THE FUTURE OF DAMAGE ACTIONS AGAINST GOVERNMENT OFFICIALS

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• Publication Date: February 1, 1983
• Content Type: REPORT

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The Future of Damage Actions
Against
Government Officials
BY THOMAS J. MADDEN AND
NICHOLAS W. ALLARD
1.
INTRODUCTION
Immunity of the sovereign from lia-
bility for money damages in civil ac-
tions is among the most deeply rooted
doctrines of our legal order. Under the
doctrine, victims of official miscon-
duct may not sue the government for
monetary redress. Mitigating this harsh
consequence of the sovereign immunity
doctrine, a body of law has arisen per-
mitting damage actions against govern-
ment officials, employees and other in-
dividuals where official misconduct is
alleged. The sovereign immunity
defense does not apply to munici-
palities charged with violations of
federal constitutional, statutory, or ad-
ministrative law. Even in those in-
stances where sovereign immunity has
been waived or does not apply, how-
ever, liability for official misconduct
may extend not only to the govern-
ment, but also to the errant govern-
ment employee.
The existing system of civil sanctions
for official misconduct thus relies
heavily on the possibility of recovery
This article was prepared by Messrs. Madden
and Allard of Kaye, Scholer, Fierman, Hays &
Handler, Washington, D.C. This article is based
on an extensive study conducted by the authors
with the assistance of Patrick R. Harkins and
David H. Remes, also of Kaye, Scholer, Fier-
man, Hays & Handler, for the Administrative
Conference of the United States. The views ex-
pressed herein are those of the authors and do
not necessarily reflect the views of the Adminis-
trative Conference.
from government employees to accom-
plish the goal of compensating the vic-
tims of such misconduct. The pos-
sibility of such recovery, in turn, is
largely relied upon to deter further of-
ficial misconduct and to assure the
wrongdoer's accountability to the vic-
tim and to society at large.
Notwithstanding the apparent logic
of the existing system, most observers
today agree that the system fails to
serve two of its primary goals -
measured deterrence of official mis-
conduct, and adequate compensation
of the victims of such misconduct. On
the one hand, the ever-present threat of
damage suits is widely believed to deter
not only improper conduct by govern-
ment employees, but proper conduct as
well. On the other hand, there is
general recognition that private
damage actions against individual
government employees do not afford
the victims of official misconduct
financially responsible defendants. A
further concern, at the local level, is
the potentially crippling effect of large
civil damage awards against munici-
palities in a period of recession and
retrenchment.
In recent years, the impetus has
grown for change of the civil sanction
system applicable to government offi-
cials. This movement responds, in
large part, to the increase in the num-
ber of allegations of government mis-
conduct that has accompanied the ex-
panding role of the modern state. At
the federal level- under the Federal
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Tort Claims Act, 28 U.S.C. ??
2671-2680, and under the Bivens doc-
trine - and at the state and local
levels-under 42 U.S.C. ?1983'-
thousands of lawsuits are pending
which raise issues of sovereign immuni-
ty and official liability.
The long running congressional con-
troversy-now in its second decade-
over the existing system of sovereign
immunity and federal official liability
finally appears to be approaching a
crescendo. And at the state and local
levels of government there are tremen-
dously varied responses to increasingly
acute problems of official liability.
Inevitably, however, the current
debate over legislative alternatives to
the existing system is again bedevilled
by seemingly incompatible political
considerations. Many government offi-
cials contend that the real problem to
be addressed is not how to deter offi-
cial misconduct or to compensate its
victims, but rather how to free civil ser-
vants from the debilitating threat of
civil damage actions, and municipal
government from the crushing burden
of civil liability. Civil liberties groups
and others, by contrast, focus on the
importance of deterrence and account-
ability, and on the need to assure ade-
quate compensation for the victims of
government misconduct. Reconcilia-
tion of the competing concerns has
thus far proved a most formidable
challenge.
These political disagreements are
complicated by the perceived vastness
and intricacy of the subject. The bur-
geoning literature devoted to the topic
of sovereign immunity and official lia-
bility attests to the intense interest in
the subject among scholars, while re-
cent Supreme Court decisions have
heightened uncertainties considerably.
Moreover, fundamental questions such
as the scope of government involve-
ment in everyday life, and about the
proper allocation of power between the
federal government and the states, bear
directly on proposed alternatives to the
existing system of sovereign immunity
and official liability and impede dis-
passionate analysis of the public policy
choices involved.
II.
RECENT DEVELOPMENTS
Legislative efforts underway in Con-
gress would substitute the United
States as the exclusive defendant in
many civil actions that can now be
brought only against government
employees. At the state and local
levels, executive branch officials are
also reappraising the existing system,
addressing the added factor - without
real analogue at the federal level - of
the crippling effect of civil damage
awards against municipalities.
A. The Federal Level
Although the Federal Tort Claims
Act, 28 U.S.C. ?? 2671-2680, permits
suits against the United States for
many wrongs cognizable under state
common law, only individual federal
employees may be sued for violations
of rights secured by the Constitution as
such. See, e.g., Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388
(1971) (Fourth Amendment rights);
Carlson v. Green, 446 U.S. 14 (1980)
(Eighth Amendment rights); Davis v.
Passman, 442 U.S. 226 (1979) (Fifth
Amendment rights).
With respect to a federal executive
official's defense to suits for violations
of such rights, the Supreme Court held
in Butz v. Economou, 438 U.S. 478,
507 (1978), that, in a suit for damages
arising from unconstitutional action,
federal executive officials exercising
discretion are entitled only to the
qualified immunity specified in
Scheuer v. Rhodes, 416 U.S. 232 (1974)
- subject to those exceptional situa-
tions where it is demonstrated that ab-
solute immunity is essential to the con-
duct of public business.' Previously, in
Barr v. Matteo, 360 U.S. 564 (1959), a
plurality of the Court had appeared to
extend, sub silentio, absolute immunity
to a federal executive officer with
respect to state tort claims, as distinct
from claims arising under the Constitu-
tion.
Legislation considered but not
enacted in Congress would have sub-
stantially modified the existing system
of civil sanctions for official miscon-
duct. The House bill - H.R. 7034 -
would have amended the Federal Tort
Claims Act to provide that the United
States would be exclusively liable with
respect to a claim arising under the
Constitution of the United States for
torts committed by government em-
ployees acting within the scope of their
office or employment.' Unlike legisla-
tion endorsed by the Carter Adminis-
tration in the 96th Congress, the
United States would be free under
H.R.7034 to assert as a defense to a
constitutional tort claim the absolute
or qualified immunity of the employee
whose act gave rise to the claim, or his
reasonable good faith belief in the law-
fulness of his conduct. In contrast to
the elaborate administrative sanctions
contemplated by the legislation en-
dorsed by the previous Administration,
H.R. 7034 provided simply that where
a constitutional tort action results in a
judgment against the United States or
an award, compromise, or settlement
paid by the United States, "the At-
torney General shall forward the mat-
ter for such further administrative in-
vestigation or disciplinary action as
may be appropriate to the head of the
department or agency which employed
the employee at the time of the employ-
ee's alleged act or omission giving rise
to the claim." H.R. 7034 was drafted
so as to preserve the right to a jury trial
in constitutional tort cases.
S.1775-the Senate bill in the 97th
Congress-was substantially similar to
H.R.7034, with three significant excep-
tions. First, S.1775 did not provide
"additional" damages for intentional
or reckless conduct (although S.1775,
like H.R. 7034, expressly precluded
"punitive damages"). Second, there
was no provision under 5.1775 for any
award to a prevailing plaintiff of
reasonable attorney's fees or other
litigation costs. And third, 5.1775 did
not provide for jury trial in constitu-
tional tort cases, except with respect to
cases either (1) pending on the date of
the enactment of the bill, or (2) based
on claims extant on that date.
Both H.R.7034 and S.1775 proposed
substituting the United States as exclu-
sive defendant not only in cases involv-
ing alleged constitutional torts, but in
all other cases now cognizable under
the Federal Tort Claims Act. Both bills
encountered strong opposition during
the 97th Congress from civil liberties
groups and others who, together with a
number of federal lawmakers, favor
the "stronger" approach previously
embodied in Carter Administration
proposals. Both bills are expected to be
reintroduced in essentially the same
form early in the 98th Congress.
B. The State and Local Level
Recent Supreme Court decisions
have expanded significantly the poten-
tial liability of state and local officials
and municipalities under ? 1983. The
Supreme Court in Scheuer v. Rhodes,
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416 L.S. 232, 246 (1963), had held that
"higher officers of the executive
branch" of state governments were not
immune from liability under ? 1983 for
violations of constitutionally protected
rights. In Monell v. New York City De-
partment of Social Services, 436 U.S.
658 (1978), the Court for the first time
held that municipalities are not im-
mune to damage actions under ? 1983,
and in Owen v. City of Independence,
445 U.S. 622 (1980), the Court-parti-
ally overruling Monroe v. Pape, 365
U.S. 1 (1961)-held that the good faith
defense in ? 1983 suits is unavailable to
local governments. Finally, in Maine v.
Thiboutot, 448 U.S. 1 (1980), the
Court held that ? 1983 claims may
encompass claims based on violations
of rights secured by federal laws.
Many states have enacted legislation
designed to protect government offi-
cials and employees from the increased
spectre of liability under ? 1983 suits.
For municipalities, however, the prob-
lem of ? 1983 liability remains acute.
During the 97th Congress, the Senate
considered legislation to amend ? 1983
and thereby reduce some of the prob-
lems which critics attribute to Monell,
Owen, and Thiboutot.4 But because of
the controversy engendered by any dis-
cussion to amend ? 1983, and because
no parallel action to amend ? 1983 has
yet been undertaken in the House, the
prospects for passage of such measures
in the present session of the 98th Con-
gress is remote.
FOOTNOTES
'42 U.S.C. ? 1983 provides: Every person
who, under color of any statute, ordinance,
regulation, custom, or usage, of any State
or Territory, subjects, or causes to be sub-
jected, any citizen of the United States or
other persons within the jurisdiction there-
of to the deprivation of any rights, pri-
vileges, or immunities secured by the Con-
stitution and laws, shall be liable to the par-
ty injured in any action at law, suit in equi-
ty, or other proper proceeding for redress.
'In Scheuer, the Court held that, in vary-
ing scope, a qualified immunity is available
to officers of the executive branch of gov-
ernment, the variation being dependent
upon the scope of discretion and responsi-
bilities of the office and all the circum-
stances that reasonably appeared at the
time of the action on which liability is
sought to be based. It is the existence of
reasonable grounds for the belief formed at
the time and in light of all the circum-
stances, coupled with good-faith belief,
that affords a basis for qualified immunity
of executive officers for acts performed in
the course of official conduct.
416 U.S. 247-48.
'With respect to any such claim, the
United States would be liable for the greater
of either (1) actual damages or (2) liquid-
ated damages in an amount which is the
greater of either (A) $2,000 or (B) in the
case of a continuing violation, $200 per day
for each violation. If it is established that
the defendant employee acted with mali-
cious intent or reckless disregard for the
plaintiff's constitutional rights, "addi-
tional" damages of up to $100,000 are
authorized.
'One bill introduced by Senator Hatch
(R.-Utah) would have effectively overruled
the decision in Thiboutot by deleting from
? 1983 the language "and laws." S. 584,
97th Cong. 1st Sess. (1981). Another over-
ruled bill, also sponsored by Senator
Hatch, would have restored the good faith
defense to local governments in actions
brought under ? 1983, thereby overruling
the decision in Owen. S. 585, 97th Cong.,
1st Sess. (1981).
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of the Bivens e
This article discusses an aspect of Bivens
cases of special interest to federal executives:
suits brought by federal employees against
their supervisors alleging that some employ-
ment action has deprived them of a consti-
tutional right. The number of such cases is
growing rapidly, and even where courts
have not awarded damages to the plaintiffs
to be paid individually by the defendants,
such cases are especially time-consuming and
threaten the orderly and efficient operation
of government agencies. While the Supreme
Court has considered several Bivens-type
cases where suits seeking damages from fed-
eral personnel have been allowed, the kind
of Bivens action where both parties are fed-
eral employees has only been considered by
federal district courts and courts of appeal.
In two current appellate cases where fed-
eral employees sued their supervisors,
Bishop v. Tice, 622 F. 2d 349 (8th Cir. 1980)
and Bush v. Lucas, 598 F.2d 958 (5th Cir.
1979), aff'd, 647 F.2d 573 (1981) cert.
granted, 50 U.S.L. W. 3998-18 (June 28,
1982) the courts ruled that civil service
plaintiffs do not have the right to bring
Bivens-type actions in employment situa-
tions, citing language from the Supreme
Court's opinion in a post-Bivens case en-
titled Davis v. Passman, 442 U.S. 228
(1979). If these two judgments are not over-
turned by the Supreme Court, the conse-
quence will be to remove one of the most
troublesome areas of personal liability of
the federal executive, although liability
would still exist where the plaintiff was not
a federal employee. In the alternative, only
action by Congress to amend the Federal
Can Federal
Employees
Be Plaintiffs?
It is the author's contention that the ap-
pellate court opinions written in the Bishop
and Bush cases reached the proper conclu-
sion but for the wrong reasons, because the
appellate courts did not fully understand
the most recent Bivens case decided by the
Supreme Court in 1980, Carlson v. Green,
446 U.S. 14. The Supreme Court's opinion
in Carlson supports the argument made
here that civil service grievance remedies
presently available to those alleging im-
proper employment practices by their fed-
eral superiors constitute an equally effective
alternative remedy to a Bivens action,
negating the need to extend the latter
remedy to cases where federal employees
are suing their superiors individually for
money damages.
Tort Claims Act, 28 U.S.C. ?? 2671-2680, so When the Supreme Court created or dis-
as to provide an equally effective substitute covered a judicial remedy for Webster
remedy to Bivens, will insulate the federal Bivens in Bivens v. Six Unknown Named
executive from personal liability, and for Federal Agents, 403 U.S. 388 (1971),' the
both legal and political reasons this is un- court left open the question of just what the
likely to occur soon. scope of this remedy was to be; i.e., for
how m I
an
f
LL.B., Harvard; Ph.D.- Syracuse. Dr.
Chartrand is a Visiting Professor at the
Government Affairs Institute of the U.S.
Office of Personnel Management, where he
conducts courses for civil servants on, inter
alia, their personal liability. The views ex-
pressed herein are solely those of the author
and do not necessarily reflect those of the
Office of Personnel Management. The
author wishes to thank Randy McRae,
Debra Henry, Mark Fall, and Jennifer
Sandberg for their assistance in the
researching and writing of this article.
y p amt I
fs and under what cir-
cumstances would the new remedy be ap-
plicable. A number of lower federal courts
assumed that Bivens was to be applied nar-
rowly, perhaps only where a Fourth
Amendment violation was asserted and cer-
tainly only where the plaintiff could show
that no other means of redress were avail-
able. Torres v. Taylor, 456 F. Supp. 951,
953 (S.D.N.Y. 1978); Neely v. Blumenthal,
458 F. Supp. 945, 959-60 (D.D.C. 1978);
contra, Thornwell v. U.S., 471 F. Supp.
344 (D.D.C. 1979). However, the "logic"
of the Bivens decision encouraged some
BY PHILIP E. CHARTRAND
federal courts to begin to extend it to cases
where other constitutional rights were al-
leged to have been invaded, and subsequent
decisions of the Supreme Court certainly
furthered this trend. Our particular interest
here will be to see how this expansion of the
Bivens doctrine has been utilized by federal
employees to bring individual constitutional
tort actions against their superiors, and to
evaluate recent measures taken by lower
federal courts and by Congress to limit this
use of the Bivens remedy.
In Davis v. Passman, 442 U.S. 228
(1978),2 Justice Brennan writing for the
court held that there were three questions to
be asked in deciding whether or not a
Bivens remedy could be conferred on any
particular plaintiff:
[whether] petitioner asserts a con-
stitutionally protected right; second,
that petitioner has stated a cause of
action which asserts this right; and
third, that relief in damages con-
stitutes an appropriate form of
remedy.
Id. at 234.
Brennan's answers to each of these ques-
tions, but particularly to the latter two, em-
phasized the discretionary nature of the
Bivens remedy and the relative freedom of
the federal courts to decide when it was ap-
propriate and when not.
The Supreme Court like the Court of Ap-
peals found that Davis did have a constitu-
tionally protected right, arising out of the
"Equal Protection Component of the Due
Process Clause" of the Fifth Amend-
ment-a right to be free from gender dis-
crimination which cannot meet the re-
quirements that such "classifications by
gender (1) must serve important govern-
mental objectives and (2) must be substan-
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tially related to the achievement of those
objectives." Id. at 234-235, citing Craig v.
Boren, 429 U.S. 190, 197 (1976). The
Supreme Court left to the lower court the
determination of the fact situation regard-
ing the allegation of discrimination here.
The opinion of the Court went on to
obscure the distinction between the first
and second questions posed by Brennan, by
concluding that if the plaintiff had asserted
a constitutionally protected right, he or she
fairly automatically had stated a "cause of
action". In reaching this conclusion, the
Supreme Court firmly rejected the elabo-
rate analytical approach adopted by the
Court of Appeals based on the factors con-
tained in Cort v. Ash, 422 U.S. 66 (1975),
for assertaining whether a private right of
action may be implied from "a statute not
expressly providing one". The approach
found in Cort was to be used, said Brennan,
only to answer the question of who has a
cause of action to enforce a statutory right,
whereas in Passman the question concerned
a constitutional right. 442 U.S. at 241.
To reach an answer to the appropriate
question raised by the Passman case-has
petitioner stated a cause of action-Bren-
nan defined some simple but oft misunder-
stood legal terms to set the lower court
straight. "Jurisdiction," said Brennan, "is
a question of whether the federal court has
the power, under the Constitution or laws
of the United States, to hear a case." 442
U.S. at 239 n. 18. "Standing" on the other
hand, is a question of "whether the plain-
tiff is sufficiently adversary to the defen-
dant to create an Art. III case or controver-
sy, or at least to overcome prudential limit-
ations on federal court jurisdiction". 442
U.S. at 239 n. 18. Finally, "cause of
action" is different from both of the above
and
depends not on the quality or extent
of her injury, but on whether the
class of litigants of which petitioner is
a member may use the courts to en-
force the right at issue. The focus
must therefore be on the nature of
the right petitioner asserts.
442 U.S. at 239 n. 18.
The assumption from the constitutional
scheme of things, that all constitutional
violations would naturally be decided by
the courts, was significantly narrowed by
two qualifications added by Brennan, the
exact meaning of which in this context of
Bivens remedies was not made clear.
Restating the scope of this constitutionally-
based cause of action doctrine in two suc-
ceeding sentences, id., at 242, Brennan
wrote: (1) "At least in the absence of 'a tex-
tually demonstrable constitutional commit-
ment of [an] issue to a coordinate political
department' . . . we presume that justici-
able constitutional rights are to be enforced
through the courts,"' (2) "unless such
rights are to become merely precatory, the
class of the litigants who allege that their
own constitutional rights have been vio-
lated, and who at the same time have no ef-
fective means other than the judiciary to en-
force these rights, must be able to invoke
the existing jurisdiction of the courts". 442
U.S. at 242 (emphasis added).
Now in Bivens the Supreme Court found
readily that the plaintiff had no other effec-
tive remedy for the wrong done him, unless
the courts would grant him damages re-
covery against the federal agents who in-
vaded his home. Similarly, the Supreme
Court found that Davis had no effective
remedy other than the judiciary to vindicate
her rights, although the Court did not pre-
cisely say how it reached that conclusion
other than to cite to the non-binding nature
of House of Representative rules governing
sex discrimination. 442 U.S. at 243 n. 21.
A plaintiff may have a cause of action, Nonetheless, the Court concluded: "She
noted Brennan, "even though he be entitled has a cause of action under the Fifth
to no relief at all" because he does not meet Amendment." 442 U.S. at 244. Thus,
some preconditons set by the federal courts neither in Bivens nor in Passman does the
for granting various kinds of legal relief Supreme Court really indicate what would
such as injunctions or damages. constitute other "effective means" for the
Having set the definitional framework vindication of deprived constitutional
for an answer to his second question, Bren- rights, and none of the dissents in either
nan went on to assume that the petitioner case really discusses the meaning of this
here, Davis, did state a cause of action be- phrase either.
cause she had stated a deprivation of a con- Having decided in the affirmative the
stitutional right. Note that the last sentence first two of the three questions set forth as
of the lengthy quote above, defining "cause "required" in his opinion in Passman,
of action" brings the court back around to Justice Brennan went on to reiterate that
just this point: the nature of the right even though the plaintiff might have a
asserted is "the focus" of the inquiry as to cause of at, the court still had to deter-
the existence of a cause of action. This con- mine "whethe a damages remedy is an ap-
clusion by the Supreme Court is then bolst- propriate for of relief", as otherwise the
ered by two further statements made by suit "might nevertheless be dismissed under
Brennan. The first of these is that there is rule 12(b)(6)." 442 U.S. at 244. In short,
ample precedent for finding that a cause of while an affirmative answer to question
action "may be implied directly under the number one almost insured an affirmative
Equal Protection Component of the Due answer to question two (in the absence of
Process Clause of the Fifth Amendment", other effective means of enforcement of
because that was exactly the holding of the rights), the answer to question three was a
Supreme Court in the District of Columbia separate and independent hurdle that the
school desegregation case, Bolling v. plaintiff must surmount if his case was even
Sharpe, 347 U.S. 497 (1954). The second to be considered on its merits by a federal
was that one of the important objectives of trial court. Of course, at this stage of the
the Constitution was the designation of proceedings, where argument is centered on
rights, and the judiciary "is clearly discerni- whether there is any justiciable matter
ble as the primary means through which validly before the court, the factual allega-
these rights may be enforced." 442 U.S. at tions of the plaintiff must be assumed to be
241-42. true.
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In seeking an answer to his third ques-
tion, Brennan relied heavily on two quotes
taken from the opinion he had written for
the Court's majority in Bivens. "Bivens,
supra, holds," said Brennan in Passman,
"that in appropriate circumstances a fed-
eral district court may provide relief in
damages for the violation of constitutional
rights if there are 'no special factors coun-
selling hesitation in the absence of affirma-
tive action by Congress," and if there is
"'no explicit congressional declaration that
persons' in petitioner's position injured by
unconstitutional federal employment dis-
crimination `may not recover money dam-
ages from' those responsible for the injury."
442 U.S. at 245-47 (citations omitted). To
apply these criteria to the Passman case,
Brennan broke down his remarks as if
replying to three short questions:
(a) what are appropriate circumstances
for the provision of relief in damages,
(b) what are "special factors counselling
hesitation", and
(c) what is
declaration"?
See 442 U.S. at 245-47.
In discussing the "appropriateness" of a
damages remedy, Brennan offered very lit-
tle guidance to lower courts as to when not
to answer this question in the affirmative;
i.e., his comments were so general as to sug-
gest that such a remedy is almost always ap-
propriate. "Historically, damages have
been regarded as the ordinary remedy," he
noted; relief in damages would be "judicially
manageable" especially in discrimination
cases because the federal courts have had
"great experience evaluating claims for
back pay due to illegal sex discrimination"
442 U.S. at 245. Furthermore, added Bren-
nan, in this case, "there are available no
other alternative forms of judicial relief.
For Davis, as for Bivens, 'it is damages or
nothing'." 442 U.S. at 245 (citations omit-
ted).'
Brennan's conclusion in
Passman that one of the factors for deter-
mining the "appropriateness of a damages
remedy" is the presence or absence of
"other forms of judicial relief" can easily
be confusing. In what appears to be a listing
of separate questions each raising distinct
issues through which a federal court must
proceed in determining whether a plaintiff
is entitled to a Bivens cause of action, the
issue of alternative remedies has now ap-
peared twice. The plaintiff can state a cause
of action if he or she belongs to "the class
of litigants who allege that their own consti-
tutional rights have been violated, and who
at the same time have no effective means
other than the judiciary to enforce the
rights." Id. at 242; and the plaintiff can
state a cause of action "for money dam-
ages" if he or she can show that there are
"no other alternative forms of judicial
relief." 442 U.S. at 242. We shall see short-
ly that the absence of alternative remedies
will be raised in yet a third form in Passman
as justification for granting the plaintiff a
Bivens remedy. It remains to be said here in wo places rather than one. Early on in
only what a recent law review comment has the opinion by Brennan, when the issue is
correctly noted of Brennan's "appropriate- said to be one of "justiciability", the
ness test" in Passman: "[a]lthough the justice in a long footnote makes the point
tenor of the Court's language indicates the that action protected by the Speech or
use of an `appropriateness' test, the facts of Debate Clause would be immune from re-
the case support an `essentiality' test be- view in a federal court, and that neither the
cause of Davis' lack of an alternative Supreme Court nor the Court of Appeals in
remedy." Comment, 29 Emory L.J. 230, Passman has yet ruled on whether employ-
266 (1980) (footnote omitted). ment questions such as that involved in
As for the phrase "special factors Davis v. Passman are constitutionally pro-
counselling hesitation", there was no tected actions of a Congressman or not. But
guidance offered to its meaning by Bren- the entire tenor of that footnote certainly
nan's opinion in Bivens, where he simply suggests that Brennan and his brethren are
wrote that Bivens "involves no special fac- not terribly impressed by the absolute im-
tors counselling hesitation in the absence of
affirmative action by Congress," 403 U.S.
388, at 396. Furthermore, in Butz v.
Economou, 438 U.S. 478 (1978), where
Justice White wrote the opinion of the
Supreme Court reaffirming the holding in
Bivens, only the most passing reference is
made to the "special factors" phrase, id.,
at 503; and White does not suggest it to be a
part of the holding of the Court in Bivens
which he reaffirmed twice. Id. at 485-86,
504. Certainly in the consideration in
Economou of what immunity defenses are
available to defendants in constitutional
tort cases, Justice White made no reference
identifying immunity doctrines as "special
factors counselling hesitation." Yet this is
precisely the approach taken by Brennan in
his opinion in Passman a year after
Economou, when he noted that the fact
that Davis was suing a Congressman "does
raise special concerns counselling hesita-
tion," 442 U.S. at 246; and cited to Bivens
for the proposition that inquiry into the
presence of "special factors" was part of
the Bivens holding. 442 U.S. at 246.
Having raised immunity as a "special
factor counselling hesitation", Brennan
proceeded in his Passman decision to con-
clude that only momentary hesitation was
necessary here. The Court in Passman held
that neither comity nor any other special
defense due a coordinate branch of the
federal government barred suits against a
Member of Congress by a Congressional
employee. Wrote Brennan: "The concerns
[raised by defendant's status are] coexten-
sive with the protections offered by the
Speech or Debate Clause" found in Art. I,
?6, cl. I of the Constitution. 442 U.S. at
246 (footnote omitted). And, he continued:
"If respondent's actions are not shielded by
the clause, we apply the principle that 'leg-
islators ought . . . generally to be bound by
[the law] as are ordinary persons.' Gravel v.
United States, 408 U.S. 606, 615 ...." 442
U.S. at 246. It was with the reliance of the
majority on the Speech or Debate Clause tionally chose not to extend the protection
that the dissenters in Passman took excep- afforded federal employees by Section 717
tion, but none of the dissenting opinions to Congressional employees (who were spe-
considered the meaning of Brennan's "spe- cifically excluded from ?717 coverage), this
cial factors" phrase. action reflected a congressional "declara-
The absolute immunity from suit created tion" that such employees have no judicial
by the Speech or Debate Clause is con- remedies for discriminatory employment
sidered in a somewhat puzzling manner by practices of their congressional employers.
the Court in Passman, in that it is discussed This argument was accepted by the Court
munity concept as raised in this case. The
dissent by Justices Stewart and Rehnquist
argued that this question should be
answered by the Court of Appeals before
the Supreme Court touched any of the
other issues raised by Passman, but Bren-
nan for the majority rejected that argument
because the other questions in this case are
"properly before us and may be resolved
without imposing on respondent additional
litigative burdens." 442 U.S. at 236 n. 11.
Then in a later portion of his opinion where
Brennan considered "special factors coun-
selling hestitation" the issue of Congres-
sional immunity was raised once again as a
possible "special factor." 442 U.S. at 245.
Here Brennan says no more than that while
suing a Congressman "does raise special
concerns counselling hesitation, we hold
that these concerns are coextensive with the
protection afforded by the Speech or
Debate Clause." 442 U.S. at 246. (footnote
omitted). Once again, as with "alternative
remedies", Brennan's opinion in Passman
does not make entirely clear when and. with
regard to what question should a lower
federal court consider immunity when
deciding whether to confer a Bivens-style
cause of action on a plaintiff.
Coming to the final qualification raised
by Brennan for deciding if a damages
remedy should lie, the justice's opinion in
Passman deals with whether or not there
was an "explicit congressional declaration"
barring persons in petitioner's position
from recovering money damages individ-
ually from those responsible for violating
their constitutional rights. The respondents
in Passman alleged that there was such a
congressional declaration implicit in Sec-
tion 717 of Title VII of the Civil Rights Act
of 1964 as amended in 1972, 42 U.S.C.
2000e-16, where suits were permitted by
federal employees against the United States
for alleged discrimination in federal em-
ployment. The argument by Passman's at-
torneys was that because Congress inten-
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rather than state law. 581 F.2d 669 (1978). 17.20 of Appeals in Davis v. Passman, 571, questions were presented for decision
793, 800 (5th Cir. 1978) (en banc), but t re re- - Two
the Supreme Court, the only one of
jected by the Supreme Court which found, which interests us here being the one pre
in Brennan's
There is no evidence, for the first time in the petition for
Congress s no ?717 however, foreclose o certiorari: is a Bivens-type remedy available
alternative Congmeant a remedies available in circumstances where the plaintiff could
able to to
those not covered by the statute. also sue the United States under the Federal
Such silence is far from `the clearly Tort Claims Act?
discernible will of Congress' perceiv- Justice Brennan, once again writing for a
ed by the Court of Appeals. 442 U.S. majority of the Supreme Court, answered
at 247 (citation omitted). this question by invoking much of the same
In marked contrast with the handling of Bivens language he used to answer the third
question he raised in Passman: is a remedy
the other stid posed by Brennan in for damages appropriate? But what had
Passman, t thihis discussion of what t con-
seemed to be prefunctory language in
for the the set Court. down In a Bivens-language ignored in Passman-
fairly rlyed clear ar viewpoint point Congressional intent
short, the Court was not prepared to bar a suddenly emerged as the basis for the deci-
plaintiff from recovering for damages sion in Carlson. And what seemed to many
caused by a violation of his constitutional to be a remedy judicially created for plain-
rights unless such a bar was clearly declared tiffs otherwise helpless to recover for viola-
to be the intent of Congress. Perhaps in tions of constitutional rights, in Carlson ap-
consequence, this section of the Passman tainly under Art. III of the Constitution the peared dramatically increased in scope.
option would be reiterated in very similar Congress has power to determine the scope The holding in Bivens, said Brennan in
terms in Carlson v. Green, 446 U.S. 14 of jurisdiction of the federal courts, a topic Carlson, was that "victims of a constitu-
(1980), where the term "explicit declara- of considerable interest presently, as the tional violation by a federal agent have a
tion", taken from Bivens, would become a Congress considers whether to take ques- right to recover damages against the official
central feature of the Court's opinion. tions of school busing or abortion out of in federal court" unless one of two situa-
Brennan's discussion in Passman con- the jurisdiction of the federal courts. For tions exists:
cerning "explicit congressional declara- the moment it is enough to note that the The first is when defendants demon-
tions" prohibiting petitioners like Davis existence of "alternative remedies" once ing
from seeking money damages did not, how- again becomes important in Passman to strate hesitat `ion inspecial tfactors absence couunselling
affir-
to clarify what interpretation he meant decide whether to find a Bivens remedy. naita action the h Cabsence'... .
to give now to the larger statement in But what would constitute such an "alter- mat second n when ngrendants show
Bivens of which he had quoted only a per- native remedy" is not stated. that second is w
pt show
an alter-
tion. What the Supreme Court opinion in Detailed consideration of that portion of native Congress has es provided ro i explicitly
Bivens had said in full was: the Passman opinion concerned with deter- declared to be a substitute for
we have here no explicit congres- mining the appropriate scope of the Bivens c la ed directly under a the Constifor
sional declaration that persons in- damages remedy is essential, even though o, and viewed as dethe onstu-
U.S. ly f ti18 1e.
jured by a federal officer's violation the Supreme Court has altered its position re s equal
of the Fourth Amendment may not subsequently, in Carlson v. Green, 446 U.S. 446 . at -
recover money damages from the 14 (1980), because lower federal courts have Neither situation existed in the Carlson
agents, but must instead be remitted tried to conform their holdings to the case, Brennan concluded. There were no
to another remedy, equally effective Supreme Court's prescription in Passman special factors involved, and no explicit
in the view of Congress. 403 U.S. at as if Carlson had wrought no changes. This congressional declaration that plaintiffs
397. (emphasis added) is particularly true in the cases decided since could not recover from defendants but
The final portion of this statement from Passman involving Bivens suits brought were remitted to another remedy. Congress
Bivens was mentioned only as an aside by against federal executives by their subordin- had not stated that the Federal Tort Claims
Brennan in Passman, and not in reference ates, and we shall consider these cases after Act (FTCA) was intended to pre-empt a
to the remainder of the sentence from viewing how the Carlson opinion differs Bivens-type remedy, and the fact that the
Bivens. "And of course," said the Justice, from that delivered in Passman. Bivens remedy was more effective for plain-
"were Congress to create equally effective In Carlson, respondent brought an action tiffs in four regards than the FTCA also
alternative remedies, the need for damages for damages against the Director of the supported the conclusion "that Congress
relief may be obviated." 442 U.S. at 248. Federal Bureau of Prisons and other federal did not intend to limit respondents to an
What was left unanswered in Passman by prison officials in their individual capa- FTCA claim." 446 U.S. at 20-21.
the casual treatment of the latter words in cities, on behalf of the estate of her deceas- "Special factors counselling hesitation",
Bivens about "another remedy" is the ed son, alleging that he suffered personal the phrase defined in Bivens and Economou
question of whether Congress can simply injuries and died because the petitioners and discussed in terms of congressional im-
"affirmatively declare" in an "explicit" failed to provide him with competent munity from suit in Passman, becomes in
manner that suits against federal officials in medical attention while he was an inmate in Carlson nothing more than a concern about
their individual capacities shall not be heard a federal penitentiary in Indiana, in viola- immunity. Once again, in Carlson, a Court
by federal courts. Or may Congress bar tion of his due process, equal protection majority Once athere are r/ such sCourt
Bivens-type suits only by creating "equally and eighth amendment rights. The federal ma majors present, -
Powell in two sentences cal
effective alternative remedies"? Justice district court held that while respondent factor why:
Powell writing in dissent in Passman, 442 had a Bivens remedy available, it was gov-pla
U.S. at 255 n. 4, answered this question by erned by Indiana's survivorship and wrong- Petitioners do not enjoy such in-
saying that Congress could choose to res- ful death laws and as such failed to meet dependent status in our constitu-
pond to the Court's Passman decision by federal jurisdictional amount requirements. tional scheme as to suggest that
statutorily limiting the jurisdiction of the The Seventh Circuit Court of Appeals judicially created remedies against
federal courts so that plaintiffs like Davis reversed on grounds that Bivens actions them might be inappropriate. Davis
had no judicial remedy whatsoever. Cer- were governed by federal common law v. Passman, 442 U.S. at 246.
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Moreover, even if requiring them to
defend respondent's suit might in-
hibit their efforts to perform their of-
ficial duties, the qualified immunity
accorded them under Butz v.
Economou, 438 U.S. 478 (1978), pro-
vides adequate protection. See Davis
v. Passman, supra, at 246.
446 U.S. at 19.
If "special factors" means no more than
this, then as Economou and Passman
demonstrated, momentary hesitation at
best is all that will be counselled. What ap-
peared to be grounds for denying the ex-
istence of a Bivens remedy in particular
cases turned out to be nothing more than a
recognition that some defendants to a
Bivens suit may have an immunity defense
available to them, which is not the same
thing at all.
Justice Powell, writing for himself and
for Justice Stewart, joined in the judgment
of the Court in Carlson but disagreed
vigorously as to the Court's reasoning. On
Brennan's treatment of the "special fac-
tors" phrase, Powell commented that since
no guidance was given on this point it ap-
peared that it was unlikely to prove a factor
in limiting court discretion in future in find-
ing Bivens remedies available to plaintiffs.
446 U.S. at 27. The Chief Justice writing in
dissent was even more critical in his com-
ment on the Carlson court's treatment of
"special factors," dismissing this criteria in
a footnote as essentially meaningless.
The Caurt pays lip service to the no-
tion that there must be no "special
factors counselling hesitation in the
absence of affirmative action by
Congress." Its one sentence discus-
sion of the point, however, plainly
shows it is unlikely to hesitate unless
Congress says that it must. See opin-
ion of Mr. Justice Powell, ante, at
27.
446 U.S. at 30.
As one law review has concluded, if
"special factors" did not stop the Supreme
Court in Passman it is difficult to imagine
any case where this factor would do so. See
29 Emory L.J. 230, 266 (1980).
On the matter of "alternative remedies",
Justice Brennan's opinion in Carlson is
more informative than it was on "special
factors." It now appeared that unless the
Congress provides an alternative remedy
that satisfies very specific prerequisites set
down in Carlson, the federal courts must
grant plaintiffs complaining of constitu-
tional violations a Bivens remedy.' What
had begun in Bivens as a judicious exercise
of discretion available to the federal courts
to fashion a remedy now appeared to assure
the provision of Bivens remedies to plain-
tiffs in much more absolute terms. Far too
absolute terms, said three members of the
Supreme Court. The "principled discre-
tion" that a federal court must exercise in
deciding whether a Bivens remedy is appro-
priate according to Davis v. Passman, has
by the Court's opinion in Carlson become
highly restricted, they said. Justice Powell
complained: "[T]oday we are told that a
court must entertain a Bivens suit unless the
action is `defeated' in one of the two speci-
fied ways." 446 US. at 26. And since one of
the two ways in which to defeat a Bivens
remedy, the presence of "special factors
counselling hesitation" has been left unde-
fined by the Court's opinion, Justice
Powell concluded that:
[O]ne is left to wonder whether ju-
dicial discretion in this area will here-
after be confined to the question of
alternative remedies, which is in turn
reduced to the single determination
that congressional action does or
does not comport with the specifica-
tions prescribed by this Court.
446 U.S. at 27.
Reaching this conclusion, Powell made the
following observations:
Such a drastic curtailment of discre-
tion would be inconsistent with the
Court's longstanding recognition
that Congress is ultimately the ap-
propriate body to create federal
remedies.
The court does not explain why this
discretion should be limited in the
manner announced today.
446 U.S. at 27-28.
Chief Justice Burger acknowledged that
while he was prepared "to join an opinion
giving effect to Bivens V. Six Unknown
Named Federal Narcotics Agents, 403 U.S.
388 (1971)-which I thought wrongly de-
cided-I cannot join today's unwarranted
expansion of that decision." 446 U.S. at 30.
In his view the existence of the FTCA pro-
vided the plaintiff in Carlson with an "ade-
quate remedy" and "that is the end of the
matter." 446 U.S. at 30. "Until today, I
had thought Bivens was limited," said the
Chief Justice, "to those circumstances in
which a civil rights plaintiff had no other ef-
fective remedy." 446 U.S. at 31.
What particularly irritated the dissenters
in Carlson was the addition of the word
"substitute" to the original Bivens state-
ment about alternative remedies; i.e., the
defendant must show that Congress "expli-
citly declared [its remedy] to be a substitute
for recovery directly under the Constitution
and viewed [it] as equally effective", 446
U.S. at 18-19; and even more, the transfor-
mation of what had been an observation by
the Court in Bivens into a principal ground
for deciding the case in Carlson. For those
who thought the essential point in deciding
Bivens had been the issue of the presence or
absence of alternative remedies, it was
something of a shock to hear the issue
stated in terms of the quality of the alterna-
tive and the specificity of Congress' intent
in making the alternative exclusive.
In a footnote, Brennan denied the allega-
tion made by the Chief Justice that the test
.. congressional intent in Carlson required
the Congress to recite the specific "magic
words". Burger, C.J., argued that a per-
fectly acceptable alternative remedy may
have been created by Congress, but unless
the Congress chose explicitly to sav that it
was meant to be an exclusive alternative,
the Court might well decide that both reme-
dies co-existed to the advantage of the
plaintiff, as they did in Carlson where an
FTCA remedy and a Bivens remedy were
both found to be available to the plaintiff
446 U.S. at 31. According to Brennan, the
question was not one requiring specific
words from Congress, but rather language
indicating a clear intent by Congress. 446
U.S. at 19 n. 5. Nevertheless, Brennan
spent the major portion of the opinion for
the Court discussing how the Federal Tort
Claims Act was not an equivalent remedy to
that created by the Supreme Court in
Bivens in that in at least four regards it was
a less effective remedy for the plaintiff. On
the basis of this discussion he concluded
that, where the alleged "alternative
remedy" is "plainly . . . not a sufficient
protector of the citizens' constitutional
rights", then Congress will have to speak
out very clearly indeed if its intent is to
create an exclusive remedy by statute that
would exclude the Bivens remedy. 446 U.S.
at 23.
What divided the Supreme Court in
Car/son was not the proper judicial
response to a congressional declaration
regarding jurisdiction or remedies, but how
best to proceed in the absence of such a
clear declaration. There is no doubt that the
Court would affirm dismissal of a Bivens
claim if the defendant could show that con-
gress had explicitly declared an equally ef-
fective alternative remedy to be that ex-
clusively available to persons with the plain-
tiff's complaint. It is also very likely that
even in the absence of such a specific dec-
laration by Congress, the Court would infer
such a motive on the part of Congress in
cases where the alternative remedy was
found by the Court to offer plaintiffs
substantially the same advantages as a
Bivens suit. The problem case in this area
will be the one where the congressional
substitute remedy does not offer the plain-
tiff substantially the same advantages as a
Bivens remedy but is nevertheless declared
by the Congress to be "equally effective".
Given Justice Brennan's reiteration in
Carlson of the words he authored in Bivens,
403 U.S. at 397, "equally effective in the
view of Congress" (emphasis added), it
would seem to follow that the Supreme
Court would give precedence to a congres-
sional declaration over the substance of
congressional action. Consonant with this
view is the fact that when Brennan discuss-
ed the four advantages of a Bivens action
over an FTCA claim-the right to jury trial
and punitive damages, the application of
federal rather than state law, and an in-
dividual deterrent purpose-it was not in
the context of establishing characteristics
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required of an alternative remedy so as Lu
be "equally effective" to Bivens. Rather he
used the absence of these advantages to but-
tress his argument that Congress did not im-
plicitly intend the FTCA to be a substitute
for a Bivens remedy. As Brennan stated in a
footnote:
The issue is not whether a Bivens cause
of action or any of its particular features
is essential. Rather the inquiry is whether
Congress has created what it views as an
equally effective remedial scheme.
446 U.S. at 22 n. 10
This question of how the court is likely to
apply the "equally effective remedy" stan-
dard of Carlson is a pertinent one, in that
the contemporary efforts in Congress to
amend the Federal Tort Claims Act, so as to
make it an acceptable substitute for Bivens
actions against individual federal em-
ployees, do not (and practically-speaking
cannot) endow the FTCA with the same ad-
vantages to plaintiffs as Bivens. In fact,
none of the bills introduced in the 97th
Congress provide three of the four "advan-
tages" specifically mentioned in Carlson:
individual deterrence, jury trials, or
punitive damages. E.g., H.R. 24, January
5, 1981. These bills and their predecessors
did provide one ingredient to the FTCA
deemed significant by the Carlson court:
federal rather than state law would govern
the outcome in FTCA cases where the alle-
gation was that a "constitutional tort" had
been committed.' And some of the earlier
bills had proposed elaborate disciplinary
schemes for federal official tortfeasors. to
be invoked to a greater or lesser degree by
the successful plaintiff following judgment
against the United States in FTCA proceed-
ing. These administrative procedures were
so sharply citicized in the 96th Congress
however, by both friends and foes of the
bill, that they have been dropped from the
most recent version introduced in the
House of Representatives. Compare H.R.
2659 (March 26, 1979) with H.R. 24 (Janu-
ary 24, 1981).
While it is problemmatical whether any
amendment to the FTCA can pass the Con-
gress in the near future, given the current
lack of enthusiasm there for the federal
bureaucracy (and the fact that the thrust of
such legislation could be characterized as
insulating federal tortfeasors from personal
liability for their wrongdoing),' it is certain
that bills allowing jury trials or punitive
damages in suits against the United States
have no chance of being enacted. It is sim-
ply too easy to see how likely it would be
that sympathy for a wronged plaintiff could
lead to very large recoveries against the
United States, especially by juries viewing
the federal government as having unlimited
funds at its disposal.
It is not just unlikely that the FICA will
be rewritten so as to offer plaintiffs the
same advantage as Bivens, it is impossible;
With the exception of the application of
federal rather than state law, the advan-
tages enumerated by the Supreme Court in
Carlson are all ones that reasonably can
occur only where the cause of action is one
against an individual or individuals. The
FTCA is by its nature not so much a
remedy, as a substitute form of action
against the federal government as a whole.
To the extent that it is an exclusive remedy
or offers advantages to plaintiffs not found
in Bivens actions (such as the assurance of
collecting on judgments), its purpose has
been to insulate federal officials from per-
sonal suits for torts committed in the course
of their federal employment. And despite
the absence of jury rights or punitive
damages, FICA actions can, after all,
"make whole" the private citizen injured
by the action of a federal employee. To
compare an action brought under the
FTCA and one brought under Bivens as if
they should be identical is as ridiculous as
asking the same question of an apple and an
orange. If the FTCA were amended in line
with Justice Brennan's opinion in Carlson,
it would no longer be a Federal Tort Claims
Act at all.
It is with this realization in mind that
congressional drafters have recently sought
to amend the FTCA by incorporating other
advantages for plaintiffs than those listed in
Carlson as adhering to a Bivens cause of ac-
tion, as well as by including the "explicit
declaration," that as amended, the FTCA
will be "equally effective" as a remedy.
Among the advantages of an FTCA claim
are the traditional ones of assured recovery
if judgment is favorable; guaranteed mini-
mum liquidated damages as a partial substi-
tute for punitive damages; government
waiver of any immunity defense which
would be available to the accused federal
official;' and (in a few bills) some adminis-
trative disciplinary proceeding that could be
triggered and participated in by a victorious
plaintiff against the individual federal tort-
feasor. While these "advantages" would
not make the FICA as amended identical
to the Bivens remedy, it is obviously the
hope of congressional drafters that these
features would, coupled with the explicit
wording regarding "intent" seemingly re-
quired by Carlson, convince the federal
Lourts to accept an amended FTCA as the
exclusive remedy in cases where federal of-
ficials committed constitutional torts.
In the absence of such amendments to the
FTCA, there remains the problem whether
other congressionally-created remedies, not
explicitly stated to be substitutes for Bivens
remedies, can nevertheless be found to
serve as exclusive remedies. The question is
particularly pressing in a class of constitu-
tional tort cases yet to be considered by the
Supreme Court: suits against federal offi-
cials by their subordinate employees alleg-
ing deprivation of constitutional rights
through some employment practice. All of
the Bivens-type cases to come before the
Supreme Court to date have been brought
by private citizens outside of federal
employment against alleged federal tort-
feasors, e.g., Bivens, Economou, Green.
But there has been an increasing number of
cases brought before lower federal courts
since Bivens, in which both the plaintiffs
and the defendants were in federal employ-
ment See, e.g., Harper v. Blumenthal, 478
F. Supp. 176 (D.D.C. 1979); Neely v.
Blumenthal, 458 F. Supp. 945 (D.D.C.
1978). And while employees have won
money damages from their supervisors in-
dividually in few of these cases, the number
continues to rise.
The most interesting of these constitu-
tional tort cases arising out of federal
employment actions are Bishop v. Tice, 622
F.2d 349 (8th Cir. 1980), and Bush v.
Lucas, 647 F.2d 573 (5th Cir. 1981),
because in both of these opinions, Bivens-
type suits were dismissed on the authority
of Carlson v. Green, as "special factors
counselling hesitation" were present. The
thrust of both appeals court opinions would
be to bar all Bivens actions by federal
employees against their supervisors arising
out of disciplinary actions, on grounds that
adequate civil service procedures exist to
protect federal employees in such cir-
cumstances. Given the difficulties of draw-
ing such a conclusion based on the sum-
mary comments made by Justice Brennan
in Carlson, it is not easy to perdict how
these opinions will fare if the Supreme
Court chooses to review them. But if
Bishop and Bush are upheld, they would ef-
fectively end litigation among federal
employees arising out of Bivens-type situa-
tions, further reducing pressures on Con-
gress to amend the FTCA so as to achieve
the same ends.
In Bishop v. Tice, 622 F.2d 349 (1980),
the plaintiff brought a diversity action
coupled with a Bivens-type claim against
three employees of the Occupational Safety
and Health Administration (OSHA), which
charged that the defendants had coerced
plaintiff into resigning his job as a federal
safety engineer with OSHA by threatening
to lodge false criminal charges against him
unless he did so. The plaintiff sought com-
pensatory and punitive damages under four
theories of recovery: (1) defamation, (2)
deprivation of liberty and property without
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due process, (3) contractual interference,
and (4) conspiracy to defraud and deceive.
The Federal District Court for the Eastern
District of Arkansas granted the defen-
dants' motion to dismiss, and plaintiff ap-
pealed with regard to theories (2) through
(4), only the first of which raises constitu-
tional issues.,
The Eighth Circuit Court of Appeals us-
ed the approach set forth by Justice Bren-
nan in Davis v. Passman, in order to decide
whether Bishop's complaint stated an ac-
tionable claim for damages under the Con-
stitution. 622 F.2d at 353. Although the ap-
peals court noted that it had examined the
Supreme Court's opinion in Carlson v.
Green and found it "consistent with our
result", 622 F.2d at 357 n. 16, the reasoning
in Bishop sought no support from the
Carlson opinion, perhaps understandably
since Carlson was announced barely a
month prior to the decision in Bishop v.
Tice. Instead, the Court of Appeals took
the test for finding the existence of a
Bivens-type remedy to be one determined
solely by deciding whether or not there was
an alternative "adequate federal remedy"
available, 622 F.2d at 356, n. 12. And the
Appeals Court sought support for its
approach in citing the opinion of lower
federal courts and especially its own deci-
sion in Owen v. City of Independence, 589
F.2d 335 (8th Cir. 1978), rev'd on other
grounds, 445 U.S. 622 (1980). There are
several reasons to suggest that the appeals
court would have been better advised to
stick closer to the Supreme Court's reason-
ing in Carlson v. Green, which as already
noted was no restatement of Bivens and
Passman, but went beyond both in making
it substantially easier for a plaintiff to raise
a cause of action directly under the Con-
stitution.
In its opinion in Bishop, the Court of Ap-
peals chose to argue that it accepted the
view of Bivens and Passman expressed by
several circuits - that it was inappropriate
to expand the Bivens remedy into areas
where Congress had created an alternative
remedy. The question was not the adequacy
of the alternative (nowhere does the ap-
pellate court undertake to compare the
relative advantages of the congressionally
mandated alternative to those of Bivens ac-
tions as the Supreme Court did in Carlson),
but the existence of the alternative. But the
court went even further in ignoring
Carlson: it cited as support for its approach
a lower federal decision whose future is very
much in doubt given the Supreme Court
opinion in Carlson. The Appeal Court said:
courts have declined to infer Bivens
style damage claims based on the
torts of federal government em-
ployees where the plaintiff had an
alternative federal remedy under the
Federal Tort Claims Act (FTCA).
E.g. Torres v. Taylor, 456 F. Supp.
951, 952-55 (S.D.N.Y. 1978). Con-
tra, Thornwell v. U.S., 471 F. Supp.
344, 354-55 (D.D.C. 1979).
622 F.2d at 356.
The other lower court cases from which
the circuit court claimed support were those
relating to suits brought against
municipalities under 42 U.S.C. ?1983.10
Until the decision of the Supreme Court in
Monell v. Department of Social Services,
436 U.S. 658 (1978), held that the words
"every person" in the statute encompassed
municipal corporations, some appeals
courts had considered whether a cause of
action for damages might lie directly
against a municipality for the unconsitu-
tional conduct of its officials utilizing the
reasoning of Bivens v. Six Unknown
Federal Agents. The Eighth Circuit cited
with approval three decisions in other cir-
cuits where such arguments were rejected
on grounds that Congress had authorized
another form of relief, under 42 U.S.C.
?1983 against officers of such a munici-
pality:
E.G., Cale v. City of Covington, 586
F.2d 311, 317 (4th Cir. 1978) (declin-
ing to infer Bivens style remedy in
part because of congressionally-pro-
vided alternative of 42 U.S.C. ?1983
suit against individual municipal of-
ficials); Mahone v. Waddle, 564 F.2d
1018, 1024-25 (3rd Cir. 1977) (plain-
tiffs have cause of action under 42
U.S.C. ?1981 and Bivens teaches that
the existence of an effective and
substantial federal statutory remedy
... obviates the need to imply a con-
stitutional remedy"); Kostka v.
Hogg, 560 F.2d 37, 42 (1st Cir. 1977)
("existence of a statutory remedy [42
U.S.C. ?1983] which is designed to
implement the constitutional guaran-
tee may itself render the Bivens
analysis inappropriate").
622 F.2d at 355-56.
The appeals court went on to note its own
prior holding in Owen v. City of In-
dependence, 560 F.2d 925, 931-34 (8th Cir.
1977), vacated and remanded, 438 U.S. 902
(1978), where it had decided that the
employee plaintiff did have an implied
cause of action under the 14th Amendment
against the city for equitable relief including
back pay. Forced to reconsider its opinion
in Owen following remand by the Supreme
Court after that court's decision in Monell,
the Eighth Circuit agreed that since the
remedy of 42 U.S.C. ? 1983 was now made
available to the plaintiff by the Monell deci-
sion, "no reason exists to imply a direct
cause of action under the fourteenth
amendment." 589 F.2d 335, 337 (8th Cir.
1978), rev'd on other grounds, 445 U.S. 622
(1980)." While agreeing that its own posi-
tion in Owen had been contrary to the ap-
proach taken by other circuits, the Eighth
Circuit argued in Bishop that they all agreed
on how to interpret Bivens: "we adhere to
the widely held view that a Bivens analysis is
obviated once once an adequate federal
remedy is shown to exist." 622 F.2d at 356,
n. 12.
Having established the test as being
''what alternative remedies were
available". 622 F.2d at 356, the Eighth Cir-
cuit went on to examine civil service
discharge procedures available to a dismiss-
ed federal employee such as Bishop, for
both reinstatement and back pay. "It is our
view," said the Court. "that the existence
of these remedies obviates a Bivens style
compensatory remedy inferred from the
Constitution." 622 F.2d at 357. In a few
brief sentences, the Court buttressed this
conclusion by adding that allowing a
Bivens-type action might encourage
dismissed employees to bypass the civil ser-
vice procedures available; although it went
on immediately to say that a "widespread
evasion of civil service discharge appeal
procedures . . . is admittedly unlikely." 622
F.2d
Despite the contention of the circuit
court in Bishop that its opinion was con-
gruent with that of the Supreme Court in
Carlson v. Green, 622 F.2d at 357 n. 16, the
Bishop opinion reads to the contrary. It
completely ignores the debate among
Supreme Court justices as to how explicitly
Congress must indicate that another
remedy is exclusive in order to exclude the
existence of a Bivens-type remedy; and it
overlooks the lengthy discussion by Bren-
nan, J., for the Court, concerning the
relative advantages for the plaintiff of a
Bivens type action relative to an action
brought under the Federal Tort Claims Act
as a way of inferring congressional intent.
As a consequence of these two omissions,
the Bishop opinion reads much more like
the opinion of the lower federal court in
Carlson, 581 F.2d 669 (7th Cir. 1978), an
opinion reversed on appeal.
If the Supreme Court in Carlson is saying
anything more than it had in Bivens,
Economou, and Passman, certainly it is
saying that the justices will look very closely
at the legislative history of federal remedies
purported to exclude the existence of a
Bivens-type remedy. The majority of the
Court implied that they would be inclined
to give great weight to a specific congres-
sional declaration that it had created an ex-
clusive statutory remedy intended to
foreclose a class of plaintiffs from availing
themselves of a Bivens remedy. In the
absence of such an explicit declaration, the
Court would weigh the relative advantages
to the plaintiff of a Bivens-type action in
contrast to the purported substitute types of
actions in order to decide whether the alter-
natives were "intended" to be exclusive
ones. No such exploration of congressional
intent, explicit or implicit, will be found in
the Eighth Circuit's opinion in Bishop v.
Tice.
After finding that the existence of civil
service procedures for appealing from
employment actions of superiors con-
stitutes grounds for denying a Bivens-type
remedy, the Eighth Circuit made the point,
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albeit very briefly, that the plaintiff i<
Bishop had no right to a Bivens-type
remedy because of the presence of "special
factors counselling hesitation." Id. at 357.
Citing in support the opinion of the Fifth
Circuit in Bush v. Lucas, 598 F.2d 958, 961
(1979), the Eighth Circuit in one sentence
concluded:
[t]he existence of civil service rem-
edies, coupled with the apparent
anomaly of a parallel Bivens style
remedy constitutes a "special factor
counselling hesitation" in the crea-
tion of a constitutionally based rem-
edy for a wrongful dismissal; we are
persuaded it would be unwise there-
fore to infer a cause of action for
damages directly from the Fifth
Amendment.
622 F.2d at 357
This is the only reference made in Bishop to
"special factors" analysis, and it complete-
ly neglects to indicate how the Court reach-
ed this particular conclusion except to in-
dicate by its citation of Bush v. Lucas that
the Eighth Circuit seems to have accepted
the reasoning of the Fifth Circuit in that
case. The citation is of dubious utility to the
Court in Bishop since the Supreme Court
vacated and remanded the Fifth Circuit's
decision in Bush, 446 U.S. 914, and ordered
it reconsidered in light of the Supreme
Court's decision in Carlson v. Green.
We now need to turn to the two decisions
of the Fifth Circuit in Bush v. Lucas, 598
F.2d 958 (1979), vacated and remanded in
light of Carlson v. Green, 446 U.S. 914
(1980) (Bush I), and 647 F.2d 573 (1981)
(Bush II), because here is to be found the
only other appeals court discussion of civil
service remedies as "special factors
counselling hesitation" in the recognition
of a Bivens remedy. It is also appropriate
to turn to the Bush cases because in Bush II
the Fifth Circuit Court of Appeals found
comfort in citing the opinion of the Eighth
Circuit in Bishop v. Tice - wherein the lat-
ter court supported its conclusion by citing
the first Bush opinion! 647 F.2d at 577.
Bush, an aerospace engineer, originally
brought an action against a federal space
flight center director for damages (1) for
defamation under state law, and (2) for
allegedly retaliatory demotion (under a
Bivens style remedy). The Federal District
Court rendered summary judgment for the
director, and the engineer appealed. The
Fifth Circuit at first held in Bush I that the
defamation claim was precluded by Barr v.
Matteo, 360 U.S. 564 (1959), and the action
for damages under the First Amendment
for retaliatory demotion was precluded in
view of the available remedies under Civil
Service Commission regulations. 598 F.2d
958 (1979). When this judgment was
remanded to the Court for reconsideration
in light of Carlson, the Fifth Circuit Bush II
affirmed its first holding on the defamation
cause of action, since nothing in Carlson
cast any doubts on that holding. 647 F. 2d
at 575. It then proceeded to reaffirm its
prior holding on the Bivens remedy as well,
distinguishing Carlson which dealt with
"the role of government as sovereign over
private citizens generally", whereas Bush
dealt with "the role of government as an
employer towards it employees". The one
role, said the appeals court, was "fun-
damentally different" from the other role.
622 F.2d at 576.
Admitting that "[t]here is little guidance
in the Supreme Court opinions as to what
`special factors' will justify withholding a
Bivens remedy", the appeals court never-
theless concluded that:
[d]efendant persuasively argues,
however, that in this case, the unique
relationship between the Federal
Government and its civil service em-
ployees is a special consideration
which counsels hesitation in inferring
a Bivens remedy in the absence of
affirmative congressional action.
622 F.2d at 576.
Besides finding support for this conclusion
in the Eighth Circuit's opinion in Bishop,
the Fifth Circuit argues that the Supreme
Court has recognized the special nature of
this employment relationship in more than
one case, and that the Congress has through
its extensive legislation in the federal
employment area also recognized the
special relationship. 622 F.2d at 576.
Neither of these arguments, however, is
more than tangentially relevant to the issue
of concern in Bush, since they focus on very
different definitions of "special factors"
than that used by the Supreme Court in
Carlson v. Green."
To ground a judgment on the phrase
"special factors counselling hesitation" is a
risky endeavor for a federal appeals court,
given the very limited content accorded that
phrase by its originator, and the rejection
of the phrase - as essentially meaningless
- by its detractors on the Supreme Court.
'1 ue risk of reversal on appeal is increased
when the lower court uses the "special fac-
tors" phrase to bar a Bivens suit, something
the Supreme Court has yet to do. Finally, it
is very difficult to use the phrase to encom-
pass a special employment relationship, such
as that between the federal government and
its employees, when the only "special fac-
tor" ever mentioned by the Supreme Court
has been possible immunity defenses
available to Bivens defendants.
In both Bishop v. Tice, and Bush v.
Lucas, the appeals courts might have been
better advised to rely on the argument that
existing civil service remedies constituted a
substitute to a Bivens remedy. But neither
court took this approach. In Bishop, the
court started to do so, by its examination of
alternative remedies and its emphasis on
lower federal courts' refusal to extend the
Bivens remedy to plaintiffs who had other
remedies available to them, 622 F.2d at
355-56. But the appeals court then
throughly muddled the two separate
grounds set down by the Supreme Court in
Carlson for barring Bivens suits, when it
concluded that "[t]he existence of civil ser-
vice remedies, coupled with the anomaly of
a parallel Bivens style remedy, constitutes a
`special factor counselling hesitation' in the
creation of a constitutionally based remedy
for a wrongful dismissal". 622 F.2d at 357.
The Bush court did little better. It rested its
judgment entirely on the "special factors"
argument, and refused to reach the ques-
tion of whether existing civil service
remedies were intended by Congress to be
an equally effective substitute for a Bivens
remedy. The Fifth Circuit then concluded
with a sentence that suggested a complete
misunderstanding of the Carlson opinion.
"We hold," it said, "only that absent more
explicit direction from Congress, a Bivens
remedy should not be inferred." 647 F.2d
at 577. In fact, what the Carlson opinion
had made abundantly clear was that a ma-
jority of the Supreme Court favored the op-
posite approach: it would infer a Bivens
remedy unless there was an explicit direc-
tion from the Congress preventing it from
doing so. See 446 U.S. at 19-20.
The "proper" interpretation of the
Supreme Court's opinion in Carlson, as
suggested here, was used by the Seventh
Circuit in Sonntag v. Dooley, 650 F.2d 904
(1981), and it rests its reasoning directly on
Carlson rather than its predecessors.
In Sonntag a former federal employee
brought both a traditional tort and a con-
stitutional tort action seeking damages
from several former civil service supervisors
for (1) making false and malicious
statements about the plaintiff and (2) for
bypassing administrative procedures and
undertaking a systematic program to harass
her into unwanted retirement. She further
alleged that as her administrative com-
plaints and protests were denied or ignored,
she had no alternative but to bring this suit.
The trial judge dismissed the constitutional
tort count, relying on Bishop v. Tice, 622
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F.2d 349, 357, for the proposition that the
plaintiff could have resorted to civil service
remedies created by Congress, so no Bivens
remedy need be created for her. And he
dismissed the common law tort claim of
libel and slander since in the absence of the
other count there was no independent
jurisdiction to consider this pendant state
claim. The Court of Appeals reversed on
both counts and remanded the case for
trial, rejecting implicitly both Bishop v.
Tice and Bush v. Lucas.
The Seventh Circuit panel based its con-
clusion on the holding of Carlson that a
plaintiff was entitled to a Bivens remedy
unless there were "special factors counsel-
ling hesitation" demonstrated by defen-
dants, or an explicitly declared substitute
remedy for recovery created by the Con-
gress. "Special factors" was interpreted to
mean only what the Supreme Court ex-
plicitly said in Carlson: did the defendants
"enjoy such an independent status in our
constitutional scheme as to suggest that
judicially created remedies against them
might be inappropriate." Carlson v. Green,
supra at 19. The Court of Appeals answered
this question in the negative, concluding
that qualified immunity provided adequate
protection for these defendants. The court
then moved to consider the existence of an
alternative remedy. In other words, it im-
plicitly rejected any interpretation of
"special factors counselling hesitation"
other than that relating to the question of
immunity. The Seventh Circuit did not even
mention the idea that had impressed the
Fifth and Eighth Circuits, that federal
employment somehow was a "special factor
counselling hesitation".
As for the issue of alternative remedies,
the court in Sonntag began by pouring cold
water on the idea that civil service remedies
would qualify, by saying that while Bush v.
Lucas (Bush I) had so held, that opinion
had been vacated and remanded by the
Supreme Court in light of Carlson. 650
F.2d at 907 n.3. It continued, however, by
saying that the Merit Systems Protection
Board procedures were no alternative
remedy for the plaintiff here. MSPB regula-
tions did not cover coerced resignations.
Moreover, even if the regulations had been
applicable here, they would have provided
only for reinstatement and back pay. But
plaintiff, alleging that defendants' actions
had destroyed her health, was unable to
work and sought damages, not reinstate-
ment.
It is likely that the Fifth and Eighth Cir-
cuit courts eschewed the "alternative
remedies" basis for decision because Con-
gress did not explicitly characterize civil ser-
vice grievance procedures as substitute
remedies to a Bivens action. Perhaps overly
influenced by the attack of the dissenters in
Carlson on the majority's use of the phrase
"explicitly declared to be a substitute",
these appeals courts overlooked Justice
Brennan's rejoinder that the essential ques-
tion was the traditional one of the intent of
Congress, 446 U.S. at 19 n. 5. They may
also have overlooked a second explanatory
footnote in Brennan's opinion concerning
the meaning of his requirement that alter-
native remedies had to be viewed by Con-
gress as "equally effective" before the
Court would type them as exclusive
remedies. See 446 U.S. at 22 n. 10. The
issue again, said Brennan, was not whether
the alternative contained any essential
features, but rather what had been the in-
tent of Congress and "whether Congress
has created what it views as an equally ef-
fective remedial scheme". On the basis of
these two statements made in Carlson,
coupled with the opinions of justices con-
curring and dissenting in Carlson to the ef-
fect that congressional intent was indeed
the principal issue, there is a strong argu-
ment for the proposition that a majority
of the justices would uphold existing civil
service remedies as equally effective
substitutes for a Bivens remedy in cases
where federal employees sought tort
damages from their supervisors in their in-
dividual capacities. Admittedly, such a ma-
jority might not contain all the members of
the Court who joined in Brennan's Carlson
opinion. But it would be necessary only to
split away one of the Car/son majority to
achieve such an outcome.
If the words in Carlson referring to an ex-
plicit declaration by Congress are to be
taken literally, as Chief Justice Burger in his
dissent and Justice Powell in his concurring
opinion feared they were to be, 446 U.S. at
27, 30, then it is doubtful that any existing
statutory remedial scheme can be found to
be an equally effective substitute for a
Bivens action, because Bivens has been
developed and expanded too recently by the
courts for Congress to undertake such ex-
plicit action yet. In that case, Brennan's
words must be taken as advice to the Con-
gress in terms of its future responses, if any,
to the development of Bivens through
Carlson. But there are too many recent
cases where the Supreme Court has in other
contexts assumed that Congress did or did
not intend to create a judicial remedy,
despite congressional silence on the subject,
for that to be a viable interpretation of the
Carlson opinion. The closest of these cases
being on point with Carlson is Brown v.
General Services Administration, 425 U.S.
820 (1976).
In Brown, the plaintiff brought suit
against his employer for alleged job
discrimination under ?717 of the 1964 Civil
Rights Act, as added by ?11 of the 1972
Equal Employment Opportunity Act; and
under 42 U.S.C. ?1981. The Supreme Court
affirmed the judgment of the trial court in
granting defendants' motion to dismiss on
grounds that Brown had not filed the com-
plaint within the 30-day period specified by
?717(c), and on grounds that ?717 had been
intended by the Congress to be the ex-
clusive, pre-emptive administrative scheme
for the redress of federal employment
discrimination, 425 U.S. at 829. In
ruching its conclusion, the Court's major-
ity admitted that "Congress simply failed
explicitly to describe ?717's position in the
constellation of antidiscrimination law."
425 U.S. at 825. But this did not stop the
Court from inferring a particular intent to
the Congress on the basis of what its ma-
jority saw as the purpose implicit in the
legislative history of ?717, 425 U.S. at
825-29. And while Burger, C.J., expressed
the concern in Carlson that the opinion of
the majority in that case cast into doubt the
decision in Brown because "[i]n enacting
?717 Congress did not say the magic words
which the Court now seems to require",
446 U.S. at 31, no other member of the
Court seemed to feel this concern.
In cases since Brown, the Supreme Court
has applied an "intent of Congress test" in
order to determine the existence of "private
causes of action" in federal legislation that
would presumably make the discovery of
such rights much less likely. See Middlesex
County Sewerage Authority v. National Sea
Clammers Association, 453 U.S. 1, 25
(Stevens, J., disenting). The new criteria,
first adopted in Cort v. Ash, 422 U.S. 66
(1975), focus heavily on Congressional
reports, statements, and debates in order to
determine intent. Texas Industries Inc. v.
Radcliffe Materials, Inc., 451 U.S. 630, 639
(1981). And while the Court has divided bit-
terly at times over precisely how to read the
intent of Congress in the face of actual
Congressional silence on the creation of pri-
vate causes of action, this has not prevented
a majority of the justices from occasionally
finding a statutorily-created tort right im-
plicit in Congressional action. See Merrill
Lynch v. Curran, 50 U.S.L.W. 4457 (1982).
Two aspects of these recent decisions are
especially relevant to the discussion here.
First, when the Supreme Court has found a
statutorily-created tort in the face of Con-
gressional silence, it has done so on the
basis that Congress knew of the decisions of
lower federal courts recognizing such a tort
and by not overturning those decisions
through legislative amendments, Congress
intended to validate the judicial action.
Merrill Lynch, at 4464-65. Second, when a
court majority has denied the existence of a
statutorily-created tort, in the absence of an
explicit Congressional declaration, it has
also utilized the assumption that Congress
knew the precise nature of the legal rights it
was affecting. Hence, in Sea Clammers, 453
U.S. at 19-21, the Court ruled that by creat-
ing, one or more statutory remedies for in-
juries, the Congress, albeit silently, in-
tended these remedies to supplant other
remedies which might otherwise have been
implied by judicial decision. The judicial
willingness to explore at considerable length
the state of mind of Congress, reflected in
Sea Clammers and Merrill Lynch, suggests
that Justice Brennan correctly stated the
views of his colleagues when he said in Car-
son that no "magic words" by Congress are
required before the Supreme Court can
delve into assaying the Congressional intent
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that may be concealed in Congressiot._
silences.
If in discussing the advantages to the
plaintiff of a Bivens action over an FICA
action, Brennan in Carlson meant that no
substitute would be viewed as equally effec-
tive unless it contained the right to a jury
trial, punitive damages, the application of
federal law, and individual deterrent effect,
then existing civil service remedies cannot
be considered "equally effective substi-
tutes". But if, as has been suggested here,
the discussion in Carlson of relative advant-
ages was only intended to justify the
Court's inference of a particular intent to
Congress, then neither a Bivens cause of ac-
tion nor any one of its particular features is
essential. See 446 U.S. at 22, n.10; and
civil service remedies may be sufficient to
satisfy the Bivens test as set forth in
Carlson. Certainly it is arguable that under
provisions of the Civil Service Reform Act
of 1979, P.L. 95-454, 92 Stat. 1111, 5
U.S.C. ?2302, the essential needs of the
employee subjected to a "prohibited per-
sonnel practice" (which includes the
deprivation of constitutional rights), both
to reinstatement, back pay, and other relief
necessary to remedy the injury suffered,
may be satisfied. Further, under provisions
therein pertaining to the authority of the
Merit Systems Protection Board, 5 U.S.C.
?1206, a special counsel is called for, em-
powered not only to present an employee's
case to the Board but also to initiate
disciplinary proceedings against a super-
visor responsible for improper action. See
Parries and Trause, "Personal Liability for
Managers: Exposure of Supervisors and
Managers", The Bureaucrat, Spring 1981,
23, 25-26. In short, the wronged federal
employee can receive meaningful "make-
whole" relief under this legislation, without
resort to an individual damages action; and
even trigger a process that can pin respon-
sibility personally on supervisors with con-
sequent deterrent penalties. Coupled with
the fact that federal courts would
presumably apply federal common law in
reviewing decisions of the Merit Systems
Protection Board, these "advantages" to
the plaintiff proceeding under the provi-
sions of the Civil Service Reform Act would
seem to satisfy the basic concerns raised by
the Supreme Court's majority and concur-
ring opinions in Carlson concerning the in-
adequacies of FTCA actions.
The Supreme Court has been inclined in
its opinions on the Bivens remedy to be very
much influenced by its decisions regarding
the scope and meaning of similar actions
brought against state officials under 42
U.S.C. ?1983. For example in Butz v.
Economou, 438 U.S. 478, 504 (1978),
where the suit was based on Bivens, the
Supreme Court adopted the same immunity
standard for federal officials as had been
set for state officials in ?1983 cases. See
Scheuer v. Rhodes, 416 U.S. 232 (1974), on
grounds that logic dictated treating both
kinds of officials identically in suits based
on allegations of similar violations of con-
stitutional rights. With equal logic, the
Supreme Court could analogize from its re-
cent decision limiting ? 1983 suits, Parratt V.
Taylor, 49 U.S.L.W. 4509 (May 18, 1981),
that existence of a remedy adequate to
satisfy the constitutional requirements of
due process make the provisions of a Bivens
remedy unnecessary.
In Parratt, despite some qualifying
statements made in concurring opinions, six
justices of the Supreme Court joined in an
opinion written by Justice Rehnquist which
concluded that a state prison inmate had
not stated a claim for relief under 42 U.S.C.
?1983 because the state tort claims act pro-
vided the respondent with the means to
receive redress for the deprivation of his
property. The negligent loss by prison of-
ficials of hobby materials ordered by the in-
mate did constitute a deprivation of proper-
ty under color of state law, said Rehnquist,
but such deprivation did not rise to the
stature of a violation of the 14th Amend-
ment's Due Process Clause because it was
merely tortious negligence, and state law
provided a remedy to persons suffering
from such tortious loss. The inmate pro-
tested that the state remedy "does not ade-
quately protect the respondent's interest
because it provided only for an action
against the State as opposed to its in-
dividual employees, it contains no provi-
sions for punitive damages, and there is no
right to trial by jury". Parratt, at 4513,
raising precisely the same kind of objections
as had been raised in Carlson v. Green to
the adequacy of an FTCA remedy. But in
Parratt, the Court's majority found that
even though the state remedy did not pro-
vide "all the relief which may have been
available if [the inmate] had proceeded
under ?1983, that does not mean the state
remedies are not adequate to satisfy the re-
quirements of due process". Paratt, at 4513.
Concluded the Court: "[t]he remedies pro-
vided could have fully compensated the
respondent for the property loss suffered,
and we hold that they are sufficient to satisfy
the requirements of due process." Id.
_n focusing on the adequacy of compen-
sation in terms of narrow "make-whole"
relief, and in rejecting matters such as
punitive damages and jury trials as not
essential to constitutional due process, the
Court in Parratt seems to be declaring what
Brennan was intimating in Carlson. If an
analogy were drawn from Parratt, a ?1983
suit, to Bivens cases as the Supreme Court
has done prea'iously, it would suggest that
the adequacy of alternative remedies may
be determined in Bivens cases simply by
whether or not they could have "fully com-
pensated" the victim for his loss." In cases
where federal civil servants seek Bivens
remedies against their superiors for con-
stitutional tort injuries suffered, they could
be remitted to remedies available under civil
service procedures where full compensation
is available.
A further analogy may also be drawn
from Parratt v. Taylor to Bivens cases.
Writing for the majority, Justice Rehnquist
ignored all questions of legislative intent in
his Parratt opinion. He did not reach his
conclusion based on a finding, a la Bivens,
that Congress intended persons situated like
Parratt not to recover damages from state
officials individually under ?1983, but to be
remitted to another remedy. The Court's
majority in Parratt weighed for itself the
constitutional adequacy of alternative rem-
edies, concluding that the extension of
?1983 to this case was unnecessary. Adop-
ting a similar stance in federal employee
employer suits would also lead to a finding
that other remedies preclude the need for
extending Bivens remedies to this area.
In June 1982, the Supreme Court finally
decided to grant a writ of certiorari in Bush
v. Lucas, 50 U.S.L.W. 3998 (June 28,
1982), but only after the court had already
heard the Bush argument made in another
case and refused to consider it. Petitioner in
Harlow v. Fitzgerald, 50 U.S.L.W. 4815
(June 24, 1982), had urged the court to con-
sider respondent's Bivens claims under the
First Amendment in light of the Bush argu-
ment that the "unique relationship between
the Federal Government and its civil service
employees is a special consideration which
counsels hesitation in inferring a Bivens
remedy." This the court declined to do,
preferring to let the District Court consider
the point first in light of its opinion in
Harlow. All the Supreme Court would say
was that "we do not view the petitioners'
argument [on the Bivens question] as insub-
stantial." 50 U.S.L.W. at 4821. However,
it is interesting to note that in both the
Harlow case and its companion case, Nixon
v. Fitzgerald, 50 U.S.L.W. 4797 (June 24,
1982), where the single issue litigated con-
cerned the immunity of federal officials
(both Presidents and their closest White
House aides) in personal tort damages
cases, the "special factors counselling
hesitation" phrase never appeared. Al-
though immunity had been seen in Carlson
in 1980 as the only special factor counsel-
ling hesitation in the granting of a Bivens
remedy, two years later the special factors
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language had disappeared altogether fro..,
the Supreme Court's Bivens cases, majority
and dissenting opinions alike.
The Supreme Court has made it increas-
ingly easy for plaintiffs contending depriva-
tion of federal constitutional rights by
reason of tortious conduct by federal
employees under color of federal law, to
bring a cause of action for damages against
the alleged tortfeasor individually. From
Bivens to Carlson, the Court has pro-
gressively narrowed the conditions under
which such a cause of action should be
denied by a federal court. But the Supreme
Court has yet to speak out on the particular
matter of Bivens suits where federal
employees are the plaintiffs; their federal
superiors are the defendants; and the cause
of action arises out of allegations of tor-
tious conduct committed within the context
of federal employment.
Two courts of appeals have recently
dismissed such complaints on grounds that
existing civil service grievance remedies con-
stitute "special factors counselling hesita-
tion" in the recognition of a Bivens remedy
in such cases. It is the argument of this
paper that these two appellate cases reached
the right decision but for the wrong
reasons, because the judges misunderstood
the reasoning of the Supreme Court in the
most recent Bivens case, Carlson v. Green
(1980). The better argument for rejecting
Bivens suits by federal employees against
their supervisors would be that they are un-
necessary because equally effective alter-
native remedies exist to "make-whole" in-
jured plaintiffs, and these alternative
remedies, created by the 1978 Civil Service
Reform Act, were intended by Congress to
be the exclusive remedy in such employ-
ment cases.
FOOTNOTES
'Bivens complained that unknown federal
agents acting under color of federal authority
had made a warrantless entry of his apartment,
searched it and arrested him without probable
cause, consequently depriving him of constitu-
tional rights guaranteed by the Fourth Amend-
ment. His action to recover damages for this
"constitutional tort" from the agents was dis-
missed by the federal district court for failure to
state a claim, but reversed by the Supreme Court
on grounds that he had a judicially recognized
cause of action arising directly under the Con-
stitution.
'Petitioner sought damages from respondent,
who was a U.S. Congressman at the time this
case commenced, alleging that she had been
discriminated against by reason of her sex, in
violation of her Fifth Amendment right to equal
protection, by terminating her employment.
Petitioner's suit for damages in the form of back
pay was dismissed by the district court on
grounds that no such private cause of action ex-
isted. The Supreme Court reversed, citing
Bivens.
'This is a minor qualification in that it ap-
parently refers to limitations inherent in the Con-
stitutional principle of separation of powers, and
as shown in the case of Powell v. McCormack,
395 U.S. 486 (1969), the Supreme Court found
that not even the question of disqualifying mem-
bers from the House of Representatives was a
matter "textually demonstrable" from the Con-
stitution to be exclusively left to "a coordinate
political department."
'In a footnote to his argument, Brennan points
out that state judicial remedies, even if available,
would not qualify as "alternatives" under his
analysis since at issue here is a federal constitu-
tional violation by "a federal officer in the
course of his federal duties. It is therefore par-
ticularly appropriate that a federal court be the
forum in which a damages remedy be awarded."
Id., at 245-46, n. 23.
'Writing in dissent in Carlson, Rehnquist, J.,
made the same observation that Powell had
earlier in Passrnan, see supra, p. 11. to the effect
that another option was available to Congress
than that of creating a substitute remedy require-
ment to Bivens. "Congress has broad authority,"
wrote Rehnquist, "to establish priorities for the
allocation of judicial resources in defining the
jurisdiction of the federal courts. Ex Part
McCardle, 7 Wall. 506 (1869)", and hence could
choose simply to prevent federal courts from
deciding Bivens actions by appropriate legisla-
tion, 446 U.S., at 36.
'Concurring in the judgement in Carlson,
Powell, J., emphasized that the principle reason
why he concluded that the FTCA "simply is not
an adequate remedy" was that it "is not a federal
remedial scheme at all, but a waiver of sovereign
immunity that permits an injured claimant to
recover damages against the United States" as if
it were a private person subject to the laws of the
state where the injury occurred. 446 U.S. at 28 &
n. 1.
'Dr. Donald Devine, Director of the U.S. Of-
fice of Personnel Management, has indicated
however that the present Administration would
favor at least amending the FTCA so as to substi-
tute the United States as defendant in personal
law suits brought against federal supervisors or
managers by their subordinates; see Testimony
before the Committee on Governmental Affairs,
U.S. Senate, March 6, 1981.
'In Norton v. U.S., 581 F.2d 390 (1978), cert.
denied, 439 U.S. 1003 (1978), the court of ap-
peals ruled that under the present provisions of
the FTCA, any immunity defenses available to
federal officials if sued individually, were also
available to the United States as defendant in
FTCA cases. See also 47 Geo. Wash. L. Rev. 651
(1979).
'The trial court's dismissal of the case was
reversed on grounds that the plaintiff had stated
a cause of action under two state law theories,
contractual interference, and fraud and deceit;
and under one constitutional theory, deprivation
of procedural due process. The final theory, if
proven at trial, could result in recovery of
damages from the defendants even though,
strictly speaking, the appeals court denied
Bishop a Bivens remedy. 622 F.2d at 357, 360.
Only the appellate court's reasoning on Bivens is
of relevance here.
?Section 1983 provides: "Every person who,
under color of any statute, ordinance, regula-
tion, custom, or usage of any State or Territory,
subjects, or causes to be subjected, any citizen of
the United States or other person within the jur-
isdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Consti-
tution and laws, shall be liable to the party in-
jured in an action at law, suit in equity, or other
proper proceeding for redress."
'The Second Circuit like the Eighth Circuit
had also extended Bivens to imply a direct cause
of action against a municipality arising out of an
alleged constitutional violation committed by its
officials, and also reconsidered its holding in
light of Monel/ with the same result: the plaintiff
was allowed to proceed against the municipality
under 42 U.S.C. ?1983 rather than under Bivens.
See Turpin v. Mailet, 591 F.2d 426 (2nd Cir.
1979) (en bane).
"The court cited from Sampson v. Murrav,
415 U.S. 61, 83 (1974), the statement that the
Government has traditionally been granted "the
widest latitude in the 'dispatch of its own internal
affairs' "; and from Arnett v. Kennedy, 416 U.S.
134, 168 (1974), that the Government "must
have wide discretion and control over the man-
agement of its personnel and internal affairs".
But both Sampson and Arnett are very different
from Bivens type cases like Bush. Sampson was
narrowly concerned with the appropriateness of
a temporary injunction issued by a federal
district court against the federal government in
an employment dispute. And Arnett badly divid-
ed the Supreme Court on what constituted the
due process rights of federal employees. Neither
case, nor Pickering v. Board Education, 391
U.S. 563 (1968) also cited by the Bush court for
support, considered whether or under what cir-
cumstances federal employees could sue their
employers individually.
"In October 1981, the Court required that
such an analogy at least be considered by lower
federal courts in Bivens cases, when it vacated
and remanded the decision of the Ninth Circuit
Court of Appeals in Lehman v. Weiss, 642 F.2d
265 (1978), in light of Parratt v. Taylor, at 50
U.S.LW 3244.
CLASSIFIED
CLINICIAN-FACULTY MEMBER
AND DIRECTOR OF WOMEN'S
FELLOWSHIP PROGRAM
GEORGETOWN UNIVERSITY LAW
CENTER is seeking an attorney or teacher
with three years or more experience to become
a member of its full-time faculty in charge of
the Sex Discrimination Clinic and to administer
a new program of Women's Law and Public
Policy Fellowships. The Clinic, in existence
since 1980, trains 20 students a year to repre-
sent federal employees pursuing complaints of
sex discrimination through administrative
processes. The teacher will supervise one fellow
(who will help with student work), run a weekly
seminar, and work on broader legal matters
relating to women's rights. The Fellowship
Program, recently created by the Revson
Foundation, will provide eight fellowships to
young lawyers to work for one year with pri-
vate non-profit groups and public agencies, in-
cluding the Congress, on women's rights issues
in a legal and/or policy context. As adminis-
trator of this program, the teacher will counsel
the fellows and supervise them in Georgetown-
related activities, such as seminars. Prior expe-
rience in litigation involving sex discrimination
and involvement in women's rights are desir-
able. Starting salary approximately $35,000.
Please send resumes to Associate Dean John R.
Kramer, Georgetown University Law Center,
600 New Jersey Avenue, N.W.; Washington,
D.C. 20001. Georgetown University is an equal
employment opportunity, affirmative action
employer.
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