State law, the Westfall Act, and the nature of the Bivens question.

• Author: Vazquez, Carlos M.
• Position: Introduction through II. Constitutional Torts Before Bivens, p. 509-542

INTRODUCTION I. THE BIVENS QUESTION IN CONTEMPORARY NATIONAL SECURITY CASES A. Bivens and Post-9/11 National Security Litigation B. The Courts' "Remarkably Low" Standard and Their Scruples about Judicial Lawmaking II. CONSTITUTIONAL TORTS BEFORE BIVENS III. BIVENS AND ITS AFTERMATH A. The Bivens Case B. After Bivens 1. Initial Extensions of Bivens 2. Subsequent Retrenchment C. Federal Officials' Immunity from Liability for their Unconstitutional Acts IV. THE WESTFALL ACT A. The FTCA, Common Law Remedies, and the Westfall Act B. Two Alternate Readings of the Westfall Act 1. Preserving State Constitutional Tort Remedies 2. Preserving Only Bivens Claims INTRODUCTION

In the past few years, four courts of appeals have applied a presumption against recognition of a Bivens cause of action (1) in dismissing damages suits alleging constitutional violations arising out of federal officials' pursuit of various national security and counterterrorism policies. In each of these cases, the court's approach was based on the belief that allowing such suits to proceed would threaten undue interference with the executive branch's conduct of military and national security affairs--interference that should be tolerated, if ever, only where Congress has expressly so provided. As Fourth Circuit Judge J. Harvie Wilkinson III explained in declining to recognize a Bivens claim that would have allowed Jose Padilla to seek compensation for his allegedly unconstitutional detention and treatment as an "enemy combatant," "To stay the judiciary's hand in fashioning the requested Bivens action, it suffices to observe that Padilla's enemy combatant classification and military detention raise fundamental questions incident to the conduct of armed conflict, and that Congress ... has not provided a damages remedy." (2)

The Second Circuit, sitting en banc, used similar reasoning in declining to recognize the right of Maher Arar to seek compensation for the allegedly unconstitutional injuries he received at the hands of government officers arising out of his extraordinary rendition to Syria. (3) Other courts have sounded variations on this theme to preclude relief for claims by, for example, former Guantanamo detainees (4) and U.S. citizens who were detained and allegedly abused by U.S. military personnel while working as military contractors in Iraq. (5) In the view of each of these courts, concerns about judicial interference with national security justified their refusal to recognize a federal damages remedy for the injuries caused by the defendants' allegedly unconstitutional conduct.

We argue that the analysis employed by these courts of appeals to determine whether to recognize a Bivens action (6) improperly combines two problematic features. The first is the courts' conceptualization of the Bivens question as a choice between recognizing a Bivens action and leaving the plaintiff with no damages remedy at all. Because the reasons that led the courts to decline to recognize a Bivens action are reasons to preclude all judicial involvement in the cases, these courts clearly understood the choice before them as "Bivens or nothing." The second problematic feature is the courts' application of what the Arar court described as a "remarkably low" standard for declining to recognize a Bivens action. (7) In the words of the Arar court, all that is necessary to justify a decision not to recognize a Bivens claim is that the court have reason to "pause." (8) Considered separately, these two features of the courts' analysis are both highly problematic. When combined, they produce a wholly insupportable approach to the Bivens question.

The four appellate courts' conceptualization of the Bivens question as "Bivens or nothing" is decidedly at odds with the way the Supreme Court understood the Bivens question in Bivens itself. It was common ground among the Justices and the litigants in Bivens that, in the absence of a federal cause of action, persons harmed by federal officials' constitutional violations would be able to pursue an action for damages under state law. Consistent with a long history of recognizing common law remedies for constitutional violations, the Bivens Court understood the question before it to be whether common law remedies should be supplemented with a federal damages remedy. Justice Brennan's opinion for the majority ultimately held that state court remedies were inadequate, not that they were unavailable. (9) Even the dissenters, who insisted that the recognition of a new federal cause of action was a matter for Congress, understood the question to be whether state law remedies should continue to be the exclusive remedies for constitutional violations by federal officials. (10) None of the Justices in Bivens equated the lack of a federal cause of action with functional immunity from suit. As the Court understood the Bivens question in Bivens itself, the choice before it was "Bivens or (only) state law."

Unlike the contemporary courts of appeals' conceptualization of the Bivens question as "Bivens or nothing," their application of a "remarkably low" standard for nonrecognition of a Bivens claim has some (albeit slender) grounding in the Bivens opinion. That grounding, however, is tied to the Bivens Court's understanding of the Bivens question as "Bivens or state law." The court in Arar derived its low standard from the Bivens Court's suggestion that nonrecognition of a Bivens action would be proper if there were "special factors counseling hesitation." "Hesitation," the court wrote in Arar, "is a pause, not a full stop, or an abstention. ... 'Hesitation' is 'counseled' whenever thoughtful discretion would pause even to consider." (11) For this reason, the court of appeals concluded, the threshold for declining to recognize a Bivens claim is a "remarkably low" one. (12)

The Bivens Court's formulation of the question as whether "hesitation" was counseled reflects its understanding of the question before it as whether to recognize a new federal cause of action to supplement existing remedies. Given the Court's recognition of the long history of affording common law remedies to victims of federal officials' unconstitutional conduct, the Court could not have protected federal officials from all judicial interference--as the court of appeals in Arar purported to do--merely by "hesitating" to act. Protecting federal officials from all judicial interference requires the elimination of existing nonfederal remedies, and the elimination of such preexisting legal remedies involves not just a negative "stay[ing]" of "the judiciary's hand," as the Fourth Circuit put it in Lebron, (13) but the affirmative preemption or displacement of state law remedies. Taking away otherwise available remedies would require an affirmative act of federal lawmaking; mere "hesitation" to make new law would not accomplish the task.

Thus, the "remarkably low" standard that the courts of appeals have derived from Bivens is directly linked to the Bivens Court's understanding of the Bivens question as "Bivoens or state law." Yet if the courts of appeals had so understood the Bivens question, they could not have based their nonrecognition of a Bivens claim on the need to protect federal officials in national security cases from judicial interference. If anything, such national security concerns would have led the courts of appeals to prefer a federal remedial regime over one based on state law.

Indeed, we think that recognition that nonfederal remedies would exist whether or not a Bivens claim were recognized should generally lead courts to be less hesitant to recognize a federal cause of action against federal officials. Federal officials have a right to remove suits against them from state to federal courts upon the assertion of federal defenses. (14) Thus, even state causes of action against them will usually be adjudicated in the federal courts. As a result, recognition of a federal cause of action will not increase the caseload of the federal courts. At the same time, a federal remedial regime would be easier for the federal courts to administer, and it could be tailored more closely to the policies underlying the relevant constitutional provisions. (In the case of federal contractors, on the other hand, the costs and benefits of recognizing a federal cause of action play out differently. Because federal contractors do not have a general right to remove state law claims against them, (15) recognition of a federal cause of action would increase the federal caseload. Given this higher cost, the Court has properly required a stronger showing that state remedies against such defendants would be inadequate. (16))

In short, the courts of appeals have committed a fundamental error in combining the "Bivens or nothing" understanding of the Bivens question with a "remarkably low" standard for declining to recognize a Bivens action--unless, sometime after the Bivens decision, state tort remedies for injuries caused by federal officials' unconstitutional conduct became unavailable either through legislation or judicial decision. As we show below, such remedies did not become unavailable through judicial decision.

The claim that state tort remedies became unavailable through legislation is more plausible. In 1988, Congress passed the Westfall Act, which is widely understood to have preempted all state tort remedies against federal officials acting within the scope of their authority. (17) At the same time, the Act expressly preserved suits "brought for a violation of the Constitution," (18) an exemption that is widely thought to have preserved only Bivens claims. (19) Although the courts of appeals in the cases discussed above did not rely on the Westfall Act, it might be argued that the prevailing understanding of that Act justified those courts' conception of the Bivens question as "Bivens or nothing."

We are not convinced. First, the Act's text does not exempt...