No Bivens for You? (CRS Report for Congress)
| Release Date |
Revised July 5, 2017 |
| Report Number |
BIVENS |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
In Ziglar v. Abbasi, a consolidated case in which only two-thirds of the bench participated, the Supreme Court ruled 4-2
against extending the judicially created “Bivens remedy” to certain unlawfully present aliens challenging their detention
during investigations following the September 11, 2001 terror attacks. However, the Court remanded for further analysis
the question whether those plaintiffs could sue for abusive prison conditions. In short, the issue in Abbasi centered on
the application of the Supreme Court’s 1971 opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, which held that a plaintiff may bring a lawsuit for damages against a federal officer for violations of the
Fourth Amendment. The Bivens remedy has twice been extended to other contexts: (1) in Davis v. Passman, for gender
discrimination against a public employee in violation of the equal protection component of the Fifth Amendment; and
(2) in Carlson v. Green, for constitutionally inadequate prisoner medical care in violation of the Eighth Amendment. In
Abbasi, the plaintiffs sought two additional extensions of Bivens, which the Supreme Court by and large denied. And
though the plaintiffs still have one more bite at the apple before the U.S. Court of Appeals for the Second Circuit, their
shot at victory seems unlikely, given the majority’s apparent skepticism of the Bivens remedy itself, as well as dicta
suggesting that the plaintiffs’ claim is unlikely appropriate for an extension of that remedy.
