Measuring the success of Bivens litigation and its consequences for the individual liability model.

• Author: Reinert, Alexander A.

INTRODUCTION I. THE EMERGENCE AND LIMITATION OF BIVENS CLAIMS II. THE CHARACTERISTICS OF BIVENS CLAIMS: OUTCOMES AND DETERMINANTS A. The Existing Empirical Literature Regarding the Success of Bivens Claims B. Methodology of Five-District Survey C. Results of Five-District Survey III. THE RAMIFICATIONS OF THESE DATA FOR FUTURE RESEARCH AND POLICY CONCLUSION APPENDIX INDEX OF TABLES AND FIGURES TABLE 1 : PREVALENCE OF BIVENS SUITS, BY DISTRICT, 2001-2003 TABLE 2: PREVALENCE OF BIVENS SUITS BY DISTRICT AND CASE TYPE, 2001 2003 FIGURE 1: RAW SUCCESS RATES BY DISTRICT FIGURE 2: SUCCESS RATES BY DISTRICT, PRO SE, AND COUNSELED CASES TABLE 3: SUCCESS RATES BY DISTRICT, PRO SE, AND COUNSELED CASES, 2002 FIGURE 3: SUCCESS RATES BY DISTRICT, FRIVOLOUS CLAIMS EXCLUDED FIGURE 4: SUCCESS RATES BY DISTRICT, ISSUE JOINED FIGURE 5: GROUNDS FOR TERMINATION, ALL DISTRICTS TABLE 4: GROUNDS FOR TERMINATION, ALL DISTRICTS APPENDIX TABLE 1 : RAW DATA APPENDIX TABLE 2: RAW SUCCESS RATE BY DISTRICT, 2001-2003 APPENDIX TABLE 3: STATISTICAL TESTING OF INTER-DISTRICT COMPARISON OF RAW SUCCESS RATES APPENDIX TABLE 4: STATISTICAL TESTING OF INTER-DISTRICT COMPARISON OF SUCCESS RATES FOR PRO SE FILINGS APPENDIX TABLE 5: STATISTICAL TESTING OF INTER-DISTRICT COMPARISON OF SUCCESS RATES FOR COUNSELED FILINGS APPENDIX TABLE 6: PERCENTAGE OF FRIVOLOUS FILINGS BY DISTRICT APPENDIX TABLE 7: SUCCESS RATE BY DISTRICT, FRIVOLOUS CLAIMS EXCLUDED, 2001-2003 APPENDIX TABLE 8: STATISTICAL TESTING OF INTER-DISTRICT COMPARISONS OF SUCCESS RATES, FRIVOLOUS CLAIMS EXCLUDED APPENDIX TABLE 9: SUCCESS RATE BY DISTRICT, ISSUE JOINED, 2001-2003 APPENDIX TABLE 10: STATISTICAL TESTING OF INTER-DISTRICT COMPARISONS OF SUCCESS RATES, ISSUE JOINED APPENDIX TABLE 11: RESULTS OF REVERSE ENGINEERING DATA COLLECTION INTRODUCTION

Almost from the moment the decision was announced in 1971, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1) has stirred controversy within judicial and academic circles. In Bivens, the Supreme Court held for the first time that federal employees may be sued in their personal capacity (2) for damages for violations of the Constitution. (3) Although the specific claim pursued in Bivens related to alleged violations of the Fourth Amendment, the Supreme Court and lower courts soon extended Bivens liability (4) to other kinds of constitutional violations. (5) Thus, the Supreme Court put plaintiffs injured by federal officials' unconstitutional conduct in nearly the same shoes as victims of state and municipal unconstitutional conduct (who have a statutory right to seek damages and other remedies under 42 U.S.C. [section] 1983 (6)). Precisely because Bivens was a matter of judicial implication, however, the Court retains and has exercised the power to limit the extent of any Bivens remedy, consistently restricting the reach of Bivens from 1980 on. (7)

Bivens nonetheless remains a potent cause of action, although most commentators view it as being more powerful in theory than in practice. Indeed, the working assumption in both the academy and the judiciary has been that Bivens litigation is remarkably unsuccessful. (8) Commentators offer many explanations for the relative lack of success of Bivens litigation, but most agree that Bivens plaintiffs are disadvantaged because the personal defense of qualified immunity (9) is an imposing barrier to recovery from federal officers. (10)

These assumptions about the outcome of Bivens litigation--that it is highly unsuccessful and that the availability of qualified immunity is a substantial reason for that lack of success--have never been empirically tested. Many researchers have evaluated the success of civil rights litigation in general, but no detailed empirical study has focused on Bivens litigation exclusively. (11) The numbers that are bandied about--for instance, the ubiquitous assertion that 12,000 claims were filed between 1971 and 1985 with only four judgments sustained for plaintiffs (12)--border on the apocryphal. To the extent any hard numbers reflecting success are mentioned, they are supported by statements made at legislative hearings or even more informal reports, they define "success" in a much narrower way than most empirical studies, (13) and they are not transparent enough to indicate what is even considered a Bivens claim. (14) And while this Article builds on the work of scholars such as Margo Schlanger, Theodore Eisenberg, and Stewart Schwab, who have conducted extensive studies of the relative success of civil rights claims in general, those scholars have not considered the success (or lack thereof) of Bivens litigation in particular. (15)

This Article represents the first attempt to systematically study the success of Bivens litigation, and its results challenge longstanding assumptions about the outcomes of these claims. After conducting a detailed study of case dockets over three years in five district courts, I conclude here that Bivens cases are much more successful than has been assumed by the legal community, and that in some respects they are nearly as successful as other kinds of challenges to governmental misconduct. Depending on the procedural posture, presence of counsel, and type of case, success rates for Bivens suits range from 16% to more than 40%, which is at least an order of magnitude greater than has previously been estimated. In addition, by specifically reporting how Bivens claims are resolved when they do fail, the data reported here show that the availability of qualified immunity plays a limited role in Bivens failures. This sharply contrasts with estimates of the role of qualified immunity based solely on published case studies, (16) demonstrating the hazards of overlooking unpublished case reports and dockets. This Article thus adds a substantial contribution to our knowledge about the outcomes of Bivens litigation, while suggesting avenues for further research.

Measuring the success (or lack thereof) of Bivens litigation is not solely an academic exercise. These data are relevant to one of the most disputed aspects of Bivens: the Court's decision that, to enforce the Constitution against the federal government, it is necessary that citizens have a private right of action against the individual officer who allegedly violated the Constitution. The "individual liability" model has been criticized from several perspectives, with the most common critique being that it shoulders individual officers with a substantial litigation burden without meeting Bivens' twin goals: compensating victims of unconstitutional conduct and deterring violations of constitutional rights. (17) Thus, in every decade since Bivens was announced, commentators have repeatedly proposed that the individual liability model adopted in Bivens be replaced by an entity liability model. (18)

The argument goes along these lines: just as the Court has recognized in the section 1983 context that government entities may be best positioned to prevent constitutional violations, (19) so should Bivens liability be extended to the federal government, either through Court decision or through statute. (20) Most of these commentators argue that the qualified immunity available to individuals should not be extended to the federal government. In essence, they suggest that constitutional torts should be subject to a respondeat superior theory of liability, which would result in damages paid by the federal government for the unconstitutional acts of its employees, even when those employees themselves are immune from individual liability because of qualified immunity. (21) As in Federal Tort Claims Act (FTCA) claims, individual defendants would be dismissed from lawsuits and the United States would stand in as a substitute. (22)

Thus, the proposal is one of formal governmental liability, in which individual officers would not even be personally named in the underlying lawsuit. (23) There are several related reasons that scholars have made this proposal throughout the past thirty years. First, as discussed above, the overriding view is that Bivens claims are remarkably unsuccessful: most commentators assert that Bivens has not worked as a means of compensation or deterrence. Second, the proponents of governmental liability assert that Bivens claims fail for two principal reasons: (1) the availability of qualified immunity for individual officers; (24) and (2) relatedly, the hesitancy of courts or jurors to award damages against federal officials. (25) Third, the scholars claim that the best way to improve the success of Bivens claims without unduly burdening individual federal officers is to permit governmental liability for violations of constitutional rights by federal employees, without extending the qualified immunity defense to the government. (26) These critics have had support in the legislature at various times. From Bivens' inception until the mid-1980s, there was a concerted legislative effort to "fix" the perceived problem of having an individual liability approach to constitutional violations by federal officials. (27) Although that effort failed and has not been revisited in the legislature, (28) commentators continue to make similar proposals. (29) I contend that the blanket prescription of governmental liability is unnecessary and unwarranted, given the data reported here regarding the prevalence and outcome of Bivens lawsuits.

In Part I of this Article, I describe the history and current state of Bivens litigation, focusing on the disputed position it occupies within the Supreme Court's jurisprudence. Although Bivens liability has been limited in scope, it remains viable for specific categories of constitutional violations. In Part II, I first summarize what we can surmise about Bivens litigation from previous studies, and then attempt to round out that knowledge with a detailed study of recent Bivens litigation filed over three years in five district courts. (30)...