Measuring the success of Bivens litigation and its consequences for the individual liability model

Stanford Law Review

Volumn 62, Issue 3, 2010, Pages 809-862

  Reinert, Alexander A ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 77950429110     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (266)

1. 403 U.S. 388 (1971).
2. Personal capacity claims are brought against government officials individually, almost always for damages. In theory, defendants who are found liable in their personal capacity are responsible for paying damages out of their own pockets, although the federal government, like most states and municipalities, usually indemnifies employees for the damages awarded in constitutional tort actions.
3. Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials' Individual Liability Under Bivens, 88 GEO. L.J. 65, 76-78 (1999). Official capacity claims, by contrast, are brought nominally against government officials, but typically seek injunctive relief against a government entity that would otherwise be immune from suit in federal court.
4. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984) (summarizing Eleventh Amendment principle that unconsenting states and their agencies may not be sued in federal court, regardless of the relief sought). Such suits have long been assumed to be proper against federal and state officials under the fiction spawned by Ex parte Young, 209 U.S. 123 (1908). For a detailed discussion of the practical distinction between personal and official capacity claims, see generally Hafer v. Melo, 502 U.S. 21 (1991).
5. 403 U.S. at 395-97.
6. Throughout this Article, I will use the terms "Bivens liability" and "Bivens litigation" to refer to the broad remedial scheme permitting the awarding of damages against federal officials for violation of any provision of the Constitution, and not just for the Fourth Amendment remedy implied in the original Bivens case.
7. See cases cited infra notes 54-55, 58-60.
8. Section 1983 provides as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects... any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983 (2006). The word "person" in section 1983 applies to natural persons and has been interpreted to apply to municipalities as well. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658 (1978). The word "person" does not encompass states or their agencies, although it plainly applies to individual state officials.
9. Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989). Notably, while section 1983 plaintiffs can recover costs and attorneys' fees if they are successful, see 42 U.S.C. § 1988 (2006), no similar provision is applicable to Bivens plaintiffs, see, e.g., Kreines v. United States, 33 F.3d 1105 (9th Cir. 1994) (rejecting claim for attorneys' fees in Bivens action and citing similarly decided cases from other circuits).
10. See cases discussed infra notes 61-62, 64-65 and accompanying text
11. Laurence H. Tribe, Death by a Thousand Cuts: Constitutional Wrongs Without Remedies After Wilkie v. Robbins, 2007 CATO SUP. CT. REV. 23 (arguing that Bivens remedy has been gradually undermined, and is endangered by the Court's analysis in Wilkie v. Robbins, 551 U.S. 537 (2007)). In a recent article, James Pfander and David Baltmanis argue that the Supreme Court has been overly restrictive in Bivens jurisprudence and suggest a novel approach to analyzing Bivens liability that would result in greater equality between section 1983 and Bivens plaintiffs.
12. James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117 (2009).
13. See sources cited infra notes 91-92, 94-95.
14. Qualified immunity shields government officials from personal liability for civil damages when they behave reasonably in light of unclear law. See Harlow v. Fitzgerald, 457 U.S. 800 (1982). The import of the defense is discussed in more detail below. See infra notes 79-86 and accompanying text.
15. See infra note 24.
16. Two articles published more than twenty-five years ago attempted to provide some estimate of the measure of success of Bivens claims, see Charles R. Wise, Suits Against Federal Employees for Constitutional Violations: A Search for Reasonableness, 45 PUB. ADMIN. REV. 845 (1985)
17. Note, "Damages or Nothing"-The Efficacy of the Bivens-Type Remedy, 64 CORNELL L. REV. 667 (1979) [hereinafter Damages or Nothing], but as discussed below neither article can be relied upon to provide an accurate measure of success of Bivens claims.
18. This figure is repeatedly cited in judicial opinions and scholarly commentary. See infra notes 94-95 and accompanying text.
19. For the purposes of this Article, I will define "success" in a way similar to the most extensive studies of civil rights litigation: a judgment entered in favor of the plaintiff, a settlement of some kind, or a stipulated/voluntary dismissal by the plaintiff. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1592-93 (2003)
20. Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 CORNELL L. REV. 719, 726-27 (1988). Of these three possibilities, the voluntary dismissal is perhaps the most controversial, because it rests on the assumption that a plaintiff would enter a dismissal only in exchange for some benefit, and not for other legitimate reasons, such as the realization that a claim is without merit.
21. Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care?, 6 J. EMPIRICAL LEGAL STUD. 111, 115-18 (2009).
22. Many claims that can be characterized as implicating Bivens-because they involve suits against individual federal officials for damages and they allege some violation of the Constitution-are often dismissed sua sponte, before service is even effectuated, because they are patently frivolous or state no comprehensible claim. See infra notes 147-50 and accompanying text. As I suggest below, we should be wary of counting these cases as Bivens claims for the purpose of inclusion in the denominator. See infra note 150 and accompanying text.
23. Schlanger, supra note 13, at 1594 tbl.IIA (reporting success rate for prisoner civil rights suits filed between 1990 and 1995); Schwab & Eisenberg, supra note 13, at 728 tbl.II (reporting data on success rates of prisoner and nonprisoner civil rights claims and civil claims in general from three district courts for cases filed between 1980 and 1981)
24. Theodore Eisenberg & Stewart J. Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 674 tbl.VIII, 678 tbl.IX (1987) (reporting data on success rate for cases filed in Central District of California).
25. Diana Hassel, Living a Lie: The Cost of Qualified Immunity, 64 MO. L. REV. 123, 136 n.65, 145 n.106 (1999) (finding that qualified immunity defenses were denied in only 20% of federal cases over a two-year period, but citing only reported cases).
26. The Bivens Court itself focused on the need for compensating the victims of wrongdoing, and placed little significance on the role that individual liability might play in deterrence. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971); id. at 408 (Harlan, J., concurring). The Court has subsequently interpreted Bivens liability as vindicating deterrent goals as well, sometimes to the detriment of compensatory goals. See cases cited infra note 171.
27. Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 HARV. L. REV. 1532, 1558-59 (1972) (criticizing Bivens' insistence that the remedy be available against individual defendants only, as opposed to against the Government itself). Professor Dellinger was only the first in a line of observers who have argued in favor of a governmental liability model for the unconstitutional conduct of federal officials.
28. Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225 (1986)
29. Damages or Nothing, supra note 11, at 697-702 (proposing shift to governmental liability model, but not through the FTCA)
30. Michael B. Hedrick, Note, New Life for a Good Idea: Revitalizing Efforts to Replace the Bivens Action with a Statutory Waiver of the Sovereign Immunity of the United States for Constitutional Tort Suits, 71 GEO. WASH. L. REV. 1055 (2003) (revisiting proposal to have FTCA cover constitutional torts). Some have argued that moving towards a governmental liability model will act as a better incentive for constitutional behavior.
31. David Rudovsky, Running in Place: The Paradox of Expanding Rights and Restricted Remedies, 2005 U. ILL. L. REV. 1199, 1221. Others contend that interests in both deterrence and compensation would be enhanced by moving away from individual liability.
32. Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 340-42 (1995)
33. Diana Hassel, A Missed Opportunity: The Federal Tort Claims Act and Civil Rights Actions, 49 OKLA. L. REV. 455, 474-75 (1996)
34. Laura Oren, Immunity and Accountability in Civil Rights Litigation: Who Should Pay?, 50 U. PITT. L. REV. 935, 1002-03 (1989)
35. Note, Government Tort Liability, 111 HARV. L. REV. 2009 (1998). And yet another variant of the argument for governmental liability focuses on these interests as well as reducing the burden on individual officials.
36. William P. Kratzke, Some Recommendations Concerning Tort Liability of Government and Its Employees for Torts and Constitutional Torts, 9 ADMIN. L.J. AM. U. 1105, 1152 (1996) (arguing that shifting liability to federal government would increase the value of genuine Bivens claims and decrease the deleterious effect of Bivens claims on federal officials)
37. Peter H. Schuck, Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, 1980 SUP. CT. REV. 281, 346 (describing "fulcrum of systemic reform" as increased governmental liability coupled with protecting individual officials from being sued and being held personally liable).
38. This is not to say that the Supreme Court has adopted an entity liability model for section 1983 liability. To the contrary, the Court has found that the statute does not apply to states qua states, see Will V. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989), but that municipalities may be sued directly under section 1983, under specific circumstances, see Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978). Nonetheless, the extension of liability to municipalities is not akin to the respondeat superior liability provided in statutes like the FTCA, and section 1983 plaintiffs often will sue both municipalities and individual officers responsible for the constitutional violations.
39. As these commentators acknowledge, the Court has never fully addressed the sovereign immunity issues presented by extending Bivens liability to the Federal Government itself. Most commentators have suggested that the best way to achieve this goal is to amend the FTCA to permit constitutional tort claims to be brought pursuant to the statute. See sources cited supra note 18.
40. Susan Bandes argues, for instance, that governmental liability should be available precisely because qualified immunity may bar relief against individuals. See Bandes, supra note 18, at 340; see also Oren, supra note 18, at 1000-02 (proposing that governmental liability be exclusive remedy for constitutional violations and that liability be based on respondeat superior theory).
41. In contrast to the individual liability model adopted in Bivens, the FTCA has long provided a remedy for plaintiffs injured by federal actors on an entity liability theory. Under the FTCA, when a federal employee has committed a common law tort, the United States is substituted as a defendant and is "liable... in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (2006). The substitution procedure is mandated by section 2679(d) and requires certification by the Attorney General or a court that the employee was acting within the scope of federal employment at the time of the allegedly tortious conduct. The United States is entitled to assert any defense that the individual would have been able to assert had the action been brought directly against the employee, § 2674, and additional limitations on liability are specifically provided for by the FTCA, further circumscribing the potential for liability, see id. § 2401(b) (statute of limitations); id. § 2675(a) (requiring exhaustion of administrative remedies); id. §§ 2672, 2676, 2679(b)(1) (judgment bar provision); id. § 2679(b)(2) (prohibiting FTCA claims based on the Constitution or a federal statute); id. § 2680 (prohibiting claims based upon taxation, admiralty, combatant activities during time of war, acts conducted as part of a discretionary function, and claims arising in a foreign country). In contrast to Bivens, FTCA plaintiffs have no right to a jury trial. Id. § 2402.
42. In striking respects, it echoes the proposal offered by Chief Justice Burger in dissent in Bivens, who advocated congressional passage of a statute that would waive sovereign immunity for the unconstitutional acts of federal law enforcement officials and creation of a "quasi-judicial" tribunal to adjudicate claims of individual plaintiffs. 403 U.S. 388, 422-24 (1971) (Burger, C.J., dissenting).
43. PETER H. SCHUCK, SUING GOVERNMENT, at xx, 100 (1983) (arguing for expanded governmental liability in lieu of individual liability, because immunity doctrine is unpredictable, does not deter, and often leaves victims without compensation)
44. Kratzke, supra note 18 at 1149-50
45. H. Allen Black, Note, Balance, Band-Aid, or Tourniquet: The Illusion of Qualified Immunity for Federal Officials, 32 WM. & MARY L. REV. 733 (1991) (arguing that, because of conceptual and practical difficulties with qualified immunity doctrine, Bivens actions should be encompassed within FTCA claims). Professor Kratzke maintains that governmental liability should be substituted for individual liability, using the respondeat superior model from private tort law. Kratzke, supra note 18, at 1152, 1164-65. One principal concern he articulates is the effect being a defendant has on individual officers. Id. at 1143 ("Since the 1980s, it has become very difficult for plaintiffs... to win a Bivens case. The lawsuit itself, on the other hand, can annoy, harass, or even terrorize defendants to the point that they are afraid of effectively performing their duties.").
46. Hassel, supra note 18, at 475 (describing resistance of courts and jurors to awarding damages against individual federal employees)
47. Perry M. Rosen, The Bivens Constitutional Tort: An Unfulfilled Promise, 67 N.C. L. REV. 337, 347 (1989) (arguing that a jury is unlikely to hold a Bivens defendant liable where the employee appeared to be conscientiously performing his job and where it is difficult to "see" the injury from a constitutional violation). This resistance might be related to several factors. For courts, it may be that federal judges are more likely to share norms with federal law enforcement officials about what amounts to unconstitutional conduct, such that they are less likely to view the actions of federal officials as violating those norms, at least as compared to state actors.
48. Richard A. Primus, Bolling Alone, 104 COLUM. L. REV. 975 (2004) (arguing that federal courts had not found unconstitutional federal race discrimination because of shared views about what race discrimination was unlawful). It might also be that federal officials take the federal Constitution more seriously than do their state counterparts, either because they are more professional in general, or because it is a federal constitution. As for juries, they may share some of the same assumptions that federal judges have about the presumptive constitutionality of federal behavior, but more importantly they may be both skeptical of the typical Bivens plaintiff and leery of ordering federal officers to pay money out of their own pockets. Kratzke, supra note 18, at 1150 (suggesting that judges and juries resist imposing personal liability on Bivens defendants)
49. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL. L. REV. 363, 385 (identifying fear of reprisals, expense of litigation, effectiveness of good faith defenses, "unsympathetic nature of many plaintiffs," and juries' biases as reasons that civil enforcement of Fourth Amendment in general is unsuccessful).
50. Hedrick, supra note 18 (proposing that the forfeiture of qualified immunity be granted in exchange for eliminating punitive damages).
51. Pillard, supra note 2, at 98 (reporting that twenty-one bills were introduced between 1973 and 1985 seeking to substitute direct governmental liability for individual officer liability, of which three were reported to committee)
52. John iley, Congress May Eliminate Bivens Suits Next Year, NAT'L L.J., Dec. 12, 1983, at 15 (describing availability of "good faith" defense as major stumbling block to legislation)
53. Rosen, supra note 25, at 372.
54. Despite substantial support for this modification, the attempt ultimately failed because the Department of Justice insisted that individuals' entitlement to qualified immunity be available to the government as well. See Pillard, supra note 2, at 98-99.
55. See sources cited supra note 18.
56. I reviewed cases filed between 2001 and 2003, inclusive, in the Eastern and Southern Districts of New York, the Eastern District of Pennsylvania, the Northern District of Illinois, and the Southern District of Texas. The methodology, including the reasons why these particular districts were studied, is described in further detail below. See infra Part II.B.
57. I define "success" consistently with the methodology used by other researchers: judgment, settlement, stipulated dismissal, and voluntary dismissal. Schlanger, supra note 13, at 1592-93; Schwab & Eisenberg, supra note 13, at 726-27.
58. Although the case name suggests that six agents were involved, in fact only five were identified and served with the complaint. Brief for the Respondents at *2 n.1, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (No. 301).
59. This Agency was created in 1930 as part of the Department of the Treasury by an Act of June 14, 1930, 46 Stat. 585. It was responsible for enforcing laws relating to marijuana and narcotics such as heroin. U.S. DRUG ENFORCEMENT ADMIN., THE DEA HISTORY BOOK, 1970-1975 (2003), available at http://www.usdoj.gov/dea/pubs/history/deahistory_01.htm. By 1971, when Bivens was announced, the FBN had merged with the Bureau of Drug Abuse Control (an agency in the Department of Health, Education, and Welfare, responsible for the enforcement of laws to control dangerous drugs, including depressants, stimulants, and hallucinogens, such as LSD) to form the Bureau of Narcotics and Dangerous Drugs (BNDD), within the Department of Justice. Id. Short-lived, the BNDD was folded into the Drug Enforcement Administration, created in 1973 by order of President Nixon to consolidate enforcement of the nation's drug laws in one agency. Id.
60. Bivens, 403 U.S. at 389; Brief for the Petitioner at 2-3, Bivens, 403 U.S. 388 (No. 301). Mr. Bivens also alleged that his arrest took place in front of his wife and children, who were threatened with arrest by the FBN agents. Id.
61. The reasons for the dismissal are not reported, but the Second Circuit Court of Appeals referred to the apparent dismissal of the criminal complaint by a "United States Commissioner." Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 409 F.2d 718, 719 (2d Cir. 1969), rev'd 403 U.S. 388 (1971).
62. U.S. CONST. amend. IV.
63. Monroe v. Pape, 365 U.S. 167 (1961). Section 1983 was enacted as part of the Civil Rights Act of 1871, also known as the "Ku Klux Klan Act." KAREN M. BLUM & KATHRYN R. URBONYA, SECTION 1983 LITIGATION 2 (1998), available at http://www.fjc.gov/public/pdf.nsf/lookup/sect1983.pdf/$file/sect1983.pdf. For nearly one hundred years after its enactment, it was rarely used, in part because courts and litigants interpreted it to apply solely to strike down "Black Codes" and the like that were passed in Southern States after the Civil War. Thus, between 1871 and 1920, only twenty-one section 1983 actions were decided by federal courts, with nine cases decided by the Supreme Court. See Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 IND. L.J. 361, 363-66 (1951) (describing cases in general)
64. Myers V. Anderson, 238 U.S. 368 (1915)
65. Moyer V. Peabody, 212 U.S. 78 (1909)
66. Devine v. City of L.A., 202 U.S. 313 (1906)
67. Giles v. Harris, 189 U.S. 475 (1903)
68. Holt v. Indiana Mfg. Co., 176 U.S. 68 (1900)
69. Clarke v. McDade, 165 U.S. 168 (1897)
70. McGahey v. Virginia, 135 U.S. 662 (1890)
71. Carter v. Greenhow, 114 U.S. 317 (1885)
72. Bowman v. Chicago & Nw. Ry. Co., 115 U.S. 611 (1885). After Monroe, however, section 1983 litigation against state and municipal officials increased exponentially. See Schuck, supra note 18, at 283 n.2.
73. Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 276 F. Supp. 12 (E.D.N.Y. 1967), aff'd, 409 F.2d 718 (2d Cir. 1969), rev'd, 403 U.S. 388 (1971). 39. Id. at 16.
74. Bivens, 409 F.2d 718. The Second Circuit assumed that a state law remedy for trespass would be available to plaintiffs like Mr. Bivens, thus rendering implying a remedy from the Constitution unnecessary. Id. at 725-26.
75. 327 U.S. 678 (1946).
76. In Bell, the plaintiffs alleged that several Federal Bureau of Investigation agents had illegally arrested them and searched their homes, taking away valuable property and personal papers. The Bell plaintiffs were high-ranking members of Mankind United, a religious cult founded by Arthur Bell. Bell claimed that a wide-ranging conspiracy ran the world, but that once 200 million people accepted the Mankind United plan for worldwide utopia, the conspiracy would be defeated. Internet Sacred Text Archive, Mankind United, http://www.sacred-texts.com/eso/mu/index.htm (last visited Jan. 9, 2009). At the time the searches were effectuated in Bell v. Hood, Bell and others were on trial for mail fraud. Mankind United, TIME, Sept. 20, 1937, available at http://www.time.com/time/magazine/article/0,9171,758200,00.html.
77. 71 F. Supp. 813, 817 (S.D. Cal. 1947). The district court's decision in Bell was heavily relied upon by the district court in Bivens. 276 F. Supp. at 15.
78. Gautreaux V. Romney, 448 F.2d 731, 734-35 (7th Cir. 1971) (confirming that federal officials could be sued at least for equitable relief under the Due Process Clause, without specifically addressing the availability of monetary damages)
79. Kletschka V. Driver, 411 F.2d 436, 446 (2d Cir. 1969) (remanding for a fuller determination of the facts prior to deciding whether a plaintiff had established a damages claim against federal officials for violation of the Due Process Clause)
80. Giancana V. Johnson, 335 F.2d 366 (7th Cir. 1964) (finding it unnecessary to determine the issue left open in Bell because plaintiff had failed to allege that the matter in controversy exceeded the jurisdictional limitation of 28 U.S.C. § 1331)
81. Norton V. McShane, 332 F.2d 855, 857-62 (5th Cir. 1964) (declining to address whether Constitution provided direct cause of action against federal officials because good faith immunity barred common law claims and section 1983 did not provide remedy against federal officials for violations of the Constitution). The Supreme Court declined its first post- Bell opportunity to hold that the Fourth Amendment created an implied cause of action for damages against individual officers.
82. Wheeldin V. Wheeler, 373 U.S. 647, 649-50 (1963) (finding it unnecessary to decide question because complaint alleged neither a search nor a seizure). The Ninth Circuit was one of the few appellate courts that specifically addressed whether individual federal officials could be sued for damages for violations of the Constitution, holding that no cause of action existed for violations of the Fifth Amendment.
83. See Johnston V. Earle, 245 F.2d 793, 796 (9th Cir. 1957).
84. Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV. 1109, 1111 (1969) (discussing in detail the legal justification for creating an implied right of action for violations of the Constitution by federal officers, although describing it as "not of great practical importance"). Very few other scholarly commentaries addressed the question.
85. Recent Case, 83 HARV. L. REV. 684, 687 (1970) (criticizing Second Circuit's Bivens decision for its "undue faith in the efficacy of existing remedies")
86. Al Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. PA. L. REV. 1 (1968) (criticizing Wheeldin and the district court's decision on remand in Bell).
87. One district court had held that a concessionaire of the federal government could be held liable under the Fifth Amendment for a violation of equal protection, if it provided segregated but unequal dining facilities at Washington National Airport. Nash v. Air Terminal Servs., Inc., 85 F. Supp. 545 (E.D. Va. 1949).
88. Jacobs V. United States, 290 U.S. 13, 16 (1933) (granting monetary compensation for land flooded by a dam constructed by the government).
89. Bivens V. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
90. Bivens V. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 394 (1971).
91. Bivens V. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 395 (1971).
92. Bivens V. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 397 (1971).
93. Id. at 410 (Harlan, J., concurring). The Court in Bivens analogized the right they recognized to the statutory right under section 1983 to recover damages for violations of the Constitution by state actors. Indeed, the Court rejected the dissenters' contention that recognition of the right would lead to an "avalanche" of federal court litigation, pointing out that a study of section 1983 litigation against police officers found only 53 reported cases between 1951 and 1967 that "survived a motion to dismiss," leading the Court to predict that at most, a federal district judge "could expect to try one such case every 13 years." Id. at 391 n.4 (majority opinion) (citing Ann Fagan Ginger & Louis H. Bell, Police Misconduct Litigation-Plaintiff's Remedies, 15 AM. JUR. TRIALS 555, 580-90 (1968)). The Court apparently expected Bivens litigation to follow the same pattern, thus defusing any concerns that recognition of the cause of action would overly burden federal courts. As luck would have it, section 1983 litigation increased dramatically during the 1970s, well beyond the Court's expectations. See Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 CORNELL L. REV. 482, 522-23 & nn.174-75 (1982).
94. See Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931-32 (10th Cir. 1975) (applying Bivens to Fifth Amendment equal protection claim against employees of the Department of Interior)
95. States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1157-58 (4th Cir. 1974) (extending Bivens to due process claims against customs agent)
96. Howard V. Warden, 348 F. Supp. 1204, 1205 (E.D. Va. 1972) (applying Bivens to First and Ninth Amendment claims)
97. Panzarella V. Boyle, 406 F. Supp. 787, 792 & n.7 (D.R.I. 1975) (citing cases that show that "the construction given to 28 U.S.C. § 1331 in Bivens properly applies to any alleged violation of a constitutionally protected interest not specifically excluded by other Congressional enactments"). The Panzarella court reflected the lower courts' general approach to Bivens claims, reasoning that there was no reason to think "that Bivens has somehow singled out the constitutional rights protected by the Fourth Amendment as in greater peril or more deserving of legal redress than those rights embodied in the First, Fifth or Fourteenth Amendments, for example." 406 F. Supp at 793.
98. United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3d Cir. 1972).
99. Jones V. United States, 401 F. Supp. 168, 174-75 (E.D. Ark. 1975) (refusing to extend Bivens remedy for violation of right to speedy trial)
100. Moore V. Schlesinger, 384 F. Supp. 163, 165 (D. Colo. 1974) (refusing to extend Bivens to First Amendment context).
101. See Jones, 401 F. Supp. at 174.
102. Davis V. Passman, 442 U.S. 228 (1979).
103. Carlson V. Green, 446 U.S. 14 (1980).
104. Id. at 18; see also Butz v. Economou, 438 U.S. 478, 504 (1978) (treating Bivens as providing compensation for "a compensable injury to a constitutionally protected interest," not solely Fourth Amendment interests). Thus, in extending Bivens liability to the Due Process Clause and the Eighth Amendment, the Court treated a damages remedy for constitutional violations as nearly presumptive. In Davis, for example, the Court found that there were "special concerns" that were in tension with implying a remedy in damages and that Congress had exempted federal employees like Ms. Davis from coverage of the statutory employment discrimination laws. Davis, 442 U.S. at 246-47. Nonetheless, the Court held that Congress had not indicated its intention to foreclose a Bivens remedy for federal employees and that damages are the presumptive remedy for invasions of personal liberty. Id. at 245-47. Similarly, Carlson's discussion of extending Bivens liability to Eighth Amendment violations began with a presumption in favor of finding a damages remedy. Carlson, 446 U.S. at 18-19.
105. Bush V. Lucas, 462 U.S. 367 (1983).
106. United States v. Stanley, 483 U.S. 669 (1987)
107. Chappell V. Wallace, 462 U.S. 296 (1983).
108. Schweiker V. Chilicky, 487 U.S. 412 (1988).
109. FDIC v. Meyer, 510 U.S. 471 (1994).
110. Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001).
111. In Bush, for instance, the Court said that it was not a question of "the merits of the particular remedy that was sought," but "who should decide whether such a remedy should be provided." Bush, 462 U.S. at 380. Because Congress had created an "elaborate remedial system" for federal employees complaining that their employment was adversely affected by their political expression, the Court found reason in Bush to defer to Congress. Id. at 388; see also Schweiker, 412 U.S. at 424-26 (following Bush in finding that the remedial scheme for Social Security benefits created by Congress counseled against creating a Bivens cause of action). In Chappell, the Court found that the Constitution had vested authority over military justice and discipline in Congress, U.S. Const. Art. I, § 8, cl. 14, demonstrating that "the Constitution contemplated that the Legislative Branch have plenary control over rights, duties, and responsibilities in the framework of the Military Establishment." Chappell, 462 U.S. at 301. Indeed, Congress had exercised that authority by creating a "comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure." Id. at 302.
112. See Stanley, 483 U.S. at 681 (holding that Bivens claims are disallowed whenever an injury arises out of activity "incident to service," to parallel with a similar limitation on FTCA claims).
113. See Stanley, 483 U.S. at 683 (holding that Bivens claims are disallowed whenever an injury arises out of activity "incident to service," to parallel with a similar limitation on FTCA claims).
114. See Malesko, 534 U.S. at 70 (finding that the deterrent rationale of Bivens applied to actions against individuals, not to actions against private entities); Meyer, 510 U.S. at 485-86 (finding that Bivens is not an appropriate remedy against federal agencies because Bivens was based on the presumption that relief was unavailable against the government itself).
115. 551 U.S. 537 (2007).
116. Tribe, supra note 7, at 26 ("[T]he best that can be said of the Bivens doctrine is that it is on life support with little prospect of recovery.").
117. Wilkie, 551 U.S. at 541. The previous owner had granted the easement to the Bureau, but because the Bureau failed to record the easement, Robbins took title to the property free of the easement. Id.
118. Wilkie, 551 U.S. at 550. The previous owner had granted the easement to the Bureau, but because the Bureau failed to record the easement, Robbins took title to the property free of the easement. Id.
119. Id. at 555-57 (identifying difficulty with Robbins's claim that "defendants simply demanded too much and went too far," not that their ultimate goal was illegitimate).
120. Id. at 562 (identifying difficulty with Robbins's claim that "defendants simply demanded too much and went too far," not that their ultimate goal was illegitimate).
121. Kimberlin V. Quinlan, 17 F.3d 1525, 1525-26 (D.C. Cir. 1994) (Williams, J., concurring in denial of rehearing en banc).
122. Simpkins V. D.C. Gov't, 108 F.3d 366, 370 (D.C. Cir. 1997) (departing from typical rule to decide motion to dismiss for failure to state a claim even though service of complaint had not been properly effectuated because of court's duty to "stop insubstantial Bivens actions in their tracks and get rid of them")
123. Cameron V. Thornburgh, 983 F.2d 253, 258 n.5 (D.C. Cir. 1993) (justifying consideration of motion to dismiss despite improper venue on the basis that the Supreme Court has favorably suggested that lower courts "weed out" meritless Bivens claims as early as possible in litigation)
124. Bolin V. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000) (per curiam) (making exception in Bivens context to rule that judicial immunity does not apply to suits for declaratory and injunctive relief); Mullis v. U.S. Bankr. Court for the Dist. of Nev., 828 F.2d 1385, 1391-94 (9th Cir. 1987) (same); cf. FDIC v. Meyer, 510 U.S. 471, 486 (1994) (refusing to allow Bivens action against federal agencies in part because of the "potentially enormous financial burden" such claims would impose on the federal government).
125. Harlow V. Fitzgerald, 457 U.S. 800, 818 (1982).
126. Harlow V. Fitzgerald, 457 U.S. 800, 814 (1982).
127. Harlow V. Fitzgerald, 457 U.S. 800, 817 (1982) n.29 (internal quotation marks omitted).
128. Harlow V. Fitzgerald, 457 U.S. 800, 818 (1982).
129. See Siegert v. Gilley, 500 U.S. 226, 232 (1991).
130. See Behrens v. Pelletier, 516 U.S. 299, 307-09 (1996); Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985).
131. See Behrens, 516 U.S. at 306.
132. Whitacre v. Davey, 890 F.2d 1168, 1170 (D.C. Cir. 1989)
133. Santiago v. James, No. 95CIV.1136(JFK), 1998 WL 474089, at *4 (S.D.N.Y. Aug. 11, 1998) (describing immunity rules as meant to "alleviate the concern that frivolous Bivens suits would unduly interfere with public officials' duties").
134. ButZ v. Economou, 438 U.S. 478, 507-08 (1978).
135. 129 S. Ct. 1937 (2009). In the interest of full disclosure, the author was counsel of record for the respondent in Iqbal.
136. Iqbal's "plausibility" pleading standard had been announced two terms prior, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a case involving antitrust conspiracy allegations. On one account, then, Iqbal is notable only for making clear that Twombly applies in all cases, not just antitrust. Iqbal, 129 S. Ct. at 1953. On the other hand, Iqbal is an extension of Twombly that many believe will work significant changes to civil procedure. See Posting of Scott Dodson to Civil Procedure Prof Blog, http://lawprofessors.typepad.com/civpro (May 18, 2009)
137. Posting of Michael Dorf to FindLaw, http://writ.corporate.findlaw.com/dorf (May 20, 2009)
138. Posting of Howard Wasserman to PrawfsBlawg, http://prawfsblawg.blogs.com (May 18, 2009)
139. Posting of Howard Wasserman to PrawfsBlawg, http://prawfsblawg.blogs.com (May 18, 2009).
140. Drug and Device Law, http://druganddevicelaw.blogspot.com (May 28, 2009). While the implications of Iqbal are beyond the scope of this paper, the Court made clear that one of the bases for its decision was the concern about government officials being prematurely exposed to the burdens of discovery. Iqbal, 129 S. Ct. at 1953-54.
141. See cases cited infra note 95.
142. Crawford-El v. Britton, 93 F.3d 813, 838 (D.C. Cir. 1996) (Silberman, J., concurring) (citing R. FALLON, JR., D. MELTZER & D. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1122 (4th ed. 1996)), vacated, 523 U.S. 574 (1998).
143. Vaughan & Potter 1983, Ltd. v. United States, Civ. No. 91-F-1767, 1992 WL 235868 at *3 (D. Colo. July 29, 1992) (citation omitted).
144. See, e.g., Iqbal, 128 S. Ct. 2931; Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008), reh'g en banc granted (Aug. 12, 2008); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008); Turkmen v. Ashcroft, No. 02 CV 2307(JG), 2006 WL 1662663 (E.D.N.Y. June 14, 2006). In the interest of full disclosure, the author is counsel for the plaintiff in the Iqbal line of cases.
145. Michael W. Dolan, Constitutional Torts and the Federal Tort Claims Act, 14 U. RICH. L. REV. 281, 297 (1980) (citing Department of Justice figures that only seven of "several thousand" Bivens suits have resulted in judgments against federal defendants, with the likely culprit being the availability of qualified immunity)
146. Gail Donoghue & Jonathan I. Edelstein, Life After Brown: The Future of State Constitutional Tort Actions in New York, 42 N.Y.L. SCH. L. REV. 447, 452 n.18 (1998) (citing 30 out of 12,000 figure and describing "enormous" cost to defendants and public in defending "meritless claims")
147. Pillard, supra note 2, at 66; Rosen, supra note 27, at 343-44
148. Nathan R. Horne, Casenote, Removing the "Special" from the "Special Factors" Analysis in Bivens Actions: Vennes v. An Unknown
149. Number of Unidentified Agents of the United States, 28 CREIGHTON L. REV. 795, 821 n.222 (1995) (citing Rosen, supra note 25, figure of 30 plaintiffs' judgments out of 12,000, and recounting "obstacles to a successful Bivens action")
150. T. Hunter Jefferson, Note, Constitutional Wrongs and Common Law Principles: The Case for the Recognition of State Constitutional Tort Actions Against State Governments, 50 VAND. L. REV. 1525, 1530 n.20 (1997) (citing Rosen, supra note 25, and 30 out of 12,000 figure). The 12,000 figure has been recycled in recent commentary as well. Ryan Newman, Note, From Bivens to Malesko and Beyond: Implied Constitutional Remedies and the Separation of Powers, 85 TEX. L. REV. 471, 474-75 (2006) (citing Pillard, supra note 2, and Rosen, supra note 27).
151. See Crawford-El, 93 F.3d at 838 (Silberman, J., concurring) (reciting figures indicating that as of 1985 only 30 Bivens suits out of more than 12,000 had resulted in a plaintiff's judgment at the trial level, with only 4 of those actually resulting in payment)
152. Laswell v. Brown, 683 F.2d 261, 269 n.13 (8th Cir. 1982) (citing Dolan, supra note 94, for the proposition that "only seven of the several thousand constitutional tort suits brought since Bivens have resulted in judgments against a federal employee")
153. United States v. McKoy, 402 F. Supp. 2d 311, 315 (D. Mass. 2004) (citing figures from Rosen, supra note 25, Eisenberg & Schwab, supra note 15, and Slobogin, supra note 25)
154. Vaughan & Potter, 1992 WL 235868, at *3 (citing figures from Rosen, supra note 25).
155. See Pillard, supra note 2, at 66 n.5 (citing statements by J. Paul McGrath, Assistant Attorney General, Civil Division, U.S. Department of Justice, and John J. Farley, III, Director, Torts Branch, Civil Division, U.S. Department of Justice); see also Rosen, supra note 25, at 343-44 (citing McGrath and Farley statements, as well as 51 Fed. Reg. 27021 (July 29, 1986) (reporting that "over 12,000" Bivens suits had been filed since 1971)).
156. See Wise, supra note 11, at 849.
157. Nor does it account for the possibility that cases in which both Bivens claims and Federal Tort Claims Act claims are filed will result in the FTCA claim being settled and the Bivens claim dismissed. Pillard, supra note 2, at 66 n.6 (noting that rate of success was thought to be higher when Bivens claim was filed with corresponding FTCA claim).
158. As discussed above, those studies which have sought to quantify "success" in various modes of litigation have uniformly defined "success" broadly, as any result in which there is a plaintiff's judgment, a settlement, or a voluntary or stipulated dismissal. See sources cited supra note 13.
159. Wise, supra note 11, at 849-50.
160. Wise, supra note 11. at 851.
161. Damages or Nothing, supra note 11, at 693.
162. Damages or Nothing. at 694 n.146.
163. Damages or Nothing. at 694-95, tbls.A & B.
164. 515 U.S. 321 (1995).
165. See Brief for the United States as Amicus Curiae Supporting Reversal, Kimberlin, 515 U.S. 321 (No. 93-2068), available at http://www.usdoj.gov/osg/briefs/1993/w932068w.txt. Sixteen of the cases were settled and twelve cases went to trial. Of the cases that went to trial, two resulted in judgments for the plaintiff.
166. Schlanger, supra note 13, at 1557. Schlanger defines a successful lawsuit as one that results in judgment for the plaintiff, settlement, or voluntary dismissal. Id. at 1594-96. For prisoner lawsuits, 6% to 7% were settled before trial, 1% received a judgment after trial, and 6% to 8% voluntarily dismissed their claims, presumably in return for something of value. Id. at 1597.
167. Schwab & Eisenberg, supra note 13, at 732-33
168. see also Eisenberg & Schwab, supra note 15, at 682. The data in the study were gathered from three separate judicial districts for cases filed in 1980-1981: the Central District of California, the Eastern District of Pennsylvania, and the Northern District of Georgia. Schwab & Eisenberg, supra note 13, at 721. Success was defined as settlement, judgment, stipulated dismissal, or voluntarydismissal. Id. at 726-27. Other studies suggest more varied success rates when civil litigation is broken down by subject matter. Eisenberg & Lanvers, supra note 13, at 9 (reviewing studies of tort litigation and antitrust claims reporting success rates of about 70%-80% of filed cases)
169. Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 WASH. U. L. REV. 237, 273-75 (2006) (reporting settlement rates in patent cases ranging from 65% to 68% for the years 1995, 1997, and 2000).
170. Schwab & Eisenberg, supra note 13, at 770-71 ("Excluding the uncounseled prisoner actions eliminates significant differences between success rates, the rates at which pretrial conferences, depositions, and trials occur, and the rates at which plaintiffs obtain money judgments and money settlements."); Eisenberg & Schwab, supra note 15, at 692 ("Using our broad definition of success, prisoner constitutional tort claimants succeeded in 53% of the cases filed by counsel, whereas nonprisoner constitutional tort claimants succeeded 56% of the time.").
171. Schlanger, supra note 13, at 1617-18.
172. Because so few cases go to trial, a focus on settlement rates approximates the success rate reported in other studies.
173. Eisenberg and Lanvers, supra note 13, at 11.
174. See id. at 15 tbl.3. Eisenberg and Lanvers also reported 95% confidence intervals of 40.9% to 49.1% for constitutional torts, 58.1% to 72.5% for contracts, 78.7% to 86.1% for employment discrimination, and 83.3% to 91.2% for tort actions. Id.
175. Id. The 95% confidence intervals for the Northern District of Georgia figures were 22% to 32.6% for constitutional tort, 65.6% to 79.4% for contract claims, 51.3% to 59.7% for employment discrimination, and 56.6% to 71% for tort claims. Id.
176. Laura Beth Nielsen, Robert L. Nelson & Ryon Lancaster, Uncertain Justice: Litigating Claims of Employment Discrimination in the Contemporary United States (Am. Bar Found. Research Paper Series No. 08-04, 2008), available at http://ssrn.com/abstract=1093313
177. See Brief for the United States, supra note 106. Of those prisoner Bivens actions that went to trial between 1992 and 1994, 2 out of 12 resulted in judgments for the plaintiff, a success rate of about 17%. Id. at 1 n.2. This compares favorably with the success rate of other prisoner constitutional tort litigation, including section 1983 litigation, in which the success rate after trial has been reported to be between 8% and 15%. Schlanger, supra note 13, at 1596.
178. The wide range reflects the difference between the "four judgments out of 12,000" data and Charles Wise's more nuanced analysis. See Wise, supra note 11, at 850-51 (reporting that 28 out of 1470 Bivens cases resulted in judgments against the defendants).
179. See references cited supra note 108.
180. See Eisenberg & Schwab, supra note 15, at 674-75 tbl.VIII (reporting plaintiff's judgment rate of 2% in constitutional tort cases).
181. See Hassel, supra note 16, at 145 n.106 (reporting that over a two-year period, a qualified immunity defense resulted in dismissal approximately 80% of the time it was introduced). Importantly, this study did not compare the rate at which qualified immunity served as a ground for dismissal with the rate at which other bases for dismissal were relied upon.
182. Rosen, supra note 27, at 344.
183. Schwab & Eisenberg, supra note 13, at 781. Although this explanation was offered for why constitutional tort litigation in general is less successful than other civil litigation, it could presumably be offered to explain the failure of Bivens claims in particular.
184. Id. As these authors noted, "[w]ithout some sense of the number and seriousness of constitutional disputes not being filed, no clear interpretation of the evidence can be made." Id.
185. Kratzke, supra note 18, at 1151.
186. Id. Kratzke's suggestions for why Bivens claims are filed might be subject to some debate because the only sources cited for them are interviews he conducted with individuals within the Department of Justice, who might have a biased view of the motivations of Bivens plaintiffs.
187. The time period was chosen because of the desire to determine the current state of Bivens litigation and because of the likelihood that cases filed during that time period would be resolved by now. In addition, during the relevant time period, the law relating to Bivens claims remained relatively stable, with no new types of Bivens actions being recognized by the Supreme Court. The districts were selected because, during the time period studied, they were among the busiest district courts, measured by number of filings.
188. See ADMINISTRATIVE OFFICE OF U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS FOR 2001-2003, http://www.uscourts.gov/caseloadstatistics.html. Moreover, the districts are in the Second, Third, Fifth, and Seventh Circuits, which represent "moderate," "conservative," and "liberal" circuit courts, as measured by some empiricists.
189. See Lee Epstein et al., The Judicial Common Space, 23 J.L. ECON. & ORG. 303, 312 fig.4 (2007) (using measure showing that as of 2000, the Second Circuit was one of the most "liberal" circuits, the Fifth Circuit was one of most "conservative" circuits, and the Third and Seventh Circuits were "moderate" circuits, as compared with Supreme Court).
190. See Eisenberg & Lanvers, supra note 13, at 4-5
191. Schlanger, supra note 13, at 1594-96
192. Schwab & Eisenberg, supra note 13, at 726-27.
193. Eisenberg & Lanvers, supra note 13, at 4-5.
194. One must therefore be cautious in resting too much on analyzing case outcomes. As other researchers have observed, while recording a simple success rate can appear to be meaningful, interpreting the data poses many dangers.
195. Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L. REV. 581, 586-87 (1998). Methodologically, however, this study attempts to avoid many of the pitfalls of empirical study of case outcomes. First, it does not rely on the data summarized by the Administrative Office of the United States Courts, because especially with respect to Bivens claims the coding by the A.O.'s office is unreliable. Second, it is not limited solely to recording formal judgments, but looks at success more broadly, as most empiricists suggest. Third, because the research examined the docket for each case, any changes to a judgment made on appeal were recorded. See id. (describing possible pitfalls of studying plaintiff win rates).
196. In large part, this is supported by the judgment bar of the FTCA-if an FTCA claim is settled, no action can proceed against an individual based on the same conduct alleged in the FTCA claim. 28 U.S.C. §§ 2672, 2676, 2679(b)(1). Moreover, the United States' consistent litigating position in cases in which both Bivens and FTCA claims are present has been that settlement must be under the FTCA and not Bivens.
197. This is easier said than done. The Administrative Office does not code specifically for Bivens, although there is a highly underinclusive PACER filter that nominally tags Bivens lawsuits. In my experience conducting this study, it failed to identify the vast majority of Bivens claims. Therefore, I used two means to determine the presence of Bivens claims. First, I searched for all cases which were filed with the Administrative Office's code for "civil rights" claims, "prisoner civil rights" claims, and "prison conditions" claims (Codes 440, 550, and 555); the vast majority of these were clearly brought against state or municipal officials and were not Bivens claims. Second, I culled files that were jurisdictionally defined as ones having the United States as a defendant, Often these were cases in which both a Bivens claim and a parallel FTCA claim were brought.
198. See Eisenberg & Lanvers, supra note 13, at 5-6.
199. My thanks to Margo Schlanger for suggesting this method of testing my search criteria. The results of the reverse engineering are reflected infra App. tbl.11. I recognize that this does not completely resolve the problem of undercounting the total number of Bivens cases-it might be that certain kinds of Bivens cases, with particular kinds of Administrative Office codes, are less likely to result in published opinions. Absent any data indicating that this kind of selection bias is occurring, however, I think it is fair to conclude that the methodology used in this study is a reliable means of finding the vast majority of Bivens cases.
200. There is some indication, for instance, that individuals living in the United States are generally less likely to seek and obtain legal services to resolve legal problems than individuals living in a variety of other countries.
201. See Gillian K. Hadfield, Higher Demand, Lower Supply?: A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans, 36 FORDHAM L.J. (forthcoming 2010), (manuscript at 12, available at http://ssrn.com/abstract=1410890). To my knowledge, no specific study has been done of the likelihood that individuals injured by government officials will resort to legal means for redress.
202. It may be possible to survey lawyers about why they might refuse to take on particular Bivens cases, but it is much harder to survey litigants themselves.
203. Eight cases in which no final disposition has been achieved are omitted from analysis in this paper. These cases all have been ongoing for some time and have involved extensive discovery and motion practice, but they are not informative as to the "success" of Bivens litigation as defined in this study.
204. See U.S. Courts, U.S. District Courts-Civil Cases Commenced, by Nature of Suit and District, During the 12-Month Period Ending March 31, 2002 http://www.uscourts.gov/caseload2002/tables/c03mar02.pdf (last visited Jan. 28, 2010)
205. U.S. Courts, U.S. District Courts-Civil Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending March 31, 2002 and 2003 http://www.uscourts.gov/caseload2003/tables/C00Mar03.pdf (last visited Jan. 28, 2010)
206. U.S. Courts, U.S. District Courts-Civil Cases Commenced, by Nature of Suit and District, During the 12-Month Period Ending March 31, 2004 http://www.uscourts.gov/caseload2004/tables/C03Mar04.pdf (last visited Jan. 28, 2010). There is some difficulty in comparing these numbers directly, because the Administrative Office reports the number of cases filed per district on a March-March basis. That is, figures are only available for the cases filed between April 2001 and March 2002, and so on. Therefore, Table 1 actually compares the number of cases filed in which there was federal The success rate for prisoners' Bivens claims is consistent with the rate that has been previously reported by studies of success rates for prisoner civil rights claims. Schlanger, supra note 13, at 1557; Schwab & Eisenberg, supra note 13, at 732-33.
207. The population data reported here was collected on Mar. 4, 2009 and should be considered accurate as of that date. The Metropolitan Detention Center, located in the Eastern District of New York, is the second largest federal prison facility in the United States with a population of about 2700 pretrial detainees and prisoners.
208. See Fed. Bureau of Prisons, Weekly Population Report, http://www.bop.gov/locations/weekly_report.jsp (last visited March 4, 2009). The Southern District of New York contains three federal facilities with a total population of almost 2000. Id. These two districts have among the highest proportion of Bivens filings. The Eastern District of Pennsylvania has one facility with about 1100 pretrial detainees and prisoners, and the Northern District of Illinois has one facility with a little more than 700 detainees. Id. Both of these districts have among the lowest percentage of Bivens suits. And the Southern District of Texas, with an intermediate percentage of Bivens suits, has three facilities with a total population of about 2800, although about a third of these are female prisoners. Id.
209. See supra notes 107-115 and accompanying text.
210. In the Appendix, I report the magnitude of difference in success rates and the results of Fisher's exact test for every possible combination of between-district comparisons, as well as for comparisons between each district and the sum of each other district. The difference between the Eastern District of New York's success rate and every district's is statistically significant at the p < 0.10 level, using a two-tailed Fisher's exact test. See infra App. tbl.3.
211. The increased rate of success is due almost entirely to the inclusion of settlements and voluntary dismissals in the numerator.
212. None of the differences between the Eastern District of Pennsylvania and other districts, except for the Eastern District of New York, are statistically significant. See App. tbl.3.
213. The Southern District of New York and Northern District of Illinois are the exceptions. See Table 3.
214. Confidence intervals at the 95% level and results of Fisher's exact test are reported in the Appendix Table 4.
215. See infra App. tbl.5.
216. See Complaint in Cv. No. 01-2399 (N.D. Ill.), on file with author.
217. See Complaint in Cv. No. 03-4355 (E.D.N.Y.), on file with author.
218. Fifty of the complaints, or 20.5%, were dismissed as frivolous. See infra App. tbl.6. There was interdistrict variation: the Eastern District of New York dismissed the fewest complaints as frivolous, with 13.4%, while the Southern District of Texas dismissed 26.6% of the Bivens complaints as frivolous. Id. The other districts were closer to a 20% frivolous dismissal rate. Id.
219. Indeed, many of the pro se complaints purport to sue federal officials under section 1983.
220. See Eisenberg & Schwab, supra note 15, at 682 n.169 (reporting success rate of 38% for constitutional claims); see also Schwab & Eisenberg, supra note 13, at 729-30 (reporting success rate of 50% for nonprisoner tort plaintiffs).
221. See infra App. tbl.8.
222. As a matter of terminology, I refer to these cases in Figure 4 as occurring after issue being joined, in contrast to the typical definition, which uses the filing of an answer, but not a motion to dismiss, as the dividing line.
223. When looking at success rates by case type, there is a similar effect, as the following table demonstrates: 155. See infra App. tbl.10.
224. Between 2001 and 2002, Eisenberg and Lanvers reported 95% confidence intervals for success in constitutional tort cases from 22% to 33% for the Northern District of Georgia and 41% to 49% for the Eastern District of Pennsylvania. Eisenberg & Lanvers, supra note 13, at 15 tbl.3. The data reported in this study for the Eastern District of Pennsylvania need to be further explored given how different they are from Eisenberg and Lanvers' figures.
225. The figures that have been reported indicate a success rate of about 15% for prisoner plaintiffs, Schlanger, supra note 13, at 1557, and 50% for nonprisoner plaintiffs. Schwab & Eisenberg, supra note 13, at 733; see also Eisenberg & Schwab, supra note 15, at 682.
226. See Schlanger, supra note 13, at 1594-95 (reporting that 80% of cases were resolved in defendant's favor pretrial, and suggesting that many of these were resolved sua sponte, but not providing data on frivolous or pre-answer dismissals).
227. Eisenberg and Lanvers report data suggesting that only about 6% of the cases they studied in the Northern District of Georgia and Eastern District of Pennsylvania were dismissed prior to the filing of an answer, but do not identify sua sponte dismissals. Eisenberg & Lanvers, supra note 13, at 13 tbl.2 (reporting that 4.72% of cases were dismissed for failure to serve or failure to prosecute and 1.14% were dismissed for failure to state a claim or other Rule 12 ruling). Schwab and Eisenberg report the percentage of cases in which significant events such as filing of answer or discovery occur, but do not differentiate success rates in these cases. Schwab & Eisenberg, supra note 13, at 733 tbl.IV; see also Eisenberg & Schwab, supra note 15, at 674 tbl.VIII.
228. A dismissal was considered on the merits whether it was a Rule 12(b)(6) dismissal or a summary judgment dismissal. Although the former is typically not a dismissal with prejudice, the distinction is not relevant for these purposes.
229. It is possible that the prospect of overcoming qualified immunity deters attorneys from taking on Bivens cases and that this creates a kind of selection bias in filed cases: attorneys may already have rejected those cases in which qualified immunity is likely to be a substantial barrier to relief. Even if this kind of screening were occurring, however, it may only displace the case from the counseled category to the pro se category, leaving the denominator of Bivens cases unchanged. Moreover, to the extent that this study compares the experience of Bivens cases with the experience of other civil rights cases, the same kind of screening may be taking place in both data sets (although the availability of attorneys' fees in other civil rights cases may operate to mitigate the screening out of cases particularly vulnerable to qualified immunity arguments). Finally, even when one looks to published district and appellate court decisions, it is not apparent that qualified immunity is the insuperable barrier that scholars have assumed. In a survey of all Westlaw-reported federal Bivens cases between the years 2000 and 2003, only forty-three district and appellate court cases addressed a qualified immunity defense; the defense was rejected in eighteen cases and accepted in fourteen cases. This contrasts with data collected by Diana Hassel for reported qualified immunity cases in the years 1997 and 1998, in which she observed that a qualified immunity defense was accepted in 80% of the cases in which it was raised. See Hassel, supra note 16, at 136 n.65, 145 n.106.
230. It is important to note that nothing indicates that qualified immunity needs to be strengthened because it is being relied on less often than has previously been thought. If anything, the data suggest that district courts have many different tools for resolving Bivens cases without recourse to qualified immunity.
231. Where a plaintiff seeks to proceed in forma pauperis, the district court is given the discretion to dismiss a complaint sua sponte if it, inter alia, "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(iii). This is the same statutory subsection that permits pre-answer dismissal for frivolousness. Id. § 1915(e)(2)(B)(i). Thus, it is possible that some district courts dismissing actions for being frivolous may be making an implicit judgment about the presence of a qualified immunity defense.
232. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring).
233. Changes in the law are often spurred by cases in which qualified immunity is at issue-such cases afford courts the opportunity to announce new legal principles while protecting individual defendants from damages liability. This aspect of qualified immunity is at the heart of the tension between the Supreme Court's opinions in Saucier v. Katz, 533 U.S. 194 (2001), and Pearson v. Callahan, 129 S. Ct. 808 (2009).
234. Dismissals on this ground often involved the failure to amend in response to the Court's order, or the failure to prosecute the claim.
235. The successful cases that I found all involved settlements or voluntary/stipulated dismissals, and all indications were that the United States ended up paying the settlement.
236. This is consistent with other studies of constitutional tort litigation. Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 GEO. L.J. 1567, 1588-89 (1989) (finding greater regional differences in success of prisoner litigation than in civil rights litigation generally); Eisenberg & Schwab, supra note 15, at 692; Schwab & Eisenberg, supra note 13, at 770-71, 773-74.
237. See Bandes, supra note 18, at 340-41; Hassel, supra note 18, at 455-56, 476-77; Hedrick, supra note 18, at 1062-63, 1065-66; Oren, supra note 18, at 1000-02; Pillard, supra note 2, at 80-81.
238. See, e.g., Kratzke, supra note 18, at 1152 (arguing that shifting liability to the federal government would increase the value of genuine Bivens claims and decrease the deleterious effect of Bivens claims on federal officials); Schuck, supra note 18, at 346 (expressing concern for protecting individual officials from being sued and from being held personally liable).
239. When Bivens was decided, the principal justification for providing the damages remedy was that, without it, Mr. Bivens himself would have no remedy at all: as Justice Harlan explained in concurring, "For people in Bivens' shoes, it is damages or nothing." Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring)
240. see also Bandes, supra note 18, at 341 n.244 (noting that original purpose of Bivens was primarily compensation rather than deterrence). Subsequent to Bivens, however, the Court has identified an interest in deterrence as one basis for the cause of action. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) ("The purpose of Bivens is to deter individual federal officers from committing constitutional violations."); FDIC v. Meyer, 510 U.S. 471, 485 (1994) ("It must be remembered that the purpose of Bivens is to deter the officer."); Carlson v. Green, 446 U.S. 14, 21 (1980) ("Bivens... in addition to compensating victims, serves a deterrent purpose."); Butz v. Economou, 438 U.S. 478, 505-06 (1978) (declining to provide absolute immunity to federal executive officials under Bivens because doing so would eviscerate deterrent effect).
241. See supra notes 9, 18-25 and accompanying text.
242. Bivens, of course, only provides a remedy in compensatory as opposed to prohibitory terms, a distinction that in other areas has been challenged as not providing complete compensation and not providing sufficient deterrence. Jeffrey Standen, The Fallacy of Full Compensation, 73 WASH. U. L.Q. 145, 150-53 (discussing "pricing" remedies and their critics). As has been observed in the context of tort and contract actions, providing compensation may deter the breach of a legal duty only when the compensatory regime imposes higher costs than the value of engaging in the breach. Id. at 151 ("As a result, protection of the plaintiff's interests depends on the private, individualized decisions of a defendant weighing gains and harms prior to taking action.").
243. Questions about the relationship between individual damages actions in constitutional litigation and tort principles, and even whether tort doctrine should inform our approach to enforcing constitutional rights, have long been debated.
244. See, e.g., John C. Jeffries, Jr., Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts, 75 VA. L. REV. 1461 (1989) (arguing that principles of corrective justice should impose limits on government actors' liability for violations of constitutional rights)
245. Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997 (1990) (disagreeing with Professor Jeffries' assumptions about the inherent wrongfulness of constitutional violations).
246. Jeffrey Standen, The Exclusionary Rule and Damages: An Economic Comparison of Private Remedies for Unconstitutional Police Conduct, 2000 BYU L. REV. 1443 (arguing that damages are at least as effective a deterrent remedy as the exclusionary rule for Fourth Amendment violations).
247. If we believe that any fair remedial system balances interests in deterrence, compensation, and effective enforcement of legal norms, see Rudovsky, supra note 18, at 1211, then the relationship between indemnification and deterrence is critical.
248. See Bernard P. Dauenhauer & Michael L. Wells, Corrective Justice and Constitutional Torts, 35 GA. L. REV. 903, 917-18 (2001) (describing the "educative" and "deterrent" functions of criminal and tort law).
249. See Schlanger, supra note 13, at 1672-80 (arguing that litigation has a deterrent effect in jail and prison context, and disputing overdeterrence and antideterrence theories)
250. see also Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 283 (1988). These additional costs of litigation cause Professor Meltzer to question whether the additional prospect of liability for damages provides an additional level of marginal deterrence that is justified. Id.
251. See Meltzer, supra note 178, at 283. There is a symbolic harm in being named as a defendant in a lawsuit-defendants being deposed in litigation often express outrage and displeasure at being personally named in particular lawsuits. Indeed, my practice when taking depositions of nonparty officers was always to remind them at some point in the deposition that they were not defendants, with the hope, sometimes met, that they would respond by being more forthcoming. There are communicative consequences to other potential wrongdoers as well.
252. See Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183, 185 (arguing that the harm of abridging remedial options is to indicate to potential wrongdoers that violations may be caused without consequence); Schlanger, supra note 13, at 1681 (describing deterrent effect of media exposure from lawsuits)
253. see also Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV. 845, 859-61 (2001) (describing informational advantages of municipal tort liability).
254. Schlanger, supra note 13, at 1675 n.389 (describing problems with would-be creditors as one of the chief complaints by officers subject to section 1983 suits).
255. Officers are sometimes shifted to different, less desirable, duties as a result. For instance, in the prison context, officers who are seen as particular risks may be transferred to positions that involve little to no inmate contact. Such positions offer little opportunity for career advancement.
256. See Meltzer, supra note 178, at 284
257. James J. Park, The Constitutional Tort Action as Individual Remedy, 38 HARV. C.R.-C.L. L. REV. 393, 400 (2003) (noting risk that individuals will not pursue a lawsuit).
258. Standen, supra note 173, at 219. Private litigants also face significant barriers when litigating against government defendants, including differences in resources and stakes and different assessments of the success of claims. Schwab & Eisenberg, supra note 13, at 750-55.
259. The exceptions appear to be cases in which the government itself has determined that the employee engaged in some kind of wrongdoing meriting discipline.
260. See, e.g., 28 C.F.R. § 50.15(a), (b)(2) (2009) (providing right to representation for federal employees and officials sued for actions within the scope of employment when representation is in the interest of the United States); see also 13 C.F.R. § 114.110(a)(1) (2009) (authorizing indemnification and representation when doing so is in the Small Business Administration's interest); 14 C.F.R. § 1261.316(a) (2009) (authorizing indemnification when doing so is in the National Aeronautics and Space Administration's interest); 17 C.F.R. §§ 142.1, 142.2(a) (2009) (providing indemnification for Commodity Futures Trading Commission employees when doing so is in the interest of the United States); 22 C.F.R. § 21.1(a) (2009) (same for Department of State employees); 22 C.F.R. § 207.01(a) (2009) (same for Agency for International Development employees); 31 C.F.R. § 3.30(a) (2009) (authorizing indemnification when doing so is in the Department of Treasury's interest); 34 C.F.R. §§ 60.1(a)(1), 60.2(b)(1) (2009) (providing indemnification for Department of Education employees when doing so is in the interest of the United States); 38 C.F.R. § 14.514(c) (2009) (authorizing indemnification and representation when doing so is in the Department of Veterans Affairs' interest); 43 C.F.R. § 22.6(a) (2009) (same for Department of the Interior employees); 45 C.F.R. § 36.1(a) (2009) (authorizing indemnification when doing so is in the Department of Health and Human Services' interest). The Army has slightly more restrictive language, authorizing indemnification only when it is in the "best interests" of the United States and when there is a specific appropriation for such indemnification. 32 C.F.R. § 516.32(a) (2009).
261. See 28 C.F.R. § 50.15(a)(2), (a)(7), (a)(11) (2009) (distinguishing between right to representation by Department attorneys or private counsel and indemnification decisions).
262. Pillard, supra note 2, at 67. Professor Pillard describes the federal government as the "real... party in interest" in Bivens suits, because it pays defense and indemnification costs. Id.
263. Pillard, supra note 2. at 66-68.
264. For instance, constitutional standards for prison administration are in conformity with good professional practice as well, and for no secret, but because there is crosspollination between courts and professionals regarding good practices. Schlanger, supra note 13, at 1683; see also Primus, supra note 25, at 1023-24 (arguing that federal courts are likely to share common constitutional norms with federal policy makers).
265. It may be that Bivens claims will do effective deterrent work where they regulate the space between the kind of conduct prohibited by the FTCA and unconstitutional conduct.
266. See KENNETH J. ROTHMAN & SANDER GREENLAND, MODERN EPIDEMIOLOGY 183-201 (2d ed. 1998).