AuthorWoolhandler, Ann


The propriety of Bivens (1) actions is part of the debate about federal common law. (2) For some judges and scholars, implied actions are a particularly reprobated form of federal common law. (3) Justice Alito's opinion for the Court in Hernandez v. Mesa treated Bivens and its progeny as "products of an era when the Court routinely inferred 'causes of action'" under statutes and then "extended th[e] practice [to] the Constitution." (4) Both implied statutory and constitutional actions, he stated, are in tension with the Constitution's "separation of legislative and judicial power." (5) And he rejected arguments that the historical availability of common-law claims against federal officers in federal courts supported Hernandez's claim, because those cases preceded Erie Railroad Co. v. Tompkins's admonition that "[t]here is no federal general common law." (6) He also suggested that if Bivens were decided today, the Court would be unlikely to reach the same result. (7)

The beginning premise for critiques of federal common law is that federal common lawmaking often involves policymaking discretion more properly exercised by the states or Congress. (8) Were courts more constrained by custom, precedent, and the general principles of common law, then federal common law arguably would be of less concern. (9) But because precedent is easily malleable, it provides little constraint on courts using federal common law to implement their own policy choices. (10)

Some federal common-law skeptics have provided criteria for keeping federal common law in check. (11) Although not specifically addressing Bivens actions, Professor Nelson has argued that when engaged in federal common lawmaking, federal courts should see themselves as more tied to custom, general principles of the common law, and precedent, rather than seeing themselves as engaged in a freewheeling search for the best policy. (12) This methodology makes federal common law less subject to criticism as usurping the lawmaking roles of other government actors. Professor Merrill has argued that federal common law needs to be specifically intended by the framers of a constitutional or statutory provision, (13) or necessary to "preserve or effectuate some other federal policy that can be derived from the specific intentions" of the framers of a constitutional or statutory provision. (14) He argued that Bivens was illegitimate under his criteria. (15)

For those with more capacious views of federal common law, Bivens is not hard to defend. Some such scholars argue that federal common law is appropriate so long as the court can "point to a federal enactment, constitutional or statutory, that it interprets as authorizing the federal common law rule," (16) or to a federal interest, in order to justify federal common law. (17) Indeed, Judge Friendly suggested that federal courts could appropriately make federal common law in areas of federal concern where a uniform rule was desirable, (18) and suggested that tort suits against federal officers was such an area. (19) And even some jurists who criticize implied statutory actions have argued that federal courts should be able to imply rights of action to implement the Constitution. (20)

This Essay, by contrast, will address the extent to which Bivens actions might be justified even under the more restrictive views of the federal courts' common-law powers. We particularly look to actions such as Bivens itself: damages actions for a trespassory harm that cannot be justified given constitutional limitations. (21) Under restrictive criteria, one might ask if the framers of the Constitution or relevant statutes contemplated the trespass action as a vehicle for enforcement of constitutional prohibitions. (22) This inquiry overlaps with whether the remedy is supported by common-law methodology and precedent. (23) We also proceed to ask if the remedy is constitutionally necessary. This can be divided into two questions: (1) whether this trespass-type remedy is constitutionally necessary?; (24) and (2) whether the federal form of the remedy is constitutionally necessary? (25) We conclude that the Bivens decision itself may have been justified under these criteria, although other decisions implying constitutional actions may not be. (26)


    This Part is primarily addressed to the Framers' expectations regarding remedies for constitutional violations and precedent. While this Part provides some evidence that certain remedies may have been thought necessary to enforce the Constitution, Part II discusses the question of necessity separately.

    Certain premises enjoy widespread agreement among federal common-law proponents and critics alike. The Constitution is meant to apply as law. (27) This entails that a federal court--when presented with a case or controversy--may properly engage in constitutional interpretation to decide the dispute before it. (28) When would the federal courts have occasion to apply the Constitution and provide such interpretation? The constitutional text generally does not specify remedies or create causes of action. (29) The Framers' expectation then would be that the Constitution would apply as law in actions that otherwise came before the courts. Those cases would include government enforcement actions where the defendant raised a constitutional defense, as well as common-law trespass actions in which the Constitution would negate a defendant's plea of legal justification. (30) Trespass refers to intentional invasions of person or property, such as arresting persons or seizing goods. It should be noted that, like defenses to enforcement actions, trespass actions are in a sense defensive. They address intentional deprivations of interests in liberty and property that an officer has effected, but without the officer's invoking judicial process as in enforcement actions.

    If trespass actions were contemplated as a vehicle to enforce the Constitution, one might also suppose that equity actions to enjoin imminent or ongoing trespasses were in contemplation, if a court were properly exercising equitable powers. (31) Often anticipating official action, such injunctions are also in a sense, a defensive remedy, similar to defenses to enforcement actions and trespass suits. Indeed, modern federal common-law skeptics accept most injunction actions to enforce constitutional norms, while often treating damages actions as questionable. (32) Historically, however, trespass actions and actions to enjoin trespasses were two sides of the same coin. (33) If the officer had committed a trespass, he could be individually liable for his own wrongs and would not enjoy the protections of sovereign immunity. The availability of a trespass or other common-law action for which he could be individually liable would also support an injunction claim against the officer as an individual when a trespass was threatened or ongoing, or when damages were otherwise inadequate. (34) Whether the action was for damages for a past trespass or to enjoin a future or ongoing trespass, the Constitution could negate the officer's claimed justification of exercising valid authority.

    In Osborn v. Bank of the United States, for example, the theoretical individual liability of Ohio Auditor Ralph Osborn in an action at law for trespass, or for money had and received from the Bank, supported the injunction against him. "[T]he appellants acknowledge that an action at law would lie against the agent, in which full compensation ought to be made for the injury," said Chief Justice Marshall. (35) "It being admitted," he continued, "that the agent is not privileged by his connexion with his principal, that he is responsible for his own act, to the full extent of the injury, why should not the preventive power of the Court also be applied to him?" (36) Similarly, in a later case approving an injunction against state officers' sale of property to which the plaintiff claimed title, the Court stated that where state officials "commit acts of wrong and injury" to the plaintiff's property, then a suit is available against the individual officers "whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the State, or for compensation in damages, or, in a proper case where the remedy at law is inadequate, for an injunction to prevent such wrong and injury." (37)

    Federal court jurisdiction in Osborn was based on the Court's interpretation of a congressional statute authorizing the Bank to sue and be sued in "any Circuit Court of the United States." (38) But both before and after the 1875 advent of general federal question jurisdiction, the Court often upheld such damages and injunctive remedies when diversity of citizenship was present, and gave a capacious view of the diversity jurisdiction to accommodate cases raising federal constitutional issues against state and local officials. (39) The federal courts also regularly entertained trespass and related common-law actions against federal officers, either as a matter of original jurisdiction, for example under admiralty or diversity jurisdiction, (40) or under provisions for removal from state courts of suits against specific categories of federal officers. (41) Although actions for injunctions against federal officers were scarce, (42) the Court on occasion entertained ejectment suits as to real property claims, (43) as well as mandamus actions that compelled action from the federal official. (44)

    In addition to diversity, admiralty, and removal as vehicles for lower federal courts to hear cases against federal officers, Congress had provided for jurisdiction for actions "arising under" some specific laws prior to 1875. While some such provisions supported lower federal court jurisdiction for fairly explicit statutory claims, others were typically used for state-law or general-law actions with a federal...

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