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Argument recap: Bivens hurdle too high


Clinging stubbornly to the notion that almost any claim of a constitutional violation probably could be pursued as a simple claim of negligence under state law, most of the Supreme Court Justices on Tuesday looked askance at the idea that — after 31 years of not doing so — they might now create a new constitutional remedy for a violation of an individual’s federal rights.   After the oral argument in Minneci, et al., v. Pollard (docket 10-1104), it would not be impossible, but it might be foolhardy, to think that a couple of Justices might be tempted.  Thus, there does not seem to be an expansion of Bivens v. Six Unknown Federal Narcotics Agents in the offing.

The Court appeared to see the issue in this case, involving a Bivens claim against private employees of a company running a federal prison under contract, as a choice between total opposites.  Either this case is about creating a federal remedy for a federal violation for which there is a state remedy, or creating a federal remedy for a federal violation without regard to whether there might be a state remedy.  The first alternative seemed entirely acceptable to the Court, the second looked too open-ended.  Between the two, any attempt to argue nuance appeared doomed.

Jonathan S. Franklin, a Washington, D.C., attorney seeking to head off a damages claim against six private employees of a federal prison in California, told the Court that there is not a single state in the nation that would fail to provide a remedy for the kind of harms that inmate Richard Lee Pollard claimed he suffered following a fall over a kitchen cart, breaking both elbows.  Perhaps, as it turned out, that was all that the Court needed to hear to incline it against a new federal Bivens remedy.   A University of Richmond law professor, John F. Preis, sought to cast doubt on that sweeping assertion, but could not muster the specific exceptions that the Justices demanded.

The Court, of course, had previously indicated that one factor that might lead it to permit damages lawsuits directly under the Constitution against federal actors would be that there was no other “adequate” remedy.   But it had never said that, if a state remedy filled that gap, that would be sufficient.  That was where Tuesday’s argument pointed, almost predictably.

Most of the Justices, playing the role of lawyers, suggested that they would surely opt for a state remedy instead of one under Bivens, since the chances are that the results would be more generous or the case easier to win.   It was not clear, though, whether that was an argument based upon the “adequacy” of a state alternative, instead of a simple matter of pursuing the potentially better litigation strategy.   What it did demonstrate, though, was that, for most of the members, it was of no import that they were talking about a state remedy as a meaningful alternative to one under federal law.  And that was the very implication that would be critical to rejecting a new Bivens claim in this case.

Both attorney Franklin and his supporting colleague at the lectern, Pratik A. Shah, an assistant to the U.S. Solicitor General, chose — wisely — to dwell upon the language in prior Court opinions suggesting that the availability of an alternative remedy was very likely fatal to any plea for a new right to sue under Bivens.    When, early in the argument, Justice Elena Kagan asked Franklin what would happen if there simply were no state tort remedy available in a state other than California, the lawyer responded that that would be a different case, but, in any event, there is nothing to show that any state would not afford such a remedy.

He strongly resisted when Justice Anthony M. Kennedy asked “Who cares?” — on the theory that Franklin’s clients could be sued either way, under Bivens or under a state tort law:  the attorney said that it certainly mattered to his clients.  The statute of limitations has run on any state claim Pollard could make, so if there is no Bivens action, there is no lawsuit.  Kennedy countered by asking what difference it would make “beyond this case.”  Sticking to his point, Franklin said that, if there is a state remedy available, “there is no reason to pile on a federal remedy.”

From that point on, much of the remainder of the argument focused the issue of how adequate a state alternative might be where one did exist, including the question of whether a specific state might put restrictions on a remedy so that it could not really be deemed a substitute.    When Justice Sonia Sotomayor asked government attorney Shah whether he was advocating a state-by-state inquiry by a federal court over remedies each time a lawsuit sought a Bivens remedy, he replied that he was, indeed, making such a point, but then he added that no state would be found lacking a remedy.   If there is only a “hypothetical possibility” that some state’s remedy might fall short, that is no reason, Shah argued, to attach a “default federal remedy.”

Professor Preis had to struggle from the beginning of his turn to satisfy the Justices’ repeated requests for specificity in his claim that some states’ alternative tort remedies would not be dependable substitutes.   When Justice Stephen G. Breyer, with some impatience, pressed Preis several times to say what he could get under Bivens that he could not under a general theory of negligence, the professor repeated the specific claims that Pollard’s lawsuit had made, but that did not satisfy Breyer.   And Preis told Justice Antonin Scalia, in reply to a question about what a lawyer should tell a client asking about a state remedy, that the reply should be: “I can’t be certain.”

Perhaps Preis’s best moment came when he answered a question from Justice Kagan about why Pollard had not, in fact, filed a claim under state law.  Preis replied that his client had been put in a federal prison by the federal government, and only federal law books were available to such inmates, so “a certain ethic” had developed to look only to a federal remedy for a legal grievance.

The professor had two low moments, once in answering a question from Justice Scalia, and another in defending himself against an accusation by Chief Justice John G. Roberts, Jr.

Scalia had interpreted Preis’s basic argument to be that, if there was a single state that did not provide an adequate remedy for one single incident, then there should be a Bivens remedy for everyone for any grievance.  Though Scalia had warned “I wouldn’t want to hold that,” Preis did not seek to put any qualifiers in that unqualified interpretation.  And that prompted Justice Breyer to add that he, too, would have a problem with that approach.

The Chief Justice, picking up on a dispute in the briefs about a statement in Preis’s merits brief that the Supreme Court had already said in a prior opinion that there is a federal remedy for prisoners seeking to sue private employees at a federal prison, wondered if that was “a distortion.”   Preis, somewhat weakly, insisted it was not a distortion, but did not provide a persuasive explanation of what the point was intended to mean.  To that, Justice Scalia acidly remarked: “It’s called misquoting.”

On rebuttal, Franklin neatly wrapped up his case (and seemingly encapsulated what an apparent majority of the Justices were thinking) when he said that, if there was something negligent in the prison employees’ actions that had harmed Pollard, that would be covered by California law, and if there were no harm, even a Bivens remedy could not help him.  Conveniently, he omitted mention of the fact that, for Pollard, there is also no state remedy, because the statute of limitations had passed for such a claim.



Recommended Citation: Lyle Denniston, Argument recap: Bivens hurdle too high, SCOTUSblog (Nov. 1, 2011, 2:24 PM),