Tuesday, May 16, 2017

The Cost of Seeking Legal Clarity

Guest Blogger

Alex Reinert

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

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