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10/29/2022

Jennifer Mascott & Trent McCotter: Federal Officer Suits by Common Law
Michael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School) & R. Trent McCotter (George Mason University, Antonin Scalia Law School) have posted Egbert v. Boule: Federal Officer Suits by Common Law (Cato Supreme Court Review, 2021-2022) (30 pages) on SSRN.  Here is the abstract: 

This term, the U.S. Supreme Court all but nailed the door shut on one of the modern era’s last remaining vehicles for monetary damages to heap accountability on bad-acting federal officials. In a 5-1-3 decision, the Court rejected the extension of Bivens relief to retaliation and assault claims stemming from a border confrontation.

This may trouble individuals concerned with history. Founding-era evidence suggests that damages suits against federal officers provided an important complement to impeachment as an accountability mechanism outside the hierarchical structure of executive branch direction and command. As scholarship has previously explained, for many decades after the ratification of the U.S. Constitution federal officers faced common-law claims for damages when allegedly engaged in unlawful acts. These common-law suits existed long before Congress established statutory general federal question jurisdiction in 1875. And whereas Congress enacted 42 U.S.C. § 1983 to authorize monetary damages for constitutional violations under color of state law, Congress has enacted no companion act authorizing damages suits for federal officer constitutional violations.

The Court attempted to bring its pragmatic vision of equity to this state/federal asymmetry in 1971 when it held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the text of the Constitution contains an implicit right to monetary damages in the event of a federal violation of individual rights. The pressure on this form of relief intensified in 1988 when Congress enacted the Westfall Act, removing the availability of state common-law remedies for actions by federal officials other than claims alleging constitutional violations. But in the years following Bivens, the Court has repeatedly reconsidered its contours, rejecting a Bivens claim for the 12th time in 40 years this term in Egbert. After Egbert, policymakers and theorists who believe that there is either a constitutional or good governance mandate to ensure that bad federal actors face individual monetary liability must turn to Congress (or to the courts, perhaps less ideally) to revisit the severity of the Westfall Act. Or they must look for other state-law or statutory-driven solutions.

This article delves into the historical role of monetary suits against federal officers to explain how such suits differed structurally in a constitutionally meaningful way from the suits that Bivens authorized, unpacking the separation-of-powers implications of the Court’s rejection of federal judicial creation of damages relief. The Court’s decision in Egbert stands as a retrenchment of 20th-century claims of judicial authority to apply the law as the Court sees fit. As such, the ruling in Egbert ties into the central theme of the 2021-22 Supreme Court Term—which actor has the power to decide. Egbert reaffirmed the scope of congressional authority to decide the contours of federal liability and recovery in federal courts and puts squarely on Congress the future question of whether and to what degree monetary damages recovery must be available against individual federal officials for unconstitutional acts.

Agreed, but as I've argued before, I think the Westfall Act is unconstitutional.  It seems unlikely that the framers would have designed a system in which our protection from abusive federal officers depends on the federal Congress.