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In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that led these courts to decline to recognize a Bivens action, if truly implicated by these cases, would be reasons to bar the suits from the courts altogether. In contrast, as we explain in this essay, the Bivens question was at least initially understood as whether a federal cause of action should supplement existing state law remedies. Thus, these recent lower-court decisions reveal a fundamental misapprehension about the intended relationship between Bivens and state law. So understood, and as courts have already recognized in other contexts, the very concerns relied upon in these recent national security cases would, if anything, have traditionally supported a federal remedial regime rather than one under state law. As the Supreme Court's recent decision in Minneci v. Pollard illustrates, the principal reason to disfavor recognition of Bivens remedies should be the availability of adequate remedies under state law, and not a desire to immunize the relevant officers from any liability whatsoever. Thus, unlike these recent cases, decisions not to recognize a Bivens remedy should leave the plaintiff free to pursue whatever recourse state law may provide.

Although this view of Bivens was generally shared by both its supporters and detractors when it was decided, it has receded from view largely thanks to the Westfall Act, which most courts and commentators today read as preempting all state-law tort claims against federal officers acting within the scope of their employment. In our view, this conclusion reflects a surprising misreading of the Act, which specifically exempts from its preemption provision any claim "which is brought for a violation of the Constitution of the United States," presumably including non-federal tort claims grounded on federal constitutional violations. Indeed, given that the legislative history of the Westfall Act suggests that Congress merely sought to preserve the status quo, it is odd to read the statute as dramatically altering the nature and consequences of the Bivens question.

Nevertheless, if the Westfall Act does indeed have this effect, we conclude that it should therefore significantly strengthen the argument for recognizing Bivens claims, since the Act takes away the main alternative remedial scheme that previously existed. Indeed, an (incorrect) interpretation of the Westfall Act as preempting non-federal remedies but not authorizing equivalent federal remedies may well raise significant constitutional questions--questions that have thus far been dramatically under-appreciated by the lower courts, but that must be taken seriously going forward. And if courts conclude that, in appropriate cases, the question really should be "Bivens or nothing," they must recognize that either answer requires judicial lawmaking--and not just recognition of a federal cause of action.

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161 U. Penn. L. Rev. 509-583 (2013)