Supreme Court further narrows the remedies under Bivens in 9/11 detention case

If you want to sue state officials or state employees for constitutional violations, you can do so under 42 U.S.C. section 1983. But there is no Section 1983 when you want to sue federal officials. Instead, you have a Bivens action, named after a 1971 Supreme Court case that said you can sue federal officials under the Constitution, which recognizes an implied cause of action for those claims. Yet, Bivens actions are rare, as the courts are reluctant to expand Bivens liability in various contexts. That trend continues in this case in which 9/11 detainees want to sue federal officials, including former Attorney General Ashcroft.

The case is Ziglar v. Abbasi, a Supreme Court case issued on June 19. This case reverses a decision of the Second Circuit. There is no majority opinion here. Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch did not participate because he was not on the Court when the case was argued. Justice Breyer dissents.

The plaintiffs -- foreign nationals -- were rounded up in the aftermath of 9/11 and claims they were placed in inhumane conditions of confinement. The Court summarizes the allegations:

The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’” Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—anytime they were moved, as well as at random in their cells.

Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Guards 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.

Had plaintiffs sued state officials for these civil rights violations, the case would be allowed to proceed unless the defendants could somehow invoke qualified immunity. Section 1983 claims do not have built-in prohibitions against cases like this. But Bivens does have those prohibitions, as the Supreme Court reminds us each time it takes up another Bivens action, noting that the Court has only twice since 1971 allowed anyone to sue a federal official for such a claim: once in 1979 when someone was able to sue a congressman for sex discrimination and once in 1980 when a prisoner's estate was able to sue federal jailers for failing to treat his asthma. 1979 and 1980 were a long time ago, with different Supreme Court justices who -- let's face it -- were less hostile to the expansion of civil rights. Since that time, the Supreme Court has closed the door even further on Bivens claims, noting that it is a "disfavored" judicial remedy.

One rationale for narrowing the possibilities under Bivens, the Court says, is respect for the separation of powers. Congress is in the best position to decide who can sue federal officials. Moreover, the Court has long held that "a Bivens remedy will not be available if there are 'special factors counselling hesitation in the absence of affirmative action by Congress."

In this case, the Court will not touch the plaintiffs' claims under Bivens. Not only is a Bivens action not "a proper vehicle for altering an entity's policy," but this case would intrude on Executive Branch decisionmaking in the realm of national security, normally a matter left to Congress, not the courts. In the end, the plaintiffs have no remedy. In theory Congress can do something about their ill-treatment, but it's been 16 years since the plaintiffs were rounded up and Congress has been silent on the matter, the Court notes.

Commentary about this case says the Court has further clamped down on Bivens remedies. I agree with that assessment. Justice Kennedy's majority opinion repeatedly notes how rare Bivens actions are, and how courts remain reluctant to expand remedies under that cause of action. This case emphasizes separation of powers principles, further allowing the Court to distance itself from expanding remedies under Bivens. If you want to bring a civil rights action against a government official, first make sure that your life is in the hands of a state or local employee, and not the federal government.