A Bivens Action
|BIVENS ACTIONS allowing for
Damages remedies for constitutional violations committed by federal agents were
not available until 1971. The Supreme Court had long held that federal courts
had the power to grant relief not expressly authorized by statute as well as the
power to adjust remedies to grant relief made necessary by the particular
circumstances of the case at hand.
However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages.
Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil Rights Act of 1964 and subsequent revisions. For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court. A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General. Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government. This allows for a continuation of these actions against others.
In the case of Bivens vs six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures.
The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
Even though there was no specific authority for such a civil action in the Constitution, the Bill of Rights, or any Federal Statute, the Court acknowledged a judicial remedy on the basis of the historic power of the Federal courts to redress personal injury through the particular monetary damages.
These judicially created Causes of Action, known as BIVENS ACTIONS , provided the right to secure monetary damages.
While there was no Federal statutory or constitutional basis for such a cause of action, the historic use of damages by Federal courts as a remedy for the invasion of personal liberty interests led the Court to conclude that a Plaintiff should be allowed to redress a violation of the Plaintiff's 4th amendment rights by the federal employees with a monetary award.
The essence of TRUE CIVIL LIBERTY consists of the right to protection of the laws of the Federal Government. Because of this, the Court concluded that monetary damages were a valid way of enforcing the Constitution.
Furthermore, they felt that reliance on State laws was not sufficient for redress since the states might have a conflict of interest between actions and redress. The Court's concern was what they felt to be a lack of real relief for constitutional violations.
The Courtís additional concern was their perception that an agent of the Federal Government acting unconstitutionally in the name of the U.S., possesses a far greater capacity for harm than an individual exercising less authority.
A remedy of monetary damages for plaintiffs injured by federal officials and agents thus became a means to compensate and vindicate a Plaintiff's claim. As of now, Bivens claims are still primarily used to redress infractions by law enforcement and others in the criminal justice system. On the other hand, the Supreme Court has expanded the scope of a Bivens Action from violations of just the Fourth Amendment so that it now includes violations of the First and Sixth.
The US Supreme Court has subsequently restricted Bivens by refusing to allow Federal employees whose First Amendment rights are violated by their superiors (as in the case of Caryl Leventhal vs. Janet Reno) to file suit against their tormentors. This theory is based on the assumption that they are in an employment relationship governed by "comprehensive" procedural and substantive provisions for giving meaningful remedies. In the Federal suit involving Caryl Leventhal vs. Janet Reno, their assumption has proven itself to be in error. Such over-optimism is evident by reviewing "The Administrative Process" page of this site.
(Author's Note: The Supreme Court's decision is predicated on comprehensive and assumedly equal treatment of a complainant by Federal employees administering the procedural process. In Caryl Leventhal's case, obstruction of justice, threat of death, unequal treatment, perjury and threat of prosecution by the US Attorney's Office Criminal Division were used to keep Caryl Leventhal from obtaining equal treatment in this process. Possibly more important to the safety of Americans, this was essentially retaliation for Caryl Leventhal being a whistle blower. Subsequently documented criminals and potential terrorists were being allowed into America by way of the Immigration and Naturalization Service selling Green Cards and pushing through paperwork that was incomplete. Unfortunately there is no redress in federal court for this type of complaint and the USDOJ INS Administrative complaint process refused to address this basis.
This was done to protect individuals who had deprived her of rights guaranteed under the United States Constitution. Inasmuch as solid evidence exists to show that Ms. Leventhal was denied fair and equal due process, an argument might be made that she is excluded from the Supreme Court's restriction on Federal employees filing individually against other Federal employees. The Supreme Court's allowing a Bivens Action is based on a citizen not having sufficient redress. Certainly, a Federal employee being treated prejudicially in the Federal procedural process is being denied this level of redress assumed to exist by the Supreme Court. In fact, she has no more procedural and substantive provisions for giving meaningful remedies than a non-Federal employee. Under these circumstances, denying Caryl Leventhal to file a Bivens Action would be denying her equal protection and redress of other citizens, simply because she was employed by the Federal Government.)
Federal employees are in a position of either "playing the game," no matter how corrupt, savage or exploitative, or simply keeping quiet. People who might be in a position to protect the citizenry, are subject to extreme retaliation without unimpeded recourse to the US Federal Court system.
Contrary to abusers in the private sector of the economy, innocent Americans can still be victimized by the vast majority of government employees who know they will be protected from personal liability and responsibility. Federal employees are even more vulnerable to abuse by their co-workers.
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
Written and Copyright © by: LTC Michael G. Leventhal
Copyright 1999 Reproduction with written permission. Contact: Michael @Justice-Denied.net