Bivens v. Six Unknown Named Agents

Infobox SCOTUS case
Litigants=Bivens v. Six Unknown Named Agents
ArgueDate=January 12
ArgueYear=1971
DecideDate=June 21
DecideYear=1971
FullName=Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
USVol=403
USPage=388
Citation=91 S. Ct. 1999; 29 L. Ed. 2d 619; 1971 U.S. LEXIS 23
Prior=Dismissed, 276 F. Supp. 12 (E.D.N.Y. 1967); affirmed, [http://openjurist.org/409/f2d/718/bivens-v-six-unknown-named-agents-of-federal-bureau-of-narcotics 409 F.2d 718] (United States Court of Appeals for the Second Circuit|2nd Cir.] 1969)
Subsequent=On remand, reversed, [http://openjurist.org/456/f2d/1339/bivens-v-six-unknown-named-agents-of-federal-bureau-of-narcotics 456 F.2d 1339] (2nd Cir. 1972)
Holding=Individuals have an implied cause of action against federal government officials who have violated their constitutional rights. Second Circuit Court of Appeals reversed and remanded.
SCOTUS=1970-1971
Majority=Brennan
JoinMajority=Douglas, Stewart, White, Marshall
Concurrence=Harlan
Dissent=Burger
Dissent2=Black
Dissent3=Blackmun
LawsApplied=U.S. Const. amend. IV

"Bivens v. Six Unknown Named Agents", 403 U.S. 388 (1971)ref|citation, was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.

Background of the case

Drug Enforcement Agency agents searched the house of the plaintiff, Bivens, and arrested him without a warrant; however, no charges were brought against Bivens, who filed a lawsuit alleging the violation of his Fourth Amendment freedom from unreasonable search and seizure. The Government claimed that the violation only allowed for a state law claim for invasion of privacy, and that the Fourth Amendment provides no cause of action, but only a rebuttable defense for the DEA agents. The District Court dismissed the suit for lack of subject-matter jurisdiction, and the Second Circuit affirmed. The U.S. Supreme Court granted certiorari on the issue of whether a plaintiff can bring a claim in federal court based solely on an alleged violation of his Fourth Amendment rights. Bivens was represented pro bono by Stephen A. Grant, Esq., who later became a partner at Sullivan & Cromwell [http://www.altlaw.org/v1/cases/866909#] .

The Court's decision

::"For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of "constitutionally protected interests" and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment."The Court, in an opinion by Justice Brennan, laid down a rule that it will imply a private right of action for monetary damages where no other federal remedy is provided for the vindication of a Constitutional right, based on the principle that for every wrong, there should be a remedy. The Court reasoned based upon a presumption that where there is a violation of a right, the plaintiff can recover whatever he could recover under any civil action, unless Congress has expressly curtailed that right of recovery, or there exist some "special factor counseling hesitation."

Analysis

The Bivens decision is simple to state, but technically, has a curious legal basis, and its reasoning remains a subject of interest today.

The unique facts For Bivens, the Court noted, the remedy was damages or nothing. There would not have been any vindication of rights through the exclusionary rule, a common remedy for 4th amendment violations, because no charges are pending against Bivens. The Court also observed that no Congressional legislation curtailed money damages for violations of Constitutional rights, nor had it imposed any other remedy; Finally, it did not find any "special factors counseling hesitation" in this case. For all of these reasons, Bivens was allowed the right to recover from the Federal government, if he proved his case.

Was other relief really available or not? Not noted by the court, but also relevant, is that other remedies do theoretically exist in cases where a Constitutional right has been violated or could be violated. First, the plaintiff could seek an injunction, second, he could pursue a tort claim.

Equitable relief was not available. In Bivens case, injunction was not available remedy - but not because it was legally barred. Rather, the facts simply did not fit the requirements of equitable relief. All of Bivens harm was in the past, his suit was purely retroactive, and his injury was reparable, if at all, with damages. However, implied suits for money damages are not always the only remedy for a violation of a Constitutional right by a Federal agent. An implied suit for an injunction still looms. In fact, plaintiffs in cases for civil rights violations brought against agents of the states, rather than the Federal government, are only entitled to injunctive relief against the state officer in his official capacity. Edelman v. Jordan

Damages may have been available under other theories.' Even discounting injunction, it is questionable whether Bivens was truly without remedy. A plaintiff whose property was invaded, destroyed, and who was otherwise harmed in violation of his civil rights could also sue for damages in tort. The basis for such a claim would be state law - trespass, conversion, or negligent breach of a statutory duty of care ("negligence per se"). The negligence per se doctrine in state court allows for "implied statutory causes of action" more liberally than the cause of action created by the court in Bivens, or the conditions set out in Cort v. Ash et seq. These were noted in other cases as the remedies for 4th Amendment violations by state agents prior to Mapp v. Ohio.

Practical problems of jurisdiction and defenses plague traditional tort claim. There are two problems with this course of action which may explain the Court's decision in Bivens. First, there is a practical concern caused by the limited subject matter jurisdiction of Federal courts. The Federal courts have generally held, with a few exceptions, that even if the statute which provided the basis for a negligence per se claim was a Federal statute, the claim does not "arise under" federal law. As a state law claim, the case could be heard only under s. 1332, 1346, or if the defendant removed the case. As such, a state jury could potentially be called upon to decide the validity of federal defenses raised by the federal agent defending himself (such as the defense that the act was an act of state). It actually seems highly unlikely that the federal defendant would leave that up to a state judge when he has the choice. Nevertheless, the possibility is cause for enough concern not to leave it up to the defendant to bring the action to the Federal court. It saves a step to simply say that as a Federal law implied claim, the case arises under federal law, and can be brought in Federal court from the outset.

The Federal Tort Claims Act was also an option. Alternatively, the case could today be brought as a Federal Tort Claims Act case. The Tort Claims Act is essentially a sovereign immunity waiver, and allows private parties to sue the Federal Government in Federal Court as though it were a private citizen, for violations of state-law created rights. However, the Act imposes a number of limitations on the extent of the waiver that make a Bivens claim more desirable, if possible. Notably, a FTCA plaintiff forgoes punitive damages. a Bivens plaintiff does not.

Why then, did the court say what it said, and do what it did?

Is a tort claim adequate to vindicate violation of a Constitutional right? A second problem was observed by the court. If the remedies for Constitutional violations are limited to tort law remedies, it implies that Constitutional rights are merely coextensive with tort law, and no greater. This was seen by the majority, and Harlan especially, as cheapening constitutional rights unacceptably. The majority of the court was under the impression that Constitutional rights were special, and deserved special status above and beyond mere common law rights, and the Bivens action would proved such a vehicle. If one puts enough emphasis on the specialness of Constitutional rights, the Court's conclusion that absent the new implied cause of action, Bivens was a man without a remedy, adds up. If however, one discounts this assumption, the decision was not logical. Reduced to the material differences, the availability of punitive damages is the only practical difference that makes a Constitutional violation special when compared to any other right, in retroactive litigation.

Bivens is Federal Common Law. The leading interpretation of Bivens is that it is Federal common law, and not Constitutional interpretation. The Court has assumed, unchallenged, the final word on the meaning of the Constitution. However, it is not a general federal lawmaker. That role belongs to the Congress. The court may still create judge-made law, but it is only controlling absent overriding Congressional enactments. The status of Bivens today is that Congress could legitimately repeal the court's decision.

Was the court's ruling appropriate? The issue raised by the court's logic remains contentious to this day, particularly with judges who do not favor punitive damages, do not favor citizen-suits to hold government agents accountable, or any combination of the above. Bivens might not exist today if it were not for the availability of its "special factors" escape clause, and the fact that Congress has never exercised its theoretical power to overrule the case.

Harlan's concurrence

Justice Harlan voted with the majority to reverse the lower court, but also wrote a separate concurring opinion. Harlan particularly emphasized the special importance of Constitutional rights. He presented that it was well-settled, even undeniable, that a suit for injunction based on a Constitutional right was long recognized in the Federal courts. That being the case, where equally necessary, a suit for damages should be equally if not more acceptable. (Money damages were traditionally considered to be less onerous of a remedy than injunction, except in Constitutional Jurisprudence; in Edelman, supra, Justice Rehnquist declared exactly the opposite, an assertion of dubious legal pedigree.)

Dissents of Burger, Black, and Blackmun

Dissenting opinions were written by Chief Justice Burger, and by Justices Black and Blackmun.

Chief Justice Burger's dissent asserted that this decision was legislating, and should be left to Congress. Justice Black basically agreed with Burger, and worried about the growing docket. Justice Blackmun went a step further, declaring that this holding would lead to "another avalanche of new federal cases."

ee also

*List of United States Supreme Court cases, volume 403
*"Hartman v. Moore", 547 U.S. 250 (2006), ruling that the plaintiffs in "Bivens" actions for retaliatory prosecution must plead and prove the lack of probable cause for the underlying criminal charges.
*"Correctional Services Corp. v. Malesko", ussc|534|61|2001
*"Saucier v. Katz", ussc|533|194|2001

External links

* caselaw source
case="Bivens v. Six Unknown Named Agents", 403 U.S. 388 (1971)
enfacto=http://www.enfacto.com/case/U.S./403/388/
findlaw=http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=403&page=388