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I think I understand the fundamentals of Bivens v. Six Unknown Fed. Narcotics Agents. My understanding is that Bivens created a cause of action for the 4th Amendment. Without the cause of action, you wouldn't be able to sue federal officials for violating the 4th Amendment. Now, my question is this:

  • Before Bivens was ruled, how would you sue a government official in court for a constitutional violation, as there was no cause of action?
  • According to my knowledge, the Supreme Court has only afforded a cause of action similar to that of Bivens to some amendments. Now, if I wanted to sue a government official for violating the 1st amendment (which, to my understanding, does not have an implied cause of action similar to that of Bivens), how would that work?

I'm generally very confused about how this all works and interacts with each other.

Bivens: https://supreme.justia.com/cases/federal/us/403/388/#tab-opinion-1949369

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Your understanding is not quite correct.

Bivens did not create a cause of action for constitutional violations by federal officers; it merely resolved the question of whether such a cause of action already existed. Until then, there were debates over what remedies -- if any -- were available to someone injured by a constitutional violation had any right to sue, and what the basis of those rights was.

So on your first question: the victim of a Fourth Amendment violation had the same cause of action available to him before and after Bivens. Obviously, Webster Bivens couldn't have filed his lawsuit relying on a Bivens claim based on a Supreme Court decision that hadn't come down yet; he just alleged a violation of his right to be free from unreasonable search and seizure. When the Supreme Court agreed that such claims were viable, everyone just began calling them Bivens claims.

On your second question: It's important to note first of all that Bivens is generally considered a serious outlier. Since it was decided, the courts have been very reluctant to expand its holding to other amendments, or even to factually dissimilar Fourth Amendment violations. Although the Court subsequently allowed claims for Fifth Amendment and Eighth Amendment violations, its current position is that “expanding the Bivens remedy is now a 'disfavored' judicial activity." Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

Although the courts are quite hostile to new types of Bivens claims, there's still a debate over whether it should be expanded to address First Amendment violations. The Second, Third, Fourth, Fifth, Sixth, and D.C. Circuits reject Bivens claims under the First Amendment, but the Ninth Circuit has permitted them.

But we'll likely have a final answer sometime this year, as the Supreme Court is considering this question as we speak. It heard oral arguments earlier this month in Egbert v. Boule, where the owner of a bed & breakfast alleged that Border Patrol triggered an IRS investigation of his business because he complained about an officer's misconduct. The trial court entered judgment for the Border Patrol officer, holding that Bivens couldn't be expanded to the First Amendment, but the Ninth Circuit reversed, holding that there were "“no special factors that counsel hesitation in extending a Bivens remedy to this new context.” Boule v. Egbert, 980 F.3d 1309, 1316 (9th Cir. 2020).

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  • What's the point of Bivens if causes of action still exist for amendments like the 1st Amendment, that are not part of Bivens? What's the difference between suing somebody under the 4th amendment through Bivens, and suing somebody under the 1st amendment? I still don't fully understand. Please clarify for me.
    – Oh Yea
    Mar 23 at 22:27
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    @Oh Yea I have added to my answer in response to this comment. See that answer, in the new paragraphs at the bottom. Mar 24 at 0:20
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    Bivens is the cause of action for any constitutional violation, so you would use it for the First Amendment or the Fourth, or Fifth or Eighth. In any of those cases, you're bringing a Bivens claim, just under a different constitutional amendment. That's what happened in Egbert, actually; the plaintiff actually brought both a First Amendment claim under Bivens, and a separate Fourth Amendment claim, also under Bivens.
    – bdb484
    Mar 24 at 0:22
  • @bdb484 after seeing coverage of the oral arguments in Egbert v. Boule and reading the transcript, I get the distinct impression that the supreme court is going to rule that Bivens is indeed unavailable for first amendment retaliation claims. (The first "question presented" by the case that is under consideration is "Whether a cause of action exists under Bivens for First Amendment retaliation claims.")
    – phoog
    Mar 29 at 11:42
  • @OhYea the point of Bivens is that it recognized a cause of action. Ever since it was decided, there have been disputes over the exact scope of the cause of action.
    – phoog
    Mar 29 at 11:44
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The case is Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Liability under Bivens applies to federal agents who violate a direct constitutional right in a similar way that state officials, or others acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" may be sued under 42 USC § 1983 for any action that causes "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws". Section 1983 does not apply to persons acting under federal laws, and thus Bivens becomes a counterpart.

It is true that Bivens applies directly to the Fourth Amendment. But it quotes favorably Bell v. Hood, 327 U. S. 678 (1946), specifically the passages:

where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief [at page 684]

and

it is . . . well settled that, where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. [also at page 684]

Neither of these passages singles out the fourth amendment. Nor does the logic of Bivens depend on anything specific to the Fourth amendment, as opposed to the Fifth, the Sixth, or the First.

I don't know if a case has been brought under Bivens alleging violation of these or other federal constitutional provisions granting specific rights to individuals. The logic of Bivens would require a firm and clear grant of rights, but, for example the Due Process Clause of the fifth is such a grant.

If the courts were to hold that a particular claim could not be brought under Bivens because the Supreme Court has not authorized such an extension of Bivens, then Bivens itself describes an alternate procedure. The opinion points out that:

[at Pages 390-391] petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. 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. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision, respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law.

This procedure the Court rejected in Bivens as unneeded, but it did not say that such a procedure could not be followed.

I would think that the logic of Bivensshould extend to the invasion, by federal officials (other than judicial officers), of any right explicitly and specifically granted to individuals under the constitution. But one can never tell how the courts will react when asked to extend a previous decision.

The Bivens did not createa cause of action, or at least it did not purport to do so. It simply held that the longstanding rights grantef under the Fourth Amendment could result in money damages even n the absence of a specific statute providing for such damages. The Bivens Court wrote:

[at Page 403 U. S. 402] The contention that the federal courts are powerless to accord a litigant damage for a claimed invasion of his federal constitutional rights until Congress explicitly authorizes the remedy cannot rest on the notion that the decision to grant compensatory relief involves a resolution of policy considerations not susceptible of judicial discernment. Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute. J. I. Case Co. v. Borak, 377 U. S. 426 (1964); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210, 323 U. S. 213 (1944). Cf. Wyandotte Transportation Co. v. United States, 389 U. S. 191, 389 U. S. 201-204 (1967)

The OP wrote in a comment:

What's the point of Bivens if causes of action still exist for amendments like the 1st Amendment, that are not part of Bivens? What's the difference between suing somebody under the 4th amendment through Bivens, and suing somebody under the 1st amendment?

This is merely a matter of terminology. If the US Supreme Court now recognizes a right to sue for money damages directly under the First Amendment, that will be called "an extension of Bivens". If it rules that such a suit would need a new law from Congress to authorize it (as Sec 1983 authorizes suits against state officials), that would be cal;led "refusing to extend Bivens. All suits for damages directly under a constitutional provision where there is no specific federal law authorizing money damages are now called Bivens suits, because that is the case that specifically held that such damages were permitted without such a law.

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