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

• Author: Vazquez, Carlos M.
• Position: III. Bivens and Its Aftermath through Conclusion, with footnotes, p. 542-583

3. BIVENS AND ITS AFTERMATH

   Although the judges of the en banc Second Circuit disagreed vehemently over the correct outcome in Arar v. Ashcroft, they (and their colleagues on the Fourth, Seventh, and D.C. Circuits) agreed on one point: the plaintiff either had a Bivens action or had no cause of action for damages at all.166 In this respect, the courts of appeals' recent approach to the Bivens question was very different from the Supreme Court's approach in Bivens itself: Consistent with the pre-Bivens approach to constitutional remedies described above, all of the Justices in Bivens, and all of the litigants, regarded the Bivens question as a choice between recognizing a federal right of action for damages directly under the Constitution or leaving the matter of damages for violations of the Constitution by federal officials to the common law. It was common ground in Bivens that, in the absence of a federal cause of action, damages would be available on the basis of the common law. (167) On this understanding of the nature of the Bivens question, the "special factors" that the Court said might "counsel[] hesitation" in recognizing a Bivens action168 must be factors that favor leaving the question of damages to other existing remedial regimes, including state law. Factors that would favor leaving the plaintiff with no cause of action at all would bear instead on the question of defenses, such as official immunity.

   1. The Bivens Case

      Webster Bivens was arrested on narcotics charges and had his home searched by agents of the federal Bureau of Narcotics who lacked a warrant for either the arrest or the search. (169) In his complaint, Bivens alleged that the agents had manacled him in front of his wife and children and threatened to arrest the whole family. Bivens was later taken to the station, where he was subjected to a strip search. (170) He sued the agents in federal district court, alleging that they had caused him "great humiliation, embarrassment, and mental suffering." (171) He sought $15,000 from each agent for the violation of his "constitutional rights." (172) Although his pro se complaint did not refer specifically to the Fourth Amendment, (173) it did allege that the search was conducted without a warrant and, according to the Supreme Court, "fairly read, it allege[d] as well that the arrest was made without probable cause." (174) The district court dismissed the complaint, citing the lower court's decision in Bell v. Hood on remand, (175) and the Second Circuit affirmed. (176)

      To grasp how the Bivens question was understood by the Supreme Court in Bivens, it is best to begin with the brief filed by President Nixon's Solicitor General, Erwin Griswold, who argued on behalf of the United States against recognition of a federal damages remedy. (177) Griswold presented the question to the Court as whether an "additional" damage remedy should be recognized. (178) He argued that a federal right of action for damages for violation of the Fourth Amendment was inconsistent with original intent. (179) According to the Solicitor General, the Founders contemplated that injuries suffered as a result of acts of federal officials that contravened the Amendment would be compensated through common law actions such as trespass. (180) As explained in Part II, the breach of the Constitution operated to defeat any defense of official justification, thereby leaving the official open to common law remedies. The Solicitor General added that the "plan envisaged when the Bill of Rights was passed" was that a person injured by a breach of the Constitution "may proceed ... by a suit at common law ... for damages for the illegal act." (181) Thus, the original intent was not that a damages remedy would be unavailable until enacted by Congress; to the contrary, the Founders contemplated that a damages remedy would be available, namely, the remedy furnished by the common law. Solicitor General Griswold regarded the common law remedy not merely as the default damages remedy, but also as the constitutionally contemplated one.

      Griswold conceded that judicial recognition of a federal remedy would be appropriate if such a remedy were "indispensable for vindicating constitutional rights." (182) It was on this ground, in his view, that federal law had come to recognize the availability of injunctive relief for constitutional violations by state and federal officials. (183) But recognition of a federal damages remedy was not necessary, he argued, because common law remedies were available. (184) The Solicitor General acknowledged that common law remedies were sometimes inadequate, but he contended that the federal remedy would suffer from the same deficiencies, and he noted that the inadequacies could, in any event, be addressed within the common law model, as "growth and improvement have always been the great tradition of the common law." (185) In short, the existence of common law remedies was central to the government's argument against recognizing a federal cause of action directly under the Constitution in two important ways: First, it was the damages remedy envisioned by the Framers. Second, the existence of the state remedy made a federal remedy unnecessary.

      The Court in Bivens similarly took for granted the existence of common law damages remedies and understood the question before it as whether the common law remedy should remain the exclusive one. It rejected the government's argument for such exclusivity as "unduly restrictive," and it recognized an "independent" federal claim affording damages to victims of Fourth Amendment violations by federal officials, "regardless of whether the State in whose jurisdiction [the federal] power is exercised would prohibit or penalize the identical act if engaged in by a private citizen." (186) The Court, and Justice Harlan in his concurrence, also rejected the government's argument that a federal remedy need be "indispensable" for vindicating the Fourth Amendment. (187) In Justice Harlan's words, the question instead was whether damages were "'necessary' or 'appropriate' to the vindication of the interest asserted." (188)

      The conception of the Bivens question as whether existing common law remedies should be supplemented with a federal one is perhaps most clearly reflected in the opinions of the dissenting Justices, who would have declined to recognize a federal cause of action on the ground that creating such remedies is a legislative function. In their view, the majority was usurping the power of Congress. (189) This rationale is consistent only with a determination to leave preexisting common law remedies in place. After all, a decision to displace state law and replace it with nothing is just as much an act of judicial legislation as a decision to displace state law and replace it with something, (190) In the absence of congressional action, federal courts engage in judicial lawmaking when they decide to displace state law, whether because of a need for uniformity or for another reason. Having taken that step, the decision to replace a state law cause of action with a federal cause of action is no more an act of lawmaking or a usurpation of the role of the legislature than the decision to replace it with no cause of action at all. Leaving victims of constitutional violations with neither a federal cause of action nor their preexisting common law causes of action would be as much a usurpation of legislative power as providing them with a substitute federal cause of action.

      To be clear, we do not argue that a decision that a state law cause of action is displaced as a matter of federal common law would in no circumstances be justified. (191) The point is merely that such a decision cannot rest on a claimed lack of legislative power. A lack of legislative power can only support a decision to leave the status quo in place, and, as discussed above, that status quo at the time Bivens was decided was that federal officers who violated the Constitution were subject to common law remedies. The reluctance of the dissenting Justices in Bivens to engage in judicial lawmaking is thus consistent only with the view that state law should continue to govern. For those Justices, the supplementation or supplanting of such actions was a decision for Congress, not the courts.

      The Justices in the majority held a less restrictive view of the courts' discretion to make law in the absence of congressional action. (192) It is not entirely clear from the opinion whether these Justices understood the federal remedy they were creating as preemptive of or supplemental to the common law remedy. The majority never stated that it viewed the federal remedy as exclusive. It did assert that the interests underlying trespass law were sometimes hostile to those underlying the Fourth Amendment, but the examples it gave of such hostility mainly involved situations in which the common law underprotected Fourth Amendment interests.193 If underprotection was the problem, then the solution would be to supplement the state cause of action with a federal cause of action, not to preempt the state cause of action. Any concern that common law liability would unduly restrict federal officials in the performance of their duties would have been addressed by those officials' "immun[ity] from liability by virtue of their official position" (194)--an immunity that applies equally in common law and Bivens actions. (195)

      On the other hand, Justice Harlan's concurrence mentioned the benefits of uniformity and the undesirability of subjecting federal officials to "different rules of liability ... dependent on the State where the injury occurs." (196) These considerations would support the conclusion that the Bivens action preempts preexisting common law damage remedies. Still, uniformity is not necessarily an overriding concern. The Federal Tort Claims Act, for example, exposes the federal government to liability under the laws of...