Section 1983 Litigation/Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials[edit | edit source]
An essential element of a § 1983 claim for relief is that the defendant acted under color of state law. State and local officials who carry out their official responsibilities act under color of state law, as do private parties who engage in state action. Federal officials, however, act under color of federal law, not state law, and thus are not suable under § 1983.
The Bivens Claim for Relief[edit | edit source]
Congress has not enacted a counterpart to § 1983 authorizing a claim for relief based on constitutional violations by federal officials. To fill this remedial gap, the Supreme Court, in the 1971 landmark decision, Bivens v. Six Unknown Named Agents, recognized an implied claim for damages for Fourth Amendment violations by federal law enforcement officers. The Bivens claim is a personal-capacity claim against the officer(s) responsible for the constitutional violation.  Relying on Bivens, the Court held, in Davis v. Passman, that a claim for damages could be asserted against a federal official based upon an alleged violation of the equal protection principles of the Fifth Amendment.
The Court stressed, in Bivens and Davis, that the federal judiciary has the primary responsibility for enforcing federal constitutional rights, and that historically damages have been considered the “ordinary remedy for an invasion of personal interests in liberty.” It expressed concern that failure to recognize the Bivens damages remedy against a federal official would leave the plaintiff without a remedy, because constitutional claimants like Webster Bivens and Shirley Davis did not have claims for prospective relief, and could not seek damages against the United States or a federal governmental agency because of sovereign immunity. The Court acknowledged, however, that the Bivens remedy might be denied either when Congress created an “equally effective” alternative remedy, or when “special factors counsel[ ] hesitation in the absence of affirmative action by Congress.”
In 1980, in Carlson v. Green, the Supreme Court recognized a damages remedy under the Bivens doctrine in a suit by the administratrix of the estate of a deceased federal prisoner. The complaint alleged that the failure of federal prison officials to provide the prisoner adequate medical care violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court recognized the Bivens claim even though the prisoner had an alternative remedy under the Federal Tort Claims Act. The Court in Carlson found that (1) Congress did not intend for the FTCA to be the exclusive remedy; and (2) the Bivens remedy was more effective than the FTCA remedy.
Carlson is the last Supreme Court decision holding that the plaintiff had a right to assert a claim under the Bivens doctrine. In a series of decisions dating back to 1983, the Court, in each case, rejected the availability of the Bivens claim for relief. Following is a brief summary of these post-Carlson decisions.
In 1983, in Bush v. Lucas, the Court held that a federal government employee could not assert a First Amendment retaliation Bivens claim because Congress created an elaborate alternative administrative remedy, even though this alternative remedy could not afford complete relief. The existence of this administrative remedy was “a special factor counselling against the judicial recognition of a damages remedy under the Constitution in this context.” That same year, in Chappell v. Wallace, the Court held that navy personnel could not assert Bivens claims based upon allegations that their superior officers’ performance evaluations and imposition of penalties were racially motivated. The Court found that the unique relationship between inferior and superior military officers, and the comprehensive internal system of military justice, were special factors justifying denial of the Bivens remedy.
In 1987, in United States v. Stanley, the Court denied a Bivens remedy to a former serviceman who alleged that, as part of a military experiment he had been administered LSD without his consent, causing him serious mental disabilities and injuries. The Court extended Chappell by denying the Bivens remedy to any claim arising out of or incident to military service, not just claims by inferior officers against their superiors.
In 1988, the Court held, in Schweiker v. Chilicky, that plaintiffs who claimed that their Social Security benefits were terminated in violation of their due process rights could not assert Bivens claims because Congress created alternative comprehensive administrative and judicial review remedies. As in Lucas, the existence of these alternative remedies was a “special factor” justifying denial of the Bivens remedy. The Court spelled out that, since Carlson, it has “responded cautiously to suggestions that Bivens remedies be extended into new contexts,” and concluded that Congress was better suited than the judiciary to formulate remedies for constitutional violations. This of course was a major shift in judicial philosophy from that articulated in Bivens that the judiciary has primary responsibility for formulating remedies for constitutional violations. This shift in judicial philosophy underscores the separation of powers issue underlying the Bivens doctrine.
In 1994, in FDIC v. Meyer, the Court held that a Bivens claim may be asserted only against a federal official, not against a federal agency, because the purpose of the Bivens remedy is to deter federal officers—not federal agencies—from acting unconstitutionally. In 2001, in Correctional Services Corp. v. Malesko, the Court reasoned that “[i]f given the choice, plaintiffs would sue a federal agency instead of an individual [official] who could assert qualified immunity,” and that this stratagem would thwart the deterrent effect of the Bivens remedy.
Relying heavily on Meyer, the Court in Malesko held that a federal prisoner could not assert a Bivens claim against a private operator of a halfway house. The Court again stressed its consistent refusal to extend Bivens liability to new contexts or new defendants. In 2007, in Wilkie v. Robbins, the Court rejected a Bivens claim by landowners who alleged that government officials unconstitutionally interfered with their property rights. The Court again said that Congress was in a far better position than the Court to determine the issue of appropriate remedies.
In 2012, in Minneci v. Pollard, the Court held that a federal prisoner could not assert an Eighth Amendment claim of denial of adequate medical care against employees of a private company that operated a federal prison. The Court found that the existence of adequate state tort remedies justified rejection of the Eighth Amendment Bivens remedy. Minneci marked the first time that the Court relied upon the availability of state remedies to justify denial of the Bivens remedy.
In Minneci the Court articulated its present two-step approach for determining whether to recognize a Bivens remedy:
- The Court first asks ‘”whether any alternative, existing process for protecting the [constitutionally recognized] interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.’”
- Even in the absence of an alternative remedy, the Court should determine whether “special factors counselling hesitation” justify rejection of the Bivens remedy.
The Supreme Court has thus come full circle since the Bivens-Davis-Carlson trilogy. While the trilogy treated the damages remedy for constitutional violations by federal officials as an “ordinary,” presumptively available remedy, the post-Carlson cases treat the damages remedy as a presumptively unavailable remedy.
Law Governing Bivens Claims[edit | edit source]
When a federal court plaintiff is entitled to assert a Bivens claim for money damages for an alleged constitutional violation by a federal official, normally the same procedures and legal principles applied in § 1983 actions will also apply in the Bivens suit. In Ashcroft v. Iqbal, the Supreme Court stated that “[i]n the limited settings where Bivens does apply, the implied cause of action is the ‘federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.’” The Court made clear in Iqbal that the same pleading standards, the rule against respondeat superior liability, and principles of liability for supervisory officials govern both § 1983 and Bivens actions. In fact, many years before the Supreme Court’s decision in Iqbal, Judge Henry J. Friendly, writing for the Second Circuit, discerned “the general trend in the appellate courts to incorporate § 1983 law into Bivens suits.”
Most significantly, the Supreme Court has consistently held that the same common-law immunities available to state and local officials sued for damages under § 1983 may be asserted by federal officials sued under the Bivens doctrine. The Court found it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” In fact, the Court commonly applies the same qualified immunity precedents and principles in both § 1983 and Bivens actions, and cites its qualified immunity precedents interchangeably in § 1983 and Bivens suits.
Lower federal courts hold that the Heck doctrine (which holds that a
§ 1983 challenge to the validity of a conviction or sentence is not cognizable until the conviction or sentence has been overturned) applies as well to Bivens claims, and that the same state limitations period that governs § 1983 claims also governs Bivens claims.
One area of difference is the law governing survivorship of claim. The Supreme Court holds that in § 1983 actions, survivorship is governed by state survivorship law, so long as the state law is not inconsistent with the policies of § 1983. In Carlson, however, the Court held that whether a Bivens claim survives the death of the plaintiff is governed not by state law, but by a uniform rule that the claim survives the plaintiff’s death.
References[edit | edit source]
- See infra Chapter 3, § I, and Chapter 7.
- District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973).
- 403 U.S. 388 (1971).
- FDIC v. Meyer, 510 U.S. 471, 484–85 (1994). See also Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009).
- 442 U.S. 228 (1979).
- The plaintiff in Davis asserted a gender discrimination claim against Congressman Passman.
- Bivens, 403 U.S. at 395. Accord Davis, 442 U.S. at 245.
- Bivens, 403 U.S. at 410 (“damages or nothing”) (Harlan, J., concurring); Davis, 442 U.S. at 245.
- Davis, 442 U.S. at 245 (quoting Bivens, 403 U.S. at 396).
- 446 U.S. 14 (1980).
- Carlson, 446 U.S. at 18–12.
- 462 U.S. 367 (1983).
- Id. at 372.
- 462 U.S. 296 (1983).
- 483 U.S. 669 (1987).
- 487 U.S. 412 (1988).
- Id. at 421–29.
- 510 U.S. 471 (1994).
- 534 U.S. 61 (2001).
- Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (describing rationale of Meyer).
- 551 U.S. 537 (2007).
- See also Hui v. Castaneda, 130 S. Ct. 1845 (2010) (holding federal statute made Federal Tort Claims Act exclusive remedy for claims against U.S. health service personnel, thereby precluding Bivens claims against these officials).
- 132 S. Ct. 617 (2012).
- The Court found that California tort law, which reflects general tort law principles, provided an adequate alternative remedy. Minneci, 132 S. Ct. at 625. Although state tort remedies have limitations, so does the Bivens remedy. For example, Eighth Amendment Bivens claims asserted by prisoners (1) require a showing of deliberate indifference, not mere negligence; (2) can’t be based on respondeat superior liability; and (3) “ordinarily may not seek damages for mental or emotional injury unconnected with physical injury.” Id. To justify rejection of the Bivens remedy, state-law remedies and the Bivens remedy “need not be perfectly congruent.” Id. The Court, however, left open the possibility that it may imply a Bivens remedy if there are greater disparities between the Bivens and state law claim than the disparities in Minneci. Id. at 626.
- The only difference between Carlson and Minneci is that the defendants in Carlson were federal governmental prison officials, whereas the defendants in Minneci were employees of a privately operated federal prison. While the Court in Carlson stated that remedies for constitutional violations should not “be left to the vagaries of the law of the states,” Carlson, 446 U.S. at 23, the Court in Minneci did just that, holding that the availability of state common law tort remedies justified rejection of the Bivens remedy.
- Minneci, 132 S. Ct. at 621 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).
- Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir. 2012) (en banc) (noting Supreme Court has not created another Bivens claim in 32 years since Carlson, and “has reversed more than a dozen appellate decisions that had created new actions for damages. Whatever presumption in favor of a Bivens-like remedy may have once existed has long since been abrogated.”). See also Wood v. Moss, 134 S. Ct. 2056, 2066 (2014) (assuming, without deciding, that Bivens doctrine extends to First Amendment claims); Reichle v. Howard, 132 S. Ct. 2088, 2093 N.Y. (2012) (observing that Supreme Court has never extended Bivens doctrine to First Amendment claims).
- 556 U.S. 662 (2009).
- Id. at 675 (2009) (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)).
- Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).
- See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999); Malley v. Briggs, 475 U.S. 335, 340 n.2 (1986); Harlow v. Fitzgerald, 457 U.S. 800, 818 n.20 (1982).
- Butz v. Economou, 438 U.S. 478, 504 (1978).
- See, e.g., Wood v. Moss, 134 S. Ct. 2056 (2014); Reichle v. Howards, 132 S. Ct. 2088 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011); Pearson v. Callahan, 555 U.S. 223 (2009); Anderson v. Creighton, 483 U.S. 635 (1987).
- Heck v. Humphrey, 512 U.S. 477 (1994).
- See infra Chapter 16.
- See, e.g., Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
- See infra Chapter 17.
- Chin v. Bowen, 833 F.2d 21, 23–24 (2d Cir. 1987). Accord Bieneman v. City of Chi., 864 F.2d 463, 469 (7th Cir. 1988), cert. denied, 490 U.S. 1080 (1989).
- See infra Chapter 20.
- Carlson, 446 U.S. at 21–22.