Federal Practice

• Publication year: 2017
• Author: By Alyson Berg and Kristina Doan Gruenberg

Federal Practice

By Alyson Berg and Kristina Doan Gruenberg

"Going Forward" in Bivens Cases: Will the Supreme Court's Decision in Abbasi Narrow the Scope of Claims Against Federal Officials For Monetary Damages?

Since 1971, the Supreme Court has recognized an implied claim for Constitutional violations against federal officials, known as a Bivens action.¹ Since then, it has been argued that the Court has been limiting the viability of such claims. In a succession of cases, including Correctional Services Corp. v. Malesko,² Wilkie v. Robbins,³ and Iqbal v. Ashcroft,⁴ the Court has narrowed the situations in which an implied cause of action for money damages may be stated.

In 2017, the Supreme Court issued another potentially far-reaching opinion on the viabil ity of bringing claims against federal officials for money damages in Abbasi v Ziglar.⁵ The Court observed that "this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward."⁶ So what does the Abbasi decision mean "going forward?"

In Abbasi, six non-American detainee plaintiffs challenged their conditions of confinement imposed under the formal policy adopted by the Executive Officials following the 9/11 attacks. The plaintiffs, who were detained under a "hold-until-cleared" policy that resulted in detentions lasting between three and eight months, alleged that this policy and their treatment while detained violated the First, Fourth, and Fifth Amendments. The plaintiffs also alleged that they were subjected to various unconstitutional conditions of confinement pursuant to official policy. The specific allegations regarding their mistreatment while confined included that the plaintiffs were repeatedly strip-searched, subjected to physical punishment resulting in broken bones, and that they were the victims of sexual and derogatory racial comments. The Court held that these "detention policy claims" did not state a viable Bivens action.⁷

The Court determined that no causes of action could be stated against Federal Bureau of Investigation ("FBI") Director Robert Mueller, Immigration and Naturalization Service ("INS") Director James W. Ziglar, and Attorney General John Ashcroft arising from the policy decisions relating to the treatment of detainees following the 9/11 attacks. The Court reasoned that the treatment of the plaintiffs arose from decisions made in the context of national security and that this was a "new context" which required a "special factor analysis," ultimately concluding under this analysis that personal liability could not be imposed against these officials.⁸

The Court held that Bivens was meant to discourage illegal acts by individual federal officers and not to stop illegal federal policies.⁹ Therefore, while the plaintiffs could have sued for injunctive relief, they could not sue high-level policymakers for money damages, as this would distract executive officials from making difficult policy decisions. Moreover, the Court indicated Congress had known about these allegations of abuse for a long period but had chosen not to create a cause of action. Writing for the majority, Justice Kennedy stated that the Supreme Court's opinion should not be read to condone the alleged abuse. However, Justice Kennedy noted that there is "a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril."¹⁰ Justice Kennedy also noted that, "the proper balance is one for the Congress, not the Judiciary, to undertake."¹¹

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The 4-2 decision¹² in Abbasi raises a number of questions about how the Supreme Court will view Bivens cases going forward.

First, is the decision limited to post-9/11 security concerns or does it reveal that the Court will not be entertaining personal liability claims in any context other than the straight-forward search and seizure cases? While the Court reiterated that a Bivens claim remains viable in the Fourth Amendment context,¹³ query whether any claim other than the standard Eighth Amendment prisoner abuse case is viable after Abbasi. If the issue can be framed as a challenge to a policy decision (i.e., detention of Arab and Muslim men following a terrorist attack) rather than the treatment of the individual plaintiff (i.e., repeated strip-searches, physical abuse, and racial slurs), is a Bivens claim more likely to be dismissed?

It is difficult to tell based on this decision. During oral...