Ziglar v. Abbasi

Holding that plaintiffs, former detainees of Guantanamo Bay,  could not bring a so-called Bivens action to sue senior government officials and wardens, the Supreme Court in Ziglar v Abbasi established factors that courts should apply when determining whether plaintiffs may sue federal officials for violations of constitutional rights.  In reaching its decision, the Supreme Court provides a helpful discussion of separation of powers.

What is a Bivens Action?

Bivens refers to a Supreme Court case, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which the Supreme Court held that plaintiff had an implied right to sue federal agents for violations of his Fourth Amendment rights to be free from unreasonable searches.

The right to sue was implied, because Congress and the Constitution did not expressly authorize a lawsuit against federal agents.  Through a statute, 42 USC Section 1983, Congress empowered plaintiffs to sue state officials who violate victims’ Constitutional rights, but there is no comparable statute that applies to federal officials.  Although there was no statute that authorized plaintiffs to sue federal officials, the Supreme Court held that this right was implied.




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.

There is therefore a balance to be struck, in situations like this one, between deterring consitutional violations and freeing high officials to make the lawful decisions necessary to protect the National in times of great peril.  The proper balance is for the Congress, not the Judiciary, to undertake.

Majority Opinion

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.

Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance.

Justice Breyer, dissenting

United States Law: An Introduction for International Students

Get a Civ Pro Quiz Ebook!

101 Civ Pro Questions and Explanations