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State law, the Westfall Act, and the nature of the Bivens question.

III. BIVENS AND ITS AFTERMATH

Although the judges of the en banc Second Circuit disagreed vehemently over the correct outcome in Arar v. Ashcroft, they (and their colleagues on the Fourth, Seventh, and D.C. Circuits) agreed on one point: the plaintiff either had a Bivens action or had no cause of action for damages at all.166 In this respect, the courts of appeals' recent approach to the Bivens question was very different from the Supreme Court's approach in Bivens itself: Consistent with the pre-Bivens approach to constitutional remedies described above, all of the Justices in Bivens, and all of the litigants, regarded the Bivens question as a choice between recognizing a federal right of action for damages directly under the Constitution or leaving the matter of damages for violations of the Constitution by federal officials to the common law. It was common ground in Bivens that, in the absence of a federal cause of action, damages would be available on the basis of the common law. (167) On this understanding of the nature of the Bivens question, the "special factors" that the Court said might "counsel[] hesitation" in recognizing a Bivens action168 must be factors that favor leaving the question of damages to other existing remedial regimes, including state law. Factors that would favor leaving the plaintiff with no cause of action at all would bear instead on the question of defenses, such as official immunity.

A. The Bivens Case

Webster Bivens was arrested on narcotics charges and had his home searched by agents of the federal Bureau of Narcotics who lacked a warrant for either the arrest or the search. (169) In his complaint, Bivens alleged that the agents had manacled him in front of his wife and children and threatened to arrest the whole family. Bivens was later taken to the station, where he was subjected to a strip search. (170) He sued the agents in federal district court, alleging that they had caused him "great humiliation, embarrassment, and mental suffering." (171) He sought $15,000 from each agent for the violation of his "constitutional rights." (172) Although his pro se complaint did not refer specifically to the Fourth Amendment, (173) it did allege that the search was conducted without a warrant and, according to the Supreme Court, "fairly read, it allege[d] as well that the arrest was made without probable cause." (174) The district court dismissed the complaint, citing the lower court's decision in Bell v. Hood on remand, (175) and the Second Circuit affirmed. (176)

To grasp how the Bivens question was understood by the Supreme Court in Bivens, it is best to begin with the brief filed by President Nixon's Solicitor General, Erwin Griswold, who argued on behalf of the United States against recognition of a federal damages remedy. (177) Griswold presented the question to the Court as whether an "additional" damage remedy should be recognized. (178) He argued that a federal right of action for damages for violation of the Fourth Amendment was inconsistent with original intent. (179) According to the Solicitor General, the Founders contemplated that injuries suffered as a result of acts of federal officials that contravened the Amendment would be compensated through common law actions such as trespass. (180) As explained in Part II, the breach of the Constitution operated to defeat any defense of official justification, thereby leaving the official open to common law remedies. The Solicitor General added that the "plan envisaged when the Bill of Rights was passed" was that a person injured by a breach of the Constitution "may proceed ... by a suit at common law ... for damages for the illegal act." (181) Thus, the original intent was not that a damages remedy would be unavailable until enacted by Congress; to the contrary, the Founders contemplated that a damages remedy would be available, namely, the remedy furnished by the common law. Solicitor General Griswold regarded the common law remedy not merely as the default damages remedy, but also as the constitutionally contemplated one.

Griswold conceded that judicial recognition of a federal remedy would be appropriate if such a remedy were "indispensable for vindicating constitutional rights." (182) It was on this ground, in his view, that federal law had come to recognize the availability of injunctive relief for constitutional violations by state and federal officials. (183) But recognition of a federal damages remedy was not necessary, he argued, because common law remedies were available. (184) The Solicitor General acknowledged that common law remedies were sometimes inadequate, but he contended that the federal remedy would suffer from the same deficiencies, and he noted that the inadequacies could, in any event, be addressed within the common law model, as "growth and improvement have always been the great tradition of the common law." (185) In short, the existence of common law remedies was central to the government's argument against recognizing a federal cause of action directly under the Constitution in two important ways: First, it was the damages remedy envisioned by the Framers. Second, the existence of the state remedy made a federal remedy unnecessary.

The Court in Bivens similarly took for granted the existence of common law damages remedies and understood the question before it as whether the common law remedy should remain the exclusive one. It rejected the government's argument for such exclusivity as "unduly restrictive," and it recognized an "independent" federal claim affording damages to victims of Fourth Amendment violations by federal officials, "regardless of whether the State in whose jurisdiction [the federal] power is exercised would prohibit or penalize the identical act if engaged in by a private citizen." (186) The Court, and Justice Harlan in his concurrence, also rejected the government's argument that a federal remedy need be "indispensable" for vindicating the Fourth Amendment. (187) In Justice Harlan's words, the question instead was whether damages were "'necessary' or 'appropriate' to the vindication of the interest asserted." (188)

The conception of the Bivens question as whether existing common law remedies should be supplemented with a federal one is perhaps most clearly reflected in the opinions of the dissenting Justices, who would have declined to recognize a federal cause of action on the ground that creating such remedies is a legislative function. In their view, the majority was usurping the power of Congress. (189) This rationale is consistent only with a determination to leave preexisting common law remedies in place. After all, a decision to displace state law and replace it with nothing is just as much an act of judicial legislation as a decision to displace state law and replace it with something, (190) In the absence of congressional action, federal courts engage in judicial lawmaking when they decide to displace state law, whether because of a need for uniformity or for another reason. Having taken that step, the decision to replace a state law cause of action with a federal cause of action is no more an act of lawmaking or a usurpation of the role of the legislature than the decision to replace it with no cause of action at all. Leaving victims of constitutional violations with neither a federal cause of action nor their preexisting common law causes of action would be as much a usurpation of legislative power as providing them with a substitute federal cause of action.

To be clear, we do not argue that a decision that a state law cause of action is displaced as a matter of federal common law would in no circumstances be justified. (191) The point is merely that such a decision cannot rest on a claimed lack of legislative power. A lack of legislative power can only support a decision to leave the status quo in place, and, as discussed above, that status quo at the time Bivens was decided was that federal officers who violated the Constitution were subject to common law remedies. The reluctance of the dissenting Justices in Bivens to engage in judicial lawmaking is thus consistent only with the view that state law should continue to govern. For those Justices, the supplementation or supplanting of such actions was a decision for Congress, not the courts.

The Justices in the majority held a less restrictive view of the courts' discretion to make law in the absence of congressional action. (192) It is not entirely clear from the opinion whether these Justices understood the federal remedy they were creating as preemptive of or supplemental to the common law remedy. The majority never stated that it viewed the federal remedy as exclusive. It did assert that the interests underlying trespass law were sometimes hostile to those underlying the Fourth Amendment, but the examples it gave of such hostility mainly involved situations in which the common law underprotected Fourth Amendment interests.193 If underprotection was the problem, then the solution would be to supplement the state cause of action with a federal cause of action, not to preempt the state cause of action. Any concern that common law liability would unduly restrict federal officials in the performance of their duties would have been addressed by those officials' "immun[ity] from liability by virtue of their official position" (194)--an immunity that applies equally in common law and Bivens actions. (195)

On the other hand, Justice Harlan's concurrence mentioned the benefits of uniformity and the undesirability of subjecting federal officials to "different rules of liability ... dependent on the State where the injury occurs." (196) These considerations would support the conclusion that the Bivens action preempts preexisting common law damage remedies. Still, uniformity is not necessarily an overriding concern. The Federal Tort Claims Act, for example, exposes the federal government to liability under the laws of different states depending on where the injury occurred.197 Thus, following the Bivens decision, one prominent contemporaneous scholar concluded that "the existence of a federal substantive cause of action in no way forecloses continued access to state tort remedies for those plaintiffs who would favor the state cause of action. ... The federal remedy is independent, not preemptive, of the state common law causes of action." (198)

In any event, the important question for present purposes is not whether common law remedies remain available in a particular context after a federal cause of action has been recognized in that context, but rather whether common law actions are preempted in contexts in which a federal cause of action has not yet been recognized. (199) In other words, does Bivens hold that the liability of federal officials for damages is always exclusively a matter of federal law? Nothing in Bivens supports such a reading. The Court was careful to limit its holding to Fourth Amendment cases, and it expressed no views about causes of action for violations of other constitutional provisions. (200) Further, the focus of the Justices, especially the dissenters, on whether the Court was usurping Congress's power is consistent only with the conclusion that they regarded the alternative to recognizing a Bivens claim to be leaving the question of damages for constitutional violations by federal officers as they found it. As discussed earlier, federal officers were subject to common law actions under the status quo ante Bivens. Thus, after Bivens, the question for courts considering whether to "extend Bivens to new contexts" continued to be, as it was in Bivens itself, whether to recognize a federal damages remedy or instead to retain the common law as the exclusive basis for the damages remedy. The special factors that might counsel hesitation in recognizing a Bivens claim must therefore be factors that militate in favor of leaving the question of damages to another existing remedial regime, including state law, not factors that militate against any right to damages at all.

B. After Bivens

The Supreme Court's subsequent cases addressing whether Bivens should be "extended to new contexts" are consistent with a conception of the Bivens question as "Bivens or state law." Few of the subsequent cases dwell on the existence of common law damages remedies as an alternative to a federal cause of action, but not because common law remedies were thought to be unavailable. As discussed below, the failure of those cases to focus on common law remedies stems from the fact that alternative federal remedies were available that were more appealing than those available under state law. Yet even these cases include language confirming that, as a general matter, common law remedies remained one alternative to a potential federal cause of action.

1. Initial Extensions of Bivens

Bivens was followed by two cases extending the federal cause of action to federal officials' violations of other constitutional provisions. In the first such case, Davis v. Passman, the Court recognized a federal cause of action for violation of the Due Process Clause of the Fifth Amendment. (201) The alleged violation of the Due Process Clause consisted of gender discrimination in staff hiring by a sitting Congressman. (202) The alternative of suing under state law was not given extensive consideration, but only because the plaintiff conceded that she "ha[d] no cause of action under Louisiana law." (203)

In the second case, Carlson v. Green, the Court recognized a federal cause of action against federal prison officials for violations of the Eighth Amendment's ban on cruel and unusual punishment. (204) The plaintiff alleged that the defendants' failure to provide medical treatment to a prisoner who subsequently died reflected "deliberate[] indifferen[ce] to the prisoner's welfare." (205) The district court had upheld a claim by the prisoner's mother under an Indiana wrongful death statute, but the statute placed severe limits on the amount of recovery. (206) In holding that a federal cause of action existed, the Court did not question the availability of this state remedy. Its analysis did not focus extensively on the alternative of recovery under state law because a better alternative was available through the Federal Tort Claims Act. (207) The Court found even that alternative remedy to be inadequate for a variety of reasons, including the unavailability of punitive damages under the FTCA. (208) It was left to Justice Rehnquist, in dissent, to confirm that the alternative to recognizing a federal right of action is generally to leave the common law as the exclusive source of the damages remedy. "It thus would seem," he wrote, "that the most reasonable explanation for Congress' failure explicitly to provide for damages in Bivens actions is that Congress intended to leave this responsibility to state courts in the application of their common law." (209)

2. Subsequent Retrenchment

Following Carlson v. Green, a series of decisions declined to extend Bivens to new contexts. These decisions, too, are--with one ambiguous exception--consistent with the proposition that the alternative to recognizing a Bivens claim is to leave the question of damages to the common law. In most of these cases, as in both Davis and Carlson, the alternative of a common law remedy did not receive prominent consideration. But, as in Carlson, the failure to focus on state tort remedies stemmed from the fact that Congress had established an alternative federal remedial scheme. For example, in Chappell v. Wallace (210) and United States v. Stanley, (211) the Court declined to recognize a Bivens action in the military context at least in part because Congress had established "a comprehensive internal system of justice to regulate military life." (212) Similarly, in Bush v. Lucas (213) and Sckweiker v. Chilicky, (214) the Court focused on the alternative remedial scheme that Congress had created to address the sorts of injuries that the plaintiffs had suffered. (215) Where Congress has conferred remedies, the key question is whether Congress has implicitly or explicitly precluded other remedies.

Even so, the Court did note in some of these cases that common law remedies are ordinarily available. For example, in Ckappell, the Court distinguished a nineteenth-century precedent, Wilkes v. Dinsman, (216) on the ground that it "involved a well-recognized common law cause of action by a marine against his commanding officer for damages suffered as a result of punishment," and thus the plaintiff "did not ask the Court to imply a new kind of cause of action." (217) And in Bush, the Court recognized that Bivens had "reject[ed] the argument that a state tort action in trespass provided the only appropriate judicial remedy." (218)

When the Bivens issue has arisen in a context in which Congress had not affirmatively provided an alternative federal remedial scheme, the availability of common law damage remedies has featured prominently in the Court's analysis. For example, in Correctional Services Corp. v. Malesko, the Court declined to recognize a Bivens action against a private corporation operating a halfway house under contract with the Federal Bureau of Prisons. (219) It relied heavily on the fact that prisoners injured by private corporations "enjoy a parallel tort remedy that is unavailable to prisoners housed in Government facilities." (220) And in Wilkie v. Robbins, the Court declined to recognize a Bivens claim in part because the plaintiff "had a civil remedy in damages for trespass" against the offending federal officials. (221) The Wilkie Court cited Malesko's similar reliance on the existence of "state tort remedies in refusing to recognize a Bivens remedy." (222) More recently, in Minneci v. Pollard, the Court relied on the availability of state tort remedies in declining to recognize a Bivens action against employees of privately run prisons. (223)

Some post-Carlson opinions include language or reasoning that is in tension with the Court's understanding that the Bivens question poses a choice between federal and state remedies. In Stanley, for example, Justice Brennan's dissenting opinion seemed to equate the absence of a Bivens remedy with the existence of absolute immunity from liability. (224) So understood, the alternative to a Bivens remedy would indeed be no remedy at all, as an official's absolute immunity from suit would defeat both a Bivens remedy and any common law action. If the Bivens question were understood as "Bivens or state law," the absence of a Bivens action would not amount to an absolute immunity from liability in damages, as the official could still be liable under the common law. Since Justice Brennan was the author of Bivens, in which he clearly distinguished the existence of a Bivens action from the presence of official immunity, (225) he presumably did not mean to suggest that the absence of a Bivens action always renders federal officials absolutely immune from damages relief. Presumably, he meant instead that the failure to recognize a Bivens action in the particular context of the Stanley case would be tantamount to recognizing an absolute immunity for the particular federal officials involved. Perhaps Justice Brennan's analysis here assumed the unavailability of common law remedies in the unique context of suits by servicemembers for the reasons underlying the Court's earlier decision in Feres v. United States. (226)

More puzzling is the Supreme Court's statement in FDIC v. Meyer that, "by definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right." (227) On the surface, this statement appears to deny the possibility that the common law could be a "source of liability" for injuries caused by federal officials through conduct that violates the plaintiffs federal constitutional rights. As we have seen, however, common law actions such as trespass were traditionally the "source of liability" for federal officials alleged to have violated the Constitution. (228) Because the statement, if read literally, is so clearly incorrect, an alternative reading should be preferred, if available.

The Court's statement in Meyer comes in a part of the opinion holding that the FDIC's entitlement to immunity had been waived by its organic statute. (229) The proposition in question was central to the Court's analysis of the relationship between the FDIC's organic statute and several provisions of the FTCA. Section 2679(a) of the FTCA provides that agencies are not suable under their organic statutes for "claims which are cognizable under section 1346(b)" of the FTCA. (230) Section 1346(b), in turn, confers jurisdiction on the federal courts over damages claims against the United States for injuries caused by federal employees within the scope of their employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." (231) The Court concluded that Meyer's claim was not cognizable under [section] 1346(b), and that the waiver of immunity in its organic statute was consequently applicable, because the source of the liability in Meyer's case was federal, not state, law. (232) Hence, the United States, if a private person, would not be liable under the law of the state where the act or omission occurred.

If the Court were understood to be saying that state law "by definition" cannot provide the source of liability for claims alleging constitutional deprivations, the statement would be contradicted by the long history of state tort remedies against state and federal officials whose conduct was deemed to be unauthorized because it violated the Constitution. The Court should instead be understood to have stated that a complaint asserting a federal cause of action for violation of the Constitution "by definition" does not set forth a state law claim. In other words, the Court should be understood to have said that a claim is not cognizable under [section] 1346(b) where the claimant has framed his claim as a federal constitutional claim. The point seems tautological, but the opinion's language indicates that the Court was only making a definitional point. On this reading, if a claimant framed his claim as one of trespass, assault, or false imprisonment, the claim would fall within [section] 1346(b), and the agency would therefore be immune except to the extent authorized by the FTCA, even if the employee's conduct also violated the Constitution. (233)

The alternative would be to read this statement as reflecting the Court's view that, sometime after Bivens, state law remedies against federal officials had come to be preempted as a matter of federal common law. But such a reading is untenable for three reasons. First, the Court did not purport to be making a point about the current state of the law; rather, it purported to be making a point about the logic of constitutional claims. (234) Second, as noted, in Malesko and Wilkie, both decided after Meyer, the Court recognized the possibility of common law tort claims for injuries resulting from acts by federal agents or officials that violated constitutional rights. Indeed, in Westfall v. Erwin, the Court clearly upheld the availability of state tort remedies against federal officials. (235) Although the focus of the Court's discussion in Westfall was the scope of the officials' immunity, the opinion left no doubt that state law causes of action were available. The Westfall case did not involve allegations of a constitutional violation, but there is little reason or support for barring state tort remedies when the federal official has violated a state duty of care and the Federal Constitution, but not when the official has violated a state duty of care but not the Federal Constitution. If a distinction were to be drawn according to whether the Constitution was violated, one would expect the presence of allegations of a constitutional violation to have cut the other way (as indeed Congress provided when it addressed the issue in the Westfall Act (236)).

Finally, such a broad preemption of state tort remedies would have constituted a massive exercise of legislative power, something that Justices disinclined to "extend" Bivens regard as the function of Congress, not of the courts. If the Court had meant to assert that this radical change had come about through federal common lawmaking sometime after the Bivens decision, one would have expected from the Justices in the majority in Meyer at least some analysis of this issue and a hint of criticism of such judicial activism. (237) Moreover, if federal common law had somehow come to preempt the field of remedies against federal officials for constitutional violations, then an aversion to judicial lawmaking could no longer ground an unwillingness to recognize a federal cause of action: as already discussed, once the courts have held state law to be preempted as a matter of federal common law, a decision to replace state law with nothing is no less an act of judicial legislation than a decision to replace it with something. Yet the Justices in the Meyer majority continue to assert that recognition of a Bivens claim would usurp the power of Congress. (238)

In summary, the Court's more recent cases determining whether to extend Bivens to new contexts do not deviate from its initial conceptualization of the Bivens question as "Bivens or (only) state law." Several decisions rely on the existence of state law remedies as a reason for declining to extend Bivens. Stray language in some opinions suggests, at most, that some Justices (and, on one occasion, the Court as a whole) have at times overlooked the fact that state tort remedies would generally remain available for federal officials' violation of the Constitution even if a Bivens action were not recognized. To read these statements as reflecting a never-explained and never-justified federal common law preemption of the field of remedies against federal officials for violation of the Constitution would be an unwarranted interpretation of ambiguous language.

Preemption of state tort remedies through congressional action would not be vulnerable to this particular criticism, and the Supreme Court in Pollard appears to have read the Westfall Act to have done just that. (239) As we show in Part IV, however, if the Westfall Act preempts state tort remedies for federal officials' violations of constitutional rights, then it also rules out the courts of appeals' "hesitant" approach to the recognition of Bivens claims.

C. Federal Officials' Immunity from Liability for their Unconstitutional Acts

The foregoing analysis shows that, at least in theory, state law causes of action remained available at the time Congress passed the Westfall Act in 1988. But there remains the possibility that such remedies may have been effectively unavailable as a result of the operation of official immunity doctrines. Thus, before turning to the Westfall Act, we examine the scope of federal officials' immunity from common law tort claims as it stood in 1988, when the Westfall Act was passed. Although scholars have claimed that, by 1988, federal officials had come to enjoy absolute immunity from common law actions, (240) the cases actually confirm that such officials enjoyed, at most, a qualified immunity from common law actions seeking compensation for injuries resulting from their unconstitutional conduct.

As discussed in Part II, today most federal officials enjoy a qualified immunity from Bivens actions: they are immune if they did not violate clearly established federal law. This standard was articulated by the Court in Harlow v. Fitzgerald, decided in 1982. (241) Before Harlow, federal officials enjoyed immunity for conduct undertaken in good faith. (242) Bivens itself suggests that federal law enforcement officials sued on a common law tort theory for constitutional violations enjoyed no more than a qualified immunity: In explaining his agreement with the majority's recognition of a federal right of action, Justice Harlan noted that federal law would in any event govern federal officials' defenses to liability (243)--an apparent reference to those officials' immunity. Since Justice Harlan was making a point about the necessary role of federal law in suits against such officers in the event a federal right of action were not recognized, he must have meant that federal officers enjoyed such immunity from state law tort suits. He also must have understood the immunity to be a qualified one. If he and the other Justices in Bivens had believed that federal officers enjoyed an absolute immunity from state law tort suits--the only sort of suit recognized at the time--they would not have regarded the choice before them--as all of them, and the litigants, did--as "Bivens or (only) state law." (244)

Although the pre-Bivens cases were not uniform, most are consistent with the view that qualified immunity was the rule and absolute immunity the exception, at least for federal officials of the sort involved in Bivens. As noted, the Court has long recognized that judges and prosecutors enjoy an absolute immunity. (245) In Barrv. Matteo, the Court extended this absolute immunity to an additional (though uncertain) range of executive officials.24~ Specifically, the Barr Court held that the head of an administrative agency enjoyed an absolute privilege from suit for defamation or libel for conduct taken "within the outer perimeter of [his] line of duty," notwithstanding allegations in the complaint of malice. (247) The Court declined to limit the privilege to cabinet officials, but it acknowledged that the immunity enjoyed by the head of an agency was "far broader than in the case of an officer with less sweeping functions." (248) With respect to the case before it, the Court held that the official was immune from liability because his conduct "was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively." (249)

The lower courts had considerable difficulty applying the Barr standard. Many distinguished between "discretionary" and "ministerial" functions, but one prominent contemporaneous commentator noted that such a dichotomy is "at the least unclear, and one may suspect that it is a way of stating rather than arriving at the result." (250) Nevertheless, and consistent with Barr's recognition that officials exercising "less sweeping functions" enjoyed a narrower privilege, most of the lower courts found Barr's absolute privilege inapplicable to police and similar rank-and-file law enforcement officers. In Bivens itself, the Court did not reach the immunity question, although Justice Harlan, the author of the plurality opinion in Barr, expressed his belief that immunity would be inapplicable "with respect, at least, to the most flagrant abuses of official power." (251)

On remand from the Supreme Court, the Second Circuit in Bivens held that the defendants were not entitled to the broad immunity recognized in Barr,2s2 and concluded instead that they were entitled to a qualified privilege protecting them from liability for actions taken in good faith. (253) In so holding, the court relied on prior decisions involving common law suits against federal officials and suits against state officials under 42 U.S.C. [section] 1983, without suggesting that the scope of immunity varied depending on the source of the remedy being sought. (254) Admittedly, the case law addressing which other types of federal officials were entitled to absolute immunity and which were entitled to qualified immunity, and for which sorts of claims, was in a highly unsettled state until the Court held in Butz v. Economou that, with very limited exceptions, executive officials sued for their unconstitutional conduct enjoyed only a qualified immunity. (255) A few years after Butz, the Court brought additional certainty to this area of the law by holding in Harlow that qualified immunity protects federal officials only if their conduct was consistent with clearly established federal law. That is where the law of official immunity stood when Congress enacted the Westfall Act in 1988.

Nevertheless, the current edition of the Hart and Wechsler casebook, citing Barr, asserts that, "[p]rior to 1988, when a state law tort action was brought against a federal officer, federal common law had established a shield of absolute immunity from damages liability for actions within the 'outer perimeter of [the official's] line of duty." (256) If the claim is that federal officials came to enjoy an absolute immunity from common law tort claims upon the Court's decision in Barr in 1959, or soon thereafter, that position is contradicted by the authorities discussed above. (257) Although a range of federal officials of uncertain scope enjoyed an absolute immunity, the immunity did not by any means apply to all--as Barr itself made clear. If the claim is instead that, sometime between the Bivens decision and the enactment of the Westfall Act, federal officials came to enjoy an absolute immunity from state tort claims, albeit not from the federal Bivens action, it is contradicted by the Supreme Court decisions discussed below.

The claim that by 1988 federal officials had come to enjoy an absolute immunity from state tort claims clearly conflicts with at least one Supreme Court decision (and a unanimous one at that)--Westfall v. Erwin, in which the Court held that officials who do not exercise discretionary functions do not enjoy any such immunity. (258) But Westfall is the decision that precipitated the enactment of the Westfall Act, the purpose of which, according to Congress, was to restore the law of immunity to where it stood before the Court's decision, which Congress regarded as erroneous. (259) Of course, the Court in Westfall may have correctly applied existing law, and Congress may have been mistaken about the state of the prior law. Nevertheless, given that Congress's intent was to restore what it regarded as the law that predated what it regarded as an erroneous Supreme Court decision, in interpreting the Westfall Act we must assume that the Court's holding in Westfall was mistaken.

But what was the error in Westfall that Congress intended to correct? For present purposes, the important aspect of Westfall is one it shares with Barrv. Matteo (260): neither case involved conduct by a federal official in violation of the Constitution. We argue in Part IV that the Westfall Act is best understood to have preempted state tort actions against federal officials who did not violate the Constitution. Here, we show that the Supreme Court had clearly held, in the years immediately preceding the Westfall Act, that only federal officials who were not alleged to have violated the Constitution enjoyed an absolute immunity from state tort suits. With the exception of prosecutors and other quasi-judicial officials, (261) federal officials enjoyed only a qualified immunity from liability for their unconstitutional conduct. Thus, to the extent that the Westfall Act was intended to restore the pre-Westfall law, it must have been intended to confirm the unavailability of state tort remedies in cases not alleging a violation of the Constitution-the sorts of cases exemplified by Westfall and Barrv. Matteo. (262)

The most thorough post-Bivens, pre-Westfall Act discussion of the scope of the immunity enjoyed by federal executive officials from liability for their constitutional violations--and the last word on the subject before the enactment of the Westfall Act (apart from the Westfall decision itself)is found in Butz v. Economou.263 The plaintiff in Butz had sued a number of officials of the Department of Agriculture, raising Bivens claims as well as common law tort claims such as abuse of process, malicious prosecution, invasion of privacy, negligence, and trespass. (264) The district court had dismissed the claims, citing the "outer perimeter" language from Barr. (265) The Supreme Court reversed, holding that the officials were entitled only to qualified immunity. (266) Although Butz is sometimes read to have held that federal officials are entitled to qualified immunity from Bivens claims but absolute immunity from state law claims, (267) the opinion actually establishes that qualified--not absolute--immunity applies to state law claims in which the defendant is alleged to have violated the Constitution, regardless of the legal basis of the remedy being sought.

The Court in Butz began by distinguishing Barrv. Matteo, on which the district court and the defendant had principally relied.268 Barr, the Court noted, did not involve a claimed violation of the Constitution. Instead, the issue in Barr was whether the defendant official could be held liable for conduct "otherwise within the official's authority" if he had acted with malice. (269) The Court in Barr rejected such liability. (270) But, the Butz Court stressed, "quite a different question would have been presented [in Barr] had the officer ignored an express ... constitutional limitation on his authority." (271) To recognize absolute immunity in the latter situation would, according to the Court, contradict Supreme Court decisions stretching back to the beginning of the Republic. (272) Notwithstanding the immunity that federal officials otherwise enjoyed, the Court, in well-known cases such as Little v. Barreme, (273) had recognized that "[a] federal official who acted outside of his federal statutory authority would be held strictly liable for his trespassory acts." (274) Although Little v. Barreme involved conduct exceeding the scope of authority as set forth in statutes, the Court noted in Butz that the principle applied equally to conduct that was outside the official's authority because it violated the Constitution. (275) "Since an unconstitutional act, even if authorized by statute, was viewed as not authorized in contemplation of law, there could be no immunity defense." (276)

Barr and Spalding v. Vilas, (277) upon which Barr had relied, (278) were entirely consistent with this older line of cases. Indeed, "[i]f any inference is to be drawn from Spalding ... it is that the official would not be excused from liability if he failed to observe obvious statutory or constitutional limitations on his powers or if his conduct was a manifestly erroneous application of the statute." (279) Although Barr extended the immunity somewhat beyond Spalding, the important point for the Court in Butz was that "[t]he liability of officials who have exceeded constitutional limits was not confronted in either Barr or Spalding." (280) Thus, neither case supports absolute immunity in such circumstances.

In distinguishing Barr and Spalding throughout the opinion, the language used by the Court in Butz encompassed not just Bivens claims, but any claim based on unconstitutional conduct. Thus, the Court wrote that "Barr did not purport to protect an official who has not only committed a wrong under local law, but also violated those fundamental principles of fairness embodied in the Constitution." (281) The Court furthermore explained that

   neither [Barr nor Spalding] purported to abolish the liability of
   federal officers for actions manifestly beyond their line of duty;
   and if they are accountable when they stray beyond the plain limits
   of their statutory authority, it would be incongruous to hold that
   they may nevertheless willfully or knowingly violate constitutional
   rights without fear of liability. (282)


Each time the Court described the type of case to which absolute immunity did not extend, it referred to the type of conduct in which the defendant engaged--specifically, whether the conduct exceeded authority, including by violating the Constitution--not whether the cause of action asserted was based on federal or state law. (283) In the Court's view, suits based on unconstitutional conduct were just a subset of a larger set of cases not subject to absolute immunity, namely, suits in which the officer exceeded the scope of his authority. (284) The Court thus cannot be taken to have limited its holding to Bivens claims, as suits based on conduct that exceeded the officer's statutory authority but did not violate the Constitution cannot give rise to a Bivens claim.

Although the Court's conclusion that qualified immunity, not absolute immunity, applies to suits seeking state tort remedies for conduct in violation of the Constitution is clear enough from the foregoing parts of its analysis, the Court removed all doubt in a later footnote addressing that very question. After discussing the Court's earlier holding in Scheuer v. Rhodes that high-level state executive officials enjoy only a qualified immunity from claims under 42 U.S.C. [section] 1983, (285) Justice White wrote for the Court in Butz:

   The Government argued in Bivens that the plaintiff should be
   relegated to his traditionaI remedy at state law. "In this scheme
   the Fourth Amendment would serve merely to limit the extent to
   which the agents could defend the state law tort suit by asserting
   that their actions were a valid exercise of federal power: if the
   agents were shown to have violated the Fourth Amendment, such a
   defense would be lost to them and they would stand before the state
   law merely as private individuals." Although, as this passage makes
   clear, traditional doctrine did not accord immunity to offcials who
   transgressed constitutional limits, we believe that federal
   officials sued by such traditional means should similarly be
   entitled to a Scheuer immunity. (286)


The Court here was specifically addressing claims brought against federal officials on a common law tort theory, which, as it explained, and as we discussed in Part II, were the "traditional" means of obtaining damages against federal officials who had violated the Constitution. This footnote confirms the conclusions we reached above regarding the availability of state tort suits post-Bivens: neither Bivens itself nor any decisions after it eliminated such claims. The footnote also shows that, as late as 1978, the Court viewed the immunity issue in such "traditional" suits against federal officials who had violated the Constitution as a choice between qualified immunity and no immunity at all. In Butz, the Court opted for qualified immunity.

The only ambiguity in the above analysis is whether the views the Court expressed in Butz regarding the scope of the immunity enjoyed by federal officials in state tort suits alleging constitutional violations were dicta or holding. The Court's reasoning in deciding that the Bivens claims were only subject to a qualified immunity extends equally to state tort suits alleging unconstitutional conduct. The inapplicability of absolute immunity in Bivens claims was deduced from the broader proposition that such immunity does not apply when the officer exceeds his authority. As the Court has often said, a decision's holding encompasses the legal propositions that formed part of the Court's reasoning in reaching its judgment in the case. (287)

On the other hand, in another footnote, the Court seemed to limit its holding to "constitutional claims." (288) As noted above, the plaintiff in Butz brought both state tort claims as well as Bivens claims. After noting that both the District Court and the Court of Appeals in Butz had focused on the "constitutional claims," the Supreme Court wrote that "[t]he argument before us ... has focused on respondent's constitutional claims, and our holding is so limited." (289) Even if the state law claims were not technically before the Court, however, the fact remains that the Court derived its holding regarding Bivens claims from a broader principle applicable to any claims alleging conduct by federal officials exceeding their authority. Thus, in leaving open the scope of the immunity enjoyed by federal officials from state law suits alleging constitutional violations, the Court was likely leaving open whether such officials were entitled to qualified immunity or no immunity at all--the options the Court referred to in the other footnote discussed above. (290) In any event, if the views expressed by the Court in Butz are dicta rather than holdings, they are reasoned dicta regarding the very question under discussion. Butz was the Supreme Court's last word on the scope of federal officials' immunity from state tort claims alleging constitutional violations before the Westfall decision and then the Westfall Act. The Court could hardly have stated more clearly that the immunity enjoyed by federal officials in such circumstances was, at best, a qualified one. (291)

As noted, the Butz Court did not resolve the scope of the immunity enjoyed by federal officials if no violation of federal law was alleged. That issue appears to have been settled, albeit indirectly, a few years later in Harlow v. Fitzgerald. (292) The Court in Harlow self-consciously refashioned the qualified immunity enjoyed by federal executive officials, such that they are immune from liability to the extent that they do not violate clearly established federal law. (293) Although the Court did not discuss suits against federal officials under state tort law, it is clear after Harlow that such a suit can succeed only if the official has actually violated federal law. A tort suit of the kind involved in Barr or Spalding, where no violation of federal law was alleged, can never meet the qualified immunity standard articulated in Harlow, because there can never be a violation of "clearly established" federal law if there is no allegation that federal law was violated in the first place.

So understood, Harlozv's new formulation of "qualified" immunity confirms that federal officials performing discretionary functions actually enjoy absolute immunity from state tort suits in the absence of an allegation that the official violated federal law. But, except in cases implicating specific executive functions, where the suit alleges a violation of the Constitution or other federal law, the immunity of the federal official is a qualified one, protecting the officer only if the federal law that he violated was not clearly established.

IV. THE WESTFALL ACT

The nature of the Bivens question as a choice between a federal or a state source for the right of action against federal officials for constitutional violations--and the error of the lower courts in cases like Arar in posing the question as "Bivens or nothing" (294)--would be rather clear-cut were it not for Congress's enactment of the Westfall Act in 1988. (295) As noted above, the prevailing understanding of the Westfall Act, now endorsed by the Supreme Court, is that it preempts all nonfederal remedies against federal employees acting within the scope of their employment, including nonfederal remedies for constitutional violations. (296)

In our view, the Westfall Act can be read as preserving not only Bivens actions but also state law remedies against federal officials who have violated the Constitution. If so, then the choice before a court deciding whether to recognize a Bivens claim continues to be between a federal and a state remedial regime, and the national security concerns that drove the court in Arar to decline to recognize a Bivens claim should actually cut in favor of a federal remedial regime.

However, we recognize that the Westfall Act has come to be read as preempting all nonfederal remedies against federal officials acting within the scope of their employment. In our view, however, if the Westfall Act is interpreted this way, it also rules out the courts of appeals' recent "hesitant" approach to the recognition of Bivens claims. Indeed, the Act, so construed, provides substantial support for a robust approach to the recognition of Bivens claims.

Because the Westfall Act was an amendment to the FTCA, this Part opens with a brief survey of the history of that statute and describes the enactment of the Westfall Act and the statute's interaction with the rest of the FTCA. It then explains why the Westfall Act does not support the radical transformation of the Bivens question reflected in cases like Afar.

A. The FTCA, Common Law Remedies, and the Westfall Act

Others have carefully explored the background of the FTCA, (297) as well as its legislative history and jurisprudence, (298) and so we keep our discussion brief.

The FTCA for the first time waived the sovereign immunity of the federal government for most nonmaritime torts. (299) To that end, the FTCA as enacted in 1946 authorized civil actions against the United States for monetary relief "on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment," under circumstances in which "a private person[] would be liable to the claimant ... in accordance with the law of the place where the act or omission occurred." (300)

As originally enacted, the FTCA expressly exempted intentional torts. (301) But neither the original statute, as enacted eight years after Erie, nor any of its many amendments between 1947 and 1970, purported to affect the availability of state tort remedies against individual federal officers. In 1974, after (and arguably in light of) Bivens, Congress authorized a remedy against the United States for certain intentional torts committed by federal law enforcement officers. (302) As Professors Pfander and Baltmanis have explained, the Ninety-Third Congress "deliberately retained the right of individuals to sue government officers for constitutional torts and rejected proposed legislation from the Department of Justice that would have substituted the government as a defendant on such claims." (303 The Supreme Court confirmed this view in 1980, when it concluded in Carlson that, "when Congress amended [the] FTCA in 1974 ... the congressional comments accompanying that amendment made it crystal clear that Congress view[ed] [the] FTCA and Bivens as parallel, complementary causes of action." (304) What was just as true during the same time period was that state law remedies against federal officers also remained available, subject to any defenses or immunities supplied by federal law. (305)

Practically, then, had an individual in Arar's position attempted to pursue relief between 1974 and 1988 against the federal officers who had mistreated him, he could have proceeded simultaneously along three paths: (1) an FTCA claim against the United States, to the extent that he sought relief for intentional torts committed by law enforcement officers that fell outside the FTCA's discretionary function exception (including any such claim grounded in the Constitution); (306) (2) a Bivens claim against the officers, to the extent that he sought relief for a violation of his constitutional rights (and special factors did not counsel hesitation); and (3) state law tort claims directly against the relevant officers. Different defenses may have made recovery difficult under any or all of these theories, but all three causes of action could have been pursued simultaneously.

In its 1988 decision in Westfall v. Erwin, the Supreme Court held that federal officials could be sued on a state tort theory for claims not alleging a constitutional violation. (307) The Court unanimously rejected the argument that absolute immunity shielded federal officers from all state tort liability so long as the officers were acting within the scope of their employment. (308) As Justice Marshall concluded for a unanimous Court, immunity would be available, at most, if the officer was acting within the scope of his official duties and his conduct was "discretionary in nature." (309) The availability of a state law cause of action was taken for granted.

Congress responded by enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988 (which, for obvious reasons, became known to posterity as the Westfall Act). Among other things, section 5 of the Westfall Act expressly provided that an FTCA suit was the "exclusive" remedy for conduct covered by the statute, thereby preempting claims that might otherwise have been pursued under state law. (310) Because of the limits on recovery under the FTCA, the Westfall Act had the effect of displacing state remedies in favor of no remedy against the government whatsoever in at least some cases. To take just four (of many) examples, the FTCA does not encompass (1) claims for intentional torts committed by non-law enforcement officers; (311) (2) claims arising out of a federal officer's performance of a discretionary function; (312) (3) claims arising in a foreign country; (313) or (4) claims arising out of, or incident to, military service. (314) And even where the FTCA encompasses a particular tort claim, the statute requires administrative exhaustion; (315) only provides for a nonjury trial; (316) caps attorneys' fees; (317) and bars punitive damages (318) and prejudgment interest. (319) Thus, both substantively and procedurally, the effect of the Westfall Act is to narrow the universe of (and scope of recovery for) tort claims that individuals can pursue for injuries caused by federal officials.

As relevant here, though, the statute also included a critical caveat exempting from section 5's exclusivity provision any civil action against a federal officer "which is brought for a violation of the Constitution of the United States." (320) All agree that this language preserved Bivens claims. The harder question is whether it preserved only Bivens claims.

B. Two Alternate Readings of the Westfall Act

The court in Afar assumed the unavailability of state tort remedies, perhaps because of the Westfall Act. (321) At the same time, the court applied a "remarkably low" standard in determining whether special factors counseled nonrecognition of a Bivens claim. This standard reflects the view that recognition of a Bivens claim would constitute illegitimate judicial lawmaking. In the paragraphs that follow, we show that the combination of the unavailability of state tort remedies and a reluctant approach to recognizing Bivens claims conflicts with Congress's intent in enacting the exemption provided by section 5 of the Westfall Act. Fidelity to Congress's intent as expressed in the statute's text and legislative history requires either an interpretation of the Westfall Act as preserving state tort remedies for constitutional violations by federal officials or a far more receptive approach to recognition of Bivens claims against federal officials (as distinguished from federal contractors) than is evident in cases like Afar.

1. Preserving State Constitutional Tort Remedies

Although the Supreme Court in Minneci v. Pollard appears to have endorsed a reading of the Westfall Act that would preclude state tort remedies against federal officials acting within the scope of their employment, the Court did not give the interpretive question the scrutiny that it deserves. Before Pollard, the Supreme Court's decisions were equivocal on the point. In Hui v. Castaneda the Court referred to the section 5 exception in passing as the "Bivens exception." (322) On the other hand, in Wilkie v. Robbins, a case decided after the enactment of the Westfall Act, the Court assumed the continued availability of common law tort remedies against federal officials alleged to have violated the Constitution. (323) Since the Court in Wilkie relied on the availability of such claims in determining that the recognition of a Bivens claim in that case was unnecessary, its views on this point cannot be dismissed as dictum. Professors Pfander and Baltmanis suggest that the Court in Wilkie was simply "mistaken[]" on this point. (324) It is, of course, possible that the Court overlooked the Westfall Act, but such a reading of a Supreme Court decision is disfavored. (325) If the Court did construe the Westfall Act to preserve state law remedies in cases alleging constitutional violations by federal officials, it was on solid ground in doing so.

As noted above, the provision of the Westfall Act containing the so-called Bivens exception does not mention Bivens. Instead, it refers generally to civil actions "brought for a violation of the Constitution of the United States." (326) This language is broad enough to cover state law remedies for constitutional violations, thus exempting them from section 5's preemption of civil remedies against federal officials. On this view, section 5 would preempt state law remedies in cases like Westfall itself, where there were no allegations of unconstitutional conduct. In other words, on this reading, the Westfall Act preempts most state tort claims against federal officers but leaves intact constitutional tort claims against federal officers, whether the remedy is provided by federal or state law.

This reading is supported by the accompanying House Report, which makes clear that the Act "would not affect the ability of victims of constitutional torts to seek personal redress from Federal employees who allegedly violate their Constitutional rights." (327) Reading the exception to preserve the state law remedies that previously existed would be the most direct way to give effect to this intent. After all, as shown in Part II, common law actions had been the standard vehicle for obtaining damages from federal officials who violated the Constitution since early in our history, and, as shown in Part III, such remedies remained available in the period between the Bivens decision and the enactment of the Westfall Act. Removing such remedies would acutely and severely "affect" the remedial rights of victims of constitutional violations by federal officials.

In our view, the available alternative readings of this text are less plausible. On one such alternative view, a common law claim is not a claim "brought for a violation of the Constitution" even if it alleges a constitutional violation. Such claims, the argument would go, are "brought" to obtain compensation for certain interests protected by state law. The Constitution enters into such cases in order to defeat a defense of official justification, but the affirmative remedy compensates for injury to interests protected by state law, not for constitutional injuries. On this view, the overlap between common law interests and constitutional interests is fortuitous and does not transform a suit seeking compensation for injuries to common law interests into a suit "brought for a violation of the Constitution." We might call this the "well-pleaded complaint" reading of section 5's exemption, as it relies on the fact that the Constitution comes into the case by way of replication in order to deny that such claims are "for" a constitutional violation. (328)

We believe that the well-pleaded complaint interpretation is less faithful to the statutory text than the alternative. By referring to suits "brought for a violation of the Constitution," the exemption's text appears to ask the court to identify the purpose for which the plaintiff initiated the suit. In cases where the defendant's conduct violates the Constitution as well as common law interests, the plaintiffs purpose in bringing a state law tort action will likely be to compensate for both the common law and the constitutional injuries. An approach that turns on the plaintiffs actual purpose in bringing the claim would thus usually encompass common law claims in cases where the defendant has violated the Constitution.

A proponent of the "well-pleaded complaint" approach might respond that the exemption cannot turn on the plaintiffs purpose in bringing the claim--a subjective test inappropriate in this context--but should turn instead on the legislature's purpose in creating the cause of action. On this view, a cause of action is brought "for" a violation of the Constitution if its raison d'etre is to compensate the plaintiff for constitutional violations. A common law claim for trespass would, under this theory, not be brought "for" a violation of the Constitution because it exists to compensate for injury to certain common law interests and only sometimes happens to involve constitutional violations as well.

There are several problems with such an interpretation. First, it strains the statutory language, which alludes to the purpose for which the action was "brought," not the purpose for which the cause of action was created. Second, the dichotomy between constitutional interests and common law interests that underlies this distinction will often prove to be a false one: constitutional provisions such as the Fourth Amendment were designed, at least in part, to protect interests also protected by the common law. Indeed, Solicitor General Griswold argued to the Court in Bivens that the protection of these common law interests was the Fourth Amendment's sole purpose. (329) The Court disagreed, but it did not deny that protection of common law interests in privacy was among its purposes. (330) To deny that a trespass action against an official who has infringed rights of privacy through conduct that violates the Constitution is a claim "for a violation of the Constitution" would bring us full circle.

Third, even under the narrowest plausible construction, the exemption would nevertheless encompass some state law actions. Recall that the "action on the statute" has long been recognized as a common law claim. (331) Such an action is literally "brought for" a violation of the Constitution even if one construes that phrase to encompass only actions whose purpose is to remedy constitutional violations. For similar reasons, a converse-1983 action of the sort advocated by Professor Amar would also survive under this narrow construction of the exemption. (332) It is true that some states may not recognize one or either of these causes of action, but the possibility that some states may recognize them is sufficient to establish the lack of fit between the Arar court's analysis and its decision not to recognize a Bivens action. (333) As long as some states recognize these actions, or even just reserve the possibility of recognizing them, a decision not to recognize a Bivens claim will not succeed in protecting the national security-related interests cited by the Arar court in reaching its decision. (334)

We think that reading section 5's exemption to preserve state law remedies for conduct by federal officials in violation of the Constitution is more faithful to the statute's text. Even if it were not, however, the statute is susceptible to that interpretation. Because this reading of the exemption would be the most direct way to give effect to Congress's intent to preserve the remedies then available to victims of constitutional torts, it is preferable to an interpretation that would take away such remedies.

Additionally, this interpretation is preferable because it would avoid, rather than provoke, constitutional problems, which is doubly appropriate in interpreting the Westfall Act's exemption. First, avoiding such problems was evidently Congress's purpose in including an exemption for claims implicating the Constitution. Second, and independently, the constitutional avoidance canon favors an interpretation that would avoid, rather than provoke, constitutional questions. (335) Here, the avoidance canon and Congress's intent converge in favor of interpreting the exemption to encompass state law remedies for constitutional violations by federal officials.

This is not the place to address fully the circumstances in which the Constitution requires a damages remedy for federal officials' violation of the Constitution. For present purposes, it should suffice to note that the claim that the Constitution requires such remedies in at least some circumstances is a substantial one. To this end, we recall that it was central to the argument of Richard Nixon's Solicitor General in Bivens against recognition of a federal cause of action that the state tort remedy was the one contemplated by the Framers. (336) That the Constitution requires the availability of state tort remedies (or an adequate substitute), at least in certain circumstances, has been defended by prominent scholars writing both before (337) and after (338) Bivens. Moreover, numerous Supreme Court cases establish that the Fourteenth Amendment's Due Process Clause sometimes requires a damages remedy (or a substitute remedy against the government) against state officials who violate federal law. (339) A similar analysis would appear to apply to federal officers via the Fifth Amendment's Due Process Clause. (340)

Of course, to the extent that the Constitution requires the availability of a damage remedy, it is probably within Congress's power to immunize federal officials from personal liability if it substitutes a remedy against the federal government itself. But it is far from clear that the remedy provided by the FTCA suffices to meet constitutional requirements, given the exemptions and exceptions noted above. (341)

One could perhaps argue that, in light of the Westfall Act, the FTCA's exceptions should be construed with an eye toward ensuring the availability of any remedies required by the Constitution. (342) But this approach would risk distorting longstanding case law regarding the scope of these exceptions. Moreover, it would require the courts to resolve the constitutional issue in each case, whereas the approach suggested here would avoid those difficult questions. The latter approach is more faithful to Congress's intent, since the text and legislative history of the Westfall Act indicate that Congress sought to address the constitutional question by excluding claims implicating the Constitution from the scope of the Act altogether. (343)

The constitutional issues could also, of course, be channeled into the Bivens analysis. The Constitution is presumably indifferent as to whether the required damage remedy is provided by state or federal law, and for obvious reasons a federal remedy seems preferable in most contexts. One could thus interpret the Westfall Act as repealing state law remedies against federal officials and implicitly instructing the courts to ensure the availability of any constitutionally required damages remedies by means of Bivens claims. This approach too, however, would require the courts routinely to confront difficult constitutional questions. As noted, Congress appears to have intended to avoid, not provoke, such questions.

We recognize that the availability of state tort remedies may not always suffice to satisfy constitutional requirements. Still, a reading of the Westfall Act's exemption as preserving state law remedies for constitutional violations by federal officials is more compatible with Congress's intent to avoid constitutional questions than an interpretation that takes these state law remedies away.

In sum, the Westfall Act could be read to preserve not just Bivens claims but also state tort remedies in cases alleging a violation of the Constitution by federal officials. Such a reading would be more faithful to Congress's intent to preserve the remedies available to victims of constitutional violations by federal officials than is the alternative. And it would avoid rather than provoke constitutional problems, as Congress intended and as the avoidance canon requires.

2. Preserving Only Bivens Claims

As already noted, however, the Supreme Court in Pollard endorsed a broad reading of the Westfall Act's preemptive scope. This interpretation, in which the Westfall Act has the effect of preempting all civil actions against federal officials except Bivens claims, is a plausible, if not the best, reading of the statutory text. If the Westfall Act is to be read as preempting all nonfederal remedies against federal officials, however, we think that it also rules out the hesitant approach to the recognition of Bivens actions applied by the court in Arar. Indeed, we think that the statute, so construed, affirmatively supports a more receptive approach to the recognition of Bivens claims against federal officials than is evident even in the Supreme Court's most recent decisions. These conclusions follow from three interrelated arguments.

a. Congress's Intent to Preserve the Remedies Available to Victims of Constitutional Violations

As noted in the preceding section, the House Report expresses Congress's intent to leave unaffected "the ability of victims of constitutional torts to seek redress" for their injuries. (344) Consistent with this intent, the statutory text preserves "actions" which are "brought for a violation of the Constitution." (345) As discussed above, this language is best read to preserve state tort remedies for violations of the Constitution by federal officials. If the Westfall Act is to be read to preempt all such remedies, however, then giving effect to Congress's intent to preserve the ability of victims of constitutional torts to seek redress for their injuries requires that the formerly available state tort remedies now be available as federal remedies.

The most straightforward way to give effect to Congress's intent not to narrow the ability of victims of constitutional violations to seek redress for their violations would be simply to apply the tort laws of the various states, including their choice of law rules. Doing so, however, would vitiate one of the clearest advantages of a federal remedial regime over a state law remedial regime: the elimination of the need for courts and federal officials to contend with the vagaries of state tort law. We thus prefer a post-Westfall Act approach to Bivens claims under which the action would be uniform throughout the nation. However, in keeping with Congress's intent to preserve previously available remedies, the courts should presume the availability of the remedies that most states make available for analogous injuries caused by private individuals. A Bivens cause of action should thus be available at a minimum in the situations in which the common law would generally have provided a tort remedy, such as in cases involving assault, trespass, false imprisonment, and the like.

It might well be preferable to avoid the need to consult state tort law even to this extent. We think the courts would be justified in simply presuming the availability of a damages remedy for violation of constitutional rights and channeling all possible reasons for limiting or denying such claims into the immunity, privilege, or preemption analyses. The arguments discussed below would support a post-Westfall Act approach to Bivens that recognizes the availability of a damage remedy unless Congress has provided an adequate alternative remedial scheme--subject, of course, to any defenses of immunity, privilege, or preemption. Such an approach would be consistent with, if not required by, Congress's intent to preserve the redress available to victims of constitutional torts before the Westfall Act's enactment. It would also correct the wrong turn the courts took in the wake of Erie by treating the pre-Erie "general law" of remedies for constitutional violations by federal officials as state law rather than federal common law. (346) An approach that would deny a Bivens remedy in circumstances in which a common law remedy would previously have been available, on the other hand, would be inconsistent with congressional intent.

b. Congress's Intent to Preserve the Bivens Action As It Then Stood

A broad availability of a Bivens action is also affirmatively supported by Congress's intent in enacting the Westfall Act to preserve the Bivens action as it then stood. For the reasons discussed in the previous parts, the Arar approach to the Bivens question constitutes a drastic narrowing of the availability of the Bivens action. Before the Westfall Act, a "special factor[] counselling hesitation" was a reason to prefer a state law remedial regime or an alternative federal remedial scheme provided by Congress. (347) Reasons to deny any remedy at all--such as the national security and state secrets concerns that motivated the decision in Afar--would have been relevant at most to defenses such as immunity, privilege, or preemption. In the latter context, the courts' concerns would have had to do much heavier lifting. A reluctance to engage in judicial lawmaking would not have justified denial of relief on such grounds. The "remarkably low" standard applied by the Arar court would have been applicable only to a decision to relegate the plaintiff to common law remedies.

Consistent with Congress's intent not to narrow Bivens, the concept of "special factors counselling hesitation" should continue to be confined to reasons to relegate victims of constitutional violations to another actually available remedial regime. Reasons for denying plaintiffs any remedy at all should continue to be considered solely in connection with defenses such as immunity, privilege, or preemption. If a "special factor[] counselling hesitation" is a reason to prefer another available remedial regime, then the Westfall Act's preemption of state tort remedies should serve to make it easier to find a Bivens remedy, as the statute takes away one of the principal alternative remedial regimes. The preemption of state tort remedies would leave only alternative federal remedies provided for by Congress (excluding the FTCA itself, which Congress clearly made nonpreemptive of Bivens claims) as the sole alternative remedial regimes. Thus, after the Westfall Act, a special factor counseling hesitation to recognize a Bivens claim should be solely a reason to prefer a separate existing federal remedial regime.

c. Avoidance of Constitutional Questions

As discussed above, a reading of the Westfall Act as preempting state tort remedies without creating a substitute would raise constitutional concerns. To the extent the Constitution requires a damage remedy, it is presumably indifferent as to whether the remedy is provided as a matter of state or federal law. Consequently, constitutional concerns would be avoided if the Westfall Act were construed to make the remedies previously available as state tort remedies now available as federal remedies. Thus, the canon of avoidance and Congress's obvious intent to avoid raising constitutional questions both support an interpretation of the Westfall Act as making available as federal remedies at least those remedies that were previously available under state tort law.

In sum, the Westfall Act should eliminate the courts' hesitant approach to recognizing Bivens actions one way or the other. As discussed earlier, this hesitancy is based on the view that, in our constitutional system, it is the role of Congress, not the courts, to make law. Those who object to federal common lawmaking do so because, in their view, permitting the courts to make preemptive federal law circumvents the Constitution's carefully crafted procedures for displacing state law. If the Westfall Act is interpreted as removing state tort remedies against federal officials acting within the scope of their employment, then the preemption of state tort remedies will have been accomplished by Congress through the usual bicameralism and presentment process for preempting state law.

But this preemption was coupled with Congress's intent to preserve then-available remedies for constitutional violations and, in particular, its intent to preserve Bivens as it then stood. The question for the courts is thus now one of statutory interpretation rather than pure judicial common lawmaking. If Congress had decided that there should be no damage remedies against federal officials, then the courts would be required to give effect to that decision, subject to constitutional limitations. Instead, Congress left in place Bivens actions against federal officials and expressed an intent to preserve then-available remedies. Under these circumstances, courts recognizing Bivens actions for federal officials' violations of constitutional norms would not be usurping Congress's role, but merely giving effect to congressional legislation.

A Bivens skeptic might respond that the Bivens action that Congress left in place in 1988 was a severely restricted one, as the Court had already begun retrenching from the receptive approach to recognizing Bivens actions that had prevailed a decade before. As we have already shown, however, the pre-1988 decisions declining to recognize Bivens actions did so in deference to an alternative federal remedial scheme crafted by Congress. A few more recent decisions (Malesko, Pollard) have declined to recognize a Bivens action against federal contractors on the ground that state tort remedies against such actors provided adequate deterrence and compensation. For reasons already discussed, we do not think that the Court's analysis in the latter cases would have required the same conclusion for suits against federal officials if the Westfall Act had not preempted state tort suits against such officials. To the contrary, we think the availability of state remedies should in many respects make the courts less hesitant to recognize a Bivens claim against federal officials. (348)

But the more important point is that, at the time of the Westfall Act's enactment, the Court's decisions declining to recognize a Bivens action did so in deference to another existing remedial scheme, or in rare cases in favor of an affirmative congressional decision to deny a remedy. (349) They did not reflect a judicial judgment that there should be no remedy at all, nor a judicial determination that the Constitution established a default rule of no damages remedy. To the contrary, the default rule that existed at the time of the Westfall Act's enactment was that state tort remedies were available.

Indeed, as discussed above, there is a substantial argument that damages for constitutional violations are sometimes constitutionally required. The Westfall Act's exemption of "suits brought for a violation of the Constitution" appears to reflect Congress's recognition of the constitutional dimensions of this issue. Read in this light, the decisions in Malesko and Pollard supply strong additional support for our reading of the Westfall Act. In those cases, the Court regarded the availability of state tort remedies as a reason to decline to recognize a Bivens claim against privately run prisons and their employees. In Pollard, the Court specifically distinguished suits against federal contractors from suits against federal employees on this ground. (350) If the availability of state tort remedies against federal contractors is a reason to decline to recognize a Bivens claim, then the Westfall Act's elimination of such remedies against federal employees, coupled with Congress's intent to preserve remedies for constitutional violations and to avoid constitutional questions, cuts strongly in favor of recognition of a federal cause of action.

In any event, before the Westfall Act, concerns such as the ones that motivated the decision in Arar would not have grounded a decision declining to recognize a Bivens claim. Congress's decision to preserve the then-prevailing approach to Bivens supports a post-Westfall Act approach to Bivens under which such factors continue to be relevant only to the defenses of immunity, privilege, or preemption, and not to the existence vel non of a Bivens claim.

V. CONCLUSION

The lower courts in recent decisions have approached the Bivens question in a way that deviates sharply from how the Supreme Court itself has approached that question. Rather than seeing the choice before them as "Bivens or state law," they have posed the question as "Bivens or nothing." Moreover, they have combined this "Bivens or nothing" approach with a "remarkably low" standard for declining to recognize a Bivens claim, thereby virtually guaranteeing that Bivens itself will amount to nothing. The combination of the "Bivens or nothing" approach and the "remarkably low" standard for declining to recognize a Bivens claim has resulted in the denial of a remedy for constitutional violations producing even physical injuries of the sort which have long and uncontroversially been remedied at common law.

This Article has shown that this revised approach is supported neither by the Supreme Court's post-Bivens decisions nor by Congress's enactment of the Westfall Act. The statute exempts suits "brought for a violation of the Constitution"--an exemption designed to leave unaffected the ability of victims of constitutional torts to seek redress from the federal officials who caused their injuries. This exemption could have been read to leave in place state law remedies for injuries caused by the unconstitutional acts of federal officials. The Supreme Court in Pollard has instead read the Westfall Act to preempt all state tort remedies against federal officials acting within the scope of their employment. If the Westfall Act does preempt all such remedies, however, it also rules out the hesitant approach to recognition of Bivens claims reflected in cases like Arar. Congress's elimination of state tort remedies, combined with its intent to (a) preserve the remedies available to victims of constitutional violations, (b) leave Bivens as it found it, and (c) avoid rather than provoke constitutional problems, supports a far more receptive approach to Bivens claims than is reflected in cases like Arar, or indeed in the Supreme Court's own recent Bivens cases. Courts confronting suits implicating sensitive national security and/or military concerns have other tools available to them if they believe that relief should be barred. But to use the appropriate tools would require far more of a principled justification for judicial intervention than the faux judicial restraint exemplified by their decisions not to recognize Bivens remedies.

(1) In Bivens v. Six Untenown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that an individual had "a cause of action under the Fourth Amendment" and thus that he could sue directly under the Constitution "to recover money damages for any injuries he has suffered as a result of the [federal] agents' violation of the Amendment." 403 U.S. 388,397 (197a).

(2) Lebron v. Rumsfeld, 670 F.3d 540, 550 (4th Cir.) (citation and internal quotation marks omitted), cert. denied, 132 S. Ct. 2751 (2012).

(3) Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), cert. denied, 130 S. Ct. 3409 (2010).

(4) See, e.g., Rasul v. Myers, 563 F.3d 527, 532 n.5 (D.C. Cir. 2009) (per curiam) (holding in the alternative that "[t]he danger of obstructing U.S. national security policy" was a "special factor[]" barring relief).

(5) See, e.g., Doe v. Rumsfeld, 683 F.3d 390, 394-97 (D.C. Cir. 2012) (rejecting the availability of a Bivens remedy when such a remedy would require scrutiny of military conduct and sensitive information). As this Article went to press, the Seventh Circuit, sitting en banc, reached a similar conclusion, holding in Vance v. Rumsfeld that Bivens remedies are categorically unavailable for "damages against soldiers ... who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation." 701 F.3d 193,195 (7th Cir. 2012) (en banc).

(6) We call this question the "Bivens question."

(7) 585 F.3d at 574; see also Lebron, 670 F.3d at 548 ("The Bivens cause of action is not amenable to casual extension, but rather is subject to a strict test ....") (citation omitted) (internal quotation marks omitted).

(8) 585 F.3d at 574.

(9) See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 (1971).

(10) See, e.g., id. at 415-16, 422-24 (Burger, C.J., dissenting) (discussing the shortfalls of the federal remedy and envisioning roles for both federal and state alternative remedy schemes); id. at 429 (Black, J., dissenting) ("The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States.").

(11) Arar, 585 F.3d at 574.

(12) Id.

(13) Lebron v. Rumsfeld, 670 F.3d 540, 550 (4th Cir.), cert. denied, 132 S. Ct. 2751 (2012).

(14) See 28 U.S.C. [section] 1442(a) (2006); see also Mesa v. California, 489 U.S. 121, J39 0989) (holding that a federal officer can remove under [section] 1442(a) once he avers a federal defense).

(15) Contractors would be able to remove suits arising under state law if (1) complete diversity exists; and (2) the contractor is not a local defendant. See 28 U.S.C. [section] 1441(b)(2).

(16) See, e.g., Minneci v. Pollard, 132 S. ft. 617, 620 (2012) ("Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions--actions that provide both significant deterrence and compensation--we cannot [infer a Bivens remedy]."); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72-73 (2001) (noting the availability of a conventional negligence remedy in a suit against private prison contractors).

The analysis in the text leaves out of the equation (as the courts of appeals appear to have done) the constitutional need for some remedy to deter violations of the Constitution by federal officials and to compensate victims of such violations. When this additional consideration is taken into account (as we think it should be), the absence of a state remedy would, of course, counsel in favor of recognition of a federal remedy. This Article does not attempt an exhaustive examination of the constitutional questions, but we do bring constitutional concerns into the analysis in Part IV as an important reason to construe the Westfall Act as either preserving state remedies or as authorizing the courts to recognize a federal cause of action in circumstances in which state law remedies would previously have existed.

(17) See Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. mo-694, [section] 5, 102 Stat. 4563, 4564 (amending 28 U.S.C. [section] 2679(b)).

(18) Id.

(19) See, e.g., Pollard, 132 S. Ct. at 623 ("Prisoners ordinarily cannot bring state-law tort actions against employees of the Federal Government." (citing Westfall Act, 28 U.S.C. [section][section] 2671, 2679(b)(1))).

(20) Butz v. Economou, 438 U.S. 478, 507 n.34 (1978).

(21) H.R. REP. NO. 100-700, at 6 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5949-50.

(22) See, e.g., James g. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117, 123 (2009) ("[T]oday, it has become 'Bivens or nothing' for those who seek to vindicate constitutional rights.").

(23) See supra note 19.

(24) See Al Shimari v. CACI Int'l, Inc. (Al Shimari I), 658 F.3d 413, 420 (4th Cir. 2011) (holding that the combatant activities exception to the Federal Tort Claims Act, which would bar such claims against U.S. servicemembers, authorizes federal courts to displace state law tort suits against federal military contractors arising out of the torture of detainees at Abu Ghraib), vacated, (Al Shimari II), 679 F.3d 205 (4th Cir. 2012) (en banc); Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009) (same as Al Shimari I). The panel decision in Al Shimari was subsequently vacated by the en banc Fourth Circuit on the ground that the court of appeals lacked interlocutory appellate jurisdiction. See Al Shimari II, 679 F.3d at 224. But see id. at 225-30 (Wilkinson, J., dissenting) (endorsing the three-judge panel's analysis of the federal-contractor defense).

(25) See supra notes 7-8 and accompanying text.

(26) See 28 U.S.C. [section] 1442(a)(1) (2006).

(27) 304 U.S. 64 (1938).

(28) Butz v. Economou, 438 U.S. 478, 507 n.34 (1978).

(29) See 28 U.S.C. [section] 2679(b).

(30) Id. [section] 2679(b)(2)(A).

(31) See 132 S. Ct. 617, 623 (2012) ("Prisoners ordinarily cannot bring state-law tort actions against employees of the Federal Government." (citing 28 U.S.C. 2679(b)(1))).

(32) 403 U.S. 388, 397 (1971).

(33) Id. at 396.

(34) See, e.g., Wilkie v. Robbins, 551 U.S. 537, 550 (2007) ("We have seen no case for extending Bivens to claims against federal agencies or against private prisons." (citations omitted)); Corr. Stows. Corp. v. Malesko, 534 U.S. 61, 63 (2001) (declining to extend Bivens to allow recovery against a private corporation operating a halfway house under contract with the Federal Bureau of Prisons); FDIC v. Meyer, 510 U.S. 471, 486 (1994) ("An extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself.").

We recognize that it will often be contested whether a case requires the "extension" of Bivens to a "new context" or instead merely the application of Bivens within a context in which a Bivens action has already been held to exist. We do not address how to determine whether an extension of Bivens is required in any given case. Rather, we address how the question should be approached once it has been framed that way. We also distinguish the "Bivens question," as framed above, from the related though distinct question of whether state law claims remain available in a given context once a Bivens action has been held to exist in that context. For discussion of the latter question, see infra text accompanying notes 186-98.

(35) See infra Section III.B.

(36) Bivens, 403 U.S. at 396.

(37) As noted here, and as discussed more fully in Part III, the Court also considers the availability of other federal statutory remedies in deciding whether to recognize a Bivens claim. Nevertheless, for the sake of simplicity, we describe the contending versions of the Bivens question as "Bivens or state law" and "Bivens or nothing." Those were the options as they were understood, respectively, in Bivens itself and in the contemporary national security cases we discuss, in which other federal remedies were not available.

(38) 585 F.3d 559, 565 (2d Cir. 2009) (en banc).

(39) Complaint and Demand for Jury Trial at paras. 1-5, Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006) (No. 04-0249) [hereinafter Arar Complaint].

(40) Arar, 585 F.3d at 563. The majority assumed without deciding that Arar had substantive due process rights. See id. at 569.

(41) Id. at 573-76.

(42) Id. at 576.

(43) See, e.g., id. at 605 (Sack, J., concurring in part and dissenting in part) ("Arar has no other remedy for the alleged harms the defendant officers inflicted on him."); id. at 610 (Parker, J., dissenting) ("I write separately to underscore the miscarriage of justice that leaves Arar without a remedy in our courts."); id. at 627 (Pooler, J., dissenting) ("Ultimately, the majority concludes that the Constitution provides Arar no remedy for this wrong, that the judiciary, must stay its hand in enforcing the Constitution because untested national security concerns have been asserted by the Executive branch."); id. at 630 (Calabresi, J., dissenting) (decrying "the result that a person--whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law--is effectively left without a U.S. remedy").

(44) For example, the D.C. Circuit invoked "[t]he danger of obstructing U.S. national security policy" as a special factor counseling hesitation in declining to recognize a Bivens remedy for claims of torture and other abuse brought by former Guantanamo detainees. See Rasul v. Myers, 563 F.3d 527, 532 n.5 (D.C. Cir. 2009) (per curiam).

In Wilson v. Libby, the D.C. Circuit refused to recognize a Bivens remedy against those responsible for the disclosure of a CIA agent's covert status. See 535 F.3d 697, 710 (D.C. Cir. 2008). It noted that, "if we were to create a Bivens remedy, the litigation of the allegations in the amended complaint would inevitably require judicial intrusion into matters of national security and sensitive intelligence information." Id. The D.C. Circuit drew an analogy to the litigation bar recognized in Totten v. United States, in which the Supreme Court held that no action could be brought to recover pay allegedly due under an espionage contract between President Lincoln and the claimant, because "[i]f upon contracts of such a [secret] nature an action against the government could be maintained ... the whole service in any case, and the manner of its discharge, with the details of dealings with individuals and officers, might be exposed, to the serious detriment of the public." 92 U.S. 105, 106-07 (1875); see Wilson, 535 F.3d at 710. The Wilson court concluded that "[w]e certainly must hesitate before we allow a judicial inquiry into these allegations that implicate the job risks and responsibilities of covert CIA agents. ... [T]he concerns justifying the Totten doctrine provide further support for our decision that a Bivens cause of action is not warranted." 535 F.3d at 710.

(45) Consider in this regard Benzman v. Whitman, in which the Second Circuit refused to recognize a Bivens remedy for residents of lower Manhattan based on claims that they had been misled about the air quality after the September 11th attacks. 523 F.3d 119, 126-29 (2d Cir. 2008). The court's analysis overlooked the possible availability of state tort remedies, as its refusal to recognize a Bivens action turned on "the right of federal agencies to make discretionary decisions when engaged in disaster relief efforts without the fear of judicial second-guessing." Id. at 126 (citation omitted). Interestingly, the Second Circuit traced that right to "the Stafford Act's grant of discretionary function immunity to government officials engaged in administration of the Disaster Relief Act." Id. (citing In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 192-93 (2d Cir. 2008)). The court of appeals did not explain why the existence of a statutory immunity in an analogous context counseled against inferring a Bivens remedy, rather than counseling in favor of recognizing a comparable form of immunity as a federal common law defense that would also apply in state court.

(46) 670 F.3d 540, 556 (4th Cir.), cert. denied, 132 S. Ct. 2751 (2012).

(47) Id. at 551.

(48) 683 F.3d 390 (D.C. Cir. 2012).

(49) Id. at 382.

(50) See Doe v. Rumsfeld, 800 F. Supp. 2d 94, 111 (D.D.C. 2011), rev'd, 683 F.3d 390.

(51) See id. at 121.

(52) Id. at 106; see also id. at 107 ("Rumsfeld does not argue that remedies outside of Bivens damages exist for Doe's alleged constitutional injuries. Nor does the Court find any." (citations omitted)).

(53) See id. at 107-11 (discussing why there were no "special factors" counseling hesitation).

(54) Although it is well settled that "an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a 'final' judgment subject to immediate appeal" under the collateral order doctrine, Behrens v. Pelletier, 516 U.S. 299, 307 (1996) (emphasis omitted); see also, e.g., Hartman v. Moore, 547 U.S. 250, 257 n.5 (2006), such appeals (1) do not bring the entire case before the appellate court; and (2) therefore have not usually encompassed the existence of a viable cause of action (such as Bivens), since appellate .jurisdiction over collateral order appeals is necessarily limited to "issues significantly different from those that underlie the plaintiff's basic case," Johnson v. Jones, 515 U.S. 304, 314 (1995). But see Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007) (holding, without analysis, that an interlocutory qualified immunity appeal also encompasses the "recognition of the entire cause of action").

(55) Doe, 683 F.3d 390.

(56) Id. at 394.

(57) Id. at 396.

(58) 649 F.3d 762, 773 (D.C. Cir. 2011) (quoting In re Iraq & Afg. Detainees Litig., 479 F. Supp. 2d 85, 105 (D.D.C. 2007)).

(59) 701 F.3d 193 (7th Cir. 2012) (en banc).

(60) Id. at *3; see id. at *8 ("We do not think that the plaintiffs' citizenship is dispositive one way or the other. ... The Supreme Court has never suggested that citizenship matters to a claim under Bivens.").

(61) See id. at *3-8.

(62) [d. at "16 (Hamilton, J., dissenting); see also id. at *34 (Williams, j., dissenting) ("[W]e risk creating a doctrine of constitutional triviality where private actions are permitted only if they cannot possibly offend anyone anywhere.").

(63) Our analysis in this Part brackets the effect of the Westfall Act. Thus, we assume here that common law remedies have not been generally preempted by statute. The Westfall Act is the focus of Part IV.

(64) Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009) (en banc), cert. denied, 130 S. Ct. 3409 (2010).

(65) Id. at 574.

(66) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971). The Arar court's conclusion in this respect was based upon the inference that if the absence of "special factors counselling hesitation" militated in favor of--or at least permitted--recognizing a cause of action directly under the Constitution, then the presence of such factors must militate against implying such a cause of action.

(67) See id. at 418 (Burger, C.J., dissenting) ("Today's holding seeks to fill one of the gaps of the suppression doctrine--at the price of impinging on the legislative and policy functions that the Constitution vests in Congress."); id. at 428 (Black, J., dissenting) ("[T]he fatal weakness in the Court's judgment is that neither Congress nor the State of New York has enacted legislation creating such a right of action. For us to do so is, in my judgment, an exercise of power that the Constitution does not give us."); id. at 430 (Blackmun, J., dissenting) ("[I]t is the Congress and not this Court that should act."); see also Carlson v. Green, 446 U.S. 14, 34 (1980) (Rehnquist, J., dissenting) ("In my view, it is 'an exercise of power that the Constitution does not give us' for this Court to infer a private civil damages remedy from the [Constitution]. The creation of such remedies is a task that is more appropriately viewed as falling within the legislative sphere of authority." (citation omitted)).

(68) For example, Bivens and its progeny appear in the "Federal Common Law" chapter of the leading Federal Courts casebook. See RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 726-42 (6th ed. 2009).

(69) See Bradford R. Clark, Federal Common La-w: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1248 49 (1996) ("Such open ended lawmaking by courts raises constitutional concerns because it bears a troublesome resemblance to the exercise of legislative power--power apparently reserved by the Constitution to the political branches."); Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 2 (1985) ("Generally speaking, federal common law has been perceived as raising issues of federalism and separation of powers. ..."); Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327, 344 (1992) ("[T]here is something anomalous about federal common law, and ... it fits uncomfortably within the general jurisprudential assumptions about the role of federal courts under the Constitution.").

(70) See Bivens, 403 U.S. at 402, 406-08 (Harlan, J., concurring in the judgment) (relying in part on the judiciary's then-receptive approach to the implication of private rights of action under statutes).

(71) See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002); Alexander v. Sandoval, 532 U.S. 275, 286-87 (200l).

(72) See, e.g., Schweiker v. Chilicky, 487 U.S. 412,429 (1988) ("Whether or not we believe that its response was the best response, Congress is the body charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program."); Bush v. Lucas, 462 U.S. 367, 390 (1983) ("[W]e decline to create a new substantive legal liability without legislative aid and as at the common law, because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it." (citation and internal quotation marks omitted)); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (200l) (Scalia, J., concurring) ("Bivens is a relic of the heady days in which this Court assumed common law powers to create causes of action--decreeing them to be 'implied' by the mere existence of a statutory or constitutional prohibition."). For criticism of the tendency to treat Bivens as implicating the same considerations as implied statutory, causes of action, see generally Stephen I. Vladeck, Bivens Remedies and the Myth of the "Heady Days," 8 U. ST. THOMAS L.J. 513 (2011).

(73) 442 U.S. 228, 241-42 0979).

(74) See Cannon v. Univ. of Chi., 441 U.S. 677, 733 n.3 (1979) (Powell, J., dissenting) ("[T]his Court's traditional responsibility to safeguard constitutionally protected rights, as well as the freer hand we necessarily have in the interpretation of the Constitution, permits greater judicial creativity with respect to implied constitutional causes of action. Moreover, the implication of remedies to enforce constitutional provisions does not interfere with the legislative process in the way that the implication of remedies from statutes can."). As Justice Harlan observed in Bivens,

   [I]t would be at least anomalous to conclude that the federal
   judiciary--while competent to choose among the range of traditional
   judicial remedies to implement statutory and common-law policies,
   and even to generate substantive rules governing primary behavior
   in furtherance of broadly formulated policies articulated by
   statutes or Constitution--is powerless to accord a damages remedy
   to vindicate social policies which, by virtue of their inclusion in
   the Constitution, are aimed predominantly at restraining the
   Government as an instrument of the popular will.


403 U.S. at 403-04 (Harlan, J., concurring in the judgment).

(75) See Carlson v. Green, 446 U.S. 14, 42 (1980); infra text accompanying note 209.

(76) See generally infra Part II.

(77) See sources cited supra note 69.

(78) See 28 U.S.C. [section] 1652 (2006) ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.").

(79) Clark, supra note 69, at 1269. For elaboration of these objections to Federal common law making, see, in addition to the sources cited supra note 69, Bradford R. Clark, Separation Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001). For a response, see Carlos Manuel Vazquez, The Separation of Powers as a Safeguard of Nationalism, 83 NOTRE. DAME L. REV. 1601 (2008).

(80) See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397-98 (1971) ("This question was not passed upon by the Court of Appeals, and accordingly we do not consider it here.").

(81) See, e.g., Gomez v. Toledo, 446 U.S. 635, 640 (1980) ("[T]his Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action; instead we have described it as a defense available to the official in question."); see also infra Section III.C.

(82) See, e.g., Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011) ("With the law thus clearly established, officials who conduct [a warrantless] interview will not receive immunity. ...").

(83) See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1092-93 (9th Cir. 2010) Fen banc) (dismissing case "at the outset" under the state secrets privilege after finding a "painful conflict between human rights and national security"), cert. denied, 131 S. Ct. 2442 (2011).

(84) See, e.g., Crater Corp. v. Lucent Techs., Inc., 423 F.3d 1260, 1269 (Fed. Cir. 2005) (remanding for determination of whether the application of state secrets privilege would preclude a state law claim from going forward).

(85) See 28 U.S.C. [section][section] 1346(b), 2672-2680 (2006); infra notes 297-305 and accompanying text.

(86) 42 U.S.C. [section] 233(a). Compare id., with 10 U.S.C. [section][section] 1054(a), 1089(a), 22 U.S.C. [section] 2702(a), 38 U.S.C. [section] 7316(a), and 51 U.S.C. [section] 20137(a).

(87) 130 S. Ct 1845, 1852 (2010).

(88) As discussed in Part III, infra, the Court, citing Congress's establishment of a "comprehensive internal system of justice to regulate military life," has held that Bivens actions are unavailable to servicemembers injured by the unconstitutional actions of their superiors. United States v. Stanley, 483 U.S. 669, 679 (1987) (quoting Chappell v. Wallace, 462 U.S. 296, 302 (1983)); cf. Feres v. United States, 340 U.S. 135, 146 (1950) ("[T]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."). If the regulatory system is comprehensive, it presumably preempts state law remedies as well. Cf., e.g., Estate of Himsel v. Alaska, 36 P.3d 35, 45 (Alaska 2001) (applying the Fetes doctrine, which bars FTCA suits arising out of military service, in state court); Mangan v. Cline, 411 N.W.2d 9, 12 (Minn. Ct. App. 1987) (same); Wade v. Gill, 889 S.W.2d 208, 214 (Tenn. 1994) (same); Newth v. Adjutant Gen.'s Dep't, 883 S.W.2d 356, 360 (Tex. Ct. App. 1994) (same); Nyberg v. State Military Dep't, 65 P.3d 1241, 1249-50 (Wyo. 2003) (same).

(89) See Boyle v. United Techs. Corp., 487 U.S. 500, 504-05, 505 n.1 (1988) (recognizing a limited federal common law defense for contractors who design products for the military).

(90) E.g., Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 YALE L.J. 2195, 2234 (2003).

(91) See Idaho v. Horiuchi, 215 F.3d 986, 997 (9th Cir. 2000) (distinguishing "Supremacy Clause immunity," which "protect[s] a federal agent from being held to answer to state laws," from qualified immunity), vacated, 253 F.3d 359 (9th Cir.) (en banc), vacated as moot, 266 F.3d 979 (9th Cir. 2001) (en banc).

(92) Except insofar as federal common law immunities or evidentiary privileges might be understood as partially displacing state tort claims. Cf infra note 212 (discussing the Fetes doctrine).

(93) See Trevor W. Morrison, Suspension and the Extrajudicial Constitution, 107 COLUM. L. REN. 1533, 1560-62 (2007) (explaining that common law remedies were available against federal officials for injuries committed during the Civil War, even while the writ of habeas corpus was suspended); Amanda L. Tyler, Suspension as an Emergency Power, 118 YALE L.J. 600, 651 55 (2009) (noting that, absent suspension of the writ of habeas corpus or legislation conferring immunity, federal officials were subject to common law tort remedies for injuries committed during the Civil War, though qualified immunity from suits was retroactively extended to federal officials through legislation following the war).

(94) See supra note 24 and accompanying text.

(95) Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (citation omitted) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)).

(96) Id. at 8t2; see also Mitchell v. Forsyth, 472 U.S. 511, 520-24 (1985) (rejecting argument that the Attorney General should enjoy absolute immunity from damages liability for his actions in furtherance of national security functions, because, inter alia, the secrecy of national security functions makes it "far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation," and because of the unavailability of alternative checks on unconstitutional action, which are just as necessary "in matters of national security as in other fields of governmental action").

(97) See, e.g., Benzman v. Whitman, 523 F.3d 119, 123 (2d Cir. 2008) (describing the plaintiff's Bivens claim, which centered on the allegation that the defendant knowingly caused the EPA to release false statements about air quality at the World Trade Center disaster site).

(98) See, e.g., Filarsky v. Delia, 132 S. Ct. 1657, 1660 (2012) (qualified immunity); United States v. Abu-Jihaad, 630 F.3d 102, 140-41 (ad Cir. 2010) (state secrets), cert. denied, 131 S. Ct. 3062 (2011).

(99) See supra note 79 and accompanying text.

(100) To be sure, the recognition of a new remedy would displace the state's decision to deny a remedy in cases not satisfying the elements of existing state causes of action. Still, we think that taking away an existing state remedy from state citizens injured by federal officials is more offensive to state interests than granting a remedy as a matter of federal law where existing state law would deny it, especially if the offending conduct is independently illegal as a matter of federal law.

(101) See 28 U.S.C. [section] 1442(a)(3) (2006); see also Mesa v. California, 489 U.S. 121, 139 (1989) (holding that a federal officer can remove under [section] 1442(a) once he avers a federal defense).

(102) See Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1, 1-2 (1963) ("From time immemorial many claims affecting the Crown could be pursued in the regular courts if they did not take the form of a suit against the Crown. And when it was necessary to sue the Crown eo nomine consent apparently was given as of course. Long before 1789 it was true that sovereign immunity was not a bar to relief.").

(103) See infra notes 104-06, 245-86 and accompanying text.

(104) See Note, Developments in the Law: Remedies Against the United States and Its Officials, 70 HARV. L. REV. 827, 831-32 (1957) (explaining that damages suits against federal and state officers who exceeded their authority were "for some time the most important method employed to obtain monetary recovery"; the agents were relieved of liability only where "the action in question [was] authorized by a constitutional act of Congress"); cf Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 523-24 (1954) (describing the similar rationale for suits requesting injunctive relief against state officials).

(105) 209 U.S. 123, 159-60 (1908).

(106) See Developments in the Law, supra note 104, at 832 ("A government officer who acts without authority is ... subject to the same legal rules as any private person.").

(107) See RESTATEMENT (SECOND) OF TORTS [section] 35 (1965).

(108) See id. [section] 21 (assault); id. [section] 13 (battery).

(109) See Arar Complaint, supra note 39, paras, 22, 36-47 (alleging that Arar was "strip searched," "taken from his cell in chains and shackles," told false information, and denied basic constitutional rights).

(110) Id. para. 68.

(111) See RESTATEMENT (THIRD) OF AGENCY [section] 1.01 (2006) (defining agency as a "fiduciary relationship" in which "the agent shall act on the principal's behalf and subject to the principal's control"). For a discussion of the common law "action on the statute," see infra text accompanying notes 136-43.

(112) Arar Complaint, supra note 39, paras. 23-24, 49 52, 69.

(113) Id. paras. 14-21, 68-70.

(114) See Lebron v. Rumsfeld, 670 F.3d 540, 545 (4th Cir.) ("Padilla was removed from civilian custody and transferred to the Naval Consolidated Brig at Charleston, South Carolina. While in military custody, Padilla claims that he was repeatedly abused, threatened with torture, deprived of basic necessities, and unjustifiably cut off from access to the outside world."), cert. denied, 132 S. Ct. 2751 (2012).

(115) See infra note 126 and accompanying text.

(116) In this Part, we provide a brief overview of the doctrine of official immunity. For a closer look at the precise scope of official immunity at the time the Westfall Act was passed, with a focus

on the immunity enjoyed by federal officials sued on a state tort theory for conduct violative of the Constitution, see infra Part III.

(117) U.S. CONST. art. I, [section] 6, cl. 1 ("[Senators and Representatives] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same. ..."); Tenney v. Brandhove, 341 U.S. 367, 379 (1951) (recognizing immunity for state legislators "acting in a field where legislators traditionally have power to act"); Randall v. Brigham, 74 U.S. (7 Wall.) 523, 535 (1868) ("[I]t is a general principle applicable to all judicial officers, that they are not liable to a civil action for any judicial act done within their jurisdiction."); see also Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (holding that prosecutors have "the same absolute immunity under [section] 1983" that they "enjoy[] at common law").

(118) See Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804) (finding an executive official strictly liable because even instructions given by the Executive could not "legalize an act which without those instructions would have been a plain trespass"); 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, 1864 (2010) (contrasting the lack of immunity given to executive officials under Little and Murray v. Schooner Charming Betty, 6 U.S. (2 Cranch) 64 (1804), with "modern official accountability rules," which are more lenient).

(119) See infra Section III.C.

(120) See Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 CASE W. RES. L. REV. 396, 451 (1987) ("Direct invasions of person and tangible property are more traditionally actionable.").

(121) See id. Today the "clearly established law" standard of qualified immunity applies to all executive branch officials except those exercising prosecutorial functions and the President (acting in any capacity). See Harlow v. Fitzgerald, 457 U.S. 800, 809 (1982) ("Presidential aides, like Members of the Cabinet, generally are entitled only to a qualified immunity.").

(122) See Woolhander, supra note 120, at 451 ("Liability for harms to intangible economic interests, or economic expectations, traditionally was of less concern, as reflected in use of sovereign immunity to bar actions on government debt when no physical property invasions were alleged." (emphasis added) (footnote omitted)). As discussed below, the common law extended liability to wrongs producing intangible injuries as early as the fifteenth century. See infra text accompanying note 134.

(123) See, e.g., Edwin M. Borchard, Government Liability in Tort, 34 YALE L.J. 1 (1924); Jaffe, supra note 102; Louis L. Jaffe, Suits Against Governments and Officers: Damage Actions, 77 HARV. L. REV. 209 (1963); Developments in the Law, supra note 104.

(124) See, e.g., Butz v. Economou, 438 U.S. 478, 497-98 (1978) ("It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." (quoting Scheuer v. Rhodes, 416 U.S. 232, 247 48 (1974))). Before Butz, some "policy-making" officials were thought to enjoy an absolute immunity for discretionary conduct within the outer perimeter of their line of duty. See infra Section III.C. Butz clarified that this immunity did not apply to conduct in violation of the Constitution and held that, apart from prosecutors and other quasi-judicial officers, "qualified immunity from damages liability [is] the general rule for executive officials charged with constitutional violations." 438 U.S. at 508.

(125) See 457 U.S. at 818 ("[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.").

(126) See, e.g., Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 566 F.2d 289, 307 (D.C. Cir. 1977) (en banc) (Wilkey, J., concurring dubitante); see also, e.g., Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009). Some scholars and courts have suggested that federal officials enjoy a broader immunity from state tort suits than from federal causes of action. We address this claim in Section III.C, infra.

(127) See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 409 (1971) (Harlan, J., concurring in the judgment) ("It seems to me entirely proper that these injuries be compensable, according to uniform rules of federal law, especially in light of the very large element of federal law which must in any event control the scope of official defenses to liability.").

(128) CS Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2086-87 (2011) (Kennedy, J., concurring) (objecting to the possibility that different rules might apply in different .jurisdictions in national security cases, and suggesting instead that, "[w]hen faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes").

(129) See supra text accompanying notes 105-06.

(130) Professor Amar has proposed that the states enact "converse-1983" statutes establishing a statutory remedy for persons injured by action under color of federal law that violates the Constitution. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1428 & n.15 (1987); Akhil Reed Amar, Using State Law to Protect Federal Constitutional Rights: Some Questions and Answers About Converse-1983, 64 U. COLO. L. REV. 159, 160 (1993); Akhil Reed Amar, Five Views of Federalism: "Conz, erse-1983" in Context, 47 VAND. L. REV. 1229 (1994). If the analysis in the text is correct, the states may not be at liberty to establish special rules for the liability of federal officials. (The nondiscrimination principle, see infra note 131 and accompanying text, may also constrain the states in this regard.)

(131) See Testa v. Katt, 330 U.S. 386, 393 (1947) ("[T]he policy of the federal Act is the prevailing policy in every state. ... [A] state court cannot refuse to enforce the right arising from the law of the United States because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers." (citation omitted) (internal quotation marks omitted)); McKnett v. St. Louis & S.F. Ry., 292 U.S. 230, 234 (1934) ("A state may not discriminate against rights arising under federal laws.").

(132) See Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV. 1109, 1144 46 (1969) ("As long as the state allows an action in negligence, its courts can hardly hold, as a matter of law, that a railroad was not negligent though in violation of a safety standard embodied in paramount federal law.").

(133) As discussed in Section III.A, the flexibility of the common law was one reason proffered by the Solicitor General in his argument against creating a federal cause of action in Bivens. See infra text accompanying note 185.

(134) W.F. MAITLAND, EQUITY ALSO THE FORMS OF ACTION AT COMMON LAW: TWO COURSES OF LECTURES 54 (A.H. Chaytor & w.J. Whittaker eds., 1910).

(135) See id. at 360-61.

(136) Al Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. PA. L. REV. 1, 18 (1968); see also Hill, supra note 132, at 1134 ("[T]he common law did not accommodate itself to paramount positive law only in allowance of a new right to overcome a defense. Actions directly upon statutes were quite common.").

(137) Katz, supra note 136, at 20.

(138) Id. at 28 (explaining that in cases where recovery was denied, the statutes involved "provided for a mode of recovery that would compensate the plaintiff in money").

(139) (1703) 92 Eng. Rep. 126 (K.B.) 136; 2 Ld. Raym. 938, 953-54 (Holt, C.J., dissenting) ("Where a new Act of Parliament is made for the benefit of the subject, if a man be hindered from the enjoyment of it, he shall have an action against such person who so obstructed him."); see also Katz, supra note 136, at 25 ("The Chief Justice's dissenting opinion was accepted by the House of Lords, which reversed the King's Bench and entered judgment for the plaintiff.").

(140) (1854) 118 Eng. Rep. 1193 (K.B.) 1197; 3 El. & B1. 402, 412-13.

(141) Id.; see id. ("[T]he common law right to maintain an action in respect of a special damage resulting from the breach of a public duty (whether such duty exists at common law or is created by statute) is [not] taken away by reason of a penalty, recoverable by a common informer, being annexed as a punishment for the non-performance of the public duty.").

(142) See Tex. & Pac. Ry. v. Rigsby, 241 U.S. 33, 39 (1916) ("A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law. ..." (emphasis added)).

(143) See RESTATEMENT (SECOND) OF TORTS [section] 286 0965) (setting out the circumstances under which a court may adopt the requirements of a legislative enactment or administrative regulation as the standard of conduct of a reasonable man); PROSSER AND KEETON ON THE LAW OF TORTS [section] 36, at 220 (W. Page Keeton et al. eds, 5th ed. 1984) ("When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate."). For a contemporary Supreme Court decision involving negligence per se, see Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986). In Merrell Dow, the plaintiffs claimed that the misbranding of a drug in violation of federal law created a "rebuttable presumption of negligence." Id. at 805-06.

(144) See supra text accompanying notes 129-32.

(145) See Erie R.R.v. Tompkins, 304 U.S. 64, 71-73 (1938) (discussing how, in the past, "[t]he federal courts assumed, in the broad field of 'general law,' the power to declare rules of decision which Congress was confessedly without power to enact as statutes").

(146) 41 U.S. (16 Pet.) 1 (1842), ovepruled by Erie, 304 U.S. 64.

(147) See Erie, 304 U.S. at 7>73; TONY FREYER, HARMONY & DISSONANCE: THE SWIFT &. ERIE CASES IN AMERICAN FEDERALISM 39-40 (1981) (analyzing the discretion given to federal judges under the Swift regime in deciding commercial cases); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977); HERBERT HOVENKAMP, ENTER PRISE AND AMERICAN LAW 1836-1937, at 83-84 (1991) (discussing the Swift Court's failed attempt to create uniformity in commercial law); Clark, supra note 69, at 1276 (suggesting that "federal courts expanded the Swift doctrine to permit federal courts to disregard state judicial decisions on an ever-expanding range of issues"); Ann Woolhandler, The Common Law Origins of Constitutionally

Compelled Remedies, 107 YALE L.J. 77, 87-88 (1997) (highlighting the Court's willingness "to ignore both state statutes and common law in areas that were 'general' rather than 'local,'" partly in the "belief that the application of state law might exceed the territorial limits of state power in such cases").

(148) See Pub. L. No. 80-773, [section] 1442(a)(3), 62 Stat. 869, 938 (1948) (codified as amended at 28 U.S.C. [section] 1442(a)(3) (2006)).

(149) See FALLON ET AL., supra note 68, at 746 (describing "myriad" federal rights and jurisdictional provisions that allowed for removal to federal courts before the right of removal was extended to all federal officers in 1948).

(150) See Woolhandler, supra note 147, at 89-90.

(151) See id. at 110-11 ("[T]he federal courts in both law and equity showed considerable independence as to procedures and with respect to standing-to-sue and other elements of underlying causes of action.").

(152) See id. at 162-63.

(153) 304 U.S. 64 (1938).

(154) Id. at 78.

(155) See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938) (determining that the issue of interstate water rights "is a question of federal common law").

(156) See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962) (holding that rules of federal common law articulated by the federal courts necessarily displace state law even in state courts); see also Henry J. Friendly, Ira Praise of Erie--And of the Nee Federal Common Law, 39 N.Y.U.L. REV. 383, 405, 421-22 (1964) (noting the vertical uniformity accomplished by post-Erie federal common law).

(157) The Solicitor General in Bivens argued that state tort remedies were the constitutionally contemplated remedies for federal officials' violations of the Constitution. See infra text accompanying notes 184-85.

(158) 327 U.S. 678 (1946).

(159) Id. at 679.

(160) Id. at 680.

(161) See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 153 (1908) (requiring the plaintiff to present a federal question in a "statement of its cause of action" and not by anticipating a defense (citation omitted)).

(162) Bell, 327 U.S. at 684 85.

(163) Id.

(164) Bell v. Hood, 71 F. Supp. 813, 820-21 (S.D. Cal. 1947).

(165) See, e.g., United States v. Faneca, 332 F.2d 872,875 (5th Cir. 1964); Johnston v. Earle, 245 F.2d 793, 796 (9th Cir. 1957) ("[T]he federal government has created no cause of action enforceable in its courts for such torts under the state law, and hence the district court here lacked jurisdiction of the subject matter."); Koch v. Zuieback, 194 F. Supp. 651, 656 (S.D. Cal. 196,) ("[A]n action for damages against a federal official whose acts constitute a denial of due process of law is not a case arising under the Fifth Amendment and presents no federal question."); Garfield v. Palmieri, 193 F. Supp. 582,586 (E.D.N.Y.), aff'd per curiam, 290 F.2d 821 (2d Cir. 1960).

(166) See supra Section I.A.

(167) See supra notes 9-10, 75-79 and accompanying text.

(168) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).

(169) Id. at 389.

(170) Id.

(171) Id. at 389-90. For more on Webster Bivens's treatment, see also James E. Pfander, The Story 0f Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, in FEDERAL COURTS STORIES 275 (Vicki C. Jackson & Judith Resnik eds., 20l0).

(172) Id. at 280-81; see also Bivens, 403 U.S. at 398 (Harlan, j., concurring in the judgment).

(173) Pfander, supra note 171, at 281.

(174) Bivens, 403 U.S. at 389.

(175) Bivens v. 6 Unknown Named Agents of the Fed. Bureau of Narcotics, 276 F. Supp. 12, 15 (E.D.N.Y. 1967).

(176) Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 409 F.2d 718, 726 (2d Cir. 1969).

(177) Brief for the Respondents, Bivens, 403 U.S. 388 (1971) (No. 30a), 1970 WL 116900.

(178) Id. at 40.

(179) Id. at 4-6.

(180) Id.

(181) Id. at 12 (citation omitted).

(182) Id. at 24.

(183) Id. at 17.

(184) Id. at 40.

(185) Id.

(186) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 391-92, 395 (1971).

(187) Id. at 392; see also id. at 406-07 (Harlan, J., concurring in the judgment).

(188) Id. at 407 (Harlan, J., concurring in the judgment).

(189) See supra notes 67-68.

(190) Henry Hart made this point forcefully (albeit in a different context) while noting that the Supreme Court had overlooked the point in certain cases. See Hart, supra note 104, at 534 & n.179. Hart wrote in 1954 that this "trend" (that is, the trend reflected in the cases overlooking our point in the text) had "never been adequately thought through, and can be expected to pass." Id. at 534. Lamentably, his prediction has not proved entirely accurate. See, e.g., Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 643-47 (1981) (recognizing that the antitrust laws preempt state rules of contribution but holding that federal courts lack the power to create a federal right of contribution for antitrust cases). But the Supreme Court's occasional lapses do not undermine the validity of Hart's point, which we embrace here. But cf Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2536 (2011) (noting that where federal law governs and "where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress").

(191) As discussed in Part IV, infra, however, the Constitution itself may in certain circumstances require the availability of a damages remedy.

(192) Their decision to recognize a cause of action not explicitly authorized by Congress would not have been an act of lawmaking had they held that the Constitution implicitly required these remedies. As previously discussed, the Solicitor General seemed to argue that the Constitution required the availability of common law remedies as well as any additional remedies necessary for vindicating the Constitution. The Bivens Court did not reject this view, but neither did it suggest that the Constitution required the damages remedy the Court recognized insofar as it went beyond what was "indispensable for vindicating constitutional rights." Bivens, 403 U.S. at 406 (Harlan, J., concurring in the judgment) (citation omitted).

(193) See id. at 394-95 (majority opinion) (noting that trespass law is more lenient to individuals asserting authority to enter as private citizens rather than as government agents). But cf Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73 (2001) (noting that in Bivens the Court "found alternative state tort remedies to be 'inconsistent or even hostile' to a remedy inferred from the Fourth Amendment" (quoting Bivens, 403 U.S. at 394)).

(194) Bivens, 403 U.S. at 397.

(195) See id. at 409 (Harlan, J., concurring in judgment) (noting "the very large element of federal law which must in any event control the scope of official defenses to liability," and citing pre Bivens cases); see also infra Section III.C.

(196) Bivens, 403 U.S. at 409 (Harlan, J., concurring in the judgment).

(197) See 28 U.S.C. [section] 1346(b)(1) (2006) (granting federal court jurisdiction over suits against the United States for harms committed by its employees, "in accordance with the law of the place where the act or omission occurred").

(198) Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 HARV. L. REV. i532, 1540 (1972).

(199) As noted above, the "Bivens question" that is the focus of this Article is the question whether to extend Bivens to a new context. See supra notes 6 & 34.

(200) See Bivens, 403 U.S. at 397 ("The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts.").

(201) 442 U.S. 228, 248-49 (1979).

(202) Id. at 231.

(203) Id. at 245 n.23 (quoting Brief for Petitioner at 19). The Court went on to suggest that a state cause of action might have been constitutionally unavailable, stating that "it is far from clear that a state court would have authority to effect a damages remedy against a United States Congressman for illegal actions in the course of his official conduct." Id. (emphasis added) (citing Tarble's Case, 80 U.S. (13 Wall.) 397 (1872)). The Court's doubts appear to have stemmed from the unique fact that the defendant was a U.S. Congressman; the Court was not suggesting that common law damages actions against federal officials were generally unavailable.

(204) 446 U.S. 14, 20 (1980).

(205) Id. at 16 & n.1.

(206) Id. at 17 n.4.

(207) See id. at 20 ("In the absence of a contrary expression from Congress, [section] 2680(h) thus contemplates that victims of the kind of intentional wrongdoing alleged in the complaint still have an action under [the] FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights." (emphasis added)).

(208) See id. at 21-22 (discussing the inadequacy of an FTCA suit as a deterrent because of the statutory prohibition on punitive damages, whereas, in a Bivens suit, "[p]unitive damages are 'a particular remedial mechanism normally available in the federal courts'" (quoting Bivens, 403 U.S. at 397)). The Court was also concerned with a lack of uniformity under the FTCA, and noted that the FTCA cause of action "exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward," whereas "it is obvious that the liability of federal officials for violations of citizens' constitutional rights should be governed by uniform rules." Id. at 23. This analysis would also render the Bivens action preferable to an action under the common law.

(209) Id. at 42 (Rehnquist, J., dissenting). His reference to state courts overlooked the fact that federal officers typically have a right to remove state law claims against them to federal court.

(210) 462 U.S. 296 (1983).

(211) 483 U.S. 669 (1986).

(212) Id. at 679 (quoting Chappell, 462 U.S. at 302). These decisions--especially Stanley--are sometimes invoked by the lower courts to support broader preclusion of Bivens remedies in military and national security eases. See, e.g., Al-Zahrani v. Rodriguez, 669 F.3d 315, 319-20 (D.C.

Cir. 2012) (invoking Stanley as evidence that the Supreme Court has "preclude[d] Bivens claims even ... where damages are the sole remedy by which the rights of plaintiffs and their decedents might be vindicated"). But a critical part of the reasoning in Stanley was that the plaintiff was seeking to challenge his treatment while he was a servicemember. As the Court had already established under the FTCA in Feres v. United States, there are special reasons to prevent servicemembers from using the courts to vindicate claims against their (former) superior officers, see 340 U.S. 135, 143-44 (1950)--reasons the Chappell and Stanley courts recognized as "special factors," 483 U.S. at 679; 462 U.S. at 298.

These "special factors" apply even to claims, like the FTCA claim in Feres, that are otherwise provided for by statute (and they appear to apply in state court, as well). See supra notes 88-89 and accompanying text. As Justice Scalia explained, the key in Stanley was that the "'special factors counseling hesitation,'--'the unique disciplinary structure of the Military Establishment and Congress's activity in the field--... require abstention in the inferring of Bivens actions as extensive as the exception to the FTCA established by Fetes and United States v. Johnson." Stanley, 483 U.S. at 683-84 (emphasis added) (citations omitted) (quoting Chappell, 462 U.S. at 304). In other words, the basis for not inferring a Bivens remedy was a unique immunity doctrine applicable to disputes between servicemembers and their superiors that the Court had already established for all claims arising under state or federal law. See Vance v. Rumsfeld, 701 F.3d 193, 228 (7th Cir. 2012) (en banc) (Williams, J., dissenting) ("Stanley describes its principal point unambiguously: Members of the military cannot invoke Bivens for injuries arising out of 'activity incident to service.' Indeed, the Court reserved the possibility of Bivens suits by servicemen against military officials in other contexts." (quoting Stanley, 483 U.S. at 681)).

(213) 462 U.S. 367 (1983).

(214) 487 U.S. 412 (1988).

(215) See id. at 429 (declining to extend a remedy for wrongful termination of benefits because Congress had "addressed the problems"); Bush, 462 U.S. at 388 ("[The question] is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue.").

(216) 48 (7 How.) 89 (1849), after remand, 53 U.S. (12 How.) 390 (1851).

(217) Chappell, 462 U.S. at 305 n.2. The Court also noted that "since the time of Wilkes, significant changes have been made establishing a comprehensive system of military justice," id., thereby suggesting that the common law remedy recognized in Wilkes may subsequently have been preempted by congressional action.

(218) Id. at 375 (emphasis added).

(219) 534 U.S. 61, 72-73 (2001).

(220) Id. The Court presumably meant that this parallel tort remedy was not available to prisoners housed in government facilities because the prison itself, or the government, is not suable. The Court had earlier distinguished between suits against the United States or the Bureau of Prisons and suits against the individuals who operate the prison. See id. at 72.

(221) 551 U.S. 537, 551 (2007).

(222) Id.

(223) i32 S. Ct. 617, 624-26 (2012),

(224) See 483 U.S. 669, 692 (Brennan, J., concurring in part and dissenting in part) ("The practical result of this decision is absolute immunity from liability for money damages for all federal officials who intentionally violate the constitutional rights of those serving in the military."); id. at 691-92 ("As a practical matter, the immunity inquiry and the 'special factors' inquiry are the same; the policy considerations that inform them are identical, and a court can examine these considerations only once.").

(225) In Bivens, the Court held that a federal cause of action existed, yet it remanded for consideration of whether the defendants were entitled to immunity. Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397-98 (1971).

226 See Stanley, 483 U.S. at 679; see also id. at 683-84 (citing Feres v. United States, 340 U.S. 135,146 0950)).

227 510 U.S. 471, 478 (1994).

(228) See supra Part II.

(229) See Meyer, 510 U.S. at 475 ("By permitting the [FDIC] to sue and be sued, Congress effected a 'broad' waiver of the [FDIC's] immunity from suit.").

(230) 28 U.S.C. [section] 2679(a) (2006).

(231) Id. [section] 1346(b)(1).

(232) Meyer, 510 U.S. at 477-78.

(233) As discussed in the next Part, the Westfall Act would immunize the officer as well from liability on a common law tort theory, but as we also explain in Part IV, it is not clear that the Act was intended to immunize the officer when the plaintiff alleges a violation of the Constitution.

(234) This conclusion follows from the Court's declaration that "[b]y definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right." Meyer, 510 U.S. at 478 (emphasis added).

(235) See 484 U.S. 292, 296 (1988) (refusing to adopt the position that federal employees are immune from damage suits under state tort law), superseded by statute, Westfall Act, Pub. L. No. 100-694, [section] 5, 102 Stat. 4563, 4564 (1988) (amending 28 U.S.C. [section] 2679(b)); see also Westfall Act [section] 2(a)(4) ("Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees."); Westfall Act [section] 2(a)(5) ("This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.").

(236) See Westfal] Act [section] 5 (excepting from its grant of immunity those actions that violate the Federal Constitution) (codified at 28 U.S.C. [section] 2679(b)(2)(A)); see also supra note 235.

(237) Another alternative would be to read the Court's statement in Meyer as reflecting the Court's interpretation of the Westfall Act as preempting all state tort claims against federal officials. This reading is equally untenable. The Court in Meyer did not even cite the Westfall Act. Moreover, as noted in the text, the Court purported to be making a point about the logic of constitutional actions, not a point about the current state of the law.

(238) See, e.g., Malesko v. Corr. Servs. Corp., 534 U.S. 61, 68-69 (2001) (noting appropriateness of deference to Congress); id. at 75 (Scalia, J., concurring) (decrying the Court's previous creation of causes of action "'implied' by the mere existence of a statutory or constitutional prohibition ... since an 'implication' imagined in the Constitution can presumably not even be repudiated by Congress").

(239) See Minneci v. Pollard, 132 S. Ct. 617, 623 (2012) ("Prisoners ordinarily cannot bring state-law tort actions against employees of the Federal Government.").

(240) See, e.g., FALLON ET AL., supra note 68, at 1006-07 ("Prior to 1988, when a state law tort action was brought against a federal officer, federal common law had established a shield of absolute immunity from damages liability. ... ").

(241) 457 U.S. 800, 818 (1982).

(242) See supra note 124.

(243) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 409 (1971) (Harlan, J., concurring in the judgment).

(244) See also Butz v. Economou, 438 U.S. 478, 505 (1978) ("Our opinion in Bivens put aside the immunity question; but we could not have contemplated that immunity would be absolute.").

(245) See David E. Engdahl, Immunity and Accountabili(y for Positive Governmental Wrongs, 44 U. COLO. L. REV.,, 43-47 0972).

(246) 360 U.S. 564, 574-76 (1959) (plurality opinion).

(247) Id. at 575.

(248) Id. at 573.

(249) Id. at 575; see also id. ("It would be an unduly restrictive view of the scope of the duties of a policy-making executive official to hold that a public statement of agency policy in respect to matters of wide public interest and concern is not action in the line of duty.").

(250) Jaffe, supra note 123, at 218. Jaffe's thesis was that the immunity cases reflected an implicit "balancing of certain important factors," namely, "the character and severity of the plaintiff's injury, the existence of alternative remedies, the capacity of a court or jury to evaluate the propriety of the officer's action, and the effect of liability whether of the officer or of the treasury on effective administration of the law." Id. at 219.

(251) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring in the judgment).

(252) Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 456 F.2d 1339, 1345-47 (2d Cir. 1972).

(253) Id. at 1347-48.

(254) See id. at 1346 ("[T]he common law has never granted police officers an absolute and unqualified immunity. ... " (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967))); id. at 1347 ("[A] Federal officer.., sued in tort at common law, should [not] be held to enjoy an immunity denied his state or territorial brother similarly situated." (quoting Carter v. Carlson, 447 F.2d 358, 371 (D.C. Cir. 1971) (Nichols, J., concurring), rev'd on other grounds, 409 U.S. 418 (1973))); see alto Bethea v. Reid, 445 F.2d 1163, 1165 (3d Cir. 1971) (emphasizing that Bivens reserved the applicable immunity for "enforcement agents"); Anderson v. Nosser, 438 F.2d 183, 194-95 (5th Cir. 1971) (reiterating the distinction between the absolute immunity of some officers and the qualified immunity of others); Kelley v. Dunne, 344 F.2d 129, 133 (1st Cir. 1965) (postal inspector not entitled to Barr immunity); Hughes v. Johnson, 305 F.2d 67, 70 (9th Cir. 1962) (holding federal game wardens not entitled to immunity from a trespass action alleging unconstitutional search, and distinguishing Barr as not involving allegations of constitutional violations); Developments in the Law, supra note m4, at 835 ("[L]ower ranking officers are severely, restricted in the amount of judgment they are permitted to exercise without risking liability." (citing cases)). But cf Norton v. McShane, 332 F.2d 855, 859-60 & nn.5-6 (5th Cir. 1964) (relying on pre-Barr cases for the proposition that some federal law enforcement officers are entitled to absolute immunity even under Barf's framework).

(255) 438 U.S. 478, 507 (1978).

(256) FALLON ET AL., supra note 68, at 1006-07 (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion)).

(257) See also PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1421 (2d ed. 1973) ("Did not the Supreme Court decision in Bivens imply, notwithstanding reservation of the question, that federal officials perpetrating an unconstitutional search or seizure were not totally immune to liability for damages?").

(258) See 484 U.S. 292, 297-98 (1988) ("[A]bsolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature."), superseded by statute, Westfall Act, Pub. L. No. 100-694, [section] 5, 102 Stat. 4563, 4564 (1988) (amending 28 U.S.C. [section] 2679(b)).

(259) See H.R. REP. NO. 100-700, at 4 (1988) ("The functional effect of H.R. 4612 is to return Federal employees to the status they held prior to the Westfall decision.").

(260) 360 U.S. 564. This case contains the "outer perimeter" language quoted by FALLON ET AL., supra note 68, at 1006-07. See 360 U.S. at 575 (plurality opinion); see also supra note 256 and accompanying text.

(261) As discussed above, certain categories of officials, such as judges and prosecutors, enjoyed an absolute immunity from certain types of claims. See supra notes 111-18 and accompanying text.

(262) See also 28 U.S.C. [section] 2679(b)(2)(A) (2006) (exempting actions "brought for a violation of the Constitution" from the application of the provision otherwise rendering the FTCA the exclusive remedy (and thereby preempting state law) for the torts of federal officials); Hui v. Castaneda, 130 S. Ct. 1845, 1851 (20l0) ("The Westfall Act amended the FTCA to make its remedy against the United States the exclusive remedy for most claims ... Notably, Congress also provided an exception for constitutional violations." (citing 28 U.S.C. [section] 2679(b)(2)(A))).

(263) 438 U.S. 478 (1978).

(264) Id. at 482-83, 483 n.5.

(265) See id. at 483-84 ("The District Court ... held that the individual defendants would be entitled to immunity if they could show that 'their alleged unconstitutional acts were within the outer perimeter of their authority and discretionary.'" (citation omitted)).

(266) Id. at 507.

(267) See, e.g., Martin v. D.C. Metro. Police Dep't, 812 F.2d 1425, 1428 n.n (D.C. Cir. 1987) (noting that there was a "distinction indicated (but not explained) in Butz between a federal official's absolute immunity from common law claims and qualified immunity from constitutional claims").

(268) Butz, 438 U.S. at 487.

(269) Id. at 488.

(270) Id.

(271) Id. at 489.

(272) See id. ("Barr did not, therefore, purport to depart from the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law has placed on his power.").

(273) 6 U.S. (2 Cranch) 170 (1804).

(274) Butz, 438 U.S. at 489-90.

(275) Id. at 490.

(276) Id. at 490-91.

(277) 161 U.S. 483 (1896).

(278) See Barrv. Matteo, 360 U.S. 564, 570-72 (1959) (plurality opinion).

(279) Butz, 438 U.S. at 494.

(280) Id. at 495.

(281) Id.

(282) Id.

(283) See id. at 490-96.

(284) See id. at 495.

(285) See Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974) ("[A] qualified immunity is available to officers of the executive branch of [state] government. ...").

(286) 438 U.S. at 507 n.34 (citation omitted).

(287) See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) ("When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.").

(288) Butz, 438 U.S. at 495 n.22.

(289) Id.

(290) Id. at 507 n.34.

(291) The Butz Court noted elsewhere that, "[u]nless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss." Id. at 507-08. We do not think the Court can be taken to be saying here that nonfederal causes of action were wholly unavailable against federal officials based on their unconstitutional conduct. The latter claim is directly contradicted by the Court's statement, in a footnote coining .just a few lines before, that federal officials sued by "traditional means" (meaning through common law rights of action) should enjoy qualified immunity. Id. at 507 n.34. In our view, the Court's statement about motions to dismiss was directed at a different point--i.e., why, despite the Court's rejection of absolute immunity, "[i]nsubstantial" Bivens claims "can be quickly terminated by federal courts." Id. at 507; see also Bell v. Hood, 327 U.S. 678, 682-83 (1946) (noting the rule of prior cases that a c]aim may be dismissed for want of jurisdiction when it "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous").

(292) 457 U.S. 800 (1982).

(293) See id. at 818 ("[G]overnment officials performing discretionary functions[] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.").

(294) See supra Introduction & Section I.A.

(295) Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified as amended in scattered sections of 28 U.S.C. (2006)).

(296) See supra text accompanying note 23.

(297) Federal Tort Claims Act, Pub. L. No. 79-601, tit. IV, ch. 753, 60 Stat. 812, 842-47 (1946) (codified as amended in scattered sections of 28 U.S.C.).

(298) See, e.g., GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT: CASES AND MATERIALS 160-336 (2000) (providing relevant case law, questions, and commentary to explain the background and application of the FTCA).

(299) In the Tucker Act of 1887, Congress expressly conferred jurisdiction upon the federal district courts for claims (not exceeding $10,000) against the United States arising under contract or "not sounding in tort." Act of Mar. 3, 1887, ch. 359, [subsection] 1-2, 24 Stat. 505, 505 (current version at 28 U.S.C. [section] 1346(a)(2)). In 1920, Congress expanded the government's liability to encompass claims arising out of admiralty or maritime torts involving merchant vessels or tugboats owned by the federal government. See Act of Mar. 9, 1920, ch. 95, [subsection] 1-3, 41 Stat. 525, 525-26; see also Act of Mar. 3, 1925, ch. 428, 43 Stat. 1112, 1112 (expanding the 1920 Act to include damages caused by public vessels of the United States). It was not until the FTCA that Congress otherwise provided for governmental liability in tort.

(300) Federal Tort Claims Act [section] 410(a), 60 Stat. at 842-44 (current version at 28 U.S.C. [section] 1346(b)(1)).

(301) Id. [section] 421(h), 60 Stat. at 845-46 (current version at 28 U.S.C. [section] 2680(h)). Section 421(h) exempted "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Id.

(302) See Act of Mar. 16, 1974, Pub. L. No. 93-253, 88 Stat. 50 (amending the FTCA to permit suits for "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" against "investigative or law enforcement officers").

(303) Pfander & Baltmanis, supra note 22, at 131; see also id. at 133 ("In [rejecting the DOJ's proposal], members of Congress made clear that the Bivens action was to survive the expansion of government liability for law enforcement torts. The federal courts quickly confirmed this conclusion.").

(304) Carlson v. Green, 44.6 U.S. 14, 19 20 (1980).

(305) For a discussion of official immunity and state secrets privilege, see supra text accompanying notes 82-84, 95-100 & 115-27, and Section III.C. Cf. Boyle v. United Techs. Corp., 487 U.S. 500, 504-06 (1988) (recognizing a federal common law defense for federal contractors for certain activities approved by federal officials in the exercise of discretionary functions); Saleh v. Titan Corp., 580 F.3d 1, 5-9 (D.C. Cir. 2009) (extending federal contractor defense to certain activities related to "combatant activities"); In re Katrina Canal Breaches Litig., 620 F.3d 455, 459-60 (5th Cir. 2010) (describing the three-part test given in Boyle to determine whether federal law preempts state tort law remedies).

(306) See, e.g., Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir. 2003) (holding that the discretionary function exception does not encompass actions by government agents that are "unconstitutional, proscribed by statute, or exceed the scope of an official's authority"); see also Sutton v. United States, 819 F.2d 1289, 1293 (sth Cir. 1987) ("[W]e have not hesitated to conclude that [an[] action does not fall within the discretionary function [exception] of [section] 2680(a) when governmental agents exceed the scope of their authority as designated by statute or the Constitution.").

(307) 484 U.S. 292,296-98 (1988), superseded by statute, Westfall Act, Pub. L. No. 100-694, [section] 5, 102 Stat. 4563, 4564 (1988) (amending 28 U.S.C. [section] 2679(b)).

(308) Id.

(309) Id.

(310) Id. [section] 5, 102 Stat. at 4564 (codified at 28 U.S.C. [section] 2679(b)(1) (2006)).

(311) 28 U.S.C. [section] 2680(h).

(312) Id. [section] 2680(a).

(313) Id. [section] 2680(k).

(314) Feres v. United States, 340 U.S. 135, 146 (1950).

(315) 28 U.S.C. [section] 2675.

(316) Id. [section] 2402.

(317) Id. [section] 2678.

(318) Id. [section] 2674.

(319) Id.

(320) Id. [section] 2679(b)(2)(A).

(321) See supra notes 38-43, 107-14 and accompanying text.

(322) 130 S. Ct. 1845, 1853 (2010).

(323) See 551 U.S. 537, 551 (2007); see also supra text accompanying notes 221-22.

(324) Pfander & Baltmanis, supra note 22, at 128.

(325) The Federal Tort Claims Act was brought to the Court's attention in both parties' briefs in Wilkie. See Brief for Petitioners at 9, Wilkie, 551 U.S. 537 (No. 06-219), 2007 WL 128587; Brief for Respondent at 40-41, Wilkie, 551 U.S. 537 (No. 06-219), 2007 WL 550926.

(326) 28 U.S.C. [section] 2679(b)(2)(a) (2006).

(327) H.R. REP. NO. 100-700, at 6 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5949-50.

(328) Cf Louisville & Nashville R.R.v. Mottley, 211 U.S. 149, 152 (1908).

(329) See 403 U.S. 388, 394 (1971) (noting "respondents' argument that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim" (emphasis added)).

(330) See id.

(331) See supra notes 136-43 and accompanying text.

(332) See supra note 130. However, special state remedies for constitutional violations by federal officials may violate nondiscrimination doctrine. See supra notes 130-32 and accompanying text.

(333) See supra notes 41-43 and accompanying text.

(334) See Arar v. Ashcroft, 585 F.3d 559, 575 (2d Cir. 2009) (en banc).

(335) See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ("It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." (citation omitted)); see also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500 (1979) ("[A]n Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available."); cf Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986) ("Our disposition avoids the 'serious constitutional question' that would arise if we construed [the statute in question] to deny a judicial forum for claims arising under [the act in question]."). In Bartlett v. Bowen, the D.C. Circuit explained,

   [I]t has become something of a time-honored tradition for the
   Supreme Court and lower federal courts to find that Congress did
   not intend to preclude altogether judicial review of constitutional
   claims in light of the serious due process concerns that such
   preclusion would raise. These cases recognize and seek to
   accommodate the venerable line of Supreme Court cases that casts
   doubt on the constitutionality of congressional preclusion of
   judicial review of constitutional claims.


816 F.2d 695, 699-700 (D.C. Cir. 1987) (footnote omitted).

(336) See supra notes 178-81. That Solicitor General was noted constitutional scholar and long-time dean of Harvard Law School, Erwin Griswold, "a lifelong Republican with a background of Midwest conservatism." Dennis Hevesi, Erwin Griswold of Harvard, Ex-Solicitor General, 90, N.Y. TIMES, Nov. 20, 1994, at 58.

(337) See, e.g., Hill, supra note 132, at 1153; Katz, supra note 136, at 52; see also Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1401 (1953) ("In the scheme of the Constitution, [state courts] are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones.").

(338) See, e.g., Amar, Of Sovereignty and Federalism, supra note 130, at 1485-86 ("Few propositions of law are as basic today ... as the ancient legal maxim [that w]here there is a right, there should be a remedy."); Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 337 (1995) (arguing that "in the absence of effective congressional remedies, the courts are not only empowered but obligated to craft a broad range of remedies on their own"); Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117, 1154 (1989) ("The judiciary's obligation--whether federal or state--to decide cases arising under the Constitution embraces and demands the implementation of effective remedies."); Woolhandler, supra note 147, at 120-21. As Richard Fallon, Jr. and Daniel Meltzer explain,

   Within our constitutional tradition, ... the Marbury dictum [that
   there must be a remedy for every right] reflects just one of two
   principles supporting remedies for constitutional violations.
   Another principle, whose focus is more structural, demands a system
   of constitutional remedies adequate to keep government generally
   within the bounds of law. Both principles sometimes permit
   accommodation of competing interests, but in different ways. The
   Marbury principle that calls for individually effective remediation
   can sometimes be outweighed; the principle requiring an overall
   system of remedies that is effective in maintaining a regime of
   lawful government is more unyielding in its own terms, but can
   tolerate the denial of particular remedies, and sometimes of
   individual redress.


Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1778-79 (1991); accord Carlos Manuel Vazquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1800 (1997).

(339) E.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 643 (1999) (holding that a due process violation sometimes occurs where the state intentionally infringes patents and fails to provide an adequate remedy); McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 36 (1990) (holding that the Due Process Clause is sometimes violated where state denies refund for unconstitutional taxes); Ward v. Love County, 253 U.S. 17, 24 (1920); see also Carlos Manuel Vazquez, Sovereign Immunity, Due Process, and the Alden Trilogy, 109 YALE L.J. 1927, 1944-47 (2000) (discussing recognition in Florida Prepaid that the Due Process Clause requires a retrospective remedy in certain circumstances).

Indeed, the Due Process Clause sometimes requires a damage remedy against a government official when there has been an unlawful deprivation of liberty or property, even when the Constitution itself was not violated. See Zinermon v. Burch, 494 U.S. 113, 125-26 (1990) (holding that the Due Process Clause sometimes requires damages remedy for unlawful deprivations of liberty); Parratt v. Taylor, 451 U.S. 527, 537, 544 (1981) (holding that the Due Process Clause sometimes requires damage remedy for unlawful deprivations of property), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1998). We take no position on whether the Westfall Act's exemption of suits "brought for a violation of the Constitution" should be read to exempt cases in which the Constitution requires a damage remedy hut where there was no underlying constitutional violation. The canon of avoidance would suggest so, but the statutory- language extends only to cases in which the suit is brought for a violation of the Constitution. Even if the exemption does not cover such a case, however, the victim should be able to maintain a suit against the official by arguing that the Westfall Act's elimination of his state tort claim is unconstitutional. For an argument that the constitutionally required remedy for violation of the Constitution should be understood to have its basis in the Supremacy Clause rather than the Due Process Clause, see Vazquez, supra note 338, at 1777-85.

(340) We recognize that immunity doctrines frequently prevent recovery of damages against federal and state officials who violate the Constitution. We do not contend that the Constitution requires a remedy for every violation. But we do think that there is a substantial constitutional argument that the Constitution sometimes requires a damages remedy for constitutional violations in circumstances in which the FTCA would not provide one. Since the official immunity doctrine would bar a remedy under both federal or state law, it suffices for purposes of the constitutional avoidance argument that the Constitution requires a damages remedy for some violations of clearly established constitutional law in contexts in which the FTCA does not provide a substitute remedy against the government.

(341) See supra text accompanying notes 311-19.

(342) Thus, some courts have held that the discretionary function exception does not apply to constitutional claims. See, e.g., Castro v. United States, 560 F.3d 381, 390 (5th Cir. 2009) ("While it is well-recognized that violations of constitutional mandates are not actionable under the FTCA, the occurrence of such a violation would involve the performance of a non-discretionary function for jurisdictional purposes, if the constitutional tort is also cognizable as an intentional tort under state law." (citation omitted)).

(343) See supra note 320 and accompanying text; supra Section IV.B.

(344) H.R. REP. NO. 100-700, at 6 (1988).

(345) Westfall Act, Pub. L. No. 100-694, [section] 5, 102 Stat. 4563, 4564 0988) (amending 28 U.S.C. [section] 2679(b)).

(346) See supra text accompanying notes 153-65.

(347) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971): see supra Part I.

(348) In addition to making national security concerns irrelevant to the Bivens question (as opposed to possible defenses), recognition that state remedies would in any event be available means that finding a Bivens action against federal officials would not increase the federal courts' caseload, given the right of such officials to remove on the basis of a federal defense. Recognition of a Bivens action against contractors would increase the federal caseload. The increased caseload for federal contractors potentially outweighs the benefits of a single uniform federal cause of action more closely tailored to the constitutional interests as stake. See supra notes 14-15 and accompanying text.

(349) See supra subsection III.B.2.

(350) Minecci v. Pollard, 132 S. Ct. 617, 623 (2012); see also supra note 16 (noting that, if constitutional need for a damages remedy is recognized, absence of state remedies cuts in favor of finding a federal remedy).
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Title Annotation:III. Bivens and Its Aftermath through Conclusion, with footnotes, p. 542-583
Author:Vazquez, Carlos M.; Vladeck, Stephen I.
Publication:University of Pennsylvania Law Review
Date:Jan 1, 2013
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