Lebron v. Padilla cont.

I received an interesting question asking how my analysis is informed by the recent trend in Bivens cases (outside the national security context) to “assimilate the Bivens inquiry to the Court’s now restrictive jurisprudence on implied statutory causes of action.”  Here is a brief answer. I’m not in general agreement with an approach conflating implied constitutional and statutory causes of action as, say, two variants of federal common law, because I do believe it makes a difference whether the source is a statute or the Constitution. But even if you accept the premise of the more restrictive approach, it is problematic that due regard is not being given to the extensive activity of Congress with respect to Bivens that lies between legislating and not-legislating, between creation of an express cause of action and silence.    

As I pointed out in my post on Lebron, Congress has on numerous occasions taken affirmative steps to preserve and ratify Bivens and to clarify its relation to statutorily created remedies.  This is true in the 1974 amendments to the FTCA creating a cause of action against the government for law enforcement constitutional torts while preserving a Bivens remedy against individual officers.  It is also true of the Westfall Amendment to the FTCA. (Under Westfall, suits against individual federal officials are automatically converted to suits against the federal government unless it is alleged that a statute expressly creating a private right of action has been violated or unless that the U.S. Constitution has been violated.)  With the Westfall Act, Congress made a place in its statutory framework for a cause of action that already existed.  This may not be “action” in the exact sense of creating an express cause of action, but it is not exactly “inaction” either.

A few years ago, James Pfander and David Baltmanis published an article in the Georgetown Law Journal arguing that courts should stop treating Bivens as a threshold inquiry into whether a particular constitutional claim will support a cause of action.    Instead, Pfander and Baltmanis argue, courts should begin with a presumption that a well-pleaded complaint for an unconstitutional invasion of individual rights gives rise to an action for damages under Bivens and then look to evidence that Congress intended to displace the remedy.  They base their argument on the some of the Congressional activity that I mentioned in my earlier post, particularly the Westfall Act, and argue that these legislative acts preserving and ratifying Bivens put it on a firmer statutory foundation.

While I am in general agreement that courts should look more closely at the legislative context, I think this approach too broad.  Congress’ pattern of legislative activity in relation to Bivens could also be taken as ratifying the Supreme Court’s current Bivens jurisprudence – i.e., the case-by-case, claim-by-claim threshold inquiry. Congress intervenes when it wants, as it did after the Supreme Court, in McCarthy v. Madigan, held that a federal prisoner bringing a Bivens action for violation of his Eighth Amendment rights is not required to exhaust administrative remedies available through the Bureau of Prisons grievance procedure.  Congress responded to Madigan by enacting legislative changes to require exhaustion of administrative remedies in Bivens and other cases.  So far, Congress has not intervened in light of the narrowing in the Supreme Court’s Bivens jurisprudence.  Nonetheless, it does seem to me basically correct to argue that this extensive legislative activity means something in the Bivens context – it just doesn’t seem to have had attention called to it.

Now, an argument about congressional activity ratifying Bivens arguably does not fully address the point made by then Justice Rehnquist in his dissent in Carlson v. Green. Noting that the majority opinion stated that the 1974 amendments made it clear that Congress viewed FTCA and Bivens as complementary causes of action, Justice Rehnquist disagreed, saying “I think it more likely that they reflect Congress’ understanding (albeit erroneous) that Bivens was a constitutionally required decision.  If I am correct, the comments [accompanying the 1974 amendments] comprise merely an effort on the part of the Senate committee to avoid what it perceived as a constitutional issue.”  Perhaps if you are hostile to Bivens, as Justice Rehnquist was, no amount of activity by Congress preserving or ratifying Bivens will be persuasive, because such legislative action can always be interpreted as a reaction to antecedent judicial action.  Pfander & Baltmanis have an argument about why congressional intent can be inferred from the structure of the Westfall Act, but their view does not go to this question and to the question of Bivens’ independent viability.

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