Cross-posted from Dorf on Law

Today's ruling in Ziglar v. Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages. After explaining why the ruling is extremely troubling, I will offer a partial solution.

The Abbasi case was brought by various undocumented immigrants who were rounded up and subjected to harsh conditions of confinement in the wake of 9/11. Litigation over these events has bounced back and forth in various courts over the last decade and a half, but for present purposes the key fact is that the lawsuits seek monetary damages against federal officers. A Reconstruction-era statute, now codified at 42 U.S.C. sec. 1983, grants civil rights plaintiffs the right to sue state and local officials (as well as municipalities), but no parallel statute allows lawsuits against federal officials. To fill that statutory gap, in 1971, in the Bivens case, the Supreme Court recognized a common law (i.e., judge-made) cause of action against federal officers in circumstances in which there would have been a Section 1983 action against state officers for the same conduct. Doing so was consistent with a long history of recognizing common law causes of action.

When I went to law school in the 1980s, it was generally accepted that Bivens was a rough equivalent of Section 1983. True, in Bivens itself the Court had said that where there are "special factors counselling hesitation," a lawsuit against federal officials might be unavailable, but that was very much seen as an exception. The general rule was that Bivens actions were just like Section 1983 actions. However, over the last couple of decades, the Court has been treating a Bivens action as itself exceptional. The Abbasi decision now all but overrules Bivens. Although the Court preserves Bivens "in the search-and-seizure context in which it arose," Justice Kennedy's decision for a 4-2 Court (minus Justices Sotomayor, Kagan, and Gorsuch) severely cuts back on Bivens in just about every other context.

(1) The key move in the majority opinion is one of characterization. The Court says that it is not enough for a Bivens action to be available that there are precedents in the same general area holding that no "special factors" warrant denial of a Bivens action; the "special factors" must be evaluated by reference to a highly particularized description of the case at hand. How particularlized? The Court says:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

This move is reminiscent of both the Court's habeas jurisprudence--where petitioners are denied relief if they rely on "new rules," and where even fairly minor variations from prior fact patterns constitute novelty--and its qualified immunity jurisprudence--where officers escape liability for violating civil rights, so long as those rights were not clearly established by prior precedents more or less exactly on point.

The qualified immunity comparison is more than an analogy, because, as Justice Breyer explains in dissent, federal officers sued in Bivens actions already had (and continue to have) qualified immunity. That means that it is now possible for a federal officer to violate clearly established rights--i.e., to commit rights violations that are established as clear in virtue of being very similar to rights violations that were adjudicated in prior cases--but still not be subject to a Bivens action because the case is nonetheless too different from prior Bivens cases to overcome the "special factors" limitation.

To bring a successful Bivens action a civil rights plaintiff must now pass through the eye of a tiny needle inside the eye of another tiny needle.

(2) What justifies this nearly impossibly high threshold? Justice Kennedy's opinion discusses the fact that since the 1970s, the Court has become more reluctant to recognize implied rights of action for violations of statutes. His description is accurate, but the conclusion does not follow. Congressional power to create or not create a statute includes the lesser included power to create a statute but withhold a private damages remedy. Thus, it is reasonable to treat the availability of an implied private right of action to enforce a statute as a matter of congressional intent.

By contrast, Bivens actions are brought to enforce constitutional rights. It's true that Congress can, if it chooses, play a role in shaping the remedies available for violations of constitutional rights. For example, it can prescribe attorneys' fees, as it has done for successful Section 1983 plaintiffs. It can prefer one remedy over another. It can choose among jurisdiction in state courts, federal courts, or both. But the premise of Bivens was that there should be some form of remedy for the violation of constitutional rights.

Whether the Constitution itself guarantees an effective remedy for the violation of constitutional rights is a question that implicates a very deep, long-running debate about the meaning of a variety of constitutional provisions and principles, including Article III's Exceptions Clause and its so-called Madisonian Compromise, due process, the Suspension Clause (with respect to habeas), the Supremacy Clause, federalism, separation of powers, and more. Until now, the Court has tried to avoid taking a position on that debate, both by preserving the availability of a judge-made cause of action for injunctive relief (under the doctrine of Ex Parte Young) and by construing unclear laws to preserve some remedy. In Abbasi, the Court takes the extraordinary step of holding that it will presume Congress intends that there be no remedy available for most violations of constitutional rights by federal officers. Maybe Congress could enact a law saying that, but until it does so, the Court ought not attribute this radical measure to it.

(3) What is to be done? In a rational world, Congress would step in by expanding Section 1983 to include suits against federal officers. There is no chance that the GOP-controlled Congress and President Trump will do that. Is that evidence that the Court is right in Abbasi to presume that Congress intends no remedies? Hardly. For many of the years that Bivens was on the books as more than a virtual dead letter, Congress presumed that it did not need to write a statute authorizing suits against federal officers. Had a decision like Abbasi been handed down ten, twenty, or thirty years ago, it might well have been superseded by legislation already. One hopes that when, at some point in the future, we have a rational and humane Congress and president, Section 1983 will be expanded in this way.

(4) What about in the meantime? Civil rights plaintiffs should sue federal officers in state court for state torts. In Bivens itself the Court said, correctly, that state tort law is an inadequate vehicle for vindicating federal rights. But for now, it is the only vehicle available, and it is better than nothing.

How would this work? Many acts that violate federal constitutional rights are also torts under state law. For example, the unjustified or excessive use of force by an officer can, depending on the circumstances, violate the Fourth Amendment (if the force is used to facilitate an arrest), the Fifth Amendment Due Process Clause (if applied to a pre-trial detainee), or the Eighth Amendment (if applied to a convicted prisoner); such force would also typically be a battery under state law.

A plaintiff denied a Bivens action can sue the federal officer in state court for battery (or some other tort in other circumstances). At that point, the federal officer would remove the case to federal court, where the officer (or, more likely, the federal government as substituted defendant, per point 5 below) would claim that the use of force (or other alleged wrong) was justified because it was pursuant to his or her federal duties. The plaintiff would then argue that the officer is stripped of the federal defense because he or she acted unconstitutionally. If the individual suit is permitted to go forward, the defendant officer would respond that he or she is entitled to qualified immunity because, even if the conduct violated the plaintiff's civil rights, those rights were not clearly established at the time the conduct occurred. In other words, the same basic issues would be in play, even without a Bivens action.

(5) But wait. The course of action I have just described as an alternative appears to be ruled out by the generally accepted view that the Westfall Act disallows state court tort suits against federal officers--even where the plaintiff alleges a tort that encompasses a constitutional violation. In such cases, the law substitutes an action against the United States under the Federal Tort Claims Act (FTCA). Carlos Vazquez and Stephen Vladeck have argued persuasively that this is an erroneous interpretation of the Westfall Act, but it is one that is widespread. The Supreme Court seemed to accept this prevailing view in passing in dicta in Minneci v. Pollard.

In a Just Security post that makes points similar to the ones I've made here, Professor Vladeck criticizes the Abbasi Court for saying that even though the choice is Bivens or nothing, there is no Bivens action. Although I agree with nearly everything Vladeck says there, my cup-not-entirely-empty view is that it might still be possible to bring a successful FTCA claim for a constitutional violation. A plaintiff would get nothing from the individual officers, but might be able to recover from the federal government. Or, if squarely forced to face the question upon full briefing and argument, the SCOTUS might say that the Westfall Act does not require the substitution of the federal government for a federal officer defendant where the state tort alleged encompasses a constitutional violation and no Bivens action is available.

Whether the Supreme Court would allow that remains to be seen, but it's worth a shot. And again, I want to emphasize that state tort suits are hardly ideal. Remedies under state law may not be as comprehensive as under Bivens, and some violations of constitutional rights are not actionable as state torts. But for now, that's what's left.

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