Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model

Alexander Reinert Benjamin N. Cardozo School of Law

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Legal fictions are pervasive. Some are hopeful–when Chief Justice Roberts, for the plurality in Parents Involved in Community Schools, writes that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,”1 he is alluding to the aspirational fiction that racial categorizations are harmful whether they mean to remedy or perpetuate racial inequality. He and his colleagues may or may not be right, but the need to believe that they are right runs forcefully through our equal protection jurisprudence. Similarly, the fiction that Congress passes laws with a complete understanding of the legal landscape as established by the Supreme Court may or may not be correct, but principles of statutory interpretation depend on it, and indeed we hope that it is the case.

Then there are the fictions that are critical to vindicating other important values. The Ex parte Young fiction, for instance, is necessary to ensure that federal law is obeyed by state entities without offending formal Eleventh Amendment immunity. Thus, although we know that when we sue state employees in their official capacity we are suing the State itself, the fiction that it is the employee who is being sued obscures the real parties at stake, thereby guaranteeing a voice for federal courts when states transgress federal constitutional boundaries.

Finally, there are the fictions that we have the freedom to accept or reject. These are fictions that have serious consequences—accepting one or the other narrative can affect policy choices or case outcomes. The research detailed here is about two narratives that pervade the jurisprudence regarding litigation seeking damages relief against federal officials who violate the Constitution. In short, I show here that two assumptions—first, that damages actions against federal officials rarely succeed, and second, that the reason for this is a particular kind of defense to litigation called qualified immunity—are fictional, or at least have little empirical support. This research calls into question certain policy prescriptions and jurisprudential trends that have been based on these assumptions. It also reinforces the need for a greater empirical focus on the work of federal district courts.

The story told here begins in 1971, with a Supreme Court decision that was the first to recognize a damages cause of action for constitutional violations by individuals acting under color of federal law, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, Webster Bivens, a resident of Brooklyn, New York, was arrested in the early morning hours on November 26, 1965, by what turned out to be five, not six, agents of the Federal Bureau of Narcotics. The agents entered his home with weapons drawn, searched his apartment, and arrested him on suspicion of narcotics trafficking, but the criminal complaint against him was dismissed. Mr. Bivens subsequently filed suit in federal district court, seeking damages against each officer for violations of his Fourth Amendment right to be free from unreasonable searches and seizures. The case wound its way to the Supreme Court, and in 1971 the Court announced that Mr. Bivens could pursue his claim. And although the Federal Bureau of Narcotics is no longer around (displaced by the Drug Enforcement Agency in 1973), the Bivens side of the “v” survives, wounded but still standing.

At the time Bivens was announced, the jurisprudence of constitutional remedies was in flux. The Supreme Court had recognized an affirmative right of action to seek injunctive relief against state officials as early as 1908 in Ex parte Young, but this invitation was not fully embraced until the civil rights movement was in full swing, and the kinds of systemic reform litigation that are associated with public rights litigation—including desegregation remedies in northern cities and structural reform of prisons—did not emerge until the late 1960s. And although the right to seek injunctive or declaratory relief against state governments, through the fiction of official capacity claims, may have had a long provenance, there was little litigation directed against the federal government for violations of the Constitution. When such cases arose, it was assumed that a right of action existed to enjoin federal officials and agents from violating constitutional law, but courts were rarely pressed into service for that endeavor.

Damages litigation, on the other hand, rested on much less secure doctrinal footing. Section 1983 of Title 42 of the United States Code had been passed during Reconstruction, and it explicitly created a cause of action for both damages and injunctions against individuals acting under color of state law. For nearly one hundred years after its enactment, it was rarely used, in part because courts and litigants interpreted it to apply solely to be used to strike down “Black Codes” and the like that were passed in southern states after the Civil War. Not until 1961 did the Court give Section 1983 much remedial force, when the Court announced Monroe v. Pape, and it took until 1978 for the Court to find that Section 1983 applied to municipal entities.

Still, had New York City police officers arrested Mr. Bivens, his claim against them would have been on the newish side but basically unremarkable and statutorily grounded in Section 1983. Because Section 1983 by its terms applies only to state and local actors, however, it provided him with no basis for bringing an action against federal officials for violations of the Constitution. The lower courts in the original Bivens case had rejected the plaintiff’s request for damages, leaving Mr. Bivens with no remedy for the violations of his Fourth Amendment rights. It was this dilemma—the prospect of a right without a remedy—that prompted Justice Harlan’s concurrence declaring that for Mr. Bivens, “it is damages or nothing.”2 These words are echoes of Chief Justice Marshall’s insistence in Marbury v. Madison that where there is a right, there must be a remedy.

Although the specific claim pursued in Bivens related to alleged violations of the Fourth Amendment, the Supreme Court and lower courts soon extended Bivens liability to other kinds of constitutional violations. Thus, the Supreme Court put plaintiffs injured by federal officials’ unconstitutional conduct in nearly the same shoes as victims of state and municipal unconstitutional conduct, who retained a statutory right to seek damages and other remedies under Section 1983. Precisely because Bivens was a matter of judicial implication, however, the Court retains and has exercised the power to limit the extent of any Bivens remedy, consistently restricting the reach of Bivens from 1980 on. And so the current state of Bivens litigation stands weakened, prompting Laurence Tribe to suggest that an end to the remedy is near. Meanwhile, since Bivens’s inception, there have been concerted legislative efforts to “fix” the perceived problem of having an individual liability approach to constitutional violations by federal officials. Twenty-one bills were introduced between 1973 and 1985 seeking to substitute direct governmental liability for individual officer liability, of which three were reported to committee. Although that effort failed, similar proposals are renewed each decade.

So the question is presented: should we care? What are the remedial consequences of recognizing Bivens actions? Since Bivens began to be critically evaluated by the Supreme Court in 1980, two assumptions have emerged about Bivens litigation. First, commentators and courts tend to assume that Bivens claims are rarely successful. This tends to undermine the claims of those who believe the Court should recognize a wider category of Bivens claims: if Bivens claims are not successful, why add more work to the docket of already over-burdened federal courts?

The second assumption relates to the first, and is an attempt to explain why Bivens claims fail. On this account, they fail because of a doctrine called qualified immunity. Qualified immunity shields government officials from personal liability for damages when they behave reasonably or when the law governing their conduct is unclear. It is available to Bivens and Section 1983 defendants alike, and commentators and courts see it as a substantial barrier to constitutional litigation like Bivens.

Although both assumptions are related to each other, they do not necessarily lead to the same policy prescriptions. Some who accept that Bivens claims are rarely successful do not care why they fail: the failure itself suggests that Bivens claims are usually insubstantial and that there is no reason to recognize any more of them than already have been established. On the other side of the debate are individuals who see in the failure of Bivens litigation a sign that a different model of liability should be used. Thus, rather than expanding the Bivens cause of action, these commentators suggest that claims that would normally be brought as Bivens claims against individuals should be brought instead against governmental entities, through a statutory waiver of the federal government’s sovereign immunity. For these commentators, the role that qualified immunity plays in the disposal of Bivens causes of action is critical: liability of the government, or entity liability, will not include qualified immunity, because qualified immunity is for individuals, not entities.

It is into this breach that I seek to insert some empirical observations. These assumptions about the outcome of Bivens litigation—that it is highly unsuccessful and that the availability of qualified immunity is a substantial reason for that lack of success—have never been empirically tested. Many researchers have evaluated the success of civil rights litigation in general, but no detailed empirical study has focused on Bivens litigation exclusively, aside from two studies published more than twenty-five years ago that are dated and suffer from serious methodological flaws. This has not stopped people from bandying about figures related to Bivens success. For instance, nearly every analysis of Bivens has asserted that 12,000 claims were filed between 1971 and 1985 with only 4 judgments sustained for plaintiffs. These numbers all come from the same source: a statement made by one Government attorney at a congressional hearing in the 1980s, when legislation was being considered that would have done away with the Bivens individual liability model and embraced the governmental liability model. Some estimates of Bivens success are based on even more informal reports, and there is no indication of the empirical basis for the numbers: how cases were identified; what consituted a Bivens case; what defined success, etc. And while many notable authors—Margo Schlanger, Theodore Eisenberg, and Stewart Schwab to name a few—have conducted extensive studies of the relative success of civil rights claims in general, those scholars have not considered the success (or lack thereof) of Bivens­­ litigation in particular. So while there is a widespread assumption that Bivens claims are remarkably less successful than other kinds of civil rights litigation, there is little in the way of data to support that proposition.

If anything, the second assumption—that qualified immunity is the driving force behind Bivens failures—has even less established empirical support. One study looked at the way in which published federal court opinions resolved qualified immunity defenses, concluding that the defense led to a dismissal in 80% of the cases in which it was considered, but this study did not evaluate Bivens claims in particular, nor did it look at all of the other reasons that Bivens claims fail. No one has examined the role that qualified immunity has played relative to other bases for dismissal of Bivens claims.

Thus, I was motivated to study both of these assumptions. Looking at the Bivens cases filed over three years in five representative district courts, I conclude that there is little empirical support for the fictions that motivate most Bivens commentary. Defining “success” as other empiricists do when studying civil litigation—a judgment entered in favor of the plaintiff, a settlement of some kind, or a stipulated/voluntary dismissal by the plaintiff—the data I collected show that Bivens claims are on the low-end success-wise, but not nearly as unsuccessful as had previously been reported. Depending on the procedural posture, presence of counsel, and type of case, success rates for Bivens suits range from 16% to more than 40%, which is at least an order of magnitude greater than has previously been estimated.

Moreover, when compared to other grounds for dismissal, qualified immunity barely merits a footnote. Out of the more than 240 cases that I examined, qualified immunity was dispositive in only 5 cases. Traditional methods of case disposition were by far more prevalent. This sharply contrasts with estimates of the role of qualified immunity based solely on published case studies, demonstrating the hazards of overlooking unpublished case reports and dockets.

What does this all mean? First, it means that those scholars and jurists who have been relying on these two assumptions to make judgments about the efficacy of the Bivens remedy and the necessity of shifting to a different liability model should recognize that the assumptions are fictions. That does not necessarily require that the trenchant critique of Bivens litigation from multiple perspectives need be abandoned. It simply means that we should recognize that such criticisms are far from empirically grounded.

Second, and in some respects more important to me, we need to think carefully about how we conduct empirical legal studies, which are more and more coming into vogue. Abstractly, scholars have recognized that studying only reported decisions, for instance, poses the risk of biasing our sample. This is particularly true of the work of federal district courts, because after all, even appellate decisions that are not “published” under local circuit rules are still reported in Westlaw or LEXIS. The same cannot be said for district courts—as Hillel Levine has pointed out with great force, district courts constantly issue opinions and judgments that are known only to the parties or to those with the patience and resources to get down to the courthouse or search through PACER.

Thus, I ultimately call for caution in drawing conclusions from our empirical studies of court action. The study I have done is no different—there are potential biases in methodology and alternative explanations for my findings that should trigger more study. We should look at more district courts, and perhaps more closely evaluate success; we should discuss the role of qualified immunity with lawyers who specialize in constitutional litigaiton—perhaps just the possibility of qualified immunity causes them not to file a substantial number of cases, which would lead to a selection bias that my study cannot detect. And in the end, to the extent that we rely on assumptions that have concrete policy ramifications, we should keep our distance from ones that are as far from fiction as those examined by this Article. dingbat


Copyright © 2010 Stanford Law Review.

Alexander Reinert is an Assistant Professor of Law at the Cardozo School of Law of Yeshiva University.

This Legal Workshop Editorial is based on the following Article: Alexander Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 STAN. L. REV. 809 (2010).

  1. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 748 (2007).
  2. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J. concurring).

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