Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule

No. 21-147

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------ERIK EGBERT,

Petitioner,

v.

ROBERT BOULE,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

INSTITUTE FOR JUSTICE

IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------PATRICK JAICOMO

Counsel of Record

ANYA BIDWELL

DANIEL RANKIN

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo.ij.org

January 26, 2022

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Table of Authorities ................................................

ii

Interest of Amicus Curiae ......................................

1

Summary of Argument ...........................................

1

Argument .............................................................

4

I.

Judicially applied damages remedies against

federal officials have a long historical pedigree and are consistent with the separation of powers ............................................

4

A. Bivens is supported by a long commonlaw history ...........................................

6

B. Bivens is consistent with the separation of powers ...................................... 12

II.

Bivens, the Westfall Act, and the creation

of qualified immunity all support the

availability of damages remedies against

federal officials .......................................... 18

A. Before the Westfall Act, this Court repeatedly recognized the availability of

Bivens claims ....................................... 19

B. Just as the Court was aware of this reality, so was Congress, when in 1988 it

legislated against the background of a

robust Bivens regime ........................... 22

Conclusion............................................................ 26

ii

TABLE OF AUTHORITIES

Page

CASES

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020) ....................................19

Alexander v. Sandoval,

532 U.S. 275 (2001) ........................................... 14, 15

Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378 (2015) .............................................17

Ashby v. White,

92 Eng. Rep. 126 (K.B. 1703) ....................................6

Belknap v. Schild,

161 U.S. 10 (1896) .....................................................9

Bell v. Hood,

327 U.S. 678 (1946) ...................................................3

Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ......................................... passim

Boyd v. United States,

116 U.S. 616 (1886) ............................................. 9, 16

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) .................................................11

Buck v. Colbath,

70 U.S. (3 Wall.) 334 (1866) .......................................9

Bush v. Lucas,

662 U.S. 367 (1983) .................................................24

Butz v. Economou,

438 U.S. 478 (1978) ......................................... passim

iii

TABLE OF AUTHORITIES—Continued

Page

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2020) ................................ 5, 25

Cannon v. University of Chi.,

441 U.S. 677 (1979) .................................................15

Carlson v. Green,

446 U.S. 14 (1980) ....................................... 18, 21, 22

Chappell v. Wallace,

462 U.S. 296 (1983) .................................................24

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ...................................................17

Cooper v. Aaron,

358 U.S. 1 (1958) .....................................................12

Davis v. Passman,

442 U.S. 228 (1979) ..................................... 15, 18, 21

Dellums v. Powell,

566 F.2d 167 (D.C. Cir. 1977) ..................................24

Dixon v. United States,

548 U.S. 1 (2006) .....................................................25

Elliot v. Swartwout,

35 U.S. (10 Pet.) 137 (1836) .......................................9

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) .......................... 6, 16

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ........................................... passim

Evenwel v. Abbott,

136 S. Ct. 1120 (2016) .............................................17

iv

TABLE OF AUTHORITIES—Continued

Page

Flood v. Kuhn,

407 U.S. 258 (1972) .................................................24

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.,

528 U.S. 167 (2000) .................................................17

Guaranty Tr. Co. v. York,

326 U.S. 99 (1945) ...................................................17

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................... 3, 19, 20, 21, 24

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ....................................... passim

Hinderlander v. La Plata River

& Cherry Creek Ditch Co.,

304 U.S. 92 (1938) ...................................................11

Hui v. Castaneda,

559 U.S. 799 (2010) .................................................22

Kimble v. Marvel Entm’t, LLC,

135 S. Ct. 2401 (2015) .............................................25

Little v. Berreme,

6 U.S. (2 Cranch) 170 (1804) .....................................8

Livingston v. Jefferson,

15 F. Cas. 660 (C.C.D. Va. 1881) ................................7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 2, 8

Milhouse v. Carlson,

652 F.2d 371 (3d Cir. 1981) .....................................24

v

TABLE OF AUTHORITIES—Continued

Page

Mitchell v. Harmony,

54 U.S. (13 How.) 115 (1852) .....................................9

New Jersey v. New York,

523 U.S. 767 (1998) .................................................24

Oliva v. Nivar,

973 U.S. 438 (5th Cir. 2020) ....................................19

Paton v. La Prade,

524 F.2d 862 (3d Cir. 1975) .....................................24

Philadelphia Co. v. Stimson,

223 U.S. 605 (1912) ...................................................9

Pierson v. Ray,

386 U.S. 547 (1967) .................................................20

Schweiker v. Chilicky,

487 U.S. 412 (1988) .................................................24

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) ....................................... 1, 9, 23

The Apollon,

22 U.S. (9 Wheat) 362 (1824) ...................... 2, 8, 9, 18

United States v. Morrison,

529 U.S. 598 (2000) .................................................16

United States v. Smith,

499 U.S. 160 (1991) .................................................23

United States v. Stanley,

483 U.S. 669 (1985) ................................................24

Westfall v. Erwin,

484 U.S. 292 (1988) .................................................22

vi

TABLE OF AUTHORITIES—Continued

Page

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) .....................................................17

Wise v. Withers,

7 U.S. (3 Cranch) 331 (1806) .....................................8

Yiamouyiannis v. Chemical Abstracts Serv.,

521 F.2d 1392 (6th Cir. 1975) ..................................24

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ................................. 14, 15, 23

STATUTES

28 U.S.C. 2679 ...............................................................2

28 U.S.C. 2679(b)(1) ................................................ 4, 25

28 U.S.C. 2679(b)(2)(A) .................................................4

OTHER AUTHORITIES

1 William Blackstone, Commentaries on the

Laws of England (1765) ............................................6

3 Joseph Story, Commentaries on the Constitution of the United States § 1895 (1833) ....................5

3 William Blackstone, Commentaries on the

Laws of England (1765) ............................................2

Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987) ....................................7

Carlos M. Vasquez, Bivens and the Ancien Regime,

96 Notre Dame L. Rev. 1923 (2021) .... 10, 11, 12, 13, 16

vii

TABLE OF AUTHORITIES—Continued

Page

Considering the Role of Judges Under the Constitution of the United States: Hearing Before

the Committee on the Judiciary, 112th Congress (2011) .............................................................14

David E. Engdahl, Immunity and Accountability

for Positive Governmental Wrongs, 44 U. Colo.

L. Rev. 1 (1972) ..........................................................8

James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional

Adjudication, 98 Geo. L.J. 117 (2009) .....................23

James E. Pfander & Jonathan L. Hunt, Public

Wrongs and Private Bills: Indemnification

and Government Accountability in the Early

Republic, 85 N.Y.U. L. Rev. 1862 (2010)....................7

John F. Preis, How the Federal Cause of Action

Relates to Rights, Remedies, and Jurisdiction,

67 Fla. L. Rev. 849 (2016) .............................. 9, 10, 13

Louis L. Jaffe, Suits Against Governments and

Officers: Sovereign Immunity, 77 Harv. L. Rev.

1 (1963) ......................................................................6

Patrick Jaicomo & Anya Bidwell, Recalibrating

Qualified Immunity: How Tanzin v. Tanvir,

Taylor v. Riojas, and McCoy v. Alumu Signal

the Supreme Court’s Discomfort with the Doctrine of Qualified Immunity, 112 J. Crim. L. &

Criminology 105 (2022) ...........................................13

S. Rep. 93-588, 93rd Cong., 2 Sess. (1973) .................22

Stephen Sachs, Constitutional Backdrops, 80

Geo. Wash. L. Rev. 1813 (2012) .................................7

viii

TABLE OF AUTHORITIES—Continued

Page

Stephen I. Vladeck, The Inconsistent Originalism of Judge-Made Remedies, 96 Notre Dame

L. Rev. 1870 (2021) ............................................ 11, 17

Walter E. Dellinger, Of Rights and Remedies:

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

1532 (1971) ................................................................7

1

INTEREST OF AMICUS CURIAE1

The Institute for Justice is a nonprofit publicinterest law center committed to defending the essential foundations of a free society by securing greater

protection for individual liberty. Central to that mission is promoting accountability for government officials who violate constitutional rights. See, e.g., Byrd v.

Lamb, petition for certiorari pending, No. 21-184 (filed

Aug. 6, 2021); Mohamud v. Weyker, petition for certiorari pending, No. 21-187 (filed Aug. 6, 2021).

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Just last Term, this Court recognized that “[i]n the

context of suits against Government officials, damages

have long been awarded as appropriate relief.” Tanzin

v. Tanvir, 141 S. Ct. 486, 491 (2020). This recognition

rested on a rich history, spanning from the Founding

to the 20th century, of suits against federal officials for

violating individual rights. Common-law suits in the

early republic, like those of 18th-century England,

served as the mechanism for Americans to vindicate

their rights, and federal courts remained an open

venue in which to bring them. Ibid. (“In the early Republic, ‘an array of writs * * * allowed individuals to

1

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No

person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

The parties have consented to this filing.

2

test the legality of government conduct by filing suit

against the government officials’ for money damages

‘payable by the officer.’ ”) (internal citation omitted).

As this Court explained long ago, two constitutional principles supported the general availability of

claims against federal officials. First, that “every right,

when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803) (quoting 3 William Blackstone,

Commentaries on the Laws of England 23 (1765)). Second, that the separation of powers limits courts “to

the questions, whether the laws have been violated;

and if they were,” to provide “suitable redress.” The

Apollon, 22 U.S. (9 Wheat) 362, 366–367 (1824). The

power to shield officials from liability for policy reasons

belonged to Congress. Ibid. This Court’s decisions in,

among others, Bivens v. Six Unknown Named Agents of

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

Butz v. Economou, 438 U.S. 478 (1978), embodied these

principles.

Yet today, federal courts ignore the first principle

and use the second—the separation of powers—to forswear their power to grant relief. See Hernandez v.

Mesa, 140 S. Ct. 735, 739 (2020).

Granted, much has happened between then and

now. For instance, the Court decided Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938), and Congress

passed the Westfall Act in 1988, 28 U.S.C. 2679. Although both have been used to excuse injuries inflicted

by rogue federal officials, neither altered this Court’s

3

constitutional role in applying the law and providing

appropriate relief against federal officials. See, e.g.,

Bell v. Hood, 327 U.S. 678, 684 (1946) (“[W]here 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.”).

Consider Erie. Based on its reading of the Rules of

Decision Act, Erie discredited the notion of “federal

general common law.” 304 U.S. at 78 (emphasis added).

But Erie did not repudiate federal courts’ continued

ability to fashion federal common law in areas of

specific federal interest or, for that matter, fashion

equitable relief for constitutional violations generally.

Indeed, federal courts do both all the time. When read

in that context, and against two centuries of American

history, Bivens simply represents a modest variation

on an old theme. By recognizing a right of action from

the Constitution, this Court was merely continuing a

long, unquestioned tradition that embodied the Founders’ understanding of the judicial role and separation

of powers. Butz, 428 U.S. at 485–486, 489–495.

And while the Westfall Act precluded most remedies against federal officials in state courts, it codified Bivens as a broadly available constitutional

remedy against federal officials in federal courts. See

Hernandez, 140 S. Ct. at 748 n.9. Indeed, in 1988, the

availability of Bivens was so well established that

just six years earlier, this Court used it to justify its

policy-driven creation of qualified immunity. Harlow v.

Fitzgerald, 457 U.S. 800, 805 (1982). By explicitly

4

recognizing the availability of constitutional remedies

against federal officials against this backdrop and removing the ability to sue federal officials in state

courts, Congress promoted Bivens as the proper avenue through which to pursue remedies for constitutional violations committed by federal officials. 28

U.S.C. 2679(b)(1); 28 U.S.C. 2679(b)(2)(A).

Continuing to restrict the availability of the

Bivens remedy, well beyond its scope in 1988, would

thus not only contravene the intent of Congress, but

call the Westfall Act into serious constitutional question. More importantly, each of the thousand cuts to

Bivens also severs modern jurisprudence from the

Founders’ constitutional design. This case presents

the Court an opportunity to align itself with the intents of both Congress and the Founding generation.2

---------------------------------♦---------------------------------

ARGUMENT

I.

Judicially applied damages remedies against

federal officials have a long historical pedigree and are consistent with the separation

of powers.

Suits for damages against federal officials are neither new nor radical. They have a storied history dating back to the 18th century, and they are firmly

rooted in the English common law that informed the

2

So too do Byrd v. Lamb, petition for certiorari pending, No.

21-184 (filed Aug. 6, 2021), and Mohamud v. Weyker, petition for

certiorari pending, No. 21-187 (filed Aug. 6, 2021). See infra at 26.

5

Constitution. See, e.g., 3 Joseph Story, Commentaries

on the Constitution of the United States § 1895, at 748

(1833). The Founding-era tradition of subjecting federal officials to money damages continued in federal

and state courts uninterrupted through two centuries—until 1988, when the Westfall Act foreclosed

state common-law remedies against federal officials

acting within the scope of their employment. With the

state courthouse doors closed, post-Erie plaintiffs were

left with the only remedy Congress deliberately left

open: Bivens. But based on a misunderstanding of Erie

and this Court’s Article III power to recognize such actions, Bivens has been significantly cut down, leaving

the federal courthouse doors closed too. Now, contrary

to centuries’ worth of historical practice, federal officials enjoy de facto absolute immunity.

Only by returning to Founding-era doctrine and

viewing Erie through the proper lens can this Court

revive the availability of claims against individual

federal officials that the Founders considered essential to constitutional government. The system of unaccountability currently in place—one that sanctions a

“Constitution-free zone” for federal officials of all

stripes, Byrd v. Lamb, 990 F.3d 879, 884 (5th Cir. 2020)

(Willett, J., concurring)—conflicts with the separation

of powers and the Bill of Rights. Both the interpretation and enforceability of the Constitution are the

proper province of this Court. It cannot stand by while

constitutional rights go “violated but not vindicated.”

Ibid.

6

A. Bivens is supported by a long commonlaw history.

1. Judge-applied damages remedies against federal officials were born of the tradition and judicial

practice that federal courts inherited from English

common law. “From time immemorial many claims affecting the Crown could be pursued in the regular

courts,” and sovereign immunity did not bar relief.

Louis L. Jaffe, Suits Against Governments and Officers:

Sovereign Immunity, 77 Harv. L. Rev. 1, 1–2 (1963).

Such relief is illustrated by English cases like Ashby v.

White, 92 Eng. Rep. 126 (K.B. 1703) (Lord Holt, C.J.,

dissenting) and Entick v. Carrington, 19 How. St. Tr.

1029 (C.P. 1765), both of which track the Blackstonian

view that damages remedies against executive officials

are essential for vindicating fundamental rights and

spring from the rights themselves. See 1 William Blackstone, Commentaries on the Laws of England 55–56

(1765) (observing that, without “pay[ing] * * * damages

for the invasion” of rights, then “in vain would rights

be declared”).

Thus, according to Lord Chief Justice Holt, whose

dissent in Ashby was later upheld by the House of

Lords, the ability to bring claims against individual officials would not only “make publick officers more careful” but also vindicate the principle that if “the plaintiff

is obstructed of his right, [he] shall therefore have his

action.” Ashby, 92 Eng. Rep. at 137. That principle was

evident in one of the famous search-and-seizure cases,

Entick v. Carrington, 19 How. Tr. 1029 (C.P. 1765), in

which Lord Chief Justice Camden upheld an award of

7

damages against the King’s Chief Messenger who had

broken into the plaintiff ’s house with a general warrant.

The Framers conceptualized Article III’s judicial

power against this common-law background, “in which

courts created damage remedies as a matter of course.”

Walter E. Dellinger, Of Rights and Remedies: The

Constitution as a Sword, 85 Harv. L. Rev. 1532, 1542

(1971); see also Stephen Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1816–1818 (2012)

(explaining that subjects on which the Constitution is

silent left preexisting rules of common law unchanged).

Indeed, “[t]he founding generation inherited a system

of * * * law that ensured government accountability

through judicial processes and protected the role of the

general assembly in the payment of public claims.”

James E. Pfander & Jonathan L. Hunt, Public Wrongs

and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev.

1862, 1871 (2010). As circuit-riding Justice John Marshall put it, “[w]hen our ancestors migrated to America, they brought with them the common law of their

native country.” Livingston v. Jefferson, 15 F. Cas. 660,

665 (Marshall, J.) (C.C.D. Va. 1811) (No. 8,411).

It is thus unsurprising that for most of American

history, individuals could subject federal officials to

common-law liability for violating their rights. An officer’s governmental authority served only as a defense

to suit, and even then, the Constitution would override

that defense. Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425, 1506 (1987).

8

In this context, Chief Justice Marshall’s observation in Marbury v. Madison—“that for every legal

right, there is also a remedy”—aligns with fundamental principles of constitutional law. 5 U.S. (1 Cranch)

137, 163 (1803). Consonant with this “general and indisputable rule,” ibid., federal courts ordered redress

through judgments for money damages payable by the

responsible federal official. This remedial regime

showed that early American courts, like their English

forebears, could not countenance a legal system with

unenforceable rights. So much so, in fact, that they

“seized [the] principle of personal official liability * * *

and applied it with unprecedented vigor.” David E.

Engdahl, Immunity and Accountability for Positive

Governmental Wrongs, 44 U. Colo. L. Rev. 1, 14 (1972).

Early cases bear this out. In Little v. Berreme, for

example, a U.S. Navy Captain, acting pursuant to President John Adams’s instructions, unlawfully seized a

Danish vessel. 6 U.S. (2 Cranch) 170, 178 (1804). Finding that the President’s instructions were based on a

statutory misreading, the Court, through Chief Justice

Marshall, held the captain strictly liable for money

damages. Id. at 170. Similarly, in Wise v. Withers, a federal officer entered the plaintiff ’s home to collect a fine

that had been improperly imposed by a court-martial.

7 U.S. (3 Cranch) 331 (1806). Finding that the courtmartial had acted without jurisdiction, this Court,

again through Chief Justice Marshall, concluded that

“[t]he court and the officer [were] all trespassers” subject to liability. Id. at 337. And in The Apollon, a U.S.

Customs officer unlawfully seized a French ship in

9

Spanish waters. 22 U.S. (9 Wheat) 362 (1824). In holding the officer liable to the plaintiff ’s common-law

damages claim, the Court, through Justice Story, reasoned that the Judiciary “can only look to * * * whether

the laws have been violated; and if they were, justice

demands, that the injured party should receive a suitable redress.” Id. at 367.

These cases exemplify a tradition of using judgeapplied damages remedies to hold federal officials accountable, which “remained available through the 19th

century and into the 20th.” Tanzin, 141 S. Ct. at 491

(citing Elliot v. Swartwout, 35 U.S. (10 Pet.) 137 (1836);

Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851);

Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1865); Belknap

v. Schild, 161 U.S. 10 (1896); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912)). In light of this history, the

Court observed that “damages have long been awarded

as appropriate relief ” against government officials.3

3

Professor Mascott, as amicus in support of petitioner,

shrugs off this long line of cases, contending that these suits were

merely seeking “to vindicate those longstanding common-law interests, not a separate category of allegedly constitutional rights.”

Mascott Br. 2. This argument, however, overlooks that “those

longstanding common-law interests” were constitutional interests. John F. Preis, How the Federal Cause of Action Relates

to Rights, Remedies, and Jurisdiction, 67 Fla. L. Rev. 849, 874

(2015) (observing that “when drafting the Bill of Rights, [the

Framers] did not create new rights out of all whole cloth but

simply drew on ‘traditional guarantees already recognized in * * *

English common law.’ ”); Boyd v. United States, 116 U.S. 616,

624–629 (1886) (same). In any event, Mascott seems to concede

this in later pages of her brief. Mascott Br. 17 (recognizing that

“[t]he early common-law claims were * * * constructs used to

claim constitutional rights.”).

10

Tanzin, 141 S. Ct. at 491. See also Butz, 438 U.S. at

490–496 (relying on the same line of cases to reject absolute immunity for federal officials).

2. Though courts granted such relief against federal officials in suits at common law, Erie did nothing

to change the longstanding practice of holding federal

officials accountable for violating fundamental rights.

Contra Hernandez, 140 S. Ct. at 741–742, 748. True,

after Erie, federal courts were bound by judge-made

state law in diversity cases. But suits against federal

officials for violating the Constitution do not involve

matters of exclusively state law. Indeed, “[t]he understanding that the common-law damage remedy was a

state-law remedy was itself only of recent vintage.”

Carlos M. Vasquez, Bivens and the Ancien Régime, 96

Notre Dame L. Rev. 1923, 1931 (2021). Instead, it had

an “in-between status,” reflecting features of both state

and federal law. Ibid.; cf. John F. Preis, How the Federal

Cause of Action Relates to Rights, Remedies, and Jurisdiction, 67 Fla. L. Rev. 849, 873 (2016) (explaining that

from the Founding, federal courts exercised their

power to vary the terms of state writs, making it “difficult to say with any certainty whether the writ was

federal or state law”). More simply, the remedy was

general common law.

Under Erie, of course, “[t]here is no federal general

common law.” 304 U.S. at 78. But this does not mean

that the remedies awarded against federal officials for

violating the federal Constitution are relegated to the

vagaries of state law. It simply put federal courts to a

choice: whether, in light of the interests involved,

11

federal common law would govern the matter at hand.

See Vasquez, supra, at 1931–1932. On the same day it

decided Erie, the Court made such a choice, ruling that

federal common law would govern interstate disputes.

Hinderlander v. La Plata River & Cherry Creek Ditch

Co., 304 U.S. 92, 110 (1938). The post-Erie question,

then, became whether a case implicated “uniquely federal interests.” If so, federal common law controls.

Boyle v. United Techs. Corp., 487 U.S. 500, 505 (1988)

(internal quotations omitted).

As applied to civil claims against federal officials,

the Court answered that question affirmatively in

Boyle, holding that federal common law displaced the

state-tort liability of a contractor that sold a malfunctioning product to the U.S. military. In so holding, the

Court recognized that “the civil liability of federal officials for actions taken in the course of their duty”

was “[a]n area * * * of peculiarly federal concern.” Id.

Thus, the Erie question in Boyle was “whether federal

common-law remedies should be recognized in lieu of

state ones,” not whether Erie foreclosed the option altogether. Stephen I. Vladeck, The Inconsistent Originalism of Judge-Made Remedies, 96 Notre Dame L. Rev.

1869, 1887 (2021).

That question can also be easily answered in

Bivens actions. The federal interests identified in

Boyle—the civil liability of federal officials for actions

taken in the course of their duty—are nearly identical

to the federal interests implicated in Bivens suits. Indeed, the federal interests in Bivens are even more

acute, given that liability turns on the violation of the

12

federal Constitution—an issue on which this Court,

not Congress or the States, has the final word. Cooper

v. Aaron, 358 U.S. 1, 18 (1958). That is true today, just

as it was at the Founding. The very nature of a Bivens

claim (seeking redress for a constitutional injury), and

the fact that these injuries were historically litigated

in federal court, makes it a matter of unique federal

concern. And since Congress’s passage of the Westfall

Act means that plaintiffs cannot seek recourse under

state law, the Court’s recognition of Bivens is imperative.

In short, Erie is entirely consistent with Bivens.

The “demise of federal general common law” did not

bring down with it “a federal court’s authority to recognize a damages remedy” under the Constitution.

Hernandez, 140 S. Ct. at 742. Properly understood,

Bivens is simply “the post-Erie manifestation of the

pre-Erie general common law regime,” which everyone,

including the Solicitor General in Bivens, had accepted as “consistent with the original understanding.”

Vasquez, supra, at 1931.

B. Bivens is consistent with the separation of powers.

Based on a misunderstanding of Erie and its purported effect on federal courts’ common-law powers,

constitutionally aggrieved plaintiffs have been rerouted toward Congress. But this is a strange route to

take. Simply passing the buck to Congress in this way

contradicts historical practice. For at least a century

13

and a half after the Founding, the allocation of responsibility for violations of individual rights was simple: Courts did law by analyzing whether the conduct

by the government officer was illegal, and if so, ordering damages; and Congress did policy by carefully adjusting incentives that led to the best policy outcomes.

Patrick Jaicomo & Anya Bidwell, Recalibrating Qualified Immunity: How Tanzin v. Tanvir, Taylor v. Riojas,

and McCoy v. Alumu Signal the Supreme Court’s Discomfort with the Doctrine of Qualified Immunity, 112

J. Crim. L. & Criminology 105, 110, 115–118 (2022). It

was only once federal courts began usurping Congress’s policymaking prerogative that plaintiffs began

having trouble vindicating their constitutional rights

in federal court. Id. at 121–125.

The Founding-era distinction between the judicial

and legislative roles affirms a bedrock truth about

early common-law suits: that the enforcement of antimajoritarian rights would not be left to the majoritarian branch of government meant to be restrained by

those rights. Indeed, even the Founders did not rely on

Congress to establish damages remedies against federal officials. They instead “understood that such remedies would be available absent congressional action

via the general common law,” Vasquez, supra, at 1924,

which served as “the primary tool for the maintenance

of liberty in England,” Preis, supra, at 874.

Echoing the same belief almost two centuries

later, Justice Harlan II rightly concluded that it would

be “anomalous” for the federal courts to be “powerless

14

to accord a damages remedy” for constitutional violations. Bivens, 403 U.S. at 403–404 (Harlan, J., concurring). After all, he observed, the Constitution is “aimed

predominantly at restraining the Government as an

instrument of the popular will.” Id. at 404. Leaving the

enforcement of individual rights to the branch that

represents the popular will, therefore, gets the separation-of-powers calculus exactly backward.4

Yet the solution to the anomaly Justice Harlan

identified—allowing damages suits against federal officials—has now become a “ ‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017),

driven by this Court’s jaundiced view of implied statutory rights of action. See, e.g., Alexander v. Sandoval,

532 U.S. 275, 293 (2001). That is especially troubling

since, at the time Bivens was decided, plaintiffs could

still turn to state courts for redress. Today, however,

the Westfall Act forecloses that option, leaving Bivens

as the only damages remedy against federal officials

acting within the scope of their employment.

4

In his testimony before the Senate Judiciary Committee a

decade ago, Justice Scalia remarked that “[e]very banana republic has a bill of rights,” but it was the structure of the American

Constitution—the separation of powers—that ensured those

rights would not become “just words on paper, what our Framers

would have called ‘a parchment guarantee.’ ” Considering the Role

of Judges Under the Constitution of the United States: Hearing

Before the Committee on the Judiciary, 112th Congress 6–7 (2011)

(statement of Antonin Scalia, Assoc. Justice of the United States

Supreme Court). Now the separation of powers is being invoked

to make constitutional rights just that—parchment guarantees,

unenforceable against the very officials the Bill of Rights was created to restrain.

15

In any case, implying rights of action under federal statutes is fundamentally different than implying

them under the Constitution. As this Court has reasoned, the former “arrogat[es] legislative power,” because “no law pursues its purpose at all costs,” and the

means by which a statute carries out its purpose “involves balancing interests and * * * compromise.” Hernandez, 140 S. Ct. at 741–742 (internal quotations

and citations omitted). The Court has acknowledged

that the reasoning against statutory remedies does

not apply to Constitutional remedies, but it has

treated them identically anyhow. See Abbasi, 137

S. Ct. at 1856; but see Davis v. Passman, 442 U.S. 228,

241 (1979) (“[T]he question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by

the Constitution.”).

Justice Powell, whose dissent in Cannon v. University of Chicago, 441 U.S. 677 (1979), laid the groundwork for the statutory approach ultimately adopted in

Sandoval, agreed. “[T]his Court’s traditional responsibility to safeguard constitutionally protected rights,”

he wrote, “permits greater judicial creativity with respect to implied constitutional causes of action.” Id. at

733 n.3 (Powell, J., dissenting). “[T]he implication of

remedies to enforce constitutional provisions,” he continued, “does not interfere with the legislative process

in the way that the implication of remedies from statutes can.” Ibid. This is so for at least three reasons.

16

First, unlike statutes, constitutional compromise

concerned only the substance of certain provisions, not

their enforceability. Vasquez, supra, at 1927. Again, the

Framers drafted the Bill of Rights against the “British

history of subjecting government officials exceeding

their powers to common-law remedies.” Id. at 1928. So

by omitting remedial details in the Constitution itself,

the Framers were not somehow “calibrating the degree

of effectiveness they wanted those provisions to have.”

Id. at 1927. They instead expected judge-applied remedies to remain available for the enforcement of constitutional rights. See Boyd v. United States, 116 U.S. 616,

624–629 (1886) (“Every American statesman, during

our revolutionary and formative period as a nation,

was undoubtedly familiar with [Entick v. Carrington],

and considered it as the true and ultimate expression

of constitutional law[.]”).

Second, though determining the scope and effectiveness of statutory rights is a prerogative left solely

to Congress, the same is not true for constitutional

rights. In a noted departure from our “parliamentary

past, the Framers adopted a written Constitution that

further divided authority at the federal level so that

the Constitution’s provisions would not be defined

solely by the political branches[.]” United States v. Morrison, 529 U.S. 598, 616 n.7 (2000). Thus, leaving the

availability of a constitutional cause of action to Congress alone would jettison a “permanent and indispensable feature of our constitutional system”: that “the

federal judiciary is supreme in the exposition of the

law of the Constitution.” Ibid. (cleaned up). As with its

17

interpretation, the Constitution’s enforceability is not,

and cannot be, merely a matter of legislative grace. Cf.

Evenwel v. Abbott, 578 U.S. 54, 82 (2016) (Thomas, J.,

concurring in the judgment) (“The Framers understood

the tension between majority rule and protecting fundamental rights from majorities.”).

Third, no separation-of-powers issues arise with

respect to prospective remedies for constitutional violations, so none should arise with retrospective ones

either. “Both [remedies] are exercises of judicial power

that were both commonplace and significant to patterns of official accountability at (and after) the Founding.” Vladeck, supra, at 1883. If anything, courts

should prefer legal rather than equitable relief, given

the “canonical view that ‘equity follows the law,’ ” ibid.,

and the more intrusive, burdensome, and extraordinary nature of injunctions compared to money damages.5 And Erie is no answer for the now current

preference of equity over law, at least for constitutional

redress. As this Court “explained seven years after

Erie, even before the merger of law and equity, federal

courts applied the Rules of Decision Act without distinguishing between the two systems.” Id. at 1889 (citing

Guaranty Tr. Co. v. York, 326 U.S. 99, 103–104 (1945)).

In other words, equitable relief for constitutional violations “is a judge-made remedy” that this Court regularly provides, Armstrong v. Exceptional Child Ctr.,

5

City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (intrusive); Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 528 U.S. 167, 193 (2000) (burdensome); Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (extraordinary).

18

Inc., 135 S. Ct. 1378, 1384 (2015), and nothing about

Erie’s statutory holding justifies a double standard for

judge-made damages remedies at common law, which

this Court provided in Bivens.

At the end of the day, and consistent with its role

in our constitutional system, this Court can simply determine whether a legal violation has occurred and

award the appropriate relief. It did so in the early Republic, see, e.g., The Apollon, 22 U.S. at 367, and it

should again now.

II.

Bivens, the Westfall Act, and the creation

of qualified immunity all support the

availability of damages remedies against

federal officials.

When the Court properly conceptualized its judicial power, it recognized that individuals could bring

suits for damages against federal officials directly under the Constitution. Though it applied the remedy under the Fourth Amendment, Bivens established more

broadly “that a citizen suffering a compensable injury

to a constitutionally protected interest could invoke

the general federal-question jurisdiction of the district

courts to obtain an award of monetary damages

against the responsible federal official.” Butz, 438 U.S.

at 504.

Bivens was never limited to Fourth Amendment

claims or any set of specific facts or circumstances. See

Davis, 442 U.S. 228; Carlson v. Green, 446 U.S. 14

(1980). Indeed, in 1982, when this Court created the

19

modern doctrine of qualified immunity in Harlow v.

Fitzgerald, it did so in reliance on the wide availability

of Bivens claims. 457 U.S. at 808 (noting that most federal officials will not be entitled to absolute immunity).

So to shield federal officials from the burdens of litigation in Harlow, the Court announced a new objective

test that required plaintiffs to show, right at the outset,

that any constitutional violation they alleged was

clearly established.

It was against this background that Congress,

through the Federal Tort and Compensation Act of

1988 (i.e., the Westfall Act), codified Bivens and eliminated state-court remedies. To shrink or discard the

Bivens remedy now, decades later, would therefore not

only upset the remedial balance Congress struck in

1988 but, for the first time in this nation’s history, leave

plaintiffs with no venue in which to vindicate their

rights. For many plaintiffs now, it’s no longer “Bivens

or nothing.” Hernandez, 140 S. Ct. at 760 (Ginsburg, J.,

dissenting). It’s just “nothing.” See, e.g., Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020); Ahmed v. Weyker, 984 F.3d

564 (8th Cir. 2020).

A. Before the Westfall Act, this Court repeatedly recognized the availability of

Bivens claims.

In the years leading up to 1988, the Court developed Bivens into a meaningful avenue of relief. So

meaningful, in fact, that the Court built the robust regime of qualified immunity—an issue that Bivens

20

precedes—on the back of Bivens claims. The Court first

applied a good-faith, Pierson immunity to federal officials in Butz. Then, years later in Harlow, it created

the objective, clearly-established test, all to ensure

that federal officials are not overexposed to liability

through Bivens.

In Butz, the plaintiff brought Bivens claims against

various high-level federal officials, including the Secretary of Agriculture, for First Amendment retaliation,

alleging that after criticizing the Department of Agriculture, the officials instituted an investigation and

administrative proceeding against him. 438 U.S. at

480–482. In assuming the viability of the plaintiff ’s

First Amendment claim, the Court proceeded to hold

that, like state officials sued under Section 1983, federal officials sued under Bivens are entitled to qualified immunity. Id. at 504. The Court reasoned that

affording executive officials absolute immunity from

the plaintiff ’s First Amendment claim, as the government requested, would result in Bivens being “drained

of meaning.” Id. at 501 (internal quotations omitted).

So rather than let absolute immunity swallow Bivens,

the Court ensured parity between state and federal officials and held them to the same qualified-immunity

standard.

Four years later, the Court decided Harlow, in

which the plaintiff similarly sued high-level executive

officials, this time presidential aides, for retaliation

because they had allegedly fired him for exercising

his First Amendment rights. Harlow, 457 U.S. at 802–

805. Adopting “public policy” arguments to protect the

21

government defendants, id. at 813, the Court reformulated qualified immunity into an objective test, asking

whether the federal officials violated “clearly established statutory or constitutional rights of which a reasonable person would have known,” id. at 818. This

new formulation, the Court said, rested on an overarching objective: to ensure that (federal) officials

avoid the “social costs” of litigation while they devote

their “official energy to pressing public issues.” Id. at

814.

By engaging in policy-oriented reasoning, the

Court’s presumption of a viable Bivens claim in Harlow

was crucial. If the plaintiff had no such claim, the

Court’s concern for federal officials facing the prospect

of litigation would have been unfounded. And if that

concern was indeed unfounded, there would have been

no need to recalibrate federal-official immunity for

constitutional violations. In other words, but for the

general availability of Bivens, Harlow would have been

erecting a hurdle for an obstacle course that never existed in the first place.

When read in the proper context, then, the Court’s

decision to recast the qualified-immunity test into an

objective one was not a mere academic exercise. Harlow’s new, more protective test rested on a capacious

understanding of Bivens. In the intervening years between Butz and Harlow, the Court had allowed suits

against federal officials under the Fifth Amendment,

Passman, 442 U.S. at 244, and under the Eighth, Carlson, 446 U.S. at 25. So while Harlow’s test may have

been untethered to any immunity that existed at

22

common law, the underlying reality justifying the new

test—that the plaintiff had a cognizable Bivens claim

under the First Amendment—was not.

B. Just as the Court was aware of this reality, so was Congress, when in 1988 it

legislated against the background of a

robust Bivens regime.

The Federal Tort Claims Act of course predates

Bivens. But when Congress amended it in 1974 to

include intentional torts committed by federal lawenforcement officers, it sought to preserve Bivens for

instances of law-enforcement overreach. See, e.g., S.

Rep. 93-588, 93rd Cong., 2 Sess. 3 (1973) (citing police

raids as its motivation to hold federal officials accountable for unreasonable searches and seizures). It was

thus “crystal clear,” the Court said, “that Congress

view[ed the] FTCA and Bivens as parallel, complementary causes of action.” Carlson, 446 U.S. at 20 (citing S.

Rep. 93-588, supra).

Then, after this Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), Congress again amended the

FTCA. Relying on the robust protection provided by

Bivens, Congress codified the availability of “civil action[s] against an employee of the [federal] Government * * * brought for a violation of the Constitution

of the United States,” 28 U.S.C. 2679(b)(2)(A), while at

the same time prohibiting suits against federal officials in state courts, Hui v. Castaneda, 559 U.S. 799,

806 (2010) (discussing how the FTCA was made “the

23

exclusive remedy for most claims against Government

employees arising out of their official conduct”).

In other words, Congress’s 1988 amendment

struck a compromise: it removed plaintiffs’ right to sue

in state courts—a right that existed since the Founding—but at the same time codified Bivens as the proper

route for suing federal officials who violate individuals’

constitutional rights. See James E. Pfander & David

Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 Geo. L.J. 117, 132–138

(2009). This Court has acknowledged the codification,

stating that Congress “left Bivens where it found it” in

1988. Hernandez, 140 S. Ct. at 748 n.9.6

Where Congress found Bivens in 1988 is therefore

key. By that time, the Court applied Bivens to claims

under the Fifth and Eighth Amendments and, as mentioned above, built a doctrine of immunity around the

assumption that Bivens applied to constitutional

claims against federal officials generally, including to

claims under the First Amendment. Moreover, at the

time Congress codified the availability of constitutional claims against federal officials, Bivens was

subject only to three limited exceptions: regulation of

6

See also Tanzin, 141 S. Ct. at 491 (“In 1988 the Westfall

Act foreclosed common-law claims for damages against federal

officials * * * but it left open claims for constitutional violations

and certain statutory violations.”); Abbasi, 137 S. Ct. at 1856

(mentioning that Congress decided “not to substitute the Government as defendant in suits seeking damages for constitutional violations”); United States v. Smith, 499 U.S. 160, 166–167, 173

(1991) (noting that through the Westfall Act Congress expressly

“preserv[ed] employee liability for Bivens actions”).

24

federal employment, military policy, and welfare benefits. See, e.g., Bush v. Lucas, 462 U.S. 367 (1983) (employment); Chappell v. Wallace, 462 U.S. 296 (1983)

(military); United States v. Stanley, 483 U.S. 669 (1985)

(military); Schweiker v. Chilicky, 487 U.S. 412 (1988)

(welfare).

To be sure, when Congress passed the Westfall Act,

it did not speak directly to the scope of Bivens. But it

didn’t need to. When Congress is silent, it “means that

ordinary background law applies,” New Jersey v. New

York, 523 U.S. 767, 813 (1998) (Breyer, J., concurring),

or, even more, that Congress affirmatively approves of

the status quo, see Flood v. Kuhn, 407 U.S. 258, 283–

284 (1972). The background law and status quo in 1988

consisted of Supreme Court decisions generally recognizing Bivens claims in many different contexts, as

well as multiple lower court decisions doing the same.

In the First Amendment context, for example, Harlow established immunity for federal officials because

there was no question about the merit of the underlying Bivens claims. See also Butz, 438 U.S. at 505–506.

Even lower courts at the time recognized this and accordingly permitted similar First Amendment claims

against federal officials. See, e.g., Dellums v. Powell,

566 F.2d 167, 194–196 (D.C. Cir. 1977); Yiamouyiannis

v. Chemical Abstracts Serv., 521 F.2d 1392, 1393 (6th

Cir. 1975); Paton v. La Prade, 524 F.2d 862, 869–870 (3d

Cir. 1975); Milhouse v. Carlson, 652 F.2d 371 (3d Cir.

1981).

25

When Congress legislated against the backdrop of

Bivens in 1974 and 1988, it was not aiming at a moving

target. See Dixon v. United States, 548 U.S. 1, 19–20

(2006) (Alito, J., concurring). So if the Court were to

move the target on Bivens claims now, it would disrupt

the remedial scheme Congress carefully implemented

when it last visited the law governing federal-official

accountability. Such a disruption requires greater reluctance not only in terms of stare decisis, cf. Kimble v.

Marvel Entm’t, LLC, 576 U.S. 446, 455–460 (2015), but

also because of the more consequential effect on constitutional rights generally. In the Westfall Act, Congress preempted suits under state tort law for injuries

inflicted by federal officials acting within the scope of

their employment. 28 U.S.C. 2679(b)(1). Thus, without

Bivens, many plaintiffs will have no recourse for violations of their constitutional rights. That prospect alone

should give the Court pause.

In his concurring opinion in Byrd v. Lamb, Judge

Don Willett asked: “If Bivens is off the table * * * and

if the Westfall Act preempts all previously available

state-law constitutional tort claims against federal officers acting within the scope of their employment, do

victims of unconstitutional conduct have any judicial

forum whatsoever?” Byrd, 909 F.3d at 883–884. The answer to this question is currently no. It is up to this

Court, however, to make clear that the question was

wrongly premised. Bivens is not off the table. Victims

of unconstitutional conduct by federal officials do have

a remedy.

26

The Court should affirm the Ninth Circuit’s decision below and confirm the availability of Bivens

claims under the First and Fourth Amendments in the

context of immigration law enforcement. It should likewise grant certiorari in Byrd v. Lamb, petition for certiorari pending, No. 21-184 (filed Aug. 6, 2021), and

Mohamud v. Weyker, petition for certiorari pending,

No. 21-187 (filed Aug. 6, 2021), reverse the Fifth and

Eighth Circuits’ decisions, and embrace the availability of Bivens claims under the Fourth Amendment in

the context of domestic law enforcement.

---------------------------------♦---------------------------------

CONCLUSION

The Court should affirm the judgment of the court

of appeals.

Respectfully submitted,

PATRICK JAICOMO

Counsel of Record

ANYA BIDWELL

DANIEL RANKIN

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org