Damages Claims (Update to Damages)

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DAMAGES CLAIMS (Update to Damages)

At least since marbury v. madison was decided in 1803, it has been understood that the United States Constitution is law, enforceable by courts and superior in status to legislation. In some surprising particulars, however, exactly what that means is far from clear. Since the early 1970s a good deal of both judicial and academic attention has been focused on the propriety of recognizing what are called constitutional damages claims. Compensatory and punitive actions based directly on the Constitution raise significant questions concerning the role of the judiciary in the American system of govenment. The Supreme Court's response to the tensions presented by the creation of constitutional damages actions has been a complex and confusing one.

The Constitution has traditionally been enforced through a variety of remedial mechanisms. Marbury's embrace of judicial review itself adopts a constitutional enforcement measure—a "negative" judicial authority to ignore statutes that conflict with the terms of the Constitution. Since osborn v. bank of the united states was decided in 1824, injunctions have been used to prevent government officials from engaging in future constitutional violations. In this century, the judiciary's equitable enforcement powers have been stretched to include certain nontraditional remedies, such as the exclusion of relevant evidence in criminal trials and the busing of school children in desegregation cases.

On one level, lawsuits seeking monetary compensation for the violation of constitutional rights are commonplace. section 1983, title 42, u. s. code, creates an action at law for constitutional injuries sustained at the hands of persons acting "under color" of state or local authority. Public employees terminated unconstitutionally by state agencies, the victims of unlawful arrests, persons subjected to discrimination prohibited by the fourteenth amendment, and myriad other plaintiffs have successfully recovered money damages from state and local officials in constitutional causes of action based on section 1983.

There is, however, no counterpart to section 1983 for federal officials. If, for example, an FBI agent or a treasury officer exceeds the strictures of the fourth amendment, any damage claim instigated by the victim must be rooted directly in the Constitution. The general federal-question jurisdictional statute (28 U.S.C. 1331) empowers the united states district courts to entertain cases arising under the Constitution. But no statutory directive explicitly creates a cause of action for money damages. And the power of federal judges to infer such claims from the sparse language of the constitutional charter has proven a matter of considerable complexity.

In bivens v. six unknown named agents, decided in 1971, the Supreme Court held for the first time that federal officials can be sued for damages under the Fourth Amendment. Bivens, allegedly without probable cause, had been "manacled … in front of his wife and children" while federal officials threatened to "arrest the entire family." The Court concluded that the "injuries consequent" to an illegal search provide the basis for an "independent claim both necessary and sufficient to make out … [a] cause of action." The Bivens case thus seemed to open the door to the recognition of a full complement of constitutional damage claims.

To a significant degree, however, Bivens 's promise has remained unfulfilled. The decision determined that the Fourth Amendment is directly enforceable against federal officials through damage decrees. It was silent, however, about other provisions of the bill of rights. In the decade following the ruling, the Supreme Court held that the implied antidiscrimination component of the Fifth Amendment (davis v. passman (1979)) and the cruel and unusual punishments prohibition of the Eighth Amendment (Carlson v. Green, 1980) would sustain damages actions. But in Stanley v. Lucas (1987), the Justices determined that a former serviceman could not assert a constitutional damage claim against the armed forces for being involuntarily subjected to LSD testing—in apparent violation of the due process clause of the Fifth Amendment. And other decisions have disapproved free speech (Bush v. Lucas, 1983) and procedural due process (Schweiker v. Chilicky, 1988) claims lodged against federal officials.

The set of principles that guide the Supreme Court's constitutional damages claims cases is, in several aspects, surprising. According to Carlson v. Green, victims of individualized constitutional violations by federal officials are said to "have a right to recover damages … in federal court despite the absence of any statute conferring such a right." The action may be defeated, however, in two instances. First, relief will be denied if the government official demonstrates the existence of "special factors counselling hesitation in the absence of affirmative action by Congress." Second, the constitutional claim will fail if Congress, by providing an alternative remedy or by clear legislative directive, has indicated that judicial power should not be exercised. "Special factors" have been found to exist in the military and civil service contexts, and more recently, intricate statutory schemes like the social security system have been deemed adequate substitutes for constitutional review.

It is unusual, of course, for exercises in constitutional interpretation—like Bivens itself—to be effectively overturned or displaced by congressional enactment. Marbury v. Madison would seem to argue otherwise. Nor is it commonplace for the Court openly to admit that constitutional violations will be remedied unless "special factors" counsel against enforcement. Chief Justice john marshall argued in cohens v. virginia (1821), for example, that "we have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given."

Damages actions are typically either created by statute or, if fashioned through the common law process, subject to legislative revision or rejection. Bivens-type cases occupy a hazy middle ground between traditional constitutional interpretations and common law adjudication. It is perhaps not surprising, therefore, that the decisions are riddled with compromise as well.

Gene R. Nichol
(1992)