• 23 November 2009

Rethinking Bivens: Legitimacy and Constitutional Adjudication

James E. Pfander & David Baltmanis

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The Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics1 plays a central role in our system of constitutional remedies. Yet critics have long questioned the Bivens Court’s decision to fashion a federal common law right of action to enforce the Fourth Amendment. While the criticism ranges broadly, a consistent theme has been to question the democratic and institutional legitimacy of the judicial role in fashioning remedies for constitutional violations. In Bivens itself, both Chief Justice Burger and Justice Black dissented on the ground that the creation of rights of action is a matter for Congress.2 More recently, Justices Scalia and Thomas have characterized Bivens as ripe for reconsideration, arguing that it was the product of an earlier time, when the Court wrongly took on the legislative task of recognizing new rights of action. Perhaps in response, the Court has grown substantially more circumspect in recent years. In a 2007 decision, Wilkie v. Robbins, the Court echoed earlier cases in concluding that “special factors” argued against the recognition of a Bivens right of action for a novel Fifth Amendment retaliation claim.3

We argue for a fundamental change in the way federal courts evaluate the viability of a Bivens claim. Instead of the case-by-case approach that characterizes current law, we think the courts should presume that a well-pleaded complaint, alleging an unconstitutional invasion of individual rights, gives rise to an action for damages under Bivens. In such a world, the “special factors” that the Supreme Court has taken into account when deciding whether to allow an action would no longer operate as a threshold barrier to litigation. Instead, the federal courts would focus on whether Congress has deliberately displaced the Bivens remedy through the adoption of an alternative remedial scheme. This approach would simplify the evaluation of constitutional tort claims against federal actors and bring the doctrine into line with 42 U.S.C. § 1983, which governs similar suits against state actors. It would neither open the courthouse doors too broadly nor threaten federal officers with an unwarranted expansion of constitutional tort liability. The method we advocate is neither controversial nor unwieldy, and draws on the Supreme Court’s recent, unanimous examination of the circumstances under which alternative remedies displace a § 1983 action.4

The Creation of Uncertainty

The Court’s willingness to analyze the existence of a Bivens action on a case-by-case basis has introduced a layer of uncertainty into constitutional litigation. Rather than assume the existence of a Bivens action for claims against federal officers and agents, the federal courts must first conduct a threshold inquiry to determine if the specific constitutional claim at issue will support an implied right of action. This has resulted in an inconsistent patchwork of available remedies for claims against federal officers. For example, a discharged employee of a member of Congress may bring a Fifth Amendment equal protection claim, but a dissatisfied applicant for government benefits may not press a Fifth Amendment due process claim. Fifth Amendment takings claims have fared slightly better, but retaliation aimed at the exercise of the Fifth Amendment right to resist a government taking of property does not give rise to a Bivens action. Similarly, inmates of federal institutions may bring Eighth Amendment claims for cruel and unusual punishment, but individuals confined in facilities run by government contractors have been less successful. With their hit-or-miss quality, these decisions display the sort of incoherence that often betrays the absence of a clear rationale.

Cases arising out of the Bush administration’s terrorism-related detention and extraordinary rendition programs further highlight these concerns with the case-by-case evaluation of the viability of novel Bivens claims. In a series of cases involving individuals allegedly subjected to extraordinary rendition and harsh and degrading confinement conditions at Guantánamo Bay and elsewhere, the lower federal courts have, thus far, consistently refused to recognize a Bivens remedy.5 These decisions reflect uncertainty about how to apply the Supreme Court’s malleable standards and a presumption against the viability of novel claims. Apart from the uncertainty it engenders, the practice of judicial selectivity exemplified by these cases also raises legitimacy issues, along with the possibility that judicial evaluation of the merits of a specific claim may influence the Bivens calculus. In our view, this framework is untenable. We argue that the courts should abandon the case-by-case approach and presume that a well-pleaded complaint for a violation of an individual’s constitutional rights gives rise to a Bivens action.

Congress and the Ratification of the Bivens Remedy

Importantly, Congress has already provided a previously ignored legislative backbone for our approach.  In our view, scholars and courts have paid too much attention to the state of the law in 1971, when Bivens was decided, and too little attention to the legislative developments that have occurred in its wake. For instance, Congress took steps in 1974 and 1988 to preserve and ratify the Bivens remedy with amendments to the Federal Tort Claims Act (FTCA). In 1974, responding to concerns regarding the adequacy of a Bivens remedy, Congress expanded the right of individuals to sue the federal government itself for certain common law torts. But Congress deliberately chose to retain the right to sue individual government officers for constitutional torts and rejected draft legislation from the Department of Justice that proposed substituting the federal government as the defendant on such claims.

In the Westfall Act of 1988, Congress took further steps to solidify the Bivens remedy. The Westfall Act virtually immunizes federal government officials from state common law tort liability, substituting the government as a defendant under the FTCA for such claims. In the course of doing so, it declares that the remedy provided against the federal government shall be deemed “exclusive of any other civil action or proceeding for money damages . . . against the employee whose act or omission gave rise to the claim.”6 However, Congress chose to preserve the Bivens claim by declaring the exclusivity rule inapplicable to suits brought against government officials “for a violation of the Constitution of the United States.”7 The Westfall Act supports our argument for the routine availability of Bivens claims. Both the language of the Act, which expressly preserves claims for constitutional violations, and its structure provide support for our approach. The structural confirmation flows from the fact that the Westfall Act, by transforming claims for law enforcement torts into claims against the United States under the FTCA, largely eliminated state common law remedies as a relevant source of relief for individuals who have suffered a constitutional injury. It is therefore no longer possible, as it was in Webster Bivens’s day, to proceed to judgment against federal officers on the basis of the common law.

Moreover, Congress has declined to make a remedy for constitutional violations available against the federal government under the FTCA, a decision that (under the prevailing law of federal sovereign immunity) forecloses that remedial option. As a result, it makes little sense to assume (as the dissenting Justices did in Bivens and as others have done in later cases) that the denial of a Bivens remedy will leave individuals fully able to pursue claims on a state law theory of liability. Today, Bivens provides the only generally available basis upon which individuals can seek an award of damages for federal violations of constitutional rights. In 1971, it was “damages or nothing” for Webster Bivens, as Justice Harlan vividly explained.8 Today, it has become “Bivens or nothing” for those who seek to vindicate constitutional rights.

Toward a New Remedial Calculus

Congressional recognition puts the Bivens action on a much firmer federal statutory foundation, analogous if not identical to § 1983. We suggest that federal courts should treat the Bivens action as presumptively available. Such an approach would build on the Supreme Court’s sensible decision in many contexts to treat Bivens actions and § 1983 claims as parallel proceedings warranting similar treatment. As the Court explained long ago, it would be “untenable to draw a distinction for purposes of immunity law between suits brought against state officials . . . and suits brought directly under the Constitution against federal officials.”9 We agree that such distinctions are untenable, but we also view both the plaintiff’s right to sue and the defendant’s right to invoke qualified immunity as matters deserving of parallel treatment. With the right to bring a Bivens action presumptively available, the federal courts would no longer need to see themselves as fashioning a right of action to vindicate a novel constitutional claim.  Instead, the litigation would simply focus, as it does under § 1983, on whether the complaint states a claim for violation of the Constitution.

By broadening the analogy to § 1983 and presuming the availability of a Bivens action, our proposed reconceptualization provides a more satisfying explanation of the Supreme Court’s cases and a more coherent account of the shape of constitutional tort doctrine. Many scholars have puzzled over the Court’s willingness in cases such as Bush v. Lucas10 and Correctional Services Corp. v. Malesko11 to treat the availability of alternative remedies as fatal to the individual’s right to pursue a Bivens claim. Those decisions may make more sense when viewed through the lens of § 1983. In Fitzgerald v. Barnstable School Committee, the Court provided a framework for evaluating when alternative statutory remedies displace the § 1983 remedy for constitutional tort claims.12 One might sensibly apply this framework in assessing the Court’s decision in Bush v. Lucas, in which civil service remedies for a whistleblower’s constitutional claims served to displace a Bivens remedy.13 Similarly, in Parratt v. Taylor, the Court held that the existence of post-deprivation remedies may, in certain circumstances, obviate procedural due process claims for which § 1983 would otherwise provide a remedy.14 Cases in the Parratt line may help to explain Malesko, which featured allegations of negligence that would apparently fail to support a claim of actionable deprivation. By drawing on the § 1983 framework, the Court could avoid the ad hoc reliance on “special factors” that has characterized its recent Bivens decisions without inviting an unwarranted expansion of federal official liability.

Under our suggested approach of presumptive Bivens availability, the existence of alternative remedies would continue to play a role in the evaluation of each claim, as would the consideration of a range of limiting factors that now enter into the § 1983 calculus. In the end, we believe that both Bivens doctrine and § 1983 doctrine would gain from the development of the parallel approach we advocate here. The resulting framework would give effect to the presumption favoring judicial review of constitutional claims, better reflect Congress’s desire to preserve the Bivens action, and enable the Court to ensure that constitutional rights apply with equal force to the interactions between individuals and officials at all levels of our federal government.dingbat



Copyright © 2009 Georgetown Law Journal.

James E. Pfander is Professor of Law at Northwestern University School of Law.

David Baltmanis is Law Clerk to the Honorable Paul V. Niemeyer on the United States Court of Appeals for the Fourth Circuit. He received his J.D. from Northwestern University School of Law in 2009.

This Legal Workshop Editorial is based on the following Article: James E. Pfander &amp. David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117 (2009).

  1. 403 U.S. 388 (1971).
  2. See Bivens, 403 U.S. at 411 (Burger, C.J., dissenting); id. at 427-28 (Black, J., dissenting).
  3. 551 U.S. 537 (2007).
  4. See Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 793-95 (2009).
  5. See Arar v. Ashcroft, 532 F.3d 157, 180-84 (2d Cir. 2008) (no Bivens action for alleged victim of extraordinary rendition program), reh’g en banc granted (Aug. 12, 2008); In re Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 85, 103-07 (D.D.C. 2007) (special factors counsel hesitation in recognizing a Bivens action for those allegedly subjected to cruel and inhumane treatment while detained overseas in such facilities as Abu Ghraib); cf. Rasul v. Myers, 512 F.3d 644, 663-67 (D.C. Cir.) (detainees at Guantánamo Bay do not enjoy Fifth Amendment rights enforceable through a Bivens action), vacated and remanded, 129 S. Ct. 763 (2008) (ordering reconsideration in light of the Court’s ruling in Boumediene v. Bush, 128 S. Ct. 2229 (2008)).
  6. 28 U.S.C. § 2679(b)(1) (2006).
  7. 28 U.S.C. § 2679(b)(2)(A) (2006).
  8. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring in the judgment).
  9. Butz v. Economou, 438 U.S. 478, 504 (1978).
  10. 462 U.S. 367 (1983).
  11. 534 U.S. 61 (2001).
  12. 129 S.Ct. 788, 794-95 (2009).
  13. Bush, 462 U.S. at 388-90.
  14. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).

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