Asking the first question: reframing Bivens after Minneci.

• Author: Reinert, Alexander A.

ABSTRACT

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided We first trace the Court's prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci's break with this tradition raises several concerns. On a doctrinal level, the opinion destroys Bivens's long-established parallelism with 42 U.S.C. [section] 1983 actions, where suits against privately employed individuals are allowed. Additionally, it creates asymmetries between the constitutional liability faced by privately and federally employed prison employees. More significantly, it conflicts with congressional intent as expressed in the Westfall Act, which codified the Bivens remedy in 1988, by conflating two distinct questions: whether a suit requires the courts to extend Bivens jurisprudence to a new context and whether, assuming an extension is necessary, such an extension is warranted. This piece offers the only full discussion to date of the importance of this "first question" to the Bivens canon. We end this Article by offering several strategies for limiting Minneci's impact and for returning Bivens jurisprudence to its separation-of-powers roots.

TABLE OF CONTENTS INTRODUCTION I. MINNECI AND THE FEDERALISM TURN A. Separation of Powers Reasoning in Bivens B. Alternative Remedies After Bivens and Separation of Powers C. State-Law Alternative Remedies in Minneci II. PROBLEMS WITH RELIANCE ON STATE LAW IN THE BIVENS CANON ] A. Minneci and The Predicate "Extension" Question 1. The Westfall Act and the Codification of Bivens 2. The Westfall Act and Minneci B. Congressional Intent and Exacerbating Remedial Asymmetries 1. Bivens and Section 1983 Parallelism 2. Symmetrical Bivens Relief in the Public-Private Context III. LIMITING MINNECI'S IMPACT CONCLUSION INTRODUCTION

Certainly, there is very little to be gained from the standpoint of federalism by preserving different rules of liability for federal officers dependent on the State where the injury occurs.

--Justice Harlan, concurring in the judgment in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1)

As he faced the reality of a Supreme Court moving consistently to his right on civil liberties issues, Justice William Brennan, Jr. famously implored state courts to interpret their own constitutions to provide greater protection against governmental misconduct than his own Court was recognizing under the federal Constitution. (2) "New federalism" was born. (3) In Minneci v. Pollard, (4) the United States Supreme Court turned new federalism on its head, relying on the availability of state law remedies to reject a federal constitutional remedy against employees of private contractors acting under color of federal law. (5) Thus, rather than finding refuge in state law, claimants seeking to vindicate constitutional rights like those at issue in Minneci may find themselves stymied by it.

On one view, Minneci is simply another in a long line of decisions (6) refusing to find a Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (7) action available to recompense a violation of constitutional rights. In Minneci, a private prison operating under a contract with the federal government housed the plaintiff, Richard Pollard. Mr. Pollard alleged that employees of the prison, acting under color of federal law, denied him constitutionally adequate medical care after he fractured both of his elbows. (8) Assuming he could prove these allegations, "[w]ere Pollard incarcerated in a federal ... facility, he would have a federal [Bivens] remedy [against the prison employees] for the Eighth Amendment violations he alleges." (9) The Supreme Court, however, continuing its trend of rejecting the application of Bivens to "new" contexts, (10) found no federal remedy for Mr. Pollard.

The result was not surprising. Since 1988, Bivens doctrine, which provides a cause of action for individuals harmed by the unconstitutional conduct of federal officials, has resided in a state of suspended animation. Announced in 1971 to remedy Fourth Amendment violations, by 1980 the Court had announced only two additional decisions extending the Bivens remedy, for Equal Protection and Eighth Amendment violations. (11) Since then, despite numerous opportunities, the Court has consistently refused to announce any additional Bivens remedies. (12) During the same time period, however, Congress codified Bivens, at least as it existed in 1988, when it passed the Westfall Act. (13) Thus, Bivens has been at a standstill--any further expansion limited by a hostile Court; any retraction barred by congressional action.

If the result was to be expected, what was noteworthy in Minneci was the Court's embrace of state law as a per se bar to a Bivens suit, holding that because "state tort law authorizes adequate alternative damages actions ... we cannot do so." (14) To appreciate the novelty of this reasoning, it is necessary to more precisely frame the issues at stake in Minneci. As we see it, resolving Minneci required answering two distinct questions. First, whether the plaintiff sought an extension of Carlson v. Green, (15) a case in which the Court previously recognized a Bivens cause of action for violations of the Eighth Amendment by federally employed prison officials. And second, if he sought to extend Carlson, whether the Court should, on separation-of-powers grounds, imply a new Bivens remedy against private prison employees acting under color of federal law. In Minneci, the Court resolved this second question by turning to state law simpliciter, importing tort law to remedy constitutional violations without considering congressional intent.

The significance of Minneci's federalism turn in answering this second question is more obvious when one considers the Bivens framework that the Court adopted in Wilkie v. Robbins only five short years ago. There the Court identified two steps in deciding whether to imply a new Bivens remedy (that is, after one has determined that a plaintiff's claim does not fit within a recognized Bivens remedy). (16) First, the Court considers whether Congress or the Executive has chosen a remedial scheme as an alternative to a Bivens action. (17) Although the Court has occasionally considered state-law remedies as an alternative to a Bivens action, it has done so as a separation-of-powers inquiry into congressional intent to deploy state law as the appropriate remedial scheme. (18) Under Wilkie's second step--a step not reached in Minneci--the Court, acting as a common law tribunal, contemplates factors that counsel hesitation in crafting a remedy from a separation-of-powers vantage point. (19)

As Wilkie's synthesis of the Bivens case law makes apparent, the Minneci Court's eschewing of the traditional separation-of-powers framework in the alternative-remedies analysis lacks foundation in the Bivens canon. This full-throated embrace of state law in Bivens doctrine, in addition to being without precedent, (20) is wrought with complications. First, it conflicts with the traditional parallelism of Bivens and 42 U.S.C. [section] 1983 actions, given that [section] 1983 law does not hinge the availability of constitutional remedies upon the defendant's employment status as either public or private. (21) Second, Minneci runs counter to the presumption favoring symmetrical remedies for public and private employees for violations of constitutional rights. (22) Our increasing reliance on private corporations to carry out the responsibilities of the federal government, moreover, gives these critiques increased salience. (23)

Minneci also reveals the underappreciated significance of the "first question" raised above: whether Mr. Pollard sought to extend prior Bivens doctrine at all such that it was necessary to infer a new remedy. In this Article, we provide a detailed analysis of this first question that the Court needed to answer in Minneci. If Mr. Pollard's claim could be encompassed by the Court's prior holding in Carlson, it should have proceeded without further analysis, just as other Bivens remedies have been applied to "new" contexts without controversy. (24) Moreover, Congress codified then-existing Bivens remedies in 1988 by passage of the Westfall Act. Thus, the "first question" we explicate here is sound not only as a matter of stare decisis, but also as required on separation-of-powers grounds.

The Minneci Court, however, elided this analytically prior question of when a plaintiff seeks to extend Bivens with the distinct question of when alternative remedies, be they state or federal, should prohibit such an extension. This conflation of concepts, we assert, runs contrary to the Court's prior analyses and Congress's codification of the Bivens remedy in the Westfall Act. Unfortunately, Minneci is not alone in neglecting to distinguish these two inquiries adequately; many commentators have made the same mistake, failing to recognize the importance of the predicate question of whether a plaintiff even seeks an extension of a recognized Bivens action. (25) Our account, by contrast, is the first to coherently synthesize the Court's approach to both the predicate extension question and the more developed question of whether to imply a new Bivens remedy. Providing this structure further demonstrates the poverty of Minneci' s analysis.

We proceed as follows. In Part I, we address the Court's federalism turn in Minneci. We first discuss the treatment of alternative remedies in Bivens and its progeny as a matter of separation of...