For the symposium on James Pfander, Constitutional Torts together with the War on Terror.
I appreciate the chance to bring together such a distinguished grouping of scholars inward commenting on Jim Pfander’s mass “Constitutional Torts together with the War on Terror.” In his book, Jim does a fantastic chore explaining how courts own got strayed farther together with farther from adjudicating the merits of constitutional challenges to executive actions taken inward what is colloquially referred to every bit the “war on terror” (what constitutes terrorism is contested together with political together with sometimes tinged amongst Islamophobia). Jim’s descriptive concern human relationship of the employment is, for the most part, right on target -- many individuals caught upward inward the national security reply to terrorist threats over the past times fifteen years own got suffered serious harms, together with real few of them own got obtained a remedy or fifty-fifty a hearing. And his prescriptive solutions are provocative together with movement us inward the right direction. My concern is that they may await also much of both judges together with litigants, for reasons I volition explain.
I desire to commence amongst ane riddle that is inward many ways at the center of the employment Jim painstakingly describes inward his book: the apparent conflict betwixt the Supreme Court’s Guantanamo habeas cases (putting limits on executive action) together with its Bivens national security cases (failing to abide by or enforce a remedy for executive misconduct). This is a riddle to hold upward solved, together with Jim suggests (at pp. 87-89) many plausible solutions, but I would also hold upward careful non to overstate the apparent tension.
First, it is worth noting that inward the habeas cases, the Court vindicated its ain role inward passing on the lawfulness of executive conduct; Congress together with the Executive had sought to shipping away the Court, together with inward the Guantanamo cases the Court reasserted itself. In the Bivens context, however, the Court is its ain governor – rather than responding to threats from the other branches, the Court is policing itself together with the lower courts.
Second, I am non certainly the contrast is every bit stark every bit Jim suggests. Jim reads Ashcroft v. Iqbal, 556 U.S.A. 662 (2009), to innovate greater instability inward the police line than I intend is deserved (full disclosure: amongst co-counsel, I litigated the representative from its inception on behalf of the plaintiffs; I am no fan of the decision). Iqbal was never nearly the availability of a Bivens remedy for the abuses suffered past times the plaintiff (so when Jim says at p. 106 that the Court did non own got “good briefing” inward Iqbal on the number of legislative ratification of the Bivens remedy, that is because no political party disputed Mr. Iqbal’s entitlement to usage Bivens to essay damages for his mistreatment). And Iqbal has non sub silentio overruled Gomez v. Toledo, 446 U.S.A. 635 (1980), which established that qualified immunity is an affirmative defense. Indeed, I know of no lower courtroom that has, since Iqbal, held that qualified immunity is no longer an affirmative defense, allow lone relied on Iqbal for that proposition.
Iqbal was nearly pleading, non qualified immunity (defendants raised together with lost on qualified immunity inward the lower courts but inward calorie-free of Twombly strategically turned to pleading at the cert stage). In addressing the pleading issues, Iqbal did non limited hostility to *all* damages claims arising from executive activity inward the national security space. The Court was clearly troubled past times allegations of abuse together with mistreatment directed against lower degree officials (officials who were non earlier the Court). And every bit to Messrs. Ashcroft together with Mueller, the Court stated that it would own got found dismissal inappropriate if it had found that discriminatory intent had been adequately pleaded past times the plaintiff. Thus, Iqbal appeared to contemplate Bivens damages claims against federal officials, fifty-fifty inward the national security space. Indeed, both earlier the Court’s determination inward Iqbal together with subsequently the decision, plaintiffs inward the representative received substantial settlements from the Government (similarly, inward Ashcroft v. al-Kidd, 563 U.S.A. 731 (2011), some other inward the occupation of Bivens national security cases, the plaintiff received a monetary short town together with a alphabetic lineament of regret).
To hold upward fair, nosotros volition know the best reading of Iqbal subsequently the Court issues a determination inward Ziglar v. Abbasi (another disclosure: I am on the squad of attorneys representing the plaintiffs inward the Supreme Court). That representative straight presents the availability of Bivens remedies (and has briefing devoted to the legislative ratification point), qualified immunity issues, together with pleading, a veritable trifecta of opportunities for mischief.
All that said, Jim is of course of report right that plaintiffs inward these cases own got almost never obtained a remedy for mistreatment, together with courts own got non fifty-fifty opined on the constitutionality of challenged action, avoiding the inquiry past times finding Bivens remedies unavailable, finding damages claims barred past times qualified immunity, or whatever other number of dodges. Jim wants to revive the judicial role inward declaring law, together with I desire to focus my attending on 2 of his prescriptions: (1) revising Bivens jurisprudence; together with (2) leveraging nominal damages claims every bit a agency to avoid qualified immunity.
Jim’s arguments nearly a revision of Bivens jurisprudence are compelling, but I worry that making Bivens aspect to a greater extent than similar the mutual police line adjudication Jim describes (with less concern for context together with to a greater extent than focus on primal illegality) is a elevator also heavy to overcome. Jim’s vision for Bivens is to a greater extent than expansive than fifty-fifty that contemplated during the “heady days” of implied causes of action. When Carlson v. Green, 446 U.S.A. fourteen (1980) was decided, the majority, consisting of Justices Blackmun, Marshall, Stevens, White, together with Brennan considered “special factors” earlier final that a Bivens claim would prevarication for Eighth Amendment violations. Justices Powell together with Stewart complained that the bulk gave also much discretion to federal courts to create a drive of action, but concurred inward the judgment because they believed that inward Carlson at that spot were practiced reasons for extending Bivens.
By the fourth dimension the Court decided Bush v. Lucas, 462 U.S.A. 367 (1983) together with Chappell v. Wallace, 462 U.S.A. 296 (1983), Justice Stewart had retired, replaced past times Justice O’Connor, but otherwise the Court remained the same. And yet at that spot were no dissenters from either decision, which began the long occupation of cases refusing to extend Bivens. In Bush, the solely hint of disagreement was from Justice Marshall’s concurrence (joined past times Justice Blackmun), which clarified that no Bivens remedy was appropriate because Congress, piece non providing a fully compensatory remedy, had provided an adequate substitute. And Chappell was unanimous, fifty-fifty though the Court acknowledged that no damages remedy existed at all for the constitutional violations alleged. This suggests that for Jim’s Bivens jurisprudence to emerge, it would probable own got a radical transformation of the Court.
But maybe the Court volition concealment Jim’s argumentation together with revise Bivens. That leaves Jim’s proposal that litigants inward national security Bivens cases essay solely nominal damages hence every bit to cutting off the defendant’s access to qualified immunity. This proposal is of import to Jim because, subsequently Pearson v. Callahan, 555 U.S.A. 223 (2009), non solely does qualified immunity serve every bit a barrier to plaintiffs seeking damages, but it also is a agency for courts to avoid deciding the core of the law. Jim candidly acknowledges it is far from certainly that pleading solely nominal damages volition enable a plaintiff to duck qualified immunity. In fact, at that spot are practiced reasons to intend that a claim for nominal damages would still own got to overcome a qualified immunity defense. The purpose of qualified immunity is non only to protect a accused from liability, but from adapt itself together with the consequences that time period therefrom, including discovery. A claim for nominal damages implicates these concerns no less than a claim for substantial compensatory damages. My quick survey of the representative police line suggests that every circuit to consider the inquiry has concluded that qualified immunity remains available fifty-fifty when the plaintiff seeks solely nominal damages. Although it is unconsidered dicta, inward 2 cases the Supreme Court appeared to abide by unremarkable the suggestion that qualified immunity could bar a claim for nominal damages.
But let’s assume that courts come upward some to Jim’s dot of persuasion together with create upward one's hear that qualified immunity is non a bar to nominal damages claims. This still begs the inquiry of what nosotros enquire of plaintiffs inward national security cases nether Jim’s proposal. And when I considered it, I could non assist but intend dorsum to my start federal civil rights trial, which I conducted iii weeks subsequently graduating from police line school, through NYU’s Civil Rights Clinic. My hospital partner together with I represented a prisoner who had been beaten past times corrections officers. When the verdict came in, the jury start announced that they had found ane of the defendants had used excessive force. Then they awarded damages of ane dollar.
My initial, naïve, reaction was that this was a victory: the jury had believed our customer instead of a corrections officeholder was an affirmation. But then, subsequently reflecting together with speaking amongst my client, the deeper truth came through: the damages “award” signified that our customer only did non count. His hurting together with suffering did non affair to the jury.
In the service of developing the law, this is the result to which Jim’s proposal would relegate successful plaintiffs inward national security Bivens cases: they tin bathroom hold upward told that their suffering is worth, literally, nothing. Indeed, if the plaintiff were seeking nominal damages from the get-go, trial would non fifty-fifty hold upward a house for defendants to own got to human face the human terms of their actions, because prove nearly the actual harms suffered past times the plaintiff would non hold upward relevant to a claim for nominal damages. I know Jim does non believe their suffering is worth nothing. The inquiry I own got is whether his proposal sufficiently accounts for the terms to would-be claimants.
Plaintiffs inward these cases already own got borne the brunt of the costs of the “war on terror.” In the advert of “our” safety, “our” security, thousands (and maybe tens of thousands) of people own got suffered mistreatment that may hold upward actionable. Their solely recourse inward most cases is a damages remedy, which volition never fully compensate for their injuries. Already they own got been compelled to give a slice of themselves inward service of the greater good. Qualified immunity doctrine industrial plant a mo cast of redistribution. For those whose rights were violated past times officials acting reasonably but unlawfully, or for those whose rights were violated when it mightiness non own got been obvious that the police line prohibited the unlawful conduct, at that spot is no remedy. Qualified immunity contemplates that people who own got had their rights violated ane time inward theoretical service of the greater practiced volition own got their remedies sacrificed inward the service of the public. And Jim’s proposal, past times forcing claimants to surrender the damages claim that would trigger qualified immunity, functionally does the piece of work of the doctrine without courts having to human face the consequences.
I am skeptical that the create goodness volition outweigh these costs. Space prevents my going into greater item nearly my skepticism, but I concede it is an empirical question. If nosotros are going to enquire claimants to surrender fifty-fifty remote possibilities of seeking a mensurate of justice together with compensation, I would prefer greater certainty that the game is worth the candle.
Alex Reinert is Professor of Law together with Director, Center for Rights together with Justice at the Benjamin N. Cardozo School of Law. You tin bathroom accomplish him past times e-mail at areinert at yu.edu.
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