The Lawletter Vol 42 No 9
Anne Hemenway, Senior Attorney, National Legal Research Group
Since the United States Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal courts have allowed individuals to seek damages for unconstitutional conduct by individual federal officers. A Bivens action, as they are known, recognizes an implied cause of action directly under authority of the U.S. Constitution, where there is an absence of any statute specifically conferring the cause of action.
Recently, in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court recognized Bivens actions but held that it will now take a more "cautious" approach to each Bivens case presented to the Court to determine if the action falls under the previous Bivens claims and will not accept a Bivens action that is brought in a new context. The Court's stated purpose in taking this new cautious approach is to avoid intruding on the role of Congress to enact statutes for claims outside of the current Bivens context. To determine whether a Bivens action falls outside of the current Bivens context and is thus "novel" and not actionable, the Court rejected the Second Circuit Court of Appeals' previous two-part test and instead stated that the proper test for determining whether a case presents a new Bivens context is "[i]f the case is different in a meaningful way from previous Bivens cases decided by this Court." Id. at 1859.
In Bivens, the Supreme Court implied a private right of action under the Fourth Amendment for an unreasonable search and seizure claim against FBI agents for handcuffing a man in his own home without a warrant. Since then, the Supreme Court has recognized Bivens claims in only two more particular circumstances: (1) under the Fifth Amendment's Due Process Clause for gender discrimination against a Congressman for firing his female secretary, Davis v. Passman, 442 U.S. 228 (1979), and (2) under the Eighth Amendment's prohibition on cruel and unusual punishment against prison officials for failure to treat an inmate's asthma which led to his death, Carlson v. Green, 446 U.S. 14 (1980). Under the Ziglar standard, the Supreme Court will refuse to extend Bivens beyond the constitutional claims recognized in those prior cases. Gonzalez v. Hasty, ___ F. Supp. 3d ___, 2017 U.S. Dist. LEXIS 151393 (E.D.N.Y. Sept. 18, 2017). According to Ziglar, courts should not imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]."Ziglar, 137 S. Ct. at 1856 (quoting Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001)).
The Supreme Court's recent Bivens review has already led to decisions by other federal courts to reject Bivens claims according to their interpretation of the Supreme Court's open-ended Bivens context test. In Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017), the Third Circuit rejected an arrestee's Bivens action against individual TSA officers for violating the plaintiff's First Amendment rights because the Supreme Court has never recognized a Bivens action under the First Amendment and, therefore, under Ziglar, no such action can be stated.
The recent Supreme Court decision effectively precludes Bivens actions unless the action is a mirror of the three Supreme Court decisions decided previously. The impact of Ziglar will likely be to significantly reduce Bivens actions as a means of recovery for individuals who allege violations of constitutional rights by federal agents, and Congress may be prompted to fill the gap left by Ziglar.