This is the fifth and last post in a series on The Modest Effect of Minneci v. Pollard on Inmate Litigants, a recent paper of mine that appeared in the Akron Law Review. It was the keynote article in a symposium called Inside America’s Criminal Justice System: The Supreme Court on the Rights of the Accused and the Incarcerated.

In Monday’s post, I introduced the recent Minneci v. Pollard (2012) case, where the Supreme Court limited the civil-rights actions called Bivens actions — for prisoners in federal private prisons. Federal public prisoners can still sue under Bivens, and state prisoners (whether public or private) can sue under § 1983, which is more generous than Bivens. Why do federal private prisoners alone get ill-treated by the Supreme Court in this way? I argue, though, that because of the availability of alternate remedies, Minneci is likely to be less harmful than one might fear.

In Tuesday’s post, I discussed the roadblocks to suing your prison on a tort theory if you’re in a public prison. In Wednesday’s post, I discussed how many of these roadblocks fall away if you’re in a private prison. In Thursday’s post, I explained why the federal and state Prison Litigation Reform Acts probably don’t alter this conclusion much.

Today, I’ll close out by taking the broader view: What does all this tell us about Bivens doctrine? Was Minneci correctly decided? Is Bivens a legitimate line of cases? To what extent should Bivens track § 1983, and to what extent should the regime be the same for public and private prisons? Is the Court wrong to suggest that tort suits, however generous, are an adequate substitute for constitutional litigation?

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None of the material covered in the previous posts implies that Minneci was correctly decided. There are cogent arguments that the Supreme Court has been far too hostile to the Bivens remedy. I have no Grand Theory of Bivens, civil rights litigation, or immunity, but I do tend toward the following views. Fully defending them would require an entirely separate article, but here they are in summary form.


Perhaps federal sovereign immunity is a bad idea, for both ex post compensatory and ex ante deterrence/accountability reasons, though the arguments for both prongs of this argument are far from airtight. However, I also incline to the view that making the federal government pay damages without statutory authorization is probably foreclosed by the Appropriations Clause, which provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” So perhaps the best approach would be, as others have already suggested, a beefed-up Federal Torts Claims Act that would (bypassing individual officers’ defenses like qualified immunity) allow constitutional tort suits directly against the government.

However, even with federal sovereign immunity for damages as a constitutionally mandated baseline, Bivens may still be valid. Liability for officials in their individual capacity really does come out of individual pockets and thus doesn’t implicate the concern that Congress authorize appropriations. Nor is this just a silly fiction: if it’s true that indemnification is near-universal, this is only because government agencies—presumably authorized by Congress—find it almost always advantageous to offer such indemnification as a term of employment. That’s their choice, and indeed, they routinely deny indemnification in some (admittedly rare) cases, like where the employee is being criminally investigated or prosecuted for the same conduct. Individual liability, and individual defenses like qualified immunity, still serve a real purpose, despite the ubiquity of indemnity.

Moreover, despite a common view that Bivens suits are almost universally failures and that qualified immunity is an important bar to recovery, Alexander Reinert has found that Bivens suits are more successful than has previously been supposed, based on a new analysis that takes account of “unpublished case reports and dockets.” According to his analysis, qualified immunity isn’t a very important bar to recovery. If this is so, maybe some form of Bivens all by itself is just fine; revamping the FTCA, as suggested above, might not even be necessary.

How much Bivens, then, do we need? It’s quite plausible that courts have been too stingy with Bivens. Courts have expressed a concern that Bivensis implied without any express congressional authority whatsoever” or that adding “a federal damages remedy to existing avenues of [private-prison] inmate relief might well frustrate a clearly expressed congressional policy” and would be “overreaching”; this decision, courts have said, is “best left for Congress.” But perhaps these concerns are misplaced: it looks as though Congress has already recognized the Bivens remedy in some form. The Westfall Act, enacted in 1988, provides that the FTCA remedy, as well as the possibility of administrative adjustment of claims, “is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter” against the relevant employee, but that this preclusion of other damages actions doesn’t apply to civil actions against government employees for constitutional violations. Congress assumed that civil actions against government employees for constitutional violations exist; therefore, they must exist.

But this reasoning still doesn’t tell us how far the Bivens remedy should extend. After all, some of the retrenchment of Bivens in light of alternative remedies, including Bush v. Lucas (1983) and Schweiker v. Chilicky (1988), had already taken place by the time the Westfall Act was passed. Should Bivens exactly track what the Supreme Court had held by 1988? Or should the Westfall Act instead be read, like the antitrust statutes, as a delegation to the judiciary to continually develop standards for Bivens actions—or perhaps, less ambitiously, just as a recognition that the Supreme Court was in the process of doing so?

Two Parallelisms

Perhaps the best arguments for the optimal scope of Bivens are practical ones. If only to avoid “incongru[ity] and confusi[on],” it seems attractive to maintain the “traditional parallelism” with § 1983 actions, where state law is mostly irrelevant and alternative Congressional remedies can only override § 1983, if at all, to the extent they have been explicitly contemplated by Congress.

This was basically the position taken in Carlson v. Green (1980), where the Court held that Bivens was available for a federal public-prison inmate despite the availability of the FTCA. The Court’s retreat from that part of the Carlson rationale is now quite complete, though other parts of the argument suggest that Carlson itself would come out the same way today: the Carlson Court’s rationale also included the view that FTCA suits aren’t a substitute for Bivens because they aren’t brought against individual officers. (This point only makes sense if we ignore the government’s ability to discipline its individual officers and assume that entity liability has no effect on individual deterrence. But such an assumption is probably wrong.) We might also buy Justice Powell’s argument that the FTCA remedy, because of all the exemptions, “simply is not an adequate remedy.” It’s thus a stretch to say that Carlson has been quietly overruled, but certainly not all of the reasoning holds up well today in light of current doctrine.

Adopting a § 1983-like structure and mostly ignoring alternative remedies would also have the virtue of avoiding contingent debates about whether particular remedies at a particular time are adequate, leaving the choice of remedies instead to the litigant. There are many reasons—some good, some not so good—for preferring Bivens to state law. Maybe litigants (like John Malesko) sometimes choose Bivens because they don’t know any better. Or they may prefer to be in federal court. Or they may want a forum where they can litigate a specifically constitutional value, not to mention the various state-law limitations I’ve discussed earlier. Allowing the litigant to choose frees judges and scholars from having to decide which system is more adequate.

But maintaining the other big parallelism—that between the public and private sectors—is tougher. The Malesko Court noted the desire to maintain such parallelism as a reason against recognizing entity liability under Bivens: federal public prisoners can’t sue the BOP because of sovereign immunity, so neither should federal private prisoners be able to sue the private prison firm. Perhaps. But the Court has already given up on the desire to maintain public-private parallelism: in the § 1983 context, Richardson v. McKnight (1997) denied private prison guards the qualified immunity enjoyed by public guards. Exceptions then built upon exceptions: when a case like Minneci came up in the Fourth Circuit, Judge Wilkinson—assuming that private qualified immunity would likewise be absent under Bivens—used this as an argument against extending Bivens.

More fundamentally, talk about public-private parallelism is somewhat ambiguous, because the public and private sectors work differently as an empirical matter. Without rehashing the private prisons debate, suffice it to say that cost-cutting incentives are strong in the private sector and weak in the public sector, the effectiveness of monitoring can be expected to differ as between the sectors, the presence of competition is different, and so on. Moreover, as this Article has taken pains to show, the background legal regime of the public and private sectors is massively different. Any given legal regime, such as qualified immunity or Bivens, will, accordingly, function differently in the public and private sectors; perhaps it will be necessary in one sector and not in the other. We can maintain parallelism of formal Bivens remedies and end up with a more effective regime in one sector than in another. Or we can seek equal levels of accountability, a different form of “parallelism,” which will require us to vary the availability of Bivens.

Bring in the decisions of the government actors who decide whether to privatize, and the analysis becomes harder still. Suppose, as the Richardson majority suggested, the private sector is more responsive to liability because of the greater flexibility of private business. We thus impose greater liability on the private sector—not because the private sector does worse, but because liability can do greater good there. It could even be (hypothetically) that liability does such a great job in the private sector that quality is substantially better there than in the public sector, where incentives are more sluggish. The result, however, will be that private prisons become more expensive relative to public ones. How will this affect the choice to privatize? If privatization is driven by an overall cost-benefit analysis, the private sector might be chosen despite its higher cost. But if, as Justice Scalia suggests in his Richardson dissent, privatization is primarily driven by cost-saving considerations, the system will wrongly choose the public provider even though the private system has higher quality. There’s thus a potential tradeoff between two kinds of efficiency—efficiency in service provision (which might require more liability) and efficiency in provider selection (which might require less liability).

This was a hypothetical, of course. Many believe that private prisons are worse than public prisons because of harmful cost-cutting incentives; for these people, liability is necessary because private prisons are worse, and so the greater expense of private prisons under Bivens correctly reflects private prisons’ worse performance. My point here is merely that the relative quality of public vs. private prisons is an intensely empirical debate, one that’s unfortunately conducted without a lot of good data; and the debate over proper remedies should be conducted with this in mind.

Why not simply follow the approach I endorsed above for federal-state parallelism? Why not allow more remedies rather than fewer, avoiding contingent debates about the effectiveness of public vs. private, and leaving the choice of remedies to the litigant? Because increasing the cost of state vs. federal incarceration is unlikely to alter the allocation of state vs. federal criminal work, either for better or for worse, so the tradeoff between efficiency in service provision and efficiency in provider selection is unlikely to arise. It’s not logically impossible that voters would support more aggressive federal law enforcement and less aggressive state law enforcement when state incarceration becomes more expensive, but the prospect seems somewhat remote to me. I don’t think the same can be said about increasing the cost of public vs. private incarceration, where cost considerations are very salient.

In short, I’m sympathetic to a robust Bivens doctrine that basically tracks § 1983, but it doesn’t follow that there should be public-private parallelism in either Bivens or § 1983. Perhaps those who feel that private prisons are a blight on the criminal justice system should favor even stricter remedies for the private sector; I myself think private prisons haven’t lived up to their boosters’ expectations, but neither have they been a humanitarian disaster as compared to public prisons. I generally favor robust accountability regimes and am sympathetic to the idea of liability in the prison context, if only to alleviate private prisons’ legitimacy deficit in the public mind, but I do recognize the importance of evaluating whatever accountability mechanisms already exist in deciding whether more are needed. In light of all this, it’s possible that Minneci might have been wrongly decided as a matter of Bivens doctrine, but it was certainly non-crazy.

No Doomsday

Moreover, even if Minneci was wrongly decided, doomsday scenarios about its effect on prisoner rights seem unlikely to materialize.

I doubt that Minneci will “permit a Bivens cause of action to be contracted away by federal entities who outsource their responsibilities to private corporations.” Well, more precisely, Bivens itself can be contracted away, as Minneci shows, but that’s not the same as contracting away accountability. Unless actual, bottom-line accountability is harmed in this way, it’s hard to argue that Minneci will lead to a harmful slippery slope. It’s true that privatization has the potential to mute constitutional accountability and reduce, or even eliminate, liability. But in the prison context, constitutional accountability hasn’t suffered. First, West v. Atkins (1988) made it clear that private doctors providing health-care services at public prisons are state actors. Next, Richardson v. McKnight (1997), assuming that private prisons are state actors, denied qualified immunity to private correctional officers (though it left open the possibility of a good-faith defense). And now, Minneci has denied Bivens remedies in a (substantial) range of private-prison Eighth Amendment cases, but only because of the broad overlap and relative attractiveness of state-law remedies.

Moreover, the Minneci Court left open the possibility that Bivens might survive in other Eighth Amendment cases with no clear tort-law analogues, as, I suppose, in other constitutional areas without tort-law analogues like due process or equal protection or the limited prisoner rights that exist under the Fourth Amendment. (Not that these non-Eighth-Amendment areas necessarily lack a tort analogue: a due process claim stemming from, say, having one’s phone calls with one’s attorney monitored, which happened to Cornelius Peoples, could, at least in Kansas, give rise to an “intrusion upon seclusion” claim.)

The Ninth Circuit panel that the Minneci Court reversed suggested a few such cases: the wanton deprivation of a toilet, personal hygiene items, or physical exercise—or perhaps prolonged exposure to human waste—might rise to the level of an Eighth Amendment violation but might not fit within the Restatement’s focus on physical harm. Some of Wesley Purkey’s claims against his private jailors were also of this sort. For instance, his claims that he was subject to disciplinary action because he filed grievances and helped other inmates do the same might not have been tortious—even though others, like destruction of papers, unsafe shower conditions, and excessive use of force, could fit comfortably into a tort framework. Same with Hawa Abdi Jama and Samson Brown’s claims against the Esmor guards at their INS detention facility: torture, beating, and inadequate medical treatment can fit within tort law; inadequate sanitation and exercise, maybe not. Judge Ebel’s partial dissent in Cornelius Peoples’s case suggests other possibilities: perhaps monitoring attorney calls intrudes upon seclusion, but what if the prison had merely insisted on having a guard and court reporter in the room when Peoples met with his lawyer?

Perhaps Bivens might even survive in a state that at some point lacks meaningful tort protections for private prisoner plaintiffs, though unfortunately Minneci isn’t clear on this.

The Receding Value of Vindication

One can still complain that the labeling matters, and that replacing a constitutional suit with a state-law tort suit doesn’t really “enforce the constitutional norm,” even if they’re equal with respect to compensation and deterrence. Perhaps importing tort rhetoric into the constitutional sphere has harmful effects, whether in the doctrinal sense (by importing doctrines of fault or cost-benefit analysis) or in a more expressive sense (by reconceptualizing the relationship between state and citizen). Or perhaps the issue is just that constitutional tort is a more effective tool against the grand scale of government. “[A]ll causes of action for damages” are not “fungible units,” says the Ninth Circuit; or, as Bivens says, we can’t “treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens”:

[P]ower, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.

But if that’s the theory, the Supreme Court retreated from it long ago, having long recognized that alternative (federal) non-constitutional remedies are sufficient to bar the Bivens action. Michael Wells argues that the modern cases have abandoned seeking vindication as a distinctive constitutional value; vindication is not served by merely providing adequate compensation and deterrence, but requires at least the opportunity to raise and obtain a ruling on one’s constitutional claim. To go that route here would require overruling Schweiker v. Chilicky (1988), where the Social Security appeals process was held sufficient. (In Bush v. Lucas (1983), at least the claimant could raise a constitutional claim to show a violation of the civil-service statutes, so the decision there may be consistent with vindication.)

Minneci underscores, then, that constitutional vindication as a distinct value isn’t considered very important. (Perhaps denying Bivens and relying on alternative, nonconstitutional, remedies can be seen as a limited way for the Court to exercise constitutional avoidance.) I don’t take a position in this Article on whether vindication should be considered important; my point here is narrower, that at least compensation and deterrence values, which are also important, continue to be served.


Minneci can be easily read as fitting within a conservative anti-defendant tradition. But, while the retrenchment of Bivens has often been a conservative project, the partisanship of that move can be overstated: only Justices Marshall and Blackmun dissented in Bush v. Lucas (1983), Chappell v. Wallace (1983) was unanimous, and only Justices Ginsburg and Stevens dissented in Wilkie v. Robbins (2007). This case likewise illustrates how the liberal-conservative divide doesn’t  govern every case: only Justice Ginsburg dissented here, even though Justice Breyer, who agreed with Justice Stevens’s critique of the state-law argument in Malesko, could have joined her, and new Justices Sotomayor and Kagan likewise joined the majority.

It would be interesting to see how the law, or at least the dissent, would have been different if Justice Stevens were still around. Justice Stevens might have continued to press his view that alternative remedies shouldn’t necessarily dispose of a Bivens claim, as well as his more general view that the Court needn’t be sparing with implied rights of action. But, for now, it seems that even the Court’s liberal wing is unwilling to take a strong stand on Bivens.

Moreover, while the case might well have been wrongly decided, and while it presumptively disadvantages federal private prison litigants to some extent in that it removes a cause of action that they might have found attractive, it’s not a disaster for inmate rights. Private-prison inmate litigation will continue in a different form and partly in different venues; the vagaries of state tort law will play a rejuvenated role; and these vagaries may, on balance, be quite positive.