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Argument preview: A new Bivens remedy?

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on a plea to create a new constitutional remedy against private employees who work for a federal government agency.  The case is Minneci, et al., v. Pollard (docket 10-1104).  Arguing for five individuals who served as private company employees at a federal prison in California will be Jonathan A. Franklin of the Washington office of the law firm of Fulbright & Jaworski, who will have 20 minutes.  Representing the federal government as amicus in support of those employees, with ten minutes of time, will be Pratik A. Shah, an assistant to the U.S. Solicitor General.  Arguing for the prisoner who sued will be John F. Preis, a law professor at the University of Richmond in Richmond, Va.


An old civil rights law, passed by Congress in 1871 and sometimes known as the “Ku Klux Klan Act,” provides a very wide-ranging option for individuals to sue for money damages if their constitutional rights have been violated — but that law’s expansive Section 1983 does not apply if the violator works for the federal government.   Congress passed that Act to deal with wrongdoing by state and local government officials.   Congress, of course, has the power to create a similar damages remedy for constitutional violations by federal officials, but it has not done so.  The Supreme Court did it, on its own, almost exactly 100 years after passage of the Klan Act.  It did not matter, the Court majority said then, that Congress had not provided such a right to sue.  Now, the current Court is set to consider expanding that theory of constitutional liability.

In what was seen at the time as a historic and potentially far-reaching ruling on constitutional law, the Supreme Court in June 1971 decided to create a damages remedy against federal officers who violated someone’s right of privacy under the Fourth Amendment.  That was the 6-3 decision in Bivens v. Six Unknown Federal Narcotics Agents; it involved the forced entry into an apartment in New York City and other misconduct by federal drug officers, who had no warrant.  One of the dissenting Justices at the time, Harry A.Blackmun, protested that “the judicial legislation, which the Court by its opinion today concededly is effectuating, opens the door for another avalanche of federal cases.”

Justice Blackmun, in that instance, was not a good prophet.  Since the original Bivens decision, the Court has been very sparing in the kinds of claims it will allow under the theory of that precedent.  In fact, there are only three: the Fourth Amendment violation at issue in Bivens itself, a sexual harassment claim against a member of Congress by one of his secretaries (Davis v. Passman, in 1979),  and a claim that a prison inmate died because of negligence in providing medical care by officials (Carlson v. Green, in 1980).  The last of those rulings, of course, came 31 years ago, and, after that, the Court regularly has turned down requests to recognize any other claim.  In one such rejection, in 2001, in the case of Correction Services Corp. v. Malesko, the Court ruled by a 5-4 vote that private prison corporations cannot be sued under Bivens.

At issue in the new case before the Court — Minneci, et al., v. Pollard (10-1104) — is whether a damages lawsuit may be pursued against the employees of a private company working for the federal government — one step removed from the normal concept under the Bivens precedent creating liability for a federal officer, as such.  That sweeping right to sue was established by the Ninth Circuit Court, in a decision that conflicts with rulings of two and perhaps three other federal appeals courts.

The case began in April 2007, at a federal prison in Taft, Calif., operated under contract by a private company, Wackenhut Corrections Corp. (now part of The Geo Group).   An inmate, Richard Lee Pollard, was working at the time in the prison’s butcher shop. (Pollard was at Taft serving part of his 20-year sentence for drug trafficking and firearms crimes.  He has become known as a “frequent filer” —  a prison inmate who regularly sues over grievances; Pollard has filed at least ten lawsuits.)

A cart had been left in the hallway outside the kitchen where Pollard worked, and he tripped over it.  He fell, and ultimately was found to have broken both of his elbows.  In his lawsuit, he claimed that prison employees made him use his arms in very painful ways, refused initially to provide a splint for his injuries even though a doctor had suggested one, and put him to work at prison tasks before his injuries had healed.   His lawsuit, a Bivens claim for damages, contended that he had suffered four violations of his Eighth Amendment rights not to be cruelly punished, over a period of several months.  Of the five Wackenhut employees who remain in the case and filed a Supreme Court appeal, three had worked in prison medical jobs, one was a guard, and one was a kitchen supervisor.

A federal judge rejected the claim against Wackenhut, relying on the Supreme Court’s 2001 decision in the Malesko case.   The case against the individual Wackenhut employees was dismissed on the ground that they were not acting in any official capacity when Pollard was injured, and that, in any event, Pollard was not lacking in any other remedy, since he could sue for damages under California law.  That result was overturned by a divided panel of the Ninth Circuit Court.  It ruled that the Wackenhut employees were, in fact, acting officially, because they were carrying out a “fundamentally governmental function.”   It borrowed that concept from decisions in cases based on the old Ku Klux Klan Act’s Section 1983.  (The Circuit Court agreed that Wackenhut could not be sued.)

The fact that Pollard might sue under state law, the Circuit Court indicated, did not make a real difference.   While there might be a separation-of-powers problem if the Court created a Bivens damages remedy in a situation for which Congress had established an alternative federal remedy, the Circuit Court said, there is no such problem when the only alternative is under state law.   The Circuit Court did acknowledge, though, that the outcome it decreed would mean greater liability for private employees working at a federal prison than for any federal employees at such a facility, since the federal workers are entitled to a limited form of legal immunity.   Although the Circuit Court denied en banc review, eight of its judges dissented from that refusal.

The five private employees took the case on to the Supreme Court, filing their petition last March.

Petition for certiorari

The five prison workers — Margaret Minneci, Jonathan E. Akanno, Robert Spack, Bob D. Stiefer and Becky Maness — raised a single challenge in their petition, arguing against the creation of liability for employees of a private firm working for the government under contract, at least where the suing individual has an alternative remedy and where the sued workers are not actual or contractual employees of the government.   They contended that the Circuit Court had extended Bivens “far beyond its carefully prescribed contours,” in addition to creating an express conflict with rulings of other federal appeals courts.

The petition noted that, in its Malesko decision a decade earlier, the Supreme Court had left open the question of Bivens liability for private employees working in a government facility.  (In the majority’s opinion in Malesko, then-Chief Justice William H. Rehnquist wrote that “the parties agree that the question whether a Bivens action might lie against a private individual is not presented here.”  In that case, individuals had also been sued, along with the corporation, but the claim against the individuals had been dismissed on procedural grounds.)

Noting the Court’s repeated refusal since 1980 to imply other Bivens claims, the petition quoted the criticism of Bivens by Justice Antonin Scalia, who had said in 2001 that “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action,” and who added that it and its two extensions should be limited to the exact circumstances present in those cases.

Moreover, the prison workers contended that a key to the Court’s three prior constitutional liability decisions had been the absence of adequate alternative remedies.  Inmate Pollard, it argued, did not face that prospect.  And, the petition said, even if there were alternative remedies available, the Court had also made clear that a new Bivens claim should not be recognized when there are “special factors counseling hesitation” before doing so.  There are strong reasons not to do so here, they argued.

DRI, a private organization that seeks to curb civil lawsuits in general, joined in urging the Court to hear the prison workers’ case.  Given how common it is for private employees to work under contract for federal agencies, DRI argued, the Ninth Circuit ruling may well extend — if it is upheld — far beyond the prison setting.

In response, Pollard’s lawyers argued that the case had not proceeded far enough to develop sufficient facts on which to make a decision, and, while conceding that there was a conflict among the courts, they contended that this alone was not enough for the Court to step in.   Moreover, they argued that the Ninth Circuit ruling did not actually contradict Supreme Court precedent, but followed a 1974 Supreme Court decision (West v. Atkins) holding a private doctor liable for failure to provide adequate medical care to a prison inmate, on the theory that the doctor actually was working in the role of a “state actor.”

The Court granted review of the prison workers’ petition on May 16, and the case then went over to the new Term for briefing and argument.

Merits briefs

The five prison workers’ brief on the merits closely paralleled the arguments they had made in winning a grant of review: the narrowness of the Bivens precedent, the significance in such cases of the absence of any alternative remedy, and the inequity of exposing private employees at a federal prison to more severe sanctions than would be faced by federal employees themselves.  The absence of alternative remedies, the brief asserted, should be sufficient reason on its own to refuse to extend Bivens to another context.

The Court’s past and consistent refusal, for more than 30 years, to extend its precedents is an indication, the brief argued, that the Court has operated on the assumption that Congress is better equipped than the courts “to balance competing policy considerations” on liability for private employees working under contract for a federal agency.

At the merits stage, the private employees have picked up the fervent support of the federal government.    Like the employees, the Solicitor General’s merits brief relied heavily upon the fact that Pollard could sue for damages under California law, and, it argued, probably do better than in a Bivens lawsuit.  Under California law, the federal brief said, Pollard could sue for medical malpractice, and also could sue for negligence “based upon a jailer’s duty of care to prisoners.”  Those are superior options, it contended, because “state tort law imposes a lower standard of liability than the Eighth Amendment, and employees of private prison corporations generally do not enjoy the special immunities conferred on government employees acting in the same capacity.”

The government, too, argued in favor of leaving the matter to Congress.

The private advocacy group DRI, as in the petition stage, filed a merits brief further supporting the prison employees, predicting “an onslaught of lawsuits seeking Bivens damages.”  It contended that this “is a hard bill to swallow in this era of soaring budget deficits, reduced public and private resources, and congested court dockets. It also may have a chilling effect on the initiative taken by private contractor employees on behalf of the government.”

In Pollard’s merits brief, his counsel relied significantly upon the last Supreme Court precedent recognizing a Bivens action — Carlson v. Green in 1980.   What Pollard is seeking in this case, against private employees working at Taft for the federal government, “is, in every meaningful sense, the same as that approved in Carlson” — a right to sue against prison personnel carrying out official duties.

The brief urged the Court not to make privately held federal prisoners “the only prisoners in the country, whether federal or state,” who are barred from enforcing their constitutional rights through a damages lawsuit.  Indeed, the brief cited language from the Rehnquist opinion in Malesko to suggest that a prisoner’s remedy, if one it to be had at all, was against an individual who committed a constitutional violation, not against an institution or governmental entity.

In addition, the brief sought to stress — as the Ninth Circuit had — that the central question in determining whether an alternative remedy is available is whether there is an alternative federal remedy.   Pollard has no such federal remedy, if he cannot sue under Bivens, the brief noted.   Moreover, Pollard’s attorneys asserted, federal  judges should not be put to the burdensome task of sorting through “a patchwork” of state-provided remedies when the prisoner is in a federal facility.

Finally, the brief said, a Bivens action is entirely “workable” in the federal courts, given their long familiarity with Section 1983 claims.   “There is,” the brief said, “a large and ever-growing body of precedent distinguishing permissible from impermissible behavior, rendering the action asserted here workable.”

Pollard has drawn the amici support of civil rights and civil liberties organizations, arguing that the Court has never ruled that the availability of state law remedies bars a claim like Pollard’s, and that state remedies may in fact prove illusory; by a group of law professors, contending that the Court has often assumed — without deciding — that a Bivens remedy would be available in a case like this one; and by the government of Mexico, asserting that many Mexican nationals are being held in privately run detention facilities inside the U.S. — such as immigration detention centers — and thus may be exposed to the same kind of woes that befell Pollard.


It is difficult, at the outset, to speculate that the Court took on the case for any other reason than to overturn the Ninth Circuit, and continue its unbroken pattern of three decades of refusing to extend Bivens beyond the three instances where such a remedy has been recognized.

If one looks to the precedent that seems nearest to this case, it perhaps would be the 2001 decision against liability for a private corporation operating a government prison (the Malesko case).  That, arguably, is nearest because it involved the question of extending Bivens liability to a private actor.  Five Justices who took part in that ruling remain on the bench — three from the majority (Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas), and two Justices from the dissent (Stephen G. Breyer and Ruth Bader Ginsburg).  If the three in the majority remain skeptical about extending Bivens as a general proposition, it is entirely plausible that they could attract the support of Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to make a majority.

Thus, even if Breyer and Ginsburg were to pick up the support of Justices Elena Kagan and Sonia Sotomayor, they would still be one short of a majority.

What Pollard may have mostly in his favor is the possibility that the Court could decide that its precedents — relying heavily upon the absence of any alternative remedies as a rationale for permitting a Bivens action — do not really apply when the availability of remedies for a federal claimant like Pollard is one under state, not federal, law.   Separation-of-powers principles have been very persuasive for the Court in refusing to create a new remedy if Congress had provided one.   That is not a factor in Pollard’s case, he and his supporters have pointed out.

On the other hand, the question of available alternatives is only one-half of the formula the Court has used in deciding whether to create a Bivens remedy.  The other half — that rather vague concept of whether there are “special factors counseling hesitation” — has been working repeatedly to defeat pleas for Bivens extensions.  That factor could lead the Court to accept the argument of the private workers and their supporters that this is a matter better left to legislation, by Congress.

The Court is expected to decide the case next year.





Recommended Citation: Lyle Denniston, Argument preview: A new Bivens remedy?, SCOTUSblog (Oct. 27, 2011, 6:11 AM),