Amicus Curiae Brief — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.

No. 17-1678

In the

Supreme Court of the United States

__________________

JESUS C. HERNÁNDEZ, ET AL.,

Petitioners,

v.

JESUS MESA, JR.,

Respondent.

__________________

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

__________________

BRIEF OF DOUGLAS LAYCOCK, JAMES E.

PFANDER, ALEXANDER A. REINERT AND

JOANNA C. SCHWARTZ AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

__________________

JOSHUA MATZ

Counsel of Record

BENJAMIN D. MARGO

Kaplan Hecker & Fink LLP

350 Fifth Avenue | Suite 7110

New York, NY 10118

(212) 763-0883

jmatz@kaplanhecker.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................ iii

INTEREST OF AMICI CURIAE .................................... 1

SUMMARY OF ARGUMENT .......................................... 1

ARGUMENT ........................................................................ 4

I.

THE MYTH OF PERSONAL AND

AGENCY FINANCIAL LIABILITY.................. 4

A.

Financial

Liability

and

the

Theoretical Risk of Over-Deterring

Officers and Agencies .................................. 4

B.

Individual Officers and their

Agencies Almost Never Incur

Personal Liability ......................................... 6

1.

2.

Bivens and the Bureau of

Prisons ............................................... 6

a.

Study Design ........................ 6

b.

Results:

Individual

Officers ................................ 7

c.

Results: Agencies................. 9

The Success Rate of Bivens

Litigation ......................................... 10

ii

3.

II.

a.

Study Design ...................... 11

b.

Results ................................. 13

Implications of the Empirical

Findings........................................... 13

THE SEPARATION OF POWERS AND

FEDERAL CONFLICTS OF INTEREST ...... 16

CONCLUSION .................................................................. 24

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ........... passim

Bush v. Lucas,

462 U.S. 367 (1983) ...................................... 2, 4, 16, 18, 23

Corr. Services Corp. v. Malesko,

534 U.S. 61 (2001) ................................... 2, 4, 14, 16-17, 19

Crawford-El v. Britton,

93 F.3d 813 (D.C. Cir. 1996) ........................................... 10

Doe v. United States,

12-cv-00640 (D. Haw. 2015) .............................................. 8

Evenwel v. Abbott,

136 S. Ct. 1120 (2016) ...................................................... 19

FDIC v. Meyer,

510 U.S. 471 (1994) ................................................... 4-5, 14

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ..............................................4-5, 20-21

Harrison v. Jackson,

12-cv-4459 (N.D. Ga. 2012) ............................................... 8

Hernandez v. Mesa,

885 F.3d 811 (5th Cir. 2018) (en banc) .......................... 15

iv

Hui v. Castaneda,

559 U.S. 799 (2010) ............................................................ 5

Kimberlin v. Quinlan,

17 F.3d 1525 (D.C. Cir. 1994) ......................................... 10

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ........................................................ 2

Marbury v. Madison,

5 U.S. 137, 1 Cranch 137 (1803) ..................................... 19

Michigan v. Bay Mills Indian Community,

582 U.S. 782 (2014) .......................................................... 21

Missouri, Kansas & Texas R. Co. of Texas v. May,

194 U.S. 267 (1904) .......................................................... 19

Mullenix v. Luna,

136 S. Ct. 305 (2015) .......................................................... 5

Schweiker v. Chilicky,

487 U.S. 412 (1988) ...................................................... 2, 18

Simpkins v. D.C.,

108 F.3d 366 (D.C. Cir. 1997) ......................................... 10

Upper Skagit Indian Tribe v. Lundgren,

138 S. Ct. 1649 (2018) ...................................................... 21

West Virginia Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) .......................................................... 22

v

Wilkie v. Robbins,

551 U.S. 537 (2007) ............................................................ 4

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ............................................. passim

STATUTES

28 U.S.C. § 1915 ................................................................... 13

31 U.S.C. § 1304 ..................................................................... 9

42 U.S.C. § 1983 ................................................................... 20

OTHER AUTHORITIES

Akhil Reed Amar, Of Sovereignty and Federalism,

96 Yale L.J. 1425 (1987) .................................................. 20

Walter E. Dellinger, Of Rights and Remedies: The

Constitution as a Sword, 85 Harv. L. Rev. 1532

(1972) ............................................................................ 18-20

Michael W. Dolan, Constitutional Torts and the

Federal Tort Claims Act, 14 U. Rich. L. Rev. 281

(1980) ................................................................................. 10

vi

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

(1998) ................................................................................. 10

Theodore Eisenberg & Charlotte Lanvers, What Is

the Settlement Rate and Why Should We Care?,

6 J. Empirical Legal Stud. 111 (2009) ........................... 12

Richard H. Fallon, Jr. & Daniel J. Meltzer, New

Law, Non-Retroactivity, and Constitutional

Remedies, 104 Harv. L. Rev. 1731 (1991)............... 20, 22

Paul Figley, The Judgment Fund: America’s

Deepest Pocket and Its Susceptibility to

Executive Branch Misuse, 18 U. Pa. J. Const. L.

145 (2015) ............................................................................ 9

James Madison, 1 Annals of Congress 439 (1789) .......... 22

James E. Pfander & David Baltmanis, Rethinking

Bivens: Legitimacy and Constitutional

Adjudication, 98 Geo. L.J. 117 (2009) ............... 17-18, 20

James E. Pfander, Alexander E. Reinert & Joanna

C. Schwartz, The Myth of Personal Liability:

Who Pays When Bivens Claims Succeed, 72

Stan. L. Rev. (forthcoming 2019) ......................... passim

Cornelia T.L. Pillard, Taking Fiction Seriously:

The Strange Results of Public Officials’

Individual Liability Under Bivens, 88 Geo. L.J.

65 (1999) ............................................................................ 10

vii

Alexander A. Reinert, Measuring the Success of

Bivens Litigation and its Consequences for the

Individual Liability Model, 62 Stan. L. Rev. 809

(2010) ........................................................................ 8, 11-13

Margo Schlanger, Inmate Litigation, 116 Harv. L.

Rev. 1555 (2003) ............................................................... 12

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 (1988) .......................................................................... 12

1

INTEREST OF AMICI CURIAE

Amici are legal scholars whose focus includes

remedies, federal courts, the separation of powers, and

constitutional law. They have a strong professional

interest in the proper development of the law, which

includes accounting for the best available empirical

evidence and structural legal principles bearing on the

questions here at issue.

Amici are Douglas Laycock, Robert E. Scott

Distinguished Professor of Law at the University of

Virginia School of Law; James E. Pfander, Owen L. Coon

Professor of Law at the Pritzker School of Law at

Northwestern University; Alexander A. Reinert, Max

Freund Professor of Litigation and Advocacy at the

Benjamin N. Cardozo School of Law; and Joanna C.

Schwartz, Professor of Law at UCLA Law School. 1

SUMMARY OF ARGUMENT

Just as when Bivens was decided, so today “the

judiciary has a particular responsibility to assure the

vindication of constitutional interests such as those

embraced by the Fourth Amendment.” Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 407 (1971) (Harlan, J., concurring in the

Amici state that no party’s counsel authored the brief in whole

or in part; no party’s counsel contributed money that was intended to

fund preparing or submitting the brief; and no person—other than

amici and their counsel—contributed money intended to fund

preparing or submitting the brief. All parties have consented to the

filing of this brief. Sup. Ct. R. 37.3, 37.6. Amici join this brief as

individuals; institutional affiliation is noted for informational purposes

only and does not state endorsement by institutional employers of

positions advocated.

1

2

judgment). Indeed, this Court has never “cast doubt on

the continued force, or even the necessity, of Bivens in the

search-and-seizure context in which it arose.” Ziglar v.

Abbasi, 137 S. Ct. 1843, 1856 (2017). When rogue federal

agents violate the Fourth Amendment—and when there is

no other legal recourse at hand—courts have fulfilled their

institutional responsibility by recognizing a damages

remedy. This rule serves to deter official misconduct,

compensate victims, and exalt legality over the creeping

threat of lawlessness.

Over the past few decades, however, the Court has

identified several reasons supporting a more cautious

approach to recognizing damages remedies. These include

the risk of over-deterring officers and agencies through

fear of ruinous liability, as well as the potential separation

of powers concerns that arise when courts imply a remedy

where Congress has not expressly created one. See Ziglar,

137 S. Ct. at 1856-58, 1863; Bush v. Lucas, 462 U.S. 367,

389 (1983); Schweiker v. Chilicky, 487 U.S. 412, 425 (1988).

On the basis of such anxieties, the Court has withheld

remedies for cases arising in a “new context” where

“special factors” weigh in favor of hesitation. See Ziglar,

137 S. Ct. at 1857.

Some of the Court’s recent language about reasons to

deny Bivens remedies has been quite expansive. See id. at

1857-58. But the Court has pointedly declined to overturn

Bivens or confine it to its facts, notwithstanding calls to do

exactly that. See id. at 1870 (Thomas, J., concurring in the

judgment); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75

(2001) (Scalia, J., concurring); see also Kisor v. Wilkie, 139

S. Ct. 2400, 2422 (2019) (explaining that stare decisis is

unusually strong when a party asks this Court “to overrule

not a single case, but a long line of precedents—each one

reaffirming the rest” (citations omitted)).

3

Unless this has all been an empty promise, the “new

context” and “special factor” limitations on the availability

of Bivens remedies must not be read as swallowing the

doctrine whole. And because these limitations are

expressly premised on discrete concerns about Bivens, a

clearer assessment of those concerns can and should guide

the strictness with which the limitations are applied.

Here, we demonstrate that the first concern cited to

limit Bivens—fear of personal or agency liability—is

based on a misunderstanding of how Bivens works in

practice. We then show that separation of powers concerns

support, rather than undermine, a Bivens remedy where

Congress has failed to provide adequate alternative

remedies for a rights violation. The upshot is that one

concern cited to narrow Bivens is weaker than previously

described and another actually cuts in favor of Bivens

remedies. This should lead the Court to apply the “new

context” and “special factors” limitations in a manner that

recognizes the important purposes served by Bivens and

the need for such a remedy in cases like this one.

4

ARGUMENT

I.

THE MYTH OF PERSONAL AND AGENCY

FINANCIAL LIABILITY

A. Financial Liability and the Theoretical Risk

of Over-Deterring Officers and Agencies

A central purpose of Bivens liability is deterrence of

unconstitutional conduct by individual officers. See, e.g.,

Malesko, 534 U.S. at 70. Individual liability is thus a core

feature of Bivens liability. See FDIC v. Meyer, 510 U.S.

471, 485 (1994). But in a series of cases over the last three

decades, the Court has worried that personal liability is

actually a bug. See, e.g., Ziglar, 137 S. Ct. at 1858.

In fact, skepticism of Bivens has been driven heavily

by a concern that damages claims may cause officers to

halt or hesitate rather than act boldly. In Ziglar, the Court

thus speculated that “[t]he risk of personal damages

liability” would be “more likely to cause an official to

second-guess difficult but necessary decisions concerning

national-security policy.” 137 S. Ct. at 1861. “If Bivens

liability were to be imposed,” the Court added, “high

officers who face personal liability for damages might

refrain from taking urgent and lawful action in a time of

crisis.” Id. at 1863. Elsewhere, the Court has cautioned

against “raising a tide of suits threatening legitimate

initiative on the part of the Government’s employees,”

Wilkie v. Robbins, 551 U.S. 537, 562 (2007), and against

causing federal management personnel to be “deterred

from imposing discipline in future cases,” Bush, 462 U.S.

at 389. These and many other Bivens precedents evoke

“the danger that fear of being sued will ‘dampen the ardor

of all but the most resolute, or the most irresponsible

5

[public officials], in the unflinching discharge of their

duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)

(citation omitted, alteration in original). 2

A distinct but related anxiety involves over-deterrence

of federal agencies. In Ziglar, the Court theorized that the

burdens “of defense and indemnification” might “impact

on governmental operations systemwide,” inflicting “costs

and consequences [on] the Government itself.” Id. at 1856,

1858; see also Meyer, 510 U.S. at 486. Here, the Court

appears to be worried that the cost of indemnifying agency

personnel could influence agency budgets and policy.

As we will demonstrate, although these concerns may

be legitimate in the abstract, they lack an empirical basis.

The fear of over-deterring individual officers has no basis

in reality because Bivens defendants are almost always

insulated from paying the costs of defense and damages in

successful cases. And there is no evidence that agency

budgets are tapped to satisfy judgments or settlements in

Bivens cases because the United States funnels payments

through the general-purpose Judgment Fund.

Of course, federal officers enjoy qualified immunity in Bivens

cases, which can mitigate this concern. After all, qualified immunity

protects “all but the plainly incompetent or those who knowingly

violate the law.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation

omitted); see also Hui v. Castaneda, 559 U.S. 799, 807 (2010).

2

6

B. Individual Officers and their Agencies

Almost Never Incur Personal Liability

1. Bivens and the Bureau of Prisons

In a recently-concluded empirical study of the Bureau

of Prisons (“BOP”), whose policies do not appear atypical,

three of us have found that federal officers are indemnified

in the vast majority of cases—and that the Judgment

Fund, rather than the BOP itself, pays out successful

Bivens claims. See generally James E. Pfander,

Alexander E. Reinert & Joanna C. Schwartz, The Myth of

Personal Liability: Who Pays When Bivens Claims

Succeed, 72 Stan. L. Rev. (forthcoming 2019) (hereinafter

Myth of Personal Liability). 3 These litigation and

settlement practices conflict with common assumptions

about the ways in which Bivens cases are resolved; they

reveal that Bivens lawsuits simply do not threaten

individual employees with financial ruin or trigger

indemnifying payments from their agencies.

a. Study Design

To better understand how Bivens works in practice, we

submitted FOIA requests to the BOP, seeking data on

Bivens claims against BOP employees that resulted in

payments of $1000 or more. We obtained documents that

revealed payments made in connection with settlements

and judgments in 209 cases closed over a ten-year period

from 2007 through 2017. We eliminated 101 cases where

the plaintiff did not seek to impose liability on individual

See https://papers.ssrn.com/sol3/papers.cfm?abstract_id

=3343800.

3

7

officers based on Bivens. We then conducted a follow-up

assessment using aggregated electronic docket records

and identified 63 additional successful Bivens cases that

did not appear in BOP’s FOIA disclosures. Id. at 50–51.

Although there are limits to this dataset—as we explain in

the article—amici are confident that the 171 cases we

found provide a reasonably comprehensive picture of

successful Bivens cases against BOP over roughly a 10year period. Id. at 51.

b. Results: Individual Officers

In short, the data reveal that individual government

officials almost never contribute any personal funds to

resolve claims arising from allegations that they violated

the constitutional rights of incarcerated people. Of the 171

successful Bivens cases in our dataset, we found only eight

in which the individual officer or an insurer were required

to compensate the claimant. Id. at 15. Of the more than

$18.9 million paid to plaintiffs in these 171 cases, federal

employees or their insurers were required to pay

approximately $61,163—0.32% of the entire amount

required to be paid to plaintiffs. Id. at 15-16. Put

differently, over the course of 10 years, in an agency of

35,470 employees, only eight cases required contributions

by officers or their insurers averaging roughly $7,600 per

case. Id. at 16, 28. We thus concluded that the federal

government—here, the BOP—effectively held its officers

harmless in over 95% of the successful cases brought

8

against them, and paid well over 99% of the compensation

received by plaintiffs in these cases. 4 Id. at 6.

Considering the broader universe of all Bivens cases

brought against BOP officials—including the unsuccessful

ones—the likelihood of a BOP officer being required to

contribute to a Bivens payment is even more remote. One

of us previously found that approximately 15 percent of all

Bivens actions filed against BOP officials resulted in

payments to plaintiffs. See Alexander A. Reinert,

Measuring the Success of Bivens Litigation and its

Consequences for the Individual Liability Model, 62 Stan.

L. Rev. 809, 836 n.138 (2010) (hereinafter Measuring

Success). Given that only roughly five percent of those

cases resulted in financial contributions from officers or

their insurers, we can infer that cases in which officers or

their insurers contribute money constitute well under one

percent of all Bivens cases filed. And, given that BOP has

35,470 employees, we can estimate that fewer than 0.1% of

all BOP employees will contribute to a Bivens settlement

or judgment during a twenty-year career. Myth of

Personal Liability at 28 & nn.110–11.

The greatest individual payout was $25,000, contributed by an

officer toward a $40,000 settlement for alleged sexual assault. See

Myth of Personal Liability at 15 & n.59 (citing Doe v. United States,

12-cv-00640 (D. Haw. 2015)); see also id. (citing Harrison v. Jackson,

12-cv-4459 (N.D. Ga. 2012) (sexual assault claim settled for $11,000,

paid by the officer)). If we remove the sexual assault cases from the

analysis, the average required officer contribution drops to under

$4,500.

4

9

c. Results: Agencies

Agencies, too, are effectively protected from financial

responsibility for constitutional tort claims. The BOP

settlement agreements that we reviewed made clear that

the government almost always satisfied claims brought

under Bivens by arranging to have the agreed upon

amounts paid through the Judgment Fund, rather than by

the BOP itself. See 31 U.S.C. § 1304 (appropriating money

“to pay final judgments, awards, compromise settlements,

and interest and costs specified in the judgments or

otherwise authorized by law”); Paul Figley, The Judgment

Fund: America’s Deepest Pocket and Its Susceptibility to

Executive Branch Misuse, 18 U. Pa. J. Const. L. 145

(2015). 5 As a result, the Judgment Fund effectively shields

BOP from budgetary accountability for the constitutional

torts of its personnel. 6 We have no reason to believe that

The Judgment Fund is authorized to pay final judgments and

settlements under the FTCA, but not Bivens. See Myth of Personal

Liability at 7. However, in most cases we reviewed, DOJ attorneys

either instructed plaintiffs to substitute an FTCA claim for the Bivens

claim in an amended complaint as a condition of settlement, or framed

the settlement as one under the FTCA—even if there was no FTCA

claim in the case. Id. at 20–24.

5

BOP appears to maintain patchy and decidedly incomplete

information about Bivens actions. See Myth of Personal Liability at

24–26. Though our data on this point are therefore incomplete, for

every settlement documented in our study, the United States

Treasury made payments for the government from the standing

Judgment Fund appropriation, not from the coffers of the individual

agency. See id. And even if BOP had paid out of its budget, its share

of payments in successful Bivens cases (less than $19 million over 10

years) would be negligible in comparison to its annual budget in excess

of $7 billion. See id. at 15, 31 & n.128.

6

10

BOP is atypical in this regard. 7 Bivens suits will not affect

agency policy, personnel, or priorities by virtue of any

impact on agency budgets.

2. The Success Rate of Bivens Litigation

Judicial warnings about the risks of financial liability

imposed by Bivens are occasionally coupled with claims

that Bivens suits are largely frivolous. See, e.g., Simpkins

v. D.C., 108 F.3d 366, 370 (D.C. Cir. 1997); Crawford-El v.

Britton, 93 F.3d 813, 838 (D.C. Cir. 1996) (Silberman, J.,

concurring) (“Obviously, the vast majority of these suits

are meritless.”); Kimberlin v. Quinlan, 17 F.3d 1525,

1525–26 (D.C. Cir. 1994) (Williams, J., concurring in denial

of rehearing en banc). But these assumptions about the

outcome of Bivens lawsuits were never based on empirical

study. And the numbers that are sometimes bandied

about—including the assertion that 12,000 claims were

filed between 1971 and 1985 with only four judgments

sustained for plaintiffs—are apocryphal. 8 To the extent

hard numbers reflecting success are mentioned, they are

supported by statements made at legislative hearings or

Two other federal law enforcement agencies refused to provide

amici with data, despite a FOIA request. See Myth of Personal

Liability at 49 n.191. But these agencies have the same incentives as

the BOP to settle only on terms that make the settlement payable

through the Judgment Fund.

7

See Michael W. Dolan, Constitutional Torts and the Federal

Tort Claims Act, 14 U. Rich. L. Rev. 281, 297 & n.108 (1980); see also

Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results

of Public Officials’ Individual Liability Under Bivens, 88 Geo. L.J.

65, 66 (1999); 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).

8

11

even more informal reports, and they define “success” far

more narrowly than most experts do. See Measuring

Success at 812 & n.13.

In a recent empirical study, one of us concluded that—

depending on procedural posture, presence of counsel, and

type of case—success rates for Bivens suits actually range

from 16% to more than 40%, which is orders of magnitude

greater than earlier estimates. Id. at 813. These data offer

sound reason to doubt yet another argument often

advanced to diminish the practical importance of Bivens

cases.

a. Study Design

This study investigated the outcomes of Bivens suits

filed from 2001 to 2003 in five federal district courts: the

Eastern and Southern Districts of New York, the

Southern District of Texas, the Eastern District of

Pennsylvania, and the Northern District of Illinois. Id. at

832. 9 Great care was taken to ascertain the success of

Bivens cases by properly defining the numerator (criteria

for determining success) and the denominator (criteria for

inclusion as a Bivens case). Id. at 833.

Starting with the numerator, success was defined

using a standard definition borrowed from influential

The time period was chosen partly because of the likelihood that

cases filed during the period would have been resolved by the time the

data were collected. See Measuring Success at 832 n.126. Additionally,

the law relating to Bivens claims remained relatively stable from 2001

to 2003. Id. The five districts were chosen largely because they are

among the busiest federal courts in the country. Id.

9

12

empirical studies: success included judgment for the

plaintiff, on-the-record settlement, voluntary dismissal,

and stipulated dismissal (all of which are common ways of

implementing settlements). 10 Id. Where both Bivens and

FTCA claims were brought in parallel, a settlement was

considered to indicate a successful Bivens case unless the

Bivens claims had already been dismissed. Id.

Turning to the denominator, cases were considered for

inclusion only where three factors were present: (1) at

least one defendant was an individual federal officer,

(2) the Constitution was referenced in the pleadings, and

(3) the plaintiff sought monetary damages. Id. at 833–34.

Dockets were then reviewed to determine whether a

Bivens claim was present. Id. at 834. The study identified

nearly 250 Bivens suits with final dispositions. Id. at 835. 11

See Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev.

1555, 1592–93 (2003); 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. Although many such

dismissals indicate settlement, some result from other causes,

including plans to refile elsewhere or the realization that a claim is

without merit. See Theodore Eisenberg & Charlotte Lanvers, What

Is the Settlement Rate and Why Should We Care?, 6 J. Empirical

Legal Stud. 111, 115–18 (2009). The author of the Bivens study

examined individual docket sheets to eliminate, so far as possible,

voluntary dismissals for reasons other than settlement. See

Measuring Success at 833.

10

Additional detail about study methodology can be found at

Measuring Success at 832–35.

11

13

b. Results

Starting with the numerator and denominator that we

have just described, the overall success rate of Bivens

claims is approximately 16%. 12 Id. at 837. That figure rises

to 20% if we exclude from the denominator cases that were

dismissed sua sponte under 28 U.S.C. § 1915—which

makes sense, since such cases do not impose any burdens

of discovery or pose any risk of personal financial liability.

Id. at 840–41. Focusing only on cases in which an answer

or motion was filed—a step justified for the same reasons

just noted—the overall success rate increases to about

30%. Id. at 841–42. Finally, looking only to Bivens cases

where plaintiffs have counsel, the overall success rates

equal or exceed 40% in three of the five districts. See id. at

839. 13

3. Implications of the Empirical Findings

The single clearest upshot of the empirical findings is

simply summarized: to the extent the Court is worried

about over-deterrence, it needn’t worry much at all. The

best available evidence shows that officers and agencies

face virtually no risk of financial liability from Bivens

Notably, where Bivens cases are not successful, the data do not

show a multitude of cases in which federal officers are put through

burdensome litigation. To the contrary, ~21% of cases were screened

by district courts on the ground that they were frivolous, ~15% were

dismissed for failure to exhaust administrative remedies, and a

substantial number were dismissed for failure to prosecute or amend

in response to a court order. See Measuring Success at 845.

12

Further explanations for—and qualifications of—these figures

are set forth in the article. See Measuring Success at 839–45.

13

14

lawsuits. Bivens cases are also more meritorious—and

thus more important to victim compensation, vindication

of constitutional rights, and the rule of law—than had been

previously assumed by some jurists. Hostility to Bivens

cannot justifiably be predicated on concerns about overdeterrence or lack of merit.

In truth, the existence of Bivens liability for individual

federal officers imposes exceedingly limited “burdens on

Government employees who are sued personally,” few

“costs and consequences to the Government itself,” and

limited “impact on governmental operations systemwide.”

Ziglar, 137 S. Ct. at 1858. With the specter of financial ruin

taken out of the equation, federal officers need not fear a

lawsuit so much that they “second-guess difficult but

necessary decisions” or “refrain from taking urgent and

lawful action.” Id. at 1861, 1863. Instead, deterrence comes

in more modest form, from the risk of discovery and

exposure, trial, and a finding of liability by a neutral

decisionmaker. “[T]he threat of litigation and liability will

adequately deter federal officers for Bivens purposes, no

matter that they . . . are indemnified by the employing

agency.” Malesko, 534 U.S. at 70 (citing Meyer, 510 U.S.

at 486). This baseline level of deterrence, without a

realistic threat of paying damages, does not create any

credible risk of scaring federal officers into paralysis.

Nor are agencies’ budgets affected by the risk of

Bivens liability, because agencies and their lawyers

creatively invoke the Judgment Fund to cover payments.

With a central government fund available, “the tort and

monetary liability mechanisms of the legal system” will

not unduly affect the “formulation and implementation of

public policies.” Ziglar, 137 S. Ct. at 1858.

15

These conclusions have important implications for the

Court’s “new context” and “special factors” limitations on

Bivens remedies. At a general level, to the extent either

limitation may be applied with exceptional strictness due

to fear of personal or agency financial liability, there is no

empirical foundation for such a harsh implementation

(which could effectively read Bivens out of existence).

More narrowly, and perhaps more pressing here, some of

the “special factors” that the Court has described are

expressly entangled with unfounded assumptions about

the dangers of individual liability. For example, the Court

has warned against extending Bivens to certain national

security contexts because “[t]he risk of personal damages

liability” is “more likely to cause an official to secondguess difficult but necessary decisions concerning

national-security policy” than “a claim seeking injunctive

or other equitable relief.” Id. at 1861. The en banc Fifth

Circuit, in turn, articulated the same concern below in its

“special factors” analysis. See Hernandez v. Mesa, 885

F.3d 811, 819 (5th Cir. 2018) (en banc) (“Implying a private

right of action for damages in this transnational context

increases the likelihood that Border Patrol agents will

‘hesitate in making split second decisions.’” (citation

omitted)).

Both of these analyses rest on a doubtful factual

proposition: namely, that federal officials actually face a

risk of financial liability and will, as a result, alter their

conduct on the ground. There is no empirical evidence that

allowing a damages remedy against rogue federal agents

will stunt the initiative of their more responsible

colleagues—and there is now evidence that it won’t pose

any credible threat to their financial well-being. Because

Bivens has little appreciable financial impact on federal

16

officers or agencies, there is no need for a rigid approach

to “special factors” driven by fear of over-deterrence.

II.

THE SEPARATION OF POWERS AND

FEDERAL CONFLICTS OF INTEREST

In addition to personal financial risk, the Court has

repeatedly invoked separation of powers concerns as a

basis for limiting Bivens remedies. See Ziglar, 137 S. Ct.

at 1857 (“When a party seeks to assert an implied cause of

action under the Constitution itself . . . separation-ofpowers principles are or should be central to the

analysis.”); Bush, 462 U.S. at 390. The Court has further

explained that separation of powers concerns are central

to the “special factors” analysis: “[T]he inquiry must

concentrate on whether the Judiciary is well suited,

absent congressional action or instruction, to consider and

weigh the costs and benefits of allowing a damages action

to proceed.” Ziglar, 137 S. Ct. at 1857–58.

Properly understood, however, separation of powers

principles cut decisively in favor of recognizing a Bivens

remedy in cases like this one—where, to borrow Justice

Harlan’s deservedly famous phrase, “it is damages or

nothing.” Bivens, 403 U.S. at 410 (Harlan, J., concurring

in the judgment). When the political branches fail to

provide an adequate alternative remedy for the violation

of constitutional rights by a rogue federal agent, it is up to

the courts to ensure that checks and balances prevail.

To start with first principles, judicial authority to

recognize damages remedies for constitutional torts has a

strong statutory and historical pedigree. The Court’s

power to “imply a new constitutional tort . . . is anchored

in [its] general jurisdiction to decide all cases ‘arising

17

under the Constitution, laws, or treaties of the United

States.’” Malesko, 534 U.S. at 66 (quoting 28 U.S.C.

§ 1331). Moreover, as one of us (and a co-author) have

shown, there is a potent case that Congress has knowingly

ratified the Bivens decision and its early progeny:

Congress has taken steps to preserve and

ratify the Bivens remedy with amendments

to the Federal Tort Claims Act (FTCA) that

took effect in 1974 and 1988.

In 1974, responding to concerns with the

adequacy of a Bivens remedy, Congress

expanded the right of individuals to sue the

government itself for certain law

enforcement torts. At the time, Congress

deliberately chose to retain the right of

individuals to sue government officers for

constitutional torts and rejected draft

legislation from the Department of Justice

that would have substituted the government

as a defendant on such claims.

Similarly, in the Westfall Act of 1988,

Congress took further steps to solidify the

Bivens remedy. The Westfall Act virtually

immunizes federal government officials

from state common law tort liability,

substituting the government as a defendant

under the FTCA for these claims. In the

course of doing so, it declares that the

remedy provided against the federal

government shall be deemed “exclusive of

any other civil action or proceeding for

money damages . . . against the employee

18

whose act or omission gave rise to the

claim.”

In

order

to

preserve

the Bivens action, Congress declared the

exclusivity rule inapplicable to suits brought

against government officials “for a violation

of the Constitution of the United States.”

James E. Pfander & David Baltmanis, Rethinking

Bivens: Legitimacy and Constitutional Adjudication, 98

Geo. L.J. 117, 121–22 (2009) (citations omitted). It is thus

beyond doubt that federal courts are empowered to

recognize Bivens remedies in appropriate cases.

Of course, the Court has always held that the judicial

power to recognize remedies for constitutional torts must

be exercised with due respect for congressional decisions

about appropriate redress for unconstitutional acts. See,

e.g., Bush, 462 U.S. at 378 (“When Congress provides an

alternative remedy, it may, of course, indicate its intent,

by statutory language, by clear legislative history, or

perhaps even by the statutory remedy itself, that the

Court’s power should not be exercised.”); see also Ziglar,

137 S. Ct. at 1858 (“[I]f there is an alternative remedial

structure present in a certain case, that alone may limit

the power of the Judiciary to infer a new Bivens cause of

action.”); Schweiker, 487 U.S. at 423 (“When the design of

a Government program suggests that Congress has

provided what it considers adequate remedial mechanisms

for constitutional violations that may occur in the course

of its administration, we have not created

additional Bivens remedies.”). These cases hold that

“both branches are constitutionally empowered, within

the limits of their institutional capabilities, to create

remedial systems for fully effectuating the substantive

protection afforded by [the Constitution].” Walter E.

19

Dellinger, Of Rights and Remedies: The Constitution as

a Sword, 85 Harv. L. Rev. 1532, 1552 (1972); see Missouri,

Kansas & Texas R. Co. of Texas v. May, 194 U.S. 267, 270

(1904) (“[I]t must be remembered that legislatures are

ultimate guardians of the liberties and welfare of the

people in quite as great a degree as the courts.”).

But the very nature of constitutional rights is that they

are, at times, counter-majoritarian. See Evenwel v. Abbott,

136 S. Ct. 1120, 1136 (2016) (Thomas, J., concurring in the

judgment) (“The Framers understood the tension

between majority rule and protecting fundamental rights

from majorities.”). There may be circumstances in which

the political branches—for reasons ranging from approval

to apathy—are unwilling to afford remedies for rights

violations by federal agents. When that occurs, “and

where federally protected rights have been invaded, it has

been the rule from the beginning that courts will be alert

to adjust their remedies so as to grant the necessary

relief.” Bivens, 403 U.S. at 392 (citation omitted).

This rule partly reflects our longstanding national

commitment to affording remedies for the violation of

constitutional rights. See Marbury v. Madison, 5 U.S. 137,

163, 1 Cranch 137 (1803) (“The government of the United

States has been emphatically termed a government of

laws, and not of men. It will certainly cease to deserve this

high appellation, if the laws furnish no remedy for the

violation of a vested legal right.”); see also Malesko, 534

U.S. at 70 (observing that the Court has allowed Bivens

causes of action to plaintiffs “who lacked any alternative

remedy for harms caused by an individual officer’s

unconstitutional conduct”). For those “substantive legal

norms . . . declared to be in the Constitution, there is much

to be said for a judicial prerogative to fashion remedies

20

that give flesh to the word and fulfillment to the promise

those norms embody.” Dellinger, 85 Harv. L. Rev. at 1534;

see also Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425, 1427 (1987) (explaining that

governments that act unconstitutionally “must in some

way undo the violation by ensuring that victims are made

whole”). Although redress may at times be imperfect,

“effective remedies have always been available for most

violations of legal rights, and of constitutional rights in

particular.” Richard H. Fallon, Jr. & Daniel J.

Meltzer, New

Law,

Non-Retroactivity,

and

Constitutional Remedies, 104 Harv. L. Rev. 1731, 1786

(1991); see also id. at 1778.

The importance of Bivens remedies also arises from

the clear conflict of interest that would exist if Congress

could insulate the federal government from liability for its

own unconstitutional acts. In 42 U.S.C. § 1983, Congress

statutorily enforced the Constitution against state and

local officials. As we explain above, there is a strong case

that it did the same at the federal level by ratifying Bivens

through the FTCA and the Westfall Act. See Pfander &

Baltmanis, 98 Geo. L.J. at 121–22. But were the Court to

conclude that Congress did not do so—or that Congress

would be free to undo such remedies—then it would invite

a dangerous form of self-dealing, in which Congress

subjects state and local officials to damages for

constitutional violations but allows their federal

counterparts to flout the Constitution with impunity. See

Harlow, 457 U.S. at 814 (“In situations of abuse of office,

an action for damages may offer the only realistic avenue

21

for vindication of constitutional guarantees.” (citations

omitted)). 14

If congressional failure to create a damages remedy

were the end of the matter, Congress could render the

Constitution wholly unenforceable in a major category of

cases: namely, those in which a federal official can simply

act, without sufficient warning to permit a suit for

injunctive relief and without initiating a lawsuit in which

the constitutional claim could be raised defensively.

Members of this Court have warned that an entity with

sovereign immunity can defy applicable laws and

regulations, Michigan v. Bay Mills Indian Community,

582 U.S. 782, 823–24 (2014) (Thomas, J., dissenting), or

“seize property with impunity, even without a colorable

claim of right,” Upper Skagit Indian Tribe v. Lundgren,

138 S. Ct. 1649, 1655 (2018) (Roberts, C.J., concurring).

The same is true of governmental employees who will

suffer no other sanction for wrongdoing and against whom

no cause of action for damages is recognized. Such officers

can shoot a child—and no court can do anything about it,

or even inquire into the surrounding circumstances. If

there is no Bivens action, the complaint must be

summarily dismissed immediately after filing; the shooter

need not even file an answer.

Before the Westfall Act, there was a tradition of state law tort

claims against federal officers for rights-violating actions within the

scope of their employment. Officers could defend such tort claims on

the basis of their federal authority, but that defense failed if their acts

had been unconstitutional. See Amicus Br. of Carlos M. Vásquez and

Anya Bernstein in Support of Petitioners. The Westfall Act largely

preempted such claims. In the post-Westfall world, it will sometimes

be Bivens or nothing when bad-faith actors violate the Constitution.

14

22

To enable constitutional rights to achieve their

purpose and be fully enforced, the judiciary—the hopedfor “impenetrable bulwark against every assumption of

power in the legislative or executive”—must ensure the

availability of constitutional remedies. James Madison, 1

Annals of Congress 439 (1789). This response to the risk

of federal lawlessness respects both federalism and the

separation of powers by ensuring that the Constitution

remains the supreme law of the land for all officials. As

Professors Fallon and Meltzer have observed:

Within the constitutional scheme, an

important role of the judiciary is to

represent the people’s continuing interest in

the protection of long-term values, of which

popular majorities, no less than their elected

representatives, might sometimes lose

sight. The Constitution thus contemplates a

judicial “check” on the political branches not

merely to redress particular violations, but

to ensure that government generally

respects constitutional values—one of the

hallmarks of the rule of law.

Fallon & Meltzer, 104 Harv. L. Rev at 1788.

In that respect, the constitutional plan protects itself

through remedies recognized by an independent judiciary

when the political branches stand silent. The

judiciary thus vindicates the “very purpose of a Bill of

Rights . . . to withdraw certain subjects from the

vicissitudes of political controversy, to place them beyond

the reach of majorities and officials and to establish them

as legal principles to be applied by the courts.” West

Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).

23

To be sure, courts must pay “particular heed” to “any

special factors counselling hesitation before authorizing a

new kind of federal litigation.” Bush, 462 U.S. at 378. It is

often imprudent for judges to disrupt delicate remedial

schemes. Id. at 388. But where Congress has provided no

remedial scheme at all and has thus effectively immunized

rogue federal agents from constitutional constraint, the

Court vindicates rather than undermines separation of

powers principles by invoking Bivens. While “special

factors” deserve a place in the analysis, they should not be

read to disable the Judiciary from playing its traditional

role in addressing the constitutionality of official conduct.

*

*

*

*

*

It is no secret that the Court now looks skeptically on

Bivens remedies. That skepticism has most recently been

expressed in a sweeping view of the “new context” and

“special factors” limitations. To the extent this outlook is

grounded in fear of timidity induced by the risk of personal

or agency financial liability, it lacks empirical support.

And to the extent it is grounded in separation of powers

principles, it unduly minimizes the structural importance

of a judicial check on lawlessness at the federal level.

24

CONCLUSION

For the foregoing reasons, amici respectfully

submit that this Court should reverse the judgment below.

Dated: August 9, 2019

Respectfully submitted

JOSHUA MATZ

Counsel of Record

BENJAMIN D. MARGO

Kaplan Hecker & Fink LLP

350 Fifth Avenue

Suite 7110

New York, NY 10118

(212) 763-0883

jmatz@kaplanhecker.com

Counsel for Amici Curiae