stating, inter alia, that when the courts take on such legislative tasks, they should take into account a range of policy considerations at least as broad as those a legislature would consider with respect to an express statutory authorization of a traditional remedy
How later courts described this case
- stating, inter alia, that when the courts take on such legislative tasks, they should take into account a range of policy considerations at least as broad as those a legislature would consider with respect to an express statutory authorization of a traditional remedy
- holding that plaintiffs, "[i]n the absence of a contrary expression from Congress, . . . shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights"
- stating that “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court” in a case involving allegations of personal injuries from federal prison officials
- explaining that “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” (emphasis added)
Written by the judges who cited it.
Later courts went against this
Questioned by BARRIOS v. HASKELL COUNTY PUBLIC FACILITIES AUTHORITY FOUTCH v. TURN KEY HEALTH, 2018 OK 90 (2018)
In so doing, the Ziglar Court called the continuing validity of Carlson into grave doubt,24 saying that it might decide the case differently today because "the arguments for recognizing implied causes of action for damages" had "los[t] their force."25
Questioned — as noted by a later court
In so doing, the Ziglar Court called the continuing validity of Carlson into grave doubt, saying that it might decide the case differently today because "the arguments for recognizing implied causes of action for damages" had "los[t] their force."
medium confidenceQuestioned by Barrios v. Haskell Cnty. Pub. Facilities Auth., 432 P.3d 233 (2018)
In so doing, the Ziglar Court called the continuing validity of Carlson into grave doubt,24 saying that it might decide the case *240differently today because "the arguments for recognizing implied causes of action for damages" had "los[t] their force."25
Distinguished
Distinguished by Turner v. United States, 327 F. Supp. 3d 453 (2018)
Carlson therefore is distinguishable.
Distinguished by Ascani v. Hughes, 470 So. 2d 207 (1985)
Carlson is clearly distinguishable as a Bivens-type suit in which the plaintiff sought relief for violation of his constitutional rights by federal officials under a judicially created remedy.
Distinguished by Ricard v. State, 390 So. 2d 882 (1980)
Carlson is clearly distinguishable from the instant case.
The opinion
Mr. Chief Justice Burger,
dissenting.
Although I would be prepared to join an opinion giving effect to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) — which I thought wrongly decided — I cannot join today’s unwarranted expansion of that decision. The Federal Tort Claims Act provides an adequate remedy for prisoners’ claims of medical mistreatment. For me, that is the end of the matter.
TJnder the test enunciated by the Court the adequacy of the Tort Claims Act remedy is an irrelevancy. The sole inquiry called for by the Court’s new test is whether “Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution.” Ante, at 18-19 (first emphasis added). 1 That test would seem to permit a person whose constitutional rights have been violated by a state officer to bring suit under Bivens even though Congress in 42 U. S. C. § 1983 has already fashioned an equally effective remedy. Cf. Turpin v. Mailet, 591 F. 2d 426 (CA2 1979) (en banc). After all, there is no “explicit congressional declaration,” ante, at 19, that § 1983 was meant to pre-empt a Bivens remedy. Taken to its logical conclusion, the Court’s test, coupled with its holding on survivorship, ante, at 23, and n. 11, suggests that the plaintiff in Robertson v. Wegmann, 436 U. S. 584 (1978), might have *31 escaped the impact of that decision by filing a separate Bivens-type claim. And the Court’s test throws into doubt the decision in Brown v. GSA, 425 U. S. 820 (1976), where we held that § 717 of the Civil Rights Act of 1964 provides the exclusive remedy for claims of discrimination in federal employment. In enacting § 717 Congress did not say the magic words which the Court now seems to require. 2
Until today, I had thought that Bivens was limited to those circumstances in which a civil rights plaintiff had no other effective remedy. See 403 U. S., at 410 (Harlan, J., concurring in judgment); Davis v. Passman, 442 U. S. 228, 245 , and n. 23 (1979). Now it would seem that implication of a Bivens-type remedy is permissible even though a victim of unlawful official action may be fully recompensed under an existing statutory scheme. I have difficulty believing that the Court has thought through, and intends the natural consequences of, this novel test; I cannot escape the conclusion that in future cases the Court will be obliged to retreat from the language of today’s decision. 3
The Court pays lipservice to the notion that there must be no “special factors counselling hesitation in the absence of affirmative action by Congress.” Ante, at 19. Its one-sentence discussion of the point, however, plainly shows that it is unlikely to hesitate unless Congress says that it must. See opinion of Mr. Justice Powell, ante, at 27.
In his concurrence in Bivens , Mr. Justice Harlan emphasized that judicial implication of a constitutional damages remedy was required because the Bill of Rights is aimed at “restraining the Government as an instrument of the popular will.” 403 U. S., at 404 . See generally J. Ely, Democracy and Distrust 73-104 (1980). Under the Harlan view, it would seem irrelevant whether Congress “meant to pre-empt a Bivens remedy.” Ante, at 19. Rather the sole inquiry in every case — no matter what magic words Congress had said or failed to say — would be whether the alternative remedy gave satisfactory protection to constitutional interests. I note this point only to show how far the Court today strays from the principles underlying Bivens .
In response to this dissent, the Court’s opinion tells us that it is merely “giv[ing] effect” to what Congress intended. See ante, at 19, n. 5. Pre *32 sumably, this is a reference to the legislative history of the 1974 amendment to the FTCA, in which Congress, according to the Court, “made it crystal clear that . . . FTCA and Bivens [were] parallel, complementary causes of action.” Ante, at 20. But as Mr. Justice Rehnquist observes, the legislative history is far from clear. See post, at 33, n. 2. In any event, if the Court is correct in its reading of that history, then it is not really implying a cause of action under the Constitution; rather, it is simply construing a statute. If so, almost all of the Court’s opinion is dicta.