Ilann Margalit Maazel
Ilann Margalit Maazel ()

Most lawyers have some familiarity with 42 U.S.C. §1983, which provides a private cause of action against state officers who violate, inter alia, the U.S. Constitution. Less familiar, though no less important, is the judicially-created private cause of action against federal officers who violate the Constitution, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens, however, has now sustained a significant blow by the U.S. Supreme Court.


Bivens had its origin in none other than Marbury v. Madison, which held, inter alia, that where there is a legal right, there must be a remedy: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 1 Cranch 137, 163 (1803). Citing Blackstone, Chief Justice John Marshall observed the “general and indisputable rule, that where there is a legal right, there is also a legal remedy … . [I]t is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress … . The government of the United States has been emphatically termed a government of laws, and not of men. It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id.

As the court held much later in Bell v. Hood, “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” 327 U.S. 678, 684 (1946).

The Constitution restrains the government from violating any number of rights. For example, the Fourth Amendment prohibits unreasonable searches and seizures. What, then, if an FBI agent or other federal officer violates the Fourth Amendment, by, for example, using excessive force against John Doe? Doe’s Fourth Amendment rights were violated. Does he have a remedy?

Bivens held that he does. Under Bivens, Doe has a private cause of action for damages against the federal agent. The Bivens court observed that “[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Bivens, 403 U.S. at 395. Though the Fourth Amendment does not itself provide for damages, (1) it does provide for a right; (2) Marbury held that “where there is a legal right, there is also a legal remedy”; and (3) the only remedy the (civil) law allows to redress most past injuries, including violations of the Fourth Amendment, is damages.

Bivens held that private damages causes of action should be the general rule for violations of constitutional rights by federal actors, absent “special factors counseling hesitation in the absence of affirmative action by Congress.” 403 U.S. at 396. “Special factors” were never defined, and over the next decade, the Supreme Court applied Bivens in two additional, and quite different contexts.

In Davis v. Passman, 442 U.S. 228 (1979), “an administrative assistant sued a Congressman for firing her because she was a woman. The court held that the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination.” And in Carlson v. Green, 446 U.S. 14 (1980), “a prisoner’s estate sued federal jailers for failing to treat the prisoner’s asthma. The court held that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment.” Ziglar v. Abbasi, No. 15-1358, 2017 WL 2621317, at *9 (June 19, 2017).


In more recent times, however, the climate (and makeup) of the Supreme Court have changed significantly, and the court has become increasingly reluctant to imply private causes of action for violation of any rights, absent express congressional authorization. First, the court “consistently refused to extend Bivens to any new context or new category of defendants.” Correctional Services v. Malesko, 534 U.S. 61, 68 (2001). Then, the court stated that any expansion of Bivens is “disfavored.” Ashcroft v. Iqbal, 556 U.S., 662, 675 (2009).

For example, “the court declined to create an implied damages remedy in the following cases: a First Amendment suit against a federal employer; a race-discrimination suit against military officers; a substantive due process suit against military officers; a procedural due process suit against Social Security officials; a procedural due process suit against a federal agency for wrongful termination; an Eighth Amendment suit against a private prison operator; a due process suit against officials from the Bureau of Land Management; and an Eighth Amendment suit against prison guards at a private prison.” Id. at *9 (emphasis added) (internal citations omitted).

The ‘Ziglar’ Complaint

The near-death blow to Bivens, though, came last month, in the Ziglar case. Ziglar arose out of the government’s response to 9/11. “[T]he United States Government ordered hundreds of illegal aliens to be taken into custody … . In many instances custody lasted for days and weeks, then stretching into months.” Ziglar, at *6. According to plaintiffs’ complaint, after receiving more than 96,000 tips allegedly related to 9/11, but many “based on fear of Arabs and Muslims,” the FBI “encountered many aliens who were present in this country without legal authorization.” If the FBI “designated an alien as ‘of interest’ to the [9/11] investigation, or if it had doubts about the proper designation in a particular case, the alien was detained subject to a ‘hold-until-cleared policy.’ The aliens were held without bail.” Id. at *7. The plaintiffs were “subject to the hold-until-cleared policy and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York,” where they were “held in tiny cells for over 23 hours a day”; “[l]ights in the cells were left on 24 hours”; they were repeatedly strip searched; and “[g]uards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.” Id. (internal quotation marks omitted).

Plaintiffs were “six men of Arab or South Asian descent. Five are Muslims. Each was illegally in this country, arrested during the course of the 9/11 investigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released, [plaintiffs] were removed from the United States.” Id. at *8. Plaintiffs sued the Attorney General, FBI Director, Immigration and Naturalization Service Commissioner, and MDC’s warden and associate warden. They brought four Bivens damages claims, claiming that various defendants “detained them in harsh pretrial conditions for a punitive purpose, in violation of the substantive due process component of the Fifth Amendment”; “detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment”; “subjected them to punitive strip searches unrelated to any legitimate penological interest, in violation of the Fourth Amendment and the substantive due process component of the Fifth Amendment”; and “knowingly allowed the guards to abuse respondents, in violation of the substantive due process component of the Fifth Amendment.” Id.

The ‘Ziglar’ Opinion

A conservative majority of the Supreme Court used the Ziglar case to dismantle most of Bivens. The court first held that “it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” The court held that Congress, not the courts, should “determin[e] whether traditional equitable powers suffice to give necessary constitutional protection—or whether, in addition, a damages remedy is necessary.” Congress should consider the policy considerations of such a claim, for example the costs of defending and potentially indemnifying defendants, and “the time and administrative costs attendant upon intrusions resulting from the discovery and trial process.” Id. at *11.

Though the court, mindful of stare decisis, held that Bivens claims would not be eliminated altogether, it made any extension of Bivens all but impossible. The court created a two-part analysis: Is the Bivens context “new,” and if so, do special factors counsel against expanding Bivens? The short answer is that the vast majority of constitutional cases will now be “new,” and “special factors” will almost always prevent expansion of Bivens into those “new” contexts.

According to the majority, the context may be new “because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.” Id. at *15. This is a massive, yet still non-exhaustive, list.

In Ziglar itself, the context was “new” because, as to the non-warden defendants, the case involved “the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil.” Id. at *16. As to the prison abuse claim against the warden defendants, that claim was also considered “new,” because even though prior Bivens cases (such as Carlson) concerned prison mistreatment, “Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth.” Id. at *22. As the court put it dryly, “even a modest extension is still an extension.” Id. at *21.

Having determined that the context was new, the court held that special factors prevented extension of Bivens into the new context. Among those special factors: the claims “would call into question the formulation and implementation of a general policy”; “the discovery and litigation process would either border upon or directly implicate the discussion and deliberations that led to the formation of the policy in question”; some claims “challenge … major elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security”; and at least in theory, injunctive and/or habeas relief may have been available as an alternative to a damages claim. Id. at *16-17. As the dissent noted, though, it is not clear that injunctive relief was actually available, and in any event, damages were the only form of relief that could address past, as opposed to ongoing or future, constitutional violations.


Bivens actions were never easy. For one, they were not fee-shifting claims, a substantial disincentive for plaintiffs’ counsel to take the cases in the first instance. But now Bivens has faced a significant setback, from which it may not soon recover. Only Congress, or a future Supreme Court, will again be able to vindicate the holding of Marbury, and ensure that when federal officers violate Constitutional rights, their victims will have an actual remedy.