LESSONS FOR BIVENS AND QUALIFIED IMMUNITY DEBATES FROM NINETEENTH-CENTURY DAMAGES LITIGATION AGAINST FEDERAL OFFICERS.

• Author: Kent, Andrew

INTRODUCTION 1756 I. THE GRADUAL DISAPPEARANCE OF FEDERAL OFFICER DAMACES LITICATION: THE EXAMPLE OF CUSTOMS ENFORCEMENT 1762 A. Types of Damages Litigation Against U.S. Customs Collectors 1763 B. Reasons Why the U.S. Government Initially Relied on Damages Suits to Police Collectors 1764 C. Congress's Gradual Sidelining of Suits for Damages Against Customs Collectors 1766 II. REVISINC COMMON CLAIMS ABOUT FEDERAL OFFICER DAMACES LITICATION: THE EXAMPLE OF MARITIME SEIZURES 1770 A. The Claim: A Pure Legality Model of Worldwide Liability of U.S Officers Under fudge-Made Tort Law 1771 B. The Existence of Judicially Crafted Immunity 1772 C. Pervasive Political Branch Endorsement of Officer Damages Liability for Maritime Seizures 1777 D. Alien Enemy Disability to Appear in Court 1784 CONCLUSION 1786 INTRODUCTION

Fifty years ago, the Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1) created an "implied cause of action to remedy a constitutional violation," through a suit for money damages against responsible federal officers. (2) The Bivens case involved federal law enforcement officers who allegedly violated Fourth Amendment rights through an unreasonable search and seizure in the plaintiffs home. (3) In 1979 and 1980, the Court authorized nonstatutory Bivens damages suits in two new areas: Eighth Amendment claims against federal prison officials for denial of medical care (4) and employment discrimination claims against a member of Congress under the Fifth Amendment's Due Process Clause. (5)

Since then, the Court has declined to extend its Bivens cause of action and remedy to any new contexts, new constitutional provisions, or new types of defendants. (6) And more recently, the Court has treated Bivens with evident disfavor. The Court now says that judicial implication of a damages remedy is a nearly always unjustified intrusion into an area that Congress should control: assessing the costs and benefits of various remedial regimes for U.S. government misconduct. (7) And the Court has voiced additional separation-of-powers concerns when the substantive area covered by a putative Bivens suit--for example, military discipline, foreign affairs, counterterrorism, or extraterritorial government action--is one in which Congress and/or the Executive have constitutional primacy. (8) As a result of recent developments, the Supreme Court seems to allow Bivens suits only in legal and factual circumstances close to those approved in the three decisions from forty to fifty years ago. (9)

As the Court's hostility toward Bivens has grown, and as more members of the Court have identified as originalists, scholarship and scholarly litigation briefs trying to preserve and expand Bivens have taken a historical turn. Writing critical of the Court's narrow view of Bivens now frequently focuses on early nineteenth-century damages suits against American government officers, reading them as precedents for a more expansive view of Bivens today. (10) The Court in its most recent Bivens decision dismissed consideration of such cases, stating simply that they were irrelevant because they occurred prior to when Erie Railroad Co. v. Tompkins (11) "held that '[t]here is no federal general common law,' and therefore federal courts today cannot fashion new claims in the way that they could before 1938." (12) There is more to say on the topic than this near non sequitur by the Court. This Essay will review and comment on some important aspects of this historical turn in Bivens scholarship and advocacy and the relevance of the history of early republic damages litigation against federal officers under the common law or general law.

It is well known and uncontroversial that the Framers and ratifiers of the Constitution in 1787-88 expected that common law or general law (13) would supply forms of action to contest many kinds of misconduct by federal officers. (14) After all, the Constitution expressly mentions only two remedies--habeas corpus and just compensation for the taking of private property for public use. (15) As Stephen Sachs has usefully described it, the Constitution was part of, and "layered on top of," a preexisting legal system (16)--a system inherited from Britain and developed in the colonies and post-independence U.S. states. In this system, crown officials and U.S. state officers were sued frequently for damages for torts and similar common-law wrongs, many of which protected interests that overlapped with those protected by the U.S. Constitution--"life, liberty, [and] property." (17)

Suits against officers for damages were "a fixture in American law" (18) in the early republic. Sovereign immunity barred suits against the United States, so suits against officers personally were a crucial work-around. (19) "To maintain the suit the plaintiff [had to] allege conduct by the officer which, if not justified by his official authority, [was] a private wrong to the plaintiff, entitling the latter to recover damages." (20) Justification for an officer's actions could come from legal authority supplied by a valid statute, the Constitution, the common law, or the law of nations (including its subparts such as the laws of war and maritime and admiralty law).

Since a Bivens suit is one for constitutional torts seeking damages, the historically minded arguments for a more expansive Bivens doctrine focus on common-law or general-law suits for damages against federal officers in the early republic. A core premise of these arguments is that such damages suits against federal officers were both contemplated by the Founders and ubiquitous at and soon after the Founding, giving them a quasi-originalist kind of foundation.

Scholars and advocates supporting a more robust role for Bivens today also assert that nonconstitutional tort liability (21) for federal officers was "routinely" available until 1988, (22) when Congress in the Westfall Act barred state-law tort suits against federal officers acting within the scope of their employment, (23) leaving the only state tort remedy to be a limited one against the sovereign (the United States) under the Federal Tort Claims Act. (24) Bivens, though different because the claims allege constitutional rather than state-law or general-law violations, is the only possible federal officer tort suit remaining today under judge-made law, for within-scope-of-employment wrongs. Therefore, suggest scholars and advocates pressing the historical turn, Bivens should be seen to share some of the quasi-originalist pedigree of the old officer suits, as well as legitimacy derived from the officer suits' existence for about 200 years--until cut off by the Westfall Act. (25)

The historical turn in Bivens scholarship and advocacy emphasizes the "judge-made" nature of the officer suits for damages in the early republic, (26) as a response to the Supreme Court's criticism of Bivens as an illegitimate judicial intrusion into the legislature's functions. Moreover, as noted above, recent Bivens decisions highlight the supposed impropriety on separation-of-powers grounds of courts crafting damages remedies against federal officers, especially but not only in sensitive contexts like military activity, cross-border operations, and the like. In response, the scholars and litigators participating in the historical turn I identify often emphasize that the early American caselaw shows empowered judges overseeing the application of judge-made tort law against U.S. military officers, based on activity that happened extraterritorially.

The current Court's Bivens restrictions are seen (accurately, I believe) as just one aspect of a package of Court-crafted doctrines designed to limit the ability of persons aggrieved by government misconduct to seek judicial redress in damages, while preserving some government accountability. (27) Another one of these doctrines is qualified immunity, which today shields officials from damages liability "when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (28) In response, critics of the current Court's approach to damages litigation also challenge qualified immunity on historical grounds. They assert that in federal officer suits in the early republic

Nineteenth century courts passed solely on the issue of legality and left the task of determining issues of good faith, immunity, and indemnity to the legislative hranch. The task of balancing the interest of the victim in vindication of his rights and that of the officer in securing protection against liability for actions in the course of employment fell to Congress. (29)

As another work put it, "[e]xecutive officials were... not entitled to any immunity at all but were instead strictly liable for torts committed in excess of their authority or otherwise contrary to law." (30) Thus the history of early republic damages suits is mined to critique qualified immunity as a recent upstart, lacking foundation in the early republic. (31)

The arguments just summarized contain a good bit that is accurate and valuable. I have learned a great deal from the work of the major authors of these works--including James Pfander, Steve Vladeck, and Carlos Vazquez, participants in this symposium. So this Essay is not an exercise in wholesale criticism and revision. Rather it sympathetically but critically evaluates and qualifies the claims about the ubiquity of damages suits against federal officers, and about an empowered judiciary applying judge-made law to persons, places, and contexts that the Supreme Court today considers too sensitive for judicial oversight on separation-of-powers grounds. This Essay similarly qualifies claims about a "pure legality" model of early American judicial behavior in officer tort suits in which immunity was unavailable and considerations of fairness to officers, incentives for efficient government...