Transcript BIVENS ACTIONS

NIPNLG.org
About the
National Immigration Project
Non-profit membership immigrant rights organization of
attorneys, judges, jailhouse lawyers, advocates, community
organizations, law students, etc.
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Provides legal and technical assistance
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5 active listservs
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Hosts CLE seminars
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Authors practices advisories and four immigration law treatises
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Advocates for fair and just administrative policies/legislation
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Engages in select impact litigation, and
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Participates as amici curiae in federal courts cases.
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NIPNLG Damages Webinars
BIVENS ACTIONS
October 16, 2014
Lynn Coyle, Dominguez & Coyle
Mary Kenney, American Immigration Council
Trina Realmuto (m), NIPNLG
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Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971)

Money damages for constitutional tort committed
by defendant acting under color of federal
law/authority
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Suit against individual officer, not United States.

Claim for damages arises directly under
Constitution without explicit statutory cause of
action (“implied” constitutional cause of action)
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Dual Purpose of Bivens Action
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Providing a remedy under Bivens:
 Serves to deter future constitutional violations by holding
federal officers accountable for unlawful actions;
 Provides victims with the only viable compensation for
the injuries they suffered.

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70
(2001)
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Why Bivens Cases Are Important
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Important tool to address misconduct by
immigration agents:
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Physical and sexual abuse
Wrongful detention
Wrongful deportation
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Can impact future conduct of agents
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Although some aspects of Bivens cases may appear
difficult to beginners, there are resources to assist
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Bivens Cause of Action
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Plaintiff has a constitutionally protected right;
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Federal officer acting under color of federal law/authority
violated that right;
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Plaintiff lacks a statutory cause of action, or an available
statutory cause of action does not provide a meaningful
remedy; and
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An appropriate remedy, namely damages, can be imposed.
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Jurisdiction

28 U.S.C. 1331
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Government may challenge jurisdiction, arguing that:
 The INA precludes jurisdiction or
 Bivens is not available in immigration cases
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For assistance with responses, contact:
 Mary Kenney at [email protected]
 Trina Realmuto at [email protected]
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Gov’t Challenges to Jurisdiction
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Government may challenge jurisdiction under:
 8 U.S.C. § 1252(g), which divests courts of jurisdiction to hear claims
arising from the decision to:
 commence proceedings
 adjudicate cases or
 execute removal orders
 Section 1252(g) should not bar challenges to
 acts preceding initiation of proceedings or
 acts separate from the adjudication of cases and execution of
removal orders
 non-discretionary acts
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See Reno v. American-Arab Anti Discrimination Committee, 525
U.S. 471, 482 (1999)
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Contexts in Which Bivens
Claims Have Been Recognized
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4th Amendment:
 Bivens (search and seizure by local police)
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5th Amendment Equal Protection Clause:
 Davis v. Passman, 442 U.S. 338 (1979) (sex discrimination suit
by female former congressional employee against former
Member of Congress)
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8th Amendment:
 Carlson v. Green, 446 U.S. 14 (1980) (case against prison
officials for failure to provide competent and timely medical
care to inmate)
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Bivens in “New Contexts”

The Supreme Court is reluctant to recognize Bivens claims
in “new contexts.”
 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)
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Test for a new context: whether courts have recognized
Bivens remedy in cases with similar “legal and factual
components”
 Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc);
see also Hernandez v. United States, 757 F.3d 249, 272
(5th Cir. 2014)
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Test for Extending Bivens
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Even in a “new context,” Bivens is appropriate unless:
 there is an available alternative remedial scheme which
would adequately compensate the plaintiff;
 Note that the availability of a remedy under the FTCA
does not preclude a Bivens action for the same injury;
thus the FTCA is not an alternative remedial scheme.
 Carlson v. Green, 446 U.S. 14, 19-24 (1980),
and
 special factors do not outweigh Bivens’ deterrent effect.

Wilkie v. Robbins, 551 U.S. 537, 550 (2007)
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Filing Considerations
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Venue: 28 U.S.S. § 1391(b); see e.g., Gonzalez
v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011)
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Statute of limitations: Suit must be brought
within the state limitations period for
personal injury actions where claim arose
 Jury
trial is available
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Defendants
Suit against individual federal agents
 Bivens suits cannot be brought against:
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Agencies:
 FDIC v. Myers, 510 U.S. 471 (1994)
Private correctional facilities under contract with federal
agency:
 Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001)
Public Health Service employees; suits over their
wrongdoing limited to FTCA:
 Hui v. Castaneda, 130 S.Ct. 1845 (2010)
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Unknown Defendants
•
•
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Name unknown officers as “Jane Doe” and
“John Doe”
Pursue early discovery regarding identity
of Doe defendants
Watch the statute of limitations with
respect to identifying Doe defendants
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Pleading Considerations
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Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)
 Allegations in complaint must be plausible
 Must plead with specificity
 Legal conclusions must be supported by factual
allegations
 Do not include “threadbare” recitals of the elements of the
cause of action
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Pleading Sufficiency
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If problem with sufficiency of complaint, can seek leave to
amend; be sure to follow local rules
 Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009)
(affirming district court’s denial of leave to amend where
plaintiff did not comply with local rule requiring plaintiff
to submit proposed amended pleading)
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Immunity of Defendants
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Absolute immunity: judges, legislators, and
prosecutors when acting in official capacity
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Qualified immunity = “good faith” immunity
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Officers only held responsible for violating clearly
established rights.
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Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)
Qualified Immunity is immunity from suit, not
simply immunity from liability
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Qualified Immunity, cont’d.
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Test for Qualified Immunity:
1.
2.
do the alleged facts show a violation of a
constitutional right?
was the constitutional right clearly established?

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Saucier v. Katz, 533 U.S. 194 (2001)
Court may decide step two before step one.
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Pearson v. Callahan, 555 U.S. 223 (2009)
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Qualified Immunity, cont’d.
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Example, excessive force in immigration context:
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Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir.
2006) (No qualified immunity where officer alleged to
have violated the Fourth Amendment by physically
assaulting and arresting noncitizen without provocation)
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Qualified Immunity, cont’d.
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“Cleary established:” Individual officer immune
from damages if constitutional rights were not
“clearly established.”
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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
The factual circumstances need not be identical:
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“fair warning” that the alleged treatment was
unconstitutional.
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Hope v. Pelzer, 536 U.S. 730, 741 (2002)
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Motion to Dismiss Based on
Qualified Immunity
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Because claim to immunity from suit, discovery will be limited
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Alternate discovery strategies:
 Prior to filing suit, file FOIA
 Consider filing FTCA or § 1983 suit before Bivens suit and
conducting discovery through these
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Responding to qualified immunity motions to dismiss:
 Plead specific facts to show violation of constitutional right
 Submit detailed affidavits from plaintiffs and witnesses
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Interlocutory appeal available for denial of qualified immunity.
 Mitchell v. Forsyth, 472 U.S. 511 (1985).
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Supervisory Liability
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No respondeat superior liability
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Supervisor’s liability must be based upon his or her own
action.
 See,
e.g., Chavez v. United States, 683 F.3d
1102, 1110 (9th Cir. 2013)
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Relief
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Compensatory and punitive damages are available
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Where both FTCA and Bivens claims are brought, a
judgment in FTCA case will bar a Bivens judgment.
 See,
e.g., Manning v. U.S., 546 F 3d 430
(7th Cir. 2008) (FTCA judgment barred
Bivens claim)
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Attorneys’ Fees
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Because suit is against individual officers, no attorneys’
fees under the Equal Access to Justice Act, 28 U.S.C. §
2412, et seq., or section 1988.
State law governs percentage of recovery in contingency
fee cases
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Helpful Resources
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NIPNLG-NPAP Accountability Mentoring Program
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NIPNLG FTCA FAQ Practice Advisory for Immigration
Attorneys
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Sample Claim Letters and Complaints
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Sample Fee Agreements
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Amicus Support
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Damages trainings / materials
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Police Misconduct Law and Litigation (Avery, Rudovsky, Blum)
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Q&A
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Upcoming Damages Webinars
Wednesday, OCT. 22nd
FTCA PART II - DISTRICT COURT
Jonathan Feinberg and Javier Maldonado
Thursday, OCT. 30th
§ 1983 ACTIONS
Justin Cox and Sunita Patel
nipnlg.org
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