dissent as whether Congress or the judiciary should decide “whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war” against terrorism,38×38. Id. at 430. Judge Kavanaugh agreed that the two special factors identified by the majority strongly suggested that the task was better suited to Congress.39×39. See id. at 430–31.
Judge Pillard dissented. She drew attention to the absence of factors used as indicia of a “new context” in past cases.40×40. See id. at 434–35 (Pillard, J., dissenting). These factors included ineligible defendants, the existence of alternative remedies, improper intrusions into “the unique demands of military discipline,” and the foreign affairs implications of a suit brought by an alien against the United States. Id. at 434. She also argued that past congressional tort-claims legislation indicated that Congress had already evinced an intent to ratify Bivens in certain contexts, and that courts should thus avoid excessive caution when determining whether to extend the doctrine.41×41. See id. at 436–39. Multiple scholars endorse this interpretation of Congress’s treatment of Bivens. See, e.g., Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509, 580 (2013). Finally, Judge Pillard rejected the claim that the “special factors” identified by the majority formed a sufficient basis for declining to extend a Bivens remedy.42×42. Meshal, 804 F.3d at 440. She stated that state-secrets privilege and other procedures ensure that federal courts are “well equipped” to manage sensitive cases.43×43. Id. at 446. Judge Pillard cautioned that judges should not “cede [their] rights-protective role” without a truly compelling reason to do so, and she concluded that no such reason was present in Meshal’s suit.44×44. Id. at 445.
Judge Kavanaugh characterized the “fundamental divide between the majority . . . and the dissent” as a question of “Who Decides” — that is, whether Congress or the judiciary should provide for any tort cause of action under these circumstances.45×45. Id. at 430 (Kavanaugh, J., concurring). However, an equally important consideration for both Judge Brown and Judge Pillard was whether this “fundamental” question had already been answered.46×46. While Judge Pillard did not explicitly address the majority’s “predicate” question analysis, she indirectly drew attention to the fact that factors frequently associated with a new Bivens context were absent in Meshal’s case. Id. at 434 (Pillard, J., dissenting). As a first step in discussing whether the court should recognize a Bivens cause of action, the majority inquired into the “predicate” issue of whether the Supreme Court had already extended Bivens to apply to claims like Meshal’s.47×47. Id. at 424–25 (majority opinion). It was only after concluding that Meshal’s claim presented a “new context” that the court declined to extend a Bivens remedy.48×48. Id. at 425–26. In conducting its analysis, the court appropriately differentiated the predicate issue of whether the case presented a new context from the analysis of whether to extend Bivens, indicating that plaintiffs could, at least theoretically, prevail at this initial step. However, the court’s identification of “national security” and “extraterritoriality” as indicia of a new Bivens context laid the groundwork for restricted availability of Bivens relief in the future.
The question of what constitutes a “new context” for the purposes of Bivens remedies is critical, yet it has no concrete answer. The Supreme Court has consistently expressed a reluctance to extend the availability of Bivens remedies to contexts in which Bivens relief has not yet been established.49×49. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); Schweiker v. Chilicky, 487 U.S. 412, 421–22 (1988). At least one sitting Justice, Justice Thomas, has joined an opinion indicating willingness to reject any expansion of Bivens-remedy availability. See Malesko, 534 U.S. at 75 (Scalia, J., concurring). Wilkie articulated a two-step test for determining whether to extend Bivens remedies,50×50. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007). but in practice circuit courts invariably follow the Court’s lead in refusing to do so.51×51. See Vladeck, supra note 5, at 1313–17. Courts’ unwillingness to extend Bivens to new contexts strongly suggests that plaintiffs would be best served by arguing that their claims do not implicate a “new context,” but rather fit into a context to which Bivens remedies have already been extended. However, despite the critical role that the concept of a “new context” plays in Bivens suits, “[c]ontext is not defined in the case law.”52×52. Arar v. Ashcroft, 585 F.3d 559, 572 (2d Cir. 2009) (en banc) (internal quotation marks omitted). In Malesko, the Justices disagreed over whether a Bivens claim implicated a new context but did not indicate how such questions are to be resolved. Compare Malesko, 534 U.S. at 74 (“Respondent . . . seeks a marked extension of Bivens . . . .”), with id. at 76–77 (Stevens, J., dissenting) (“[T]he question presented by this case is whether the Court should create an exception to the straightforward application of Bivens . . . not whether it should extend our cases beyond their ‘core premise.’” (quoting id. at 71 (majority opinion))). Complicating matters further, the Court’s recent analysis of the Bivens claim at issue in Minneci v. Pollard53×53. 132 S. Ct. 617 (2012). seemed to conflate the inquiry into whether the case implicated a “new context” with the discussion of whether an extension was appropriate under the Wilkie test.54×54. See id. at 623–24. This approach has raised concerns about whether the Court is adhering to its established methodology for analyzing Bivens cases.55×55. See Alexander A. Reinert & Lumen N. Mulligan, Asking the First Question: Reframing Bivens After Minneci, 90 Wash. U. L. Rev. 1473, 1479 (2013) (“The Minneci Court . . . elided [the] analytically prior question of when a plaintiff seeks to extend Bivens with the distinct question of when alternative remedies, be they state or federal, should prohibit such an extension.”).
In this environment of uncertainty, lower courts have adopted disparate strategies for determining when a claim implicates a new context. In Arar v. Ashcroft,56×56. 585 F.3d 559 (2d Cir. 2009) (en banc). the Second Circuit defined “context” as “a potentially recurring scenario that has similar legal and factual components” and affirmed that courts must conclude that an extension is necessary before determining whether it is appropriate.57×57. Id. at 572. This approach has proved influential across several circuits.58×58. See, e.g., Hernandez v. United States, 757 F.3d 249, 272 (5th Cir. 2014), adhered to in part on reh’g en banc, 785 F.3d 117 (5th Cir. 2015); Mirmehdi v. United States, 689 F.3d 975, 981 (9th Cir. 2012). However, the Second Circuit’s recent analysis in Turkmen v. Hasty59×59. 789 F.3d 218 (2d Cir. 2015). seemed to constitute a modification of the Arar “context” inquiry.60×60. See id. at 234 (analyzing “both the rights injured and the mechanism of the injury” to determine whether a case implicates a new context); see also id. at 268 (Raggi, J., dissenting) (arguing that the majority’s approach “cannot be reconciled with controlling precedent”). Furthermore, even courts in circuits that endorse the Arar formulation often conclude that a claim presents a “new context” after minimal inquiry.61×61. See, e.g., M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Vance v. Rumsfeld, 701 F.3d 193, 198–99 (7th Cir. 2012) (en banc).
The Meshal majority responded to the uncertainty surrounding the “new context” analysis by outlining a clear theoretical framework for examining the availability of Bivens remedies. The court endorsed the Arar approach, stating that any analysis of a Bivens claim first “requires [a court] to examine whether allowing a Bivens action to proceed would extend the remedy to a new context.”62×62. Meshal, 804 F.3d at 423. Only after finding such expansion did the court apply the two-part Wilkie test and conclude that “special factors” precluded an extension of Bivens.63×63. See id. at 424–26. The court’s careful differentiation between these two steps preserved the critical predicate question, a result that reflected the Supreme Court’s concern regarding “new contexts” while also drawing attention to the fact that plaintiffs could, at least theoretically, establish the viability of a Bivens claim without being subjected to the near-insurmountable Wilkie test.
In addition to differentiating the predicate question of what constitutes a “new context” from the question of whether to extend the Bivens remedy, the majority asserted that a lack of precedent extending Bivens in national security and extraterritoriality cases “signal[s] that [the] context is a novel one.”64×64. Id. at 424–25. While courts in past cases had cited both national security and extraterritoriality as “special factors” precluding an extension of a Bivens remedy,65×65. See, e.g., Vance v. Rumsfeld, 701 F.3d 193, 199 (7th Cir. 2012) (en banc) (national security and extraterritoriality); Doe v. Rumsfeld, 683 F.3d 390, 394–96 (D.C. Cir. 2012) (national security); Lebron v. Rumsfeld, 670 F.3d 540, 547–52 (4th Cir. 2012) (same). the majority’s consideration of these indicia at the predicate step constituted a departure from approaches articulated in other circuits and added to the indicia of a new Bivens context identified in past Supreme Court cases.66×66. See Meshal, 804 F.3d at 434, 443–44 (Pillard, J., dissenting). The dissent contrasted the majority’s analysis with the Second Circuit’s “new context” test articulated in Turkmen v. Hasty, 789 F.3d 218, 234 (2d Cir. 2015). See Meshal, 804 F.3d at 443.
The Meshal majority’s use of national security and extraterritoriality at the predicate step provides additional guidance for determining what constitutes a “new context” for Bivens remedies, but it also lays the groundwork for potential future restrictions on the availability of Bivens relief. The court was careful to indicate that it decided only that the confluence of both national security and extraterritoriality concerns sufficed to establish a “new context” in Meshal’s case.67×67. Meshal, 804 F.3d at 425 (majority opinion). However, a claim that implicates only one of the two indicia is likely to occur in the future. In that case, the defendant will certainly argue that the single indicator alone establishes a new context, and the judge may well agree. Thus, the Meshal majority’s use of these indicia renders the outcome uncertain in such a situation.
The ambiguous, potentially far-reaching scope of “national security” as an indicator of a new context could significantly restrict the future availability of Bivens remedies. Meshal’s claim, which involved a criminal investigation into terrorist activities, accorded with standard conceptions of what constitutes a national security issue. However, the scope of “national security” as a legal concept is undefined, and legislators invoke national security concerns in a broad variety of contexts.68×68. See generally Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573 (2011) (tracing the evolution of the concept of “national security,” and discussing the expansion of the idea to incorporate issues ranging from drug trafficking to climate change). As a result, the use of national security as an indicator of a new Bivens context could lay the groundwork for denying relief in cases that would otherwise seem to fall within the Bivens realm. For instance, the dissent argued that “no one disputes that a Fifth Amendment claim for arbitrary detention and coercive interrogation . . . would be cognizable under Bivens if it occurred in the United States.”69×69. Meshal, 804 F.3d at 435 (Pillard, J., dissenting). However, the majority did not conclude that extraterritoriality is a necessary condition for the existence of a new Bivens context.70×70. See id. at 422 (majority opinion) (“Our holding is context specific.”). Thus, it is at least conceivable that the majority’s national security indicator could be invoked in isolation to remove such a claim from the Bivens heartland and place it into a “new context.”
Similarly, the court’s use of extraterritoriality as an indicator of a new Bivens context could curtail the benefits of the predicate-question step for plaintiffs if, applying this indicator in isolation, a court concludes that claims resulting from conduct abroad automatically present a “new context.” The majority established that “extraterritoriality dictates constraint” without settling upon any specific rationale for the court’s “reticence.”71×71. Id. at 425; see also id. at 441 (Pillard, J., dissenting). The broad conceptualization of the extraterritoriality indicator means that it could impact any claim originating from conduct that occurred abroad, regardless of factual differences from Meshal’s claim. Furthermore, as Judge Pillard noted, “[t]he majority leaves open whether a United States citizen abused by federal agents abroad as part of an investigation not implicating national security would be able to bring a Bivens action.”72×72. Id. at 439 (Pillard, J., dissenting). The majority “offers no reason why such a suit would be barred,”73×73. Id. but as with the court’s analysis of national security, this ambiguity cuts both ways. The majority’s lack of discussion regarding the effect of the indicia in isolation invites defendants to invoke extraterritoriality to demonstrate the existence of a “new context,” even absent national security concerns.
Prior to the court’s opinion in Meshal v. Higgenbotham, key portions of the “new context” analysis resided in the realm of uncertainty. The predicate question of what constitutes a “new context” was vulnerable to being minimized or discarded, but also held the potential to be employed in a way that would increase plaintiffs’ chance of securing relief under Bivens. While the Meshal majority opinion reflected the established pattern of courts disfavoring Bivens remedies, it also definitively affirmed the importance of the predicate question in Bivens analyses. However, its use of national security and extraterritoriality as indicia of a new Bivens context sharply restricted the utility of the court’s reasoning for plaintiffs and could foreshadow a further narrowing of Bivens relief in the future.