Bivens and Ward—constitutional Remedies in the United States and Canada

• Publication year: 2022

Bivens and Ward—Constitutional Remedies in the United States and Canada

Madeline Prince

BIVENS AND WARD—CONSTITUTIONAL REMEDIES IN THE UNITED STATES AND CANADA

Abstract

Despite the killing of an unarmed fifteen-year-old boy by a federal border patrol agent, the U.S. Supreme Court in Hernandez v. Mesa refused to allow a Bivens cause of action to proceed and left an egregious violation of constitutional rights unremedied. The U.S. Supreme Court's rulings in Ziglar v. Abbasi and Hernandez v. Mesa further limited the Bivens cause of action in such a way that makes successfully suing federal officials for constitutional violations practically impossible. The Supreme Court frequently denies Bivens claims due to the purported availability of alternative remedies. However, the Court's recent jurisprudence makes clear that these alternative remedies do not need to be as effective as a remedy under Bivens, nor do they even need to be certain to exist. Thus, the supposed availability of alternative remedies in the United States often leaves individuals with no remedy at all. On the other hand, the Supreme Court of Canada's approach to constitutional remedies, outlined in Vancouver (City) v. Ward, functionally analyzes the availability and adequacy of alternative remedies, which increases a plaintiff's chance of obtaining effective relief. The U.S. Supreme Court should adopt portions of Canada's functional approach and consider the absence of alternative remedies an important factor in deciding to extend a Bivens claim to a new context. This will enhance the protection of constitutional rights in the United States and prevent individuals from being left without a remedy after their rights have been violated by a federal official.

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Table of Contents

Introduction.............................................................................................352

I. Bivens Claim Jurisprudence.........................................................353

A. The Rise of Bivens .................................................................... 353
B. The Tide Turns.......................................................................... 355
C. Recent Bivens Jurisprudence ................................................... 359

1. Ziglar v. Abbasi (2017) ...................................................... 359
2. Hernandez v. Mesa (2020) ................................................. 361
3. Current Bivens Test............................................................ 363
4. Special Factors................................................................... 364

D. The Future of Bivens ................................................................ 365

II. Canada............................................................................................366

A. The Canadian Government and Constitution ........................... 366
B. Charter Damages Jurisprudence.............................................. 369

1. Pre-Ward Cases ................................................................. 369
2. Vancouver (City) v. Ward .................................................. 372
3. Post-Ward Cases ................................................................ 376

a. Henry v. British Columbia (Attorney General) ........... 376
b. Ernest v. Alberta Energy Regulator............................. 378
c. Conseil scolaire francophone de la Columbie Britannique v. British Columbia .................................. 379

III. Discussion.......................................................................................380

A. A Rigorous Analysis of the Legal and Practical Availability of Alternative Remedies............................................................ 380
B. A Functional Analysis of Remedies .......................................... 382
C. Another Kind of "Remedy"—Settlements and Apologies......... 384

IV. Proposal..........................................................................................386

Conclusion.................................................................................................388

Introduction

Despite the tragic killing of an unarmed fifteen-year-old boy by a federal border patrol agent, the U.S. Supreme Court in Hernandez v. Mesa refused to allow a Bivens cause of action to proceed and left an egregious violation of constitutional rights unremedied.¹ The U.S. Supreme Court's rulings in Ziglar v. Abbasi and Hernandez v. Mesa further limited the Bivens cause of action in such a way that makes successfully suing federal officials for constitutional

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violations practically impossible.² The Supreme Court frequently denies Bivens claims due to the purported availability of alternative remedies.³ However, the Court's recent jurisprudence makes clear that these alternative remedies do not need to be as effective as a remedy under Bivens,⁴ nor do they even need to be certain to exist.⁵ Thus, the supposed availability of alternative remedies in the United States often leaves individuals with no remedy at all.

On the other hand, the Supreme Court of Canada's approach to constitutional remedies, outlined in Vancouver (City) v. Ward, functionally analyzes the availability and adequacy of alternative remedies,⁶ thereby increasing a plaintiffs chance of obtaining effective relief. The rights-remedies gap in the United States is not inevitable. As the Supreme Court of Canada's approach demonstrates, it is possible to show attentiveness to the availability of alternative remedies without closing the door of federal courts to victims of lawlessness. The U.S. Supreme Court should follow Canada's lead and consider the absence of alternative remedies an important factor in deciding to extend a Bivens claim to a new context. Specifically, the Court should consider a more functional approach in line with the Supreme Court of Canada's approach in Vancouver (City) v. Ward.⁷ This will enhance the protection of constitutional rights in the United States and prevent individuals from being left without a remedy after their rights have been violated by a federal official.

I. Bivens Claim Jurisprudence

A. The Rise of Bivens

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the U.S. Supreme Court implied a damages cause of action against federal officials for constitutional violations for the first time.⁸ Bivens brought suit in federal court for damages against Federal Bureau of Narcotics agents who had arrested him and searched his home without probable cause or a warrant in violation of the Fourth Amendment.⁹ In its analysis, the Court indicated that

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there were no "special factors counselling hesitation"¹⁰ and "no explicit congressional declaration"¹¹ that prohibited a damages remedy or required an individual in these circumstances to seek redress through "another remedy, equally effective in the view of Congress."¹² In upholding his claim for damages, the Court stated that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."¹³ Justice Harlan, concurring in the judgment, emphasized that a damages remedy was important in this situation because "[f]or people in Bivens' shoes, it is damages or nothing."¹⁴

The Supreme Court then expanded the Bivens cause of action to two new contexts in Davis v. Passman and Carlson v. Green.¹⁵ In these two cases, the Supreme Court extended Bivens to encompass damages claims against federal officials for violations of the Fifth Amendment's Due Process Clause¹⁶ and Eighth Amendment's prohibition on cruel and unusual punishment.¹⁷ In Davis v. Passman, the Court held that a damages action was appropriate against a U.S. congressman who had fired his female assistant because of her gender in violation of the Fifth Amendment.¹⁸ Again, the Court indicated that there were no "special factors counselling hesitation"¹⁹ and "no explicit congressional declaration"²⁰ that individuals in the plaintiff's position were prohibited from seeking a damages remedy against a responsible official.²¹ Importantly, the Court emphasized the absence of alternative remedies and applied Justice Harlan's wisdom from Bivens that for this plaintiff it was also "damages or nothing."²²

In Carlson v. Green, the Court considered whether the Constitution provided a damages remedy for a violation of the plaintiffs Eighth Amendment rights

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despite the fact that a suit could be brought under the Federal Tort Claims Act (FTCA) against the United States.²³ The Court held that Bivens claims are not precluded by a remedy under the FTCA.²⁴ In fact, the Court emphasized that in an appropriate case, an individual could have a Bivens claim against the individual officials who violated their constitutional rights and also a FTCA claim against the United States.²⁵ The Court reasoned that Congress knows how to explicitly state when it desires that the FTCA be an exclusive remedy,²⁶ and that Bivens offered a more effective remedy than the FTCA in this case.²⁷ The Court highlighted three reasons why Bivens offered a more effective remedy than the FTCA. Specifically, Bivens claims offered an individual, deterrent effect;²⁸ the availability of punitive damages;²⁹ and the potential for a jury.³⁰ Finally, the Court noted that "an action under [the] FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action[.]"³¹ Since the "FTCA [was] not a sufficient protector of the citizens' constitutional rights,"³² the Court upheld the action for damages under the Eighth Amendment.³³

B. The Tide Turns³⁴

Through 1980, the Bivens claim seemed to be on a steady path of expansion in part due to the Court's "narrow conception"³⁵ of those "special factors counselling hesitation[.]"³⁶ However, since Carlson v. Green, the Supreme Court has refused to recognize a Bivens cause of action in every relevant case that...