For the symposium on James Pfander, Constitutional Torts and the War on Terror.
I appreciate the opportunity to join such a
distinguished group of scholars in commenting on Jim Pfander’s book
“Constitutional Torts and the War on Terror.”
In his book, Jim does a fantastic job explaining how courts have strayed
further and further from adjudicating the merits of constitutional challenges
to executive actions taken in what is colloquially referred to as the “war on
terror” (what constitutes terrorism is contested and political and sometimes
tinged with Islamophobia). Jim’s
descriptive account of the problem is, for the most part, right on target --
many individuals caught up in the national security response to terrorist
threats over the past 15 years have suffered serious harms, and very few of
them have obtained a remedy or even a hearing.
And his prescriptive solutions are provocative and move us in the right
direction. My concern is that they may
expect too much of both judges and litigants, for reasons I will explain.
I want to begin with one riddle that is in many ways
at the heart of the problem Jim painstakingly describes in his book: the
apparent conflict between the Supreme Court’s Guantanamo habeas cases (putting
limits on executive action) and its Bivens
national security cases (failing to find or enforce a remedy for executive
misconduct). This is a riddle to be
solved, and Jim suggests (at pp. 87-89) many plausible solutions, but I would
also be careful not to overstate the apparent tension.
First, it is worth noting that in the habeas cases,
the Court vindicated its own role in passing on the lawfulness of executive
conduct; Congress and the Executive had sought to displace the Court, and in
the Guantanamo cases the Court reasserted itself. In the Bivens
context, however, the Court is its own governor – rather than responding to
threats from the other branches, the Court is policing itself and the lower
courts.
Second, I am not sure the contrast is as stark as Jim
suggests. Jim reads Ashcroft v. Iqbal, 556 U.S. 662 (2009), to introduce greater
instability in the law than I think is deserved (full disclosure: with
co-counsel, I litigated the case from its inception on behalf of the
plaintiffs; I am no fan of the decision).
Iqbal was never about the
availability of a Bivens remedy for
the abuses suffered by the plaintiff (so when Jim says at p. 106 that the Court
did not have “good briefing” in Iqbal
on the issue of legislative ratification of the Bivens remedy, that is because no party disputed Mr. Iqbal’s
entitlement to use Bivens to seek
damages for his mistreatment). And Iqbal has not sub silentio overruled Gomez v. Toledo, 446 U.S. 635 (1980), which
established that qualified immunity is an affirmative defense. Indeed, I know of no lower court that has,
since Iqbal, held that qualified
immunity is no longer an affirmative defense, let alone relied on Iqbal for that proposition.
Iqbal was about pleading, not qualified immunity (defendants raised and lost on
qualified immunity in the lower courts but in light of Twombly strategically turned to pleading at the cert stage). In addressing the pleading issues, Iqbal did not express hostility to *all*
damages claims arising from executive action in the national security
space. The Court was clearly troubled by
allegations of abuse and mistreatment directed against lower level officials
(officials who were not before the Court).
And as to Messrs. Ashcroft and Mueller, the Court stated that it would
have found dismissal inappropriate if it had found that discriminatory intent
had been adequately pleaded by the plaintiff. Thus, Iqbal appeared to
contemplate Bivens damages claims
against federal officials, even in the national security space. Indeed, both before the Court’s decision in Iqbal and after the decision, plaintiffs
in the case received substantial settlements from the Government (similarly, in
Ashcroft v. al-Kidd, 563 U.S. 731
(2011), another in the line of Bivens
national security cases, the plaintiff received a monetary settlement and a
letter of regret).
To be fair, we will know the best reading of Iqbal after the Court issues a decision
in Ziglar v. Abbasi (another
disclosure: I am on the team of attorneys representing the plaintiffs in the
Supreme Court). That case directly
presents the availability of Bivens
remedies (and has briefing devoted to the legislative ratification point),
qualified immunity issues, and pleading, a veritable trifecta of opportunities
for mischief.
All that said, Jim is of course correct that
plaintiffs in these cases have almost never obtained a remedy for mistreatment,
and courts have not even opined on the constitutionality of challenged action,
avoiding the question by finding Bivens
remedies unavailable, finding damages claims barred by qualified immunity, or
any other number of dodges. Jim wants
to revive the judicial role in declaring law, and I want to focus my attention on
two of his prescriptions: (1) revising Bivens
jurisprudence; and (2) leveraging nominal damages claims as a way to avoid
qualified immunity.
Jim’s arguments about a revision of Bivens jurisprudence are compelling, but
I worry that making Bivens look more
like the common law adjudication Jim describes (with less concern for context
and more focus on fundamental illegality) is a lift too heavy to overcome. Jim’s vision for Bivens is more expansive than even that contemplated during the “heady
days” of implied causes of action. When Carlson v. Green, 446 U.S. 14 (1980) was
decided, the majority, consisting of Justices Blackmun, Marshall, Stevens,
White, and Brennan considered “special factors” before concluding that a Bivens claim would lie for Eighth Amendment
violations. Justices Powell and Stewart
complained that the majority gave too much discretion to federal courts to
create a cause of action, but concurred in the judgment because they believed
that in Carlson there were good
reasons for extending Bivens.
By the time the Court decided Bush v. Lucas, 462 U.S. 367 (1983) and Chappell v. Wallace, 462 U.S. 296 (1983), Justice Stewart had
retired, replaced by Justice O’Connor, but otherwise the Court remained the
same. And yet there were no dissenters
from either decision, which began the long line of cases refusing to extend Bivens.
In Bush, the only hint of
disagreement was from Justice Marshall’s concurrence (joined by Justice
Blackmun), which clarified that no Bivens
remedy was appropriate because Congress, while not providing a fully compensatory
remedy, had provided an adequate substitute.
And Chappell was unanimous,
even 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 likely take a radical transformation of the
Court.
But maybe the Court will embrace Jim’s argumentation
and revise Bivens. That leaves Jim’s proposal that litigants in
national security Bivens cases seek only
nominal damages so as to cut off the defendant’s access to qualified immunity. This proposal is important to Jim because,
after Pearson v. Callahan, 555 U.S.
223 (2009), not only does qualified immunity serve as a barrier to plaintiffs
seeking damages, but it also is a way for courts to avoid deciding the
substance of the law. Jim candidly
acknowledges it is far from certain that pleading only nominal damages will enable
a plaintiff to duck qualified immunity. In
fact, there are good reasons to think that
a claim for nominal damages would still have to overcome a qualified immunity
defense. The purpose of qualified
immunity is not simply to protect a defendant from liability, but from suit
itself and the consequences that flow 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
case law suggests that every circuit to consider the question has concluded
that qualified immunity remains available even when the plaintiff seeks only
nominal damages. Although it is
unconsidered dicta, in two cases the Supreme Court appeared to find
unremarkable the proposition that qualified immunity could bar a claim for
nominal damages.
But let’s
assume that courts come around to Jim’s point of view and decide that qualified
immunity is not a bar to nominal damages claims. This still begs the question of what we ask
of plaintiffs in national security cases under Jim’s proposal. And when I considered it, I could not help
but think back to my first federal civil rights trial, which I conducted three
weeks after graduating from law school, through NYU’s Civil Rights
Clinic. My clinic partner and I
represented a prisoner who had been beaten by corrections officers. When the verdict came in, the jury first
announced that they had found one of the defendants had used excessive
force. Then they awarded damages of one
dollar.
My initial, naïve, reaction was that this was a victory: the jury had believed our client instead of a
corrections officer was an affirmation. But
then, after reflecting and speaking with my client, the deeper truth came
through: the damages “award” signified that our client simply did not count. His pain and suffering did not matter to the
jury.
In the service of developing the law, this is the
outcome to which Jim’s proposal would relegate successful plaintiffs in
national security Bivens cases: they
can be told that their suffering is worth, literally, nothing. Indeed, if the plaintiff were seeking nominal
damages from the get-go, trial would not even be a place for defendants to have
to confront the human cost of their actions, because evidence about the actual
harms suffered by the plaintiff would not be relevant to a claim for nominal
damages. I know Jim does not believe
their suffering is worth nothing. The
question I have is whether his proposal sufficiently accounts for the cost to
would-be claimants.
Plaintiffs in these cases already have borne the brunt
of the costs of the “war on terror.” In
the name of “our” safety, “our” security, thousands (and perhaps tens of
thousands) of people have suffered mistreatment that may be actionable. Their only recourse in most cases is a
damages remedy, which will never fully compensate for their injuries. Already they have been compelled to give a
piece of themselves in service of the greater good. Qualified immunity doctrine works a second form
of redistribution. For those whose
rights were violated by officials acting reasonably but unlawfully, or for
those whose rights were violated when it might not have been obvious that the
law prohibited the unlawful conduct, there is no remedy. Qualified immunity contemplates that people
who have had their rights violated
once in theoretical service of the greater good will have their remedies sacrificed in the service of
the public. And Jim’s proposal, by
forcing claimants to give up the damages claim that would trigger qualified
immunity, functionally does the work of the doctrine without courts having to
confront the consequences.
I am skeptical that the benefit will outweigh these
costs. Space prevents my going into
greater detail about my skepticism, but I concede it is an empirical
question. If we are going to ask
claimants to give up even remote possibilities of seeking a measure of justice
and compensation, I would prefer greater certainty that the game is worth the
candle.
Alex
Reinert is Professor of Law and Director, Center for Rights and Justice at the Benjamin
N. Cardozo School of Law. You can reach
him by email at areinert at yu.edu.