BIVENS v. SIX UNKNOWN NAMED AGENTS OF THE FEDERAL BUREAU OF NARCOTICS 403 U.S. 388 (1971)

This is the leading case concerning implied rights of action under the Constitution. Federal agents conducted an unconstitutional search of Webster Bivens's apartment. Bivens brought an action in federal court seeking damages for a fourth amendment violation. Although no federal statute supplied Bivens with a cause of action, the Supreme Court, in an opinion by Justice william j. brennan, held that Bivens could maintain that action.

Two central factors led to the decision. First, violations of constitutional rights ought not go unremedied. The traditional remedy, enjoining unconstitutional behavior, plainly was inadequate for Bivens. And the Court was unwilling to leave Bivens to the uncertainties of state tort law, his principal alternative source of action. Second, the implied constitutional cause of action makes federal officials as vulnerable as state officials for constitutional mis-behavior. Prior to Bivens, state officials were subject to suits under section 1983, title 42, united states code, for violating individuals' constitutional rights. An action against federal officials had to be inferred in Bivens only because section 1983 is inapplicable to federal officials.

Both factors emerged again in later cases. davis v. passman (1979) recognized an implied constitutional cause of action for claims brought under the Fifth Amendment, and Carlson v. Green (1980) extended Bivens to other constitutional rights. butz v. economou (1978) extended to federal officials the good faith defense that state officials enjoy under section 1983.

Bivens raises important questions about the scope of federal judicial power. Chief Justice warren e. burger and Justices hugo l. black and harry blackmun dissented on the ground that Congress alone may authorize damages against federal officials. The majority, and Justice john marshall harlan in a concurring opinion, required no congressional authorization. But they left open the possibility that Congress might have the last word in the area through express legislation.

Theodore Eisenberg
(1986)