It is essentially impossible to sustain a claim for damages against federal officers when they violate constitutional rights. That’s because courts have shunned the only generally available means for obtaining relief: Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The decision is considered controversial; many believe it to be a product of Warren Court’s judicial activism. Instead of being a radical doctrine, however, Bivens is a continuation of a storied tradition—dating back to the Founding—of holding federal officers personally liable when they infringe upon individuals’ fundamental rights. It is also the only route to recovery remaining, after Congress eliminated the ability to sue federal officers under state common law in 1988. On August 9, 2019, IJ filed this amicus brief making the case that Bivens is indeed grounded in history and urging the Supreme Court to direct courts to apply Bivensrobustly.
This Court should fully embrace the Bivens remedy as a means for holding federal officers personally liable when they violate constitutional rights. The Bivens remedy not only has a storied common law pedigree and is congressionally authorized, but it is also the only route to recovery now available to individuals like Sergio Hernandez’s parents. See Cordova v. City of Albuquerque, 816 F.3d 645, 665 (10th Cir. 2016) (Gorsuch, J., concurring) (“there may be some circumstances when federal courts have to act because state courts are unable or unwilling to intervene”).
Bivens’s pedigree dates back to the English common law, which allowed damages actions for violations of fundamental rights. William Blackstone famously proclaimed that without a method for “recovering and asserting” fundamental rights, “in vain would rights be declared, in vain directed to be observed.” William Blackstone, Commentaries on the Laws of England 55- 56. The Founders were so committed to the common law tradition of holding government agents personally liable that anti-federalists, like Luther Martin and George Mason, opposed ratification of the U.S. Constitution in part because they feared that the newly created federal judiciary would take away this common law remedy. Federalists like John Marshall sought to reassure the delegates that the remedy would most definitely live on. After all, our constitutional rights are meaningless if courts cannot redress their violation.
As a result of this history, individuals, for much of America’s existence, could subject federal officers to common law tort liability for violations of constitutional rights. Such cases were heard in state and federal courts (depending on the subject matter), with the common law being the source of the tort remedy in both.
In Bivens, the Court allowed a direct constitutional remedy in federal court, as a supplement to common law remedies, concerned that in the post-Erie world, “leaving the problem of official liability to the vagaries of common-law actions” would hurt federal interests, such as the need to enforce the Constitution without being bound by state precedent. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 409 (1971) (Harlan, J., concurring). Thus, in the seventeen-year period between the Bivens decision and the passage of the Westfall Act, individuals could vindicate their constitutional rights either directly under the Constitution or through the system of common law remedies.
By passing the Westfall Act, Congress precluded all tort suits, including constitutional ones, against federal officers under state common law. But it preserved the right of aggrieved citizens to bring claims “for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). This language, the Court has found, is an “explicit exception for Bivens claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010).
In other words, Congress has passed the torch of accountability for constitutional violations from the system of common law remedies to Bivens. By shutting the door on recovery under state common law and still authorizing claims for violations of the Constitution in federal court, Congress made Bivens into the one and only mechanism for holding federal officers personally liable for unconstitutional conduct. As such, it is now more important than ever to endorse a robust application of Bivens, which is the one remaining safeguard litigants like Jesus Hernandez and Maria Bentacour have to vindicate their son’s constitutional rights. The Court should reverse the judgment below and allow them to proceed under Bivens.