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Asking the First Question: Reframing Bivens after Minneci

35 Pages Posted: 19 Apr 2012  

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

Lumen N. Mulligan

University of Kansas Law School

Date Written: April 18, 2012

Abstract

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, the opinion destroys Bivens’ long-established parallelism with 42 U.S.C. § 1983 actions, where suits against privately employed individuals are allowed. Additionally, it creates asymmetries between the constitutional liability faced by privately and federally employed prison employees. More significantly, it conflicts with congressional intent as expressed in the Westfall Act, which codified the Bivens remedy in 1988, by conflating two distinct questions: whether a suit requires the courts to extend Bivens jurisprudence to a new context and whether, assuming an extension is necessary, such an extension is warranted. This piece offers the only full discussion to date of the importance of this “first question” to the Bivens canon. We end this Article by offering several strategies for limiting Minneci’s impact and for returning Bivens jurisprudence to its separation-of-powers roots.

Keywords: federal courts, constitutional law, inferred cause of action, Bivens, Eighth Amendment, 42 U.S.C. s 1983, civil rights action

Suggested Citation

Reinert, Alex and Mulligan, Lumen N., Asking the First Question: Reframing Bivens after Minneci (April 18, 2012). Washington University Law Review, Vol. 90, 2013. Available at SSRN: https://ssrn.com/abstract=2042175

Alexander A. Reinert (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Lumen N. Mulligan

University of Kansas Law School ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9219 (Phone)

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