Bivens v. Six Unknown Named Agents

Bivens v. Six Unknown Named Agents

Argued January 12, 1971
Decided June 21, 1971
Full case name Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

403 U.S. 388 (more)

91 S. Ct. 1999; 29 L. Ed. 2d 619; 1971 U.S. LEXIS 23
Prior history Dismissed, 276 F. Supp. 12 (E.D.N.Y. 1967); affirmed, 409 F.2d 718 (2nd Cir. 1969)
Subsequent history On remand, reversed, 456 F.2d 1339 (2nd Cir. 1972)
Individuals have an implied cause of action against federal government officials who have violated their constitutional rights. Second Circuit Court of Appeals reversed and remanded.
Court membership
Case opinions
Majority Brennan, joined by Douglas, Stewart, White, Marshall
Concurrence Harlan
Dissent Burger
Dissent Black
Dissent Blackmun
Laws applied
U.S. Const. amend. IV
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Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by Agents of the Federal Bureau of Narcotics. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.

The Bivens case has been subsequently interpreted to create a cause of action against the federal government similar to the one 42 U.S.C. § 1983 creates against the states.

Background of the case

Federal Bureau of Narcotics (FBN) agents searched the house of the plaintiff, Webster Bivens, and arrested him without a warrant. Drug charges were filed but were later dismissed by a U.S. Commissioner (now called Magistrate Judge). Bivens filed a lawsuit alleging the violation of his Fourth Amendment freedom from unreasonable search and seizure. The government claimed that the violation allowed for only a state law claim for invasion of privacy and that the Fourth Amendment provides no cause of action but only a rebuttable defense for the FBN agents. The District Court agreed and dismissed the suit for lack of subject-matter jurisdiction, and also for Bivens's failure to state a claim upon which relief can be granted. The Second Circuit Court of Appeals affirmed. The U.S. Supreme Court granted certiorari on that secondary issue of whether a plaintiff can bring a claim in federal court based solely on an alleged violation of his Fourth Amendment rights. Bivens was represented pro bono by Stephen A. Grant.[1]

The Supreme Court's decision

"For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of 'constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment."

The Supeme Court, in an opinion by Justice Brennan, laid down a rule that it will infer a private right of action for monetary damages where no other federal remedy is provided for the vindication of a constitutional right, based on the principle that for every wrong, there is a remedy. The court reasoned based upon a presumption that where there is a violation of a right, the plaintiff can recover whatever he could recover under any civil action, unless Congress has expressly curtailed that right of recovery, or there exist some "special factors counseling hesitation".

Harlan's concurrence

Justice Harlan voted with the majority to reverse the lower court, but also wrote a separate concurring opinion. Harlan particularly emphasized the special importance of constitutional rights. He presented that it was well-settled, even undeniable, that a suit for injunction based on a constitutional right was long recognized in the Federal courts. That being the case, where equally necessary, a suit for damages should be equally if not more acceptable. (Money damages were traditionally considered to be less onerous of a remedy than injunction, except in Constitutional Jurisprudence; in Edelman v. Jordan, Justice Rehnquist declared exactly the opposite, an assertion of dubious legal pedigree.)

Dissents of Burger, Black, and Blackmun

Dissenting opinions were written by Chief Justice Burger, and by Justices Black and Blackmun.

Chief Justice Burger's dissent asserted that this decision was legislating, and should be left to Congress. Justice Black basically agreed with Burger, and worried about the growing docket. Justice Blackmun went a step further, declaring that this holding would lead to "another avalanche of new federal cases."

Subsequent case law

In Davis v. Passman, 442 U.S. 228 (1979),[2] the Supreme Court upheld a Fifth Circuit opinion that held that even though there existed "an explicit congressional prohibition against judicial remedies for those in petitioner’s position[,]" the court declined to infer that Congress also sought to foreclose an alternative remedy directly under the Fifth Amendment.[3] In Carlson v. Green, 446 U.S. 14 (1980),[4] the court held that a damages remedy would be available despite the absence of any statute conferring such a right, unless: (1) Congress had provided an alternative remedy which it "explicitly declared to be a substitute for recovery directly under the Constitution"; or (2) the defendant could demonstrate any "special factors counseling hesitation."[5] In Bush v. Lucas, 462 U.S. 367 (1983),[6] the Court refrained from implying a Bivens remedy due to the availability of alternative remedies for the first time.[5] In FDIC v. Meyer, 510 U.S. 471 (1994),[7] and Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001),[8] the court held that the fundamental logic supporting Bivens was to deter constitutional violations by individual officers, not federal agencies.[9] In Wilkie v. Robbins, 551 U.S. 537 (2007),[10] the court held that the difficulty inherent in "defining limits to legitimate zeal on the public’s behalf in situations where hard bargaining is to be expected" was a "special factor" that counseled against the availability of a Bivens remedy.[11] In Minneci v. Pollard, 565 U.S. ___ (2011),[12] the court denied a Bivens action for Eighth Amendment violations committed by employees of a private prison because "state tort law authorizes adequate alternative damages actions … that provide both significant deterrence and compensation", despite acknowledging that these officials were "act[ing] under color of federal law".[13][14]

See also


  2. Davis v. Passman, 442 U.S. 228 (1979)
  3. Frampton 2012, p. 1716.
  4. Carlson v. Green, 446 U.S. 14 (1980)
  5. 1 2 Frampton 2012, p. 1717.
  6. Bush v. Lucas, 462 U.S. 367 (1983)
  7. FDIC v. Meyer, 510 U.S. 471 (1994)
  8. Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001)
  9. Frampton 2012, pp. 1718-1719.
  10. Wilkie v. Robbins, 551 U.S. 537 (2007)
  11. Frampton 2012, pp. 1719-1720.
  12. Minneci v. Pollard, No. 10-1104, 565 U.S. ___ (2011)
  13. Frampton 2012, p. 1713.
  14. Frampton 2012, p. 1722.

External links

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