In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than as a bug. But, to date, there has been no empirical examination of who pays when Bivens claims succeed.
This Article studies the financial threat that successful Bivens claims pose to federal officers and their employing federal agency. Information supplied by the Federal Bureau of Prisons in response to a Freedom of Information Act request identified successful Bivens actions over a ten-year period; in the vast majority of cases (over 95%), individual defendants contributed no personal resources to the resolution of the claims. Nor did the responsible federal agency pay the claims through indemnification. The data suggest, in short, that recent hostility to Bivens litigation rests on a perceived threat of personal liability that is much more theoretical than real. The data also raise important questions about the adequacy of existing constitutional remedies and the manner in which the Department of Justice exercises its settlement authority under the Federal Tort Claims Act and the Judgment Fund.
* James E. Pfander is the Owen L. Coon Professor of Law, Northwestern Pritzker School of Law; Alexander A. Reinert is the Max Freund Professor of Litigation & Advocacy and the Director of the Center for Rights and Justice, Benjamin N. Cardozo School of Law; and Joanna C. Schwartz is a Professor of Law, UCLA School of Law.
We thank Dick Fallon, Paul Figley, Greg Sisk, and participants in faculty workshops at the Northwestern Pritzker School of Law and the Benjamin N. Cardozo School of Law for comments on early drafts. We are also grateful to Wade Formo for able research assistance, and to Ethan Amaker, Hannah Begley, Nicole Collins, Lori Ding, Nathan Lange, Elizabeth Reetz, Aletha Smith, Gregory Terryn, Reid Whitaker, and the editors of the Stanford Law Review for excellent editorial assistance.