Most lawyers have some familiarity with 42 U.S.C. §1983, which provides a private cause of action against state officers who violate, inter alia, the U.S. Constitution. Less familiar, though no less important, is the judicially-created private cause of action against federal officers who violate the Constitution, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens, however, has now sustained a significant blow by the U.S. Supreme Court.

'Bivens'

Bivens had its origin in none other than Marbury v. Madison, which held, inter alia, that where there is a legal right, there must be a remedy: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 1 Cranch 137, 163 (1803). Citing Blackstone, Chief Justice John Marshall observed the “general and indisputable rule, that where there is a legal right, there is also a legal remedy … . [I]t is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress … . The government of the United States has been emphatically termed a government of laws, and not of men. It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id.

As the court held much later in Bell v. Hood, “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” 327 U.S. 678, 684 (1946).