Ziglar v. Abbasi: The Scope of Bivens Actions

Subsequent Supreme Court Cases

In two subsequent cases, the Supreme Court held that plaintiffs had an implied right to sue federal officials for violations of Constitutional rights.  In one case, a woman was allowed to sue under the Due Process Clause of the Fifth Amendment based on gender discrimination.   And in a second case, the estate of an inmate who died in a federal prison was allowed to sue under the Eighth Amendment.

The Supreme Court held that the Claims in Ziglar v. Abbasi were Different from Prior Bivens Actions

According to the Supreme Court, before allowing a plaintiff to bring a Bivens action, the court must determine whether there is an implied right of action to sue.  If the defendants or the types of injury are different from prior Bivens actions, courts should consider two factors to determine whether the Bivens action should proceed.

The two factors that the Court should consider are:

• Is there an alternative way for plaintiff to get relief, such that the courts should not create an implied right to sue?
• Are there special factors that weigh against courts finding an implied right to sue?

The Supreme Court determined that Ziglar v. Abbasi was different from prior Bivens cases because plaintiffs were suing senior administration officials as liable for the actions of wardens who worked at Guantanamo Bay.  Moreover, the plaintiffs were suing to change aspects of US policy to detain persons accused of engaging in terrorism against the United States.

The Supreme Court Held that a Bivens Action was not available to Plaintiffs

In this case, the Supreme Court held that there was no implied right of action.  According to the Supreme Court, the principle of separation of powers required the Court to reject plaintiffs’ argument that they had an implied right to sue.  First, the Supreme Court held that a Bivens action was not an appropriate way to alter a policy of the Executive Branch. Second, the Supreme Court reasoned that allowing an implied right of action would permit plaintiffs to question an Executive policy and interfere with the Executive branch’s autonomy.  Third, the Supreme Court emphasized that foreign policy is reserved for Congress and the Executive Branch.  Permitting this lawsuit to continue would mean that the Judicial Branch is intruding on powers reserved for the Legislative and Executive branches of government.

Two Justices Dissented

Dissenting justices argued that the case should be allowed to proceed.  According to the dissenting justices, plaintiffs were suing to enforce Fifth Amendment and Fourth Amendment rights based on unconstitutional conditions of confinement that were similar to prior Bivens claims.  Because the claims in this case were sufficiently similar to prior cases, the majority improperly restricted the scope of Bivens actions by depriving these plaintiffs of their right to sue.