Author:Pereyra, Julio


Money damage remedies in tort law serve two functions. First, they allow victims to be made whole through compensation. (1) Second, they hold tortfeasors liable to deter illegal behavior. (2) In most cases, the deterrent function most clearly expresses the goal of the law. For instance, a law providing money damages for battery more clearly expresses a policy of deterring battery rather than a policy of compensating for the resulting injury. Over time, doctrines such as punitive damages have reified this deterrence function to allow victims a direct remedy for money damages. (3 ) A similar deterrence function has animated the Supreme Court's reasoning in a line of cases dealing with constitutional torts, i.e. claims against federal actors arising directly under the Constitution. (4)

Starting in 1971 with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, (5) the Supreme Court began allowing claims for money damages to be brought directly against officers in order to deter government torts. (6) The Court would then extend the Bivens remedy to two other areas: gender discrimination by those not covered by Title VII, (7) and claims by prisoners for violations of their Eighth Amendment rights. (8 ) These Bivens claims have become a necessary mechanism for not only compensating persons whose constitutional rights were violated, but also for ensuring that those rights are not violated in the first place.

Despite their critical role ensuring constitutional rights are respected by federal officers, Bivens claims have often not fared well before the Supreme Court. Since 1980, the Supreme Court has never recognized a Bivens remedy for a new constitutional provision, (9) and has actually cut back on its availability in the areas where it exists. (10) However, in curtailing Bivens, the Court has been careful to ensure that other mechanisms, such as statutory remedies or state tort law, are able to fulfill its deterrent function. (11) By doing so, the Court is able to defer to Congressional action in creating causes of action without sacrificing constitutional rights. (12 ) Thus, even an overall narrower interpretation of Bivens has generally fulfilled its manifest purpose in areas where it is recognized, deterring officers through a direct damage remedy where other mechanisms do not effectively doing so.

Bivens deterrence is most important for claims brought by prisoners for violations of their Eighth Amendment rights. In an area where the Constitution protects the right to be fed, clothed, and kept safe, a set of remedies to ensure these rights will be respected is fundamentally necessary. (13) Bivens claims are a critical component of this set of remedies because alternative remedies have either been significantly curtailed, (14) or designed with the presumption that a Bivens remedy will be available. (15 ) These two reasons have made Bivens the keystone of the network of remedies that protect federal prisoner rights.

This keystone is likely dislodged with the Court's recent opinion in Ziglar v. Abbasi. (i6) In Ziglar, the Court significantly reworked its approach to Bivens in a way that casts significant doubt on the continued ability of federal prisoners to bring Bivens claims that differ factually from the original Eighth Amendment Bivens case, Carlson v. Green, which provides a Bivens claim for prisoners who are denied proper medical attention. (17)

Without a direct damage remedy against an offending officer to serve as a deterrent, a host of Eighth Amendment rights are significantly qualified. For instance, negative rights change from the right to be free from a particular form of harm to solely the right to be compensated for it. (18 ) Positive rights, even if they are able to be secured through an injunction, must be re-litigated every two years. (19) This erosion of Eighth Amendment rights denies more than one 100,000 federal prisoners rights equivalent to those secured to their state counterparts by 42 U.S.C. [section] 1983. (20)

While Ziglar dealt with persons detained in response to a national security crisis, the Court's opinion has widespread ramifications for many people detained in federal prisons across the country. This comment explains how the formulation of the Bivens framework established by Ziglar excludes nearly every Eighth Amendment violation in federal prisons from being brought as a Bivens claim. This formulation is a break from previous Bivens jurisprudence and an unwise one--leaving federal prisoners without a direct damage remedy against officers who act unconstitutionally. These prisoners are therefore unable to adequately protect their Eighth Amendment rights.



      In Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, Webster Bivens brought suit in federal court, claiming that federal agents had broken into his apartment, arrested him, and searched his home in violation of the Fourth Amendment. (21) He sought $15,000 in damages for the violation of his Constitutional rights, but the district court dismissed his claim for failing to state a cause of action. (22) The Second Circuit affirmed the district court, expressing significant doubt about the propriety of permitting causes of action flowing directly from the Constitution. (23)

      The Supreme Court harbored no such doubts and held that a claim for damages could be implied directly from the text of the Constitution. (24 ) Justice Brennan, relying on the theory that for every violation of a right there is a remedy--and that the traditional remedy was money damages--concluded that violations of Constitutional rights by government actors must necessarily give rise to a claim for money damages. (25) Although they conceded that nothing in the Fourth Amendment's text explicitly provided for this interpretation, the Court nonetheless held that a remedy was available to redress Bivens' grievance. (26)

      The Court extended the Bivens remedy to Eighth Amendment claims in Carlson v. Green} (1) Carlson was a lawsuit brought by Marie Green, the administratrix of Joseph Jones' estate. (28) She alleged that Jones, a chronic asthmatic and federal prisoner, had died after a severe asthma attack that had been grossly mishandled by prison medical staff. (29) She further alleged that these facts amounted to deliberate indifference to a serious medical need in violation of Jones' Eighth Amendment rights. (30) Though the lower courts focused primarily on whether an Indiana state survivorship law applied to defeat Green's action, the Supreme Court took a more holistic approach to considering the availability of a Bivens claim. (31)

      The Court began with the proposition that a Bivens claim should not be created to remedy a constitutional tort under two circumstances. (32) The first circumstance is when "special factors counsele[d] hesitation in the absence of affirmative action by Congress [permitting a Bivens action]." (33 ) The second is where a "defendant shows that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." (34)

      The Court found that neither of these considerations applied in this case. (35) While the Court spent only two sentences on dismissing special factors, they found a longer discussion appropriate with regard to alternative remedies. (36) Specifically, petitioners had raised the possibility that the Federal Tort Claim Act (FTCA) could provide an alternative remedy. (37) In rejecting the FTCA as an alternative remedy, the Court noted that the legislative history of the FTCA in no way indicated that Congress had intended to preempt a Bivens remedy. (38) While the original FTCA had long predated the Courts development of the Bivens remedy, comments from its 1974 amendment indicated that Congress "viewfed] FTCA and Bivens as parallel, complementary causes of action." (39)

      The Court emphasized the fact that the FTCA did not supplant a Bivens remedy by highlighting the ways in which a Bivens remedy provided more effective relief. (40) The Court first noted that certain trial rights, such as punitive damages and the right to a jury trial, were only available through a Bivens action. (41) More importantly, the Court emphasized the deterrent effect of having a claim for damages directly against an officer who acted unconstitutionally. (42) Finding no reason to refrain from creating a Bivens action for Green's Eighth Amendment claim, the Supreme Court affirmed the lower court's holding that Eighth Amendment claims could be vindicated in a Bivens action. (43)

      In between Bivens and Carlson, the Court also recognized that a Bivens action exists for Fifth Amendment sexual discrimination claims. (44 ) To this day, the Supreme Court has not extended Bivens beyond the claims recognized in Bivens, Carlson, and Davis. (45)


      After Carlson, the Court entered an era of reluctance, if not downright hostility, towards recognizing new Bivens claims. For the next two decades, the Court relied on special factors or sufficiently good alternative remedy schemes to reject Bivens claims brought under new amendments, (46 ) different clauses in accepted amendments, (47) or the same clause but in the context of military service. (48) However, despite the Court's reluctance to extend Bivens, it continued to allow Eighth Amendment Bivens claims.

      For example, in McCarthy v. Madigan, the Supreme Court ruled that a prisoner was not required to exhaust prison administrative remedies before filing a Bivens action seeking only damages. (49) In coming to this conclusion, the Court considered the fact that Congress had not explicitly required exhaustion, the inability of the grievance procedure to provide monetary relief, or the...

To continue reading