Iqbal signals Bivens' peril: a call for congressional action.

• Author: Gephart, Megan

Introduction I. The Shifting Attitude of the Court toward Bivens A. The History of Bivens B. The Current Court's Attitude Toward Bivens C. Given that Bivens is Disfavored, What Options Does the Court or Congress Have? II. Arguments for and Against a Codification of Bivens A. Arguments for Replacing Bivens by Statute B. Arguments Against Replacing Bivens by Statute III. Congress Should Adopt a Statute to Replace Bivens A. Where Clearly Established Law has Been Violated, a Cause of Action Should be Available Against the Offending Agent B. Absent a Violation of Clearly Established Law, a Cause of Action Against the Government Should Exist for Violations of an Individual's Constitutional Rights C. Flat Non-Pecuniary Damage Award Option Conclusion INTRODUCTION

In May 2009, the Supreme Court handed down its decision in a case that could have severely limited the availability of causes of action against federal agents who, in their capacity as government actors, violate the constitutional rights of individuals.

The case, known as Ashcrofi v. Iqbal, (1) arose in the aftermath of the September 11, 2001 terrorist attacks. (2) The suit was brought by a man named Javaid Iqbal, a citizen of Pakistan, who was arrested on charges of fraud related "to identification documents and conspiracy to defraud the United States." (3) Iqbal was designated as a person "of high interest" and was placed in the Administrative Maximum Special Housing Unit of the Metropolitan Detention Center (MDC). (4)

Iqbal pled guilty to the criminal charges and was deported to Pakistan where he filed charges against thirty-four current and former federal officials. (5) Focusing on his treatment at the MDC, Iqbal alleged violations of his constitutional rights. (6) Specifically, Iqbal alleged that he was designated as a person of high interest because of his race, religion, or national origin, in violation of his First and Fifth Amendment rights. (7) Among the federal officials named as defendants by Iqbal were Federal Bureau of Investigation (FBI) Director Robert Mueller and United States Attorney General John Ashcroft. (8) Iqbal alleged that "'each [defendant] knew of, condoned, and willfully and maliciously agreed to subject' [him] to harsh conditions of confinement '... solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'" (9) Ashcroft and Mueller moved to dismiss for failure to state sufficient allegations to show their involvement in clearly established unconstitutional conduct. (10) The district court denied this motion. (11)

The Supreme Court, however, determined that Iqbal failed to state a cause of action under the standard set forth in the recently decided case Bell Atlantic Corp. v. Twombly. (12) The Court remanded the case, which afforded Iqbal the opportunity to amend his complaint. (13)

It was significant to the outcome of this case that Iqbal was forced to rely solely on an implied cause of action, known as a Bivens cause of action, rather than a claim sanctioned by Congress through statute. (14)

This Note examines the propriety of a statutory replacement for the Bivens action. Part I of this Note outlines the history of implied causes of action generally, including the shifting attitude of the Court toward its power to fill gaps through the use of implied causes of action, as well as the Court's attitude toward the Bivens action specifically. Part II examines the arguments for and against the adoption of a statutory replacement for Bivens in the context of the United States post-9/11. Part III contemplates a statutory replacement for Bivens, which would strike a balance between deterring rogue government individuals and protecting government officials who violate constitutional rights in the good faith execution of their jobs.

1. THE SHIFTING ATTITUDE OF THE COURT TOWARD BIVENS

   1. The History of Bivens

      Implied causes of action are judicially-created causes of action that fill gaps where the legislature has not acted, but the court infers that a remedy exists to redress the particular harm at issue. (15) Although "[t]here is no federal general common law," (16) federal courts still have common law-making powers in specific areas, including the gap-filling function provided by implied causes of action. (17) Implied causes of action were used frequently by the Warren Court and continued to be favored during the years immediately following Chief Justice Warren's retirement, (18) when the Court decided Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. (19)

      The Supreme Court in Bivens implied a cause of action that made monetary damages an available remedy for a federal official's violation of an individual's Fourth Amendment rights, even though the Constitution itself does not specifically provide for such a remedy. (20) The Court had considered a similar situation twenty-five years earlier in Bell v. Hood, (21) where a claim was made that federal investigators violated the Fourth and Fifth Amendment rights of an individual. (22) The Court held that general jurisdiction gave federal courts the power to use "any available remedy" to correct the violation of a constitutional right. (23) The Court did not, however, answer the question of whether a federal court could find an implied fight to damages as a remedy under the Constitution. (24) In 1971, the Bivens Court picked up where Hood left off.

      The majority in Bivens noted that, although "the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages," it is "well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." (25) The majority went on to conclude that because there were "no special factors counseling hesitation in the absence of affirmative action by Congress," the remedy could be granted by the Court. (26)

      In citing potential special factors that would counsel hesitation, the Court implied that it did not fully embrace the Bivens decision as one resting purely on a right arising out of the Constitution. (27) The Court's failure to identify the specific legal grounds on which Bivens stands has created the issue of how to reconcile the overlapping powers of the judiciary and the legislature with regard to remedies for constitutional violations. (28) As this Note later discusses, the failure of the Court to take a firm stance on its power to create federal common law in this area has given the current Court ammunition with which to limit Bivens remedies. (29)

      In his dissent from the Bivens majority, Chief Justice Burger took the unusual step of expressly calling upon Congress to create a statute akin to 42 U.S.C. [section] 1983, (30) which would grant a statutory cause of action for damages against federal officials who violate an individual's constitutional fights. (31) Justice Burger's recommendation of a statute to replace Bivens made clear that he agreed with the majority that the cause of action should exist. Nevertheless, he disagreed over whether the Court had the power to judicially create the Bivens cause of action, believing that the Court's action was a violation of the separation of powers. (32)

      In addition to the majority and dissenting opinions, Justice Harlan filed a separate concurring opinion in which he agreed with the majority that granting a cause of action for damages was the appropriate response because "[f]or people in Bivens' shoes, it is damages or nothing." (33) Read literally, this statement implies that a plaintiff can only succeed on a Bivens claim if damages are the only possible remedy for the specific situation at issue before the court. (34) This type of analysis, combined with the "special factors" language found in the majority's opinion, has also fueled the current Court's narrow interpretation of Bivens. (35)

      Despite Chief Justice Burger's dissenting opinion, Congress did not act to replace Bivens. The cause of action was embraced by the Court and enjoyed a decade of expansion, exemplified by the Court's decisions in Davis v. Passman, (36) where the Court extended the Bivens cause of action to Fifth Amendment claims, and Carlson v. Green, (37) where the Court extended Bivens to the Eighth Amendment. Lower courts also adopted the rationale of the majority and extended Bivens causes of action to First (38) and Sixth (39) Amendment claims.

      Since the Court's decision in Bivens, the views of the Bivens majority and dissent about the power of the Court to infer causes of action have been a central issue of contention with the current Court recently favoring the views of the Bivens dissent. (40) It is unclear, however, whether the current Court strictly rejects its role as gap-filler because of separation of powers concerns, or if it only rejects its gap-filler function when it disagrees with the policy choice of the law in question. Bivens provides an example of a controversial policy choice in the eyes of the Court. Causes of action for damages against federal agents, and the government more generally, tend to be disfavored by certain political constituencies. (41) If the current Court sympathizes with those sentiments, there might be an alternative reason for its resistance to extensions of Bivens. (42)

      Although it is unlikely that the Court will ever spell out its motivations entirely, there are some commentators who blatantly state that whether or not causes of action like Bivens are favored depends on the political leanings of the Court. (43) A popular legal blogger articulates the issue plainly:

      Conservatives hate Bivens. Liberals love it. There are fantastic arguments for love and hate. Some conservatives say that Article III courts lack the power to create common-law causes of action. Plus, conservatives, as a matter of realpolitik, don't like lawsuits against the police...