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Tuesday, February 25, 2020

Time for Congress to Codify Bivens?

Bivens and its implication of a remedy to sue officers directly under provisions of the U.S. Constitution are on life support (see Howard's post). After Hernandez, is Congress ready yet to codify Bivens?

It’s a gross understatement to say that I’m no legislative lawyer. Nonetheless, here’s a quick draft based on the language of 42 U.S.C. § 1983:

Unless otherwise expressly provided by statute, every person who, under color of any statute, regulation, order, custom, or usage, of the United States government, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States, or at its territorial borders, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. The availability of alternative remedies shall not preclude relief under this provision.

In any action to enforce the provisions of this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.

For purposes of this section, “person” includes any natural person.

* * *

It would seem desirable too for any legislation to insist on a court first addressing the issue of whether there was a constitutional violation before reaching the question of any officer immunity. And while we're dreaming perhaps the bill could address the widespread dissatisfaction with current qualified immunity doctrine. Perhaps our commentariat can propose suitable language.

As for political realities, Howard notes conservative distaste for Bivens actions, but I can easily see federal employees unions being equally testy about the prospect of civil liability for their abuses. My sense is that conservative opposition principally originates from two places: (i) institutional concerns about competency for implying that right to sue, which a statutorily enacted right to sue addresses; and (ii) balancing security over individual liberty in security sensitive functions, including external relations. I could imagine compromise legislation conservatives could accept if they had carve outs.

What interesting coalitions could emerge to support this legislation? In 1946, the U.S. government felt enough public pressure to enact the Federal Tort Claims Act to waive federal sovereign immunity. Short of a bomber crashing into a skyscraper or citizens deluging Congress with private bills for wrongs suffered at the hands of federal officials, what would actually get Congress to address this problem?

P.S. I recognize the comparison to the FTCA and waivers of federal sovereign immunity is not on all fours with suits against officers and the creation of a federal statutory right to sue them for their actions, but it seems less remote than the circumstances motivating the enactment of 1983.

Posted by T. Samahon on February 25, 2020 at 02:21 PM in Judicial Process, Law and Politics | Permalink


Prosecutors and judges can't be sued for damages under § 1983 or Bivens; that immunity would presumably carry to this new statute. There is a body of law under both that would carry over. There is perhaps a nice question of whether Congress would have to make those immunities explicit, rather than having them "read into" the statute as they have with § 1983.

Posted by: Howard Wasserman | Feb 26, 2020 2:53:55 PM

One gaping loophole here that looks back seventy years ago (and to last Term):

Please define "judicial officer"... and confirm whether any shield offered to "judicial officers" includes "intentional act."

Seventy years ago: Local/state-court judges, proscutors, et al. defying existing federal injunctions on school desegregation, which clearly relate to a "rights, privileges, or immunities secured by the Constitution and laws" under even the foolish "clearly established at the time of act" test that does not seem to be addressed by this proposal. (But the proper standard is worthy of a few thousand footnotes by itself!)

Last Term: Flowers — if a "prosecutor" is a "judicial officer" (thus my initial concern). For the purposes of my not-quite-hypothetical, I'm assuming something appoaching "actual innocence" of Curtis Flowers. But I'm not sure that's necessary.

Posted by: CEP | Feb 26, 2020 12:59:11 PM

A few years ago, Steve Vladeck headed a group that explored and recommended how to codify Bivens. I recall reading and commenting on a draft, but do not know what happened beyond that.

Posted by: Howard Wasserman | Feb 26, 2020 10:12:34 AM

Important case indeed. Reasoning here, very complex. Worth to note, that the court, has not ignored, certain absurd, when trying to reconcile, far greater broader extension of tort issues, in cases outside of the US border, with, limiting the Biven extension. As example, the " Alien tort" can be illustrated here. It reads so:

U.S. Code › Title 28 › Part IV › Chapter 85 › § 1350

28 U.S. Code § 1350 - Alien’s action for tort

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

End of quotation:

So as we can read, it is extended almost to total Universal jurisdiction, when torts, violate the law of nations ( or , " jus cogens " in fact ). So, what is the reasoning of the court, I quote:

Yet another example is provided by the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, which created a cause of action that may be brought by an alien in a U. S. court under the Alien Tort Statute, §1350. Under the Torture Victim Protection Act, a damages action may be brought by or on behalf of a victim of torture or an extrajudicial killing carried out by a person who acted under the authority of a foreign state. Consequently, this provision, which is often employed to seek redress for acts committed abroad,11 cannot be used to sue a United States officer. See Meshal v. Higgenbotham, 804 F. 3d 417, 430 (CADC 2015) (Kavanaugh, J., concurring) These statutes form a pattern that is important for present purposes. When Congress has enacted statutes creating a damages remedy for persons injured by United States Government officers, it has taken care to preclude claims

for injuries that occurred abroad. Instead, when Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate.

And more, I quote:

This pattern of congressional action—refraining from authorizing damages actions for injury inflicted abroad by Government officers, while providing alternative avenues for compensation in some situations—gives us further reason to hesitate about extending Bivens in this case.

Most importantly, I quote:

In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers. See Abbasi, 582 U. S., at ___ (slip op., at 12). “Foreign policy and national security decisions are ‘delicate, complex, and involve large elements of prophecy’ for which ‘the Judiciary has neither aptitude, facilities[,] nor responsibility.’” Jesner, 584 U. S., at ___ (GORSUCH, J., concurring part and concurring in judgment) (slip op., at 5) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948)). To avoid upsetting the delicate web of international relations, we typically presume that even congressionally crafted causes of action do not apply outside our borders.


Posted by: El roam | Feb 25, 2020 4:05:19 PM

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