Correctional Services Corporation v. Malesko/Dissent Stevens

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

In ''Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Court affirmatively answered the question that it had reserved in Bell v. Hood'', 327 U.S. 678 (1946): whether a violation of the Fourth Amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” 403 U.S., at 389 (emphasis added). Nearly a decade later, in Carlson v. Green, 446 U.S. 14 (1980), we held that a violation of the Eighth Amendment by federal prison officials gave rise to a Bivens remedy despite the fact that the plaintiffs also had a remedy against the United States under the Federal Tort Claims Act (FTCA). We stated: “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” 446 U. S., at 18 (emphasis added).

In subsequent cases, we have decided that a Bivens remedy is not available for every conceivable constitutional violation. We have never, however, qualified our holding that Eighth Amendment violations are actionable under Bivens. See Farmer v. Brennan, 511 U.S. 825 (1994); McCarthy v. Madigan, 503 U.S. 140 (1992). Nor have we ever suggested that a category of federal agents can commit Eighth Amendment violations with impunity.

The parties before us have assumed that respondent’s complaint has alleged a violation of the Eighth Amendment. The violation was committed by a federal agent–a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government. Thus, the question presented by this case is whether the Court should create an exception to the straightforward application of Bivens and Carlson, not whether it should extend our cases beyond their “core premise,” ante, at 9. This point is evident from the fact that prior to our recent decision in FDIC v. Meyer, 510 U.S. 471 (1994), the Courts of Appeals had consistently and correctly held that corporate agents performing federal functions, like human agents doing so, were proper defendants in Bivens actions.

Meyer, which concluded that federal agencies are not suable under Bivens, does not lead to the outcome reached by the Court today. In that case, we did not discuss private corporate agents, nor suggest that such agents should be viewed differently from human ones. Rather, in Meyer, we drew a distinction between “federal agents” and “an agency of the Federal Government,” 510 U. S., at 473. Indeed, our repeated references to the Federal Deposit Insurance Corporation’s (FDIC) status as a “federal agency” emphasized the FDIC’s affinity to the federal sovereign. We expressed concern that damages sought directly from federal agencies, such as the FDIC, would “creat[e] a potentially enormous financial burden for the Federal Government.” Id., at 486. And it must be kept in mind that Meyer involved the FDIC’s waiver of sovereign immunity, which, had the Court in Meyer recognized a cause of action, would have permitted the very sort of lawsuit that Bivens presumed impossible: “a direct action against the Government.” 510 U.S., at 485.4

Moreover, in Meyer, as in Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v. Chilicky, 487 U.S. 412 (1988), we were not dealing with a well-recognized cause of action. The cause of action alleged in Meyer was a violation of procedural due process, and as the Meyer Court noted, “a Bivens action alleging a violation of the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in others.” 510 U.S., at 484, n. 9. Not only is substantive liability assumed in the present case, but respondent’s Eighth Amendment claim falls in the heartland of substantive Bivens claims.

Because Meyer does not dispose of this case, the Court claims that the rationales underlying Bivens–namely, lack of alternative remedies and deterrence–are not present in cases in which suit is brought against a private corporation serving as a federal agent. However, common sense, buttressed by all of the reasons that supported the holding in Bivens, leads to the conclusion that corporate agents should not be treated more favorably than human agents.

First, the Court argues that respondent enjoys alternative remedies against the corporate agent that distinguish this case from Bivens. In doing so, the Court characterizes Bivens and its progeny as cases in which plaintiffs lacked “any alternative remedy,” ante, at 8. In Bivens, however, even though the plaintiff’s suit against the Federal Government under state tort law may have been barred by sovereign immunity, a suit against the officer himself under state tort law was theoretically possible. Moreover, as the Court recognized in Carlson, Bivens plaintiffs also have remedies available under the FTCA. Thus, the Court is incorrect to portray Bivens plaintiffs as lacking any other avenue of relief, and to imply as a result that respondent in this case had a substantially wider array of non-Bivens remedies at his disposal than do other Bivens plaintiffs. If alternative remedies provide a sufficient justification for closing the federal forum here, where the defendant is a private corporation, the claims against the individual defendants in Carlson, in light of the FTCA alternative, should have been rejected as well.

It is ironic that the Court relies so heavily for its holding on this assumption that alternative effective remedies–primarily negligence actions in state court–are available to respondent. See ante, at 10—12. Like Justice Harlan, I think it “entirely proper that these injuries be compensable according to uniform rules of federal law, especially in light of the very large element of federal law which must in any event control the scope of official defenses to liability.” Bivens, 403 U.S., at 409 (opinion concurring in judgment). And aside from undermining uniformity, the Court’s reliance on state tort law will jeopardize the protection of the full scope of federal constitutional rights. State law might have comparable causes of action for tort claims like the Eighth Amendment violation alleged here, see ante, at 10—11, but other unconstitutional actions by prison employees, such as violations of the Equal Protection or Due Process Clauses, may find no parallel causes of action in state tort law. Even though respondent here may have been able to sue for some degree of relief under state law because his Eighth Amendment claim could have been pleaded as negligence, future plaintiffs with constitutional claims less like traditional torts will not necessarily be so situated.

Second, the Court claims that the deterrence goals of Bivens would not be served by permitting liability here. Ante, at 8—9 (citing Meyer). It cannot be seriously maintained, however, that tort remedies against corporate employers have less deterrent value than actions against their employees. As the Court has previously noted, the “organizational structure” of private prisons “is one subject to the ordinary competitive pressures that normally help private firms adjust their behavior in response to the incentives that tort suits provide–pressures not necessarily present in government departments.” Richardson v. McKnight, 521 U.S. 399, 412 (1997). Thus, the private corporate entity at issue here is readily distinguishable from the federal agency in Meyer. Indeed, a tragic consequence of today’s decision is the clear incentive it gives to corporate managers of privately operated custodial institutions to adopt cost-saving policies that jeopardize the constitutional rights of the tens of thousands of inmates in their custody.

The Court raises a concern with imposing “asymmetrical liability costs on private prison facilities,” ante, at 10, and further claims that because federal prisoners in Government-run institutions can only sue officers, it would be unfair to permit federal prisoners in private institutions to sue an “officer’s employer,” ibid. Permitting liability in the present case, however, would produce symmetry: both private and public prisoners would be unable to sue the principal (i.e., the Government), but would be able to sue the primary federal agent (i.e., the government official or the corporation). Indeed, it is the Court’s decision that creates asymmetry–between federal and state prisoners housed in private correctional facilities. Under 42 U.S.C. § 1983 a state prisoner may sue a private prison for deprivation of constitutional rights, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 936—937 (1982) (permitting suit under §1983 against private corporations exercising “state action”), yet the Court denies such a remedy to that prisoner’s federal counterpart. It is true that we have never expressly held that the contours of Bivens and §1983 are identical. The Court, however, has recognized sound jurisprudential reasons for parallelism, as different standards for claims against state and federal actors “would be incongruous and confusing.” Butz v. Economou, 438 U.S. 478, 499 (1978) (internal quotation marks omitted); cf. Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government”). The value of such parallelism was in fact furthered by Meyer, since §1983 would not have provided the plaintiff a remedy had he pressed a similar claim against a state agency.

It is apparent from the Court’s critical discussion of the thoughtful opinions of Justice Harlan and his contemporaries, ante, at 5, and n. 3, and from its erroneous statement of the question presented by this case as whether Bivens “should be extended” to allow recovery against a private corporation employed as a federal agent, ante, at 1, that the driving force behind the Court’s decision is a disagreement with the holding in Bivens itself. There are at least two reasons why it is improper for the Court to allow its decision in this case to be influenced by that predisposition. First, as is clear from the legislative materials cited in Carlson, 446 U.S., at 19—20, see also ante, at 6, Congress has effectively ratified the Bivens remedy; surely Congress has never sought to abolish it. Second, a rule that has been such a well-recognized part of our law for over 30 years should be accorded full respect by the Members of this Court, whether or not they would have endorsed that rule when it was first announced. For our primary duty is to apply and enforce settled law, not to revise that law to accord with our own notions of sound policy.

I respectfully dissent.