Ca. Litig. Rev. 2017
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?"