Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.
Here’s the abstract:
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.
Commentators base their criticism of the individual liability model on two empirical assumptions: (1) Bivens suits are almost never successful; and (2) the defense of qualified immunity, available only to individuals, is a nearly insuperable barrier to plaintiffs’ prevailing in Bivens claims. On this account, a move to the governmental liability model will ensure adequate compensation and deterrence while removing a substantial barrier to plaintiffs’ success. These empirical claims about the general failure of Bivens suits and the explanation for that failure have never been tested. This Article corrects that oversight by offering the results of the first detailed empirical study of the determinants and outcomes of Bivens litigation. Based on data collected from cases filed in five district courts from 2001-2003, this Article concludes that the truths that scholars and judges have taken as a given are unsupported. Bivens claims succeed at a much higher rate than previously thought, especially compared to other civil rights litigation, and the defense of qualified immunity rarely plays a role in the outcome of Bivens litigation. These data call into question the given wisdom about the characteristics of Bivens litigation, and undermine the policy proposals that have occupied the field in Bivens scholarship.
So why do I bring this interesting article to the labor and employment law readers of this blog? In an article I published last year, Whither the Pickering Rights of Federal Employees?, I pointed out that as a result of the Supreme Court’s 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978.
Because my empirical analysis of all First Amendment Pickering cases involving federal employees found that there had not been one successful employee claim of this type under that administrative scheme, I argued that Bush should be revisited and overturned, and a Bivens claim implied to vindicate the First Amendment interests of federal employees.
Some had argued that by going back to Bivens that these federal employees would face insurmountable odds because of the difficulties associated with winning these claims. Reinert’s new study demonstrates, however, that federal employees given a Bivens claim will likely find a more meaningful remedy for their First Amendment claims in federal trial courts.
Now, I can only hope that more people will pay attention to this study and see its importance for federal employees’ constitutional rights in the workplace.