In Ziglar v. Abbasi, the U.S. Supreme Court revisited Bivens doctrine, suggesting that courts recognize constitutional tort actions only in cases closely analogous to one of the cases comprising the 1970s/1980s era Bivens trilogy, namely Bivens v. Six Unknown Named Agents, Davis v. Passman, and Carlson v. Green. In doing so the Court set forth several factors that might make a case distinguishable from those 1970s/1980s cases. This essay argues that the key to Ziglar v. Abbasi is not the analogical exercise the Court imposed, but the Court’s concern that Bivens actions could become a mechanism for challenging agency officials’ policy choices. The Court’s concerns resemble those underlying the Federal Tort Claims Act’s discretionary function exception, which is designed to channel challenges to agency officials’ policy decisions from ex post tort litigation to ex ante Administrative Procedure Act processes for “direct” review of agency action. Drawing on that insight, this essay argues for a contextual approach to recognizing Bivens actions. Such a contextual approach would involve an assessment of the degree to which an official’s potentially unconstitutional actions are constrained by agency processes or judicial review before they will have an irreversible effect upon an individual. The essay argues that the contextual approach is not only entirely consistent with many of the factors the Ziglar v. Abbasi Court enumerates as worthy of consideration in determining whether a case is sufficiently analogous to the cases in 1970s/1980s era Bivens trilogy but can supply a conceptual foundation for the focus on such factors that is missing from Ziglar v. Abbasi itself.
Bernard W. Bell, Reexamining Bivens after Ziglar v. Abbasi, 9 ConLawNOW, 77 (2018)