Supreme Court weighs limits on suits against federal officers

Mason was aware of only one Bivens judgment that survived appeal in the last 20 years

The Supreme Court on Monday takes up a dispute over how far the 1971 Bivens decision reaches: whether people can sue federal officers for constitutional violations. Mary Hampton Mason argues the court should overrule Bivens. Supporters of Kekai Watanabe take the opposing position, saying the court should preserve a remedy for holding federal officers and agents accountable.

In the case, a gang riot broke out inside a federal prison in Hawaii in 2021, and Watanabe, now 40, was beaten with a makeshift weapon known as a “lock in a sock.” When he complained of serious back pain, a nurse told him to “stop being a cry baby.” Seven months later, doctors diagnosed a fractured tail bone, and Watanabe sued the nurse, alleging that her treatment violated his Eighth Amendment right against cruel and unusual punishment.

Claims against federal officers already face a demanding legal test. The Supreme Court requires people bringing those claims to show that the facts in their cases are identical to precedent. The landmark federal-prison case dates to 1980, when the prisoner in the lawsuit died from untreated asthma. The nurse’s lawyers say Watanabe survived the gang attack in 2021, so his case is different enough that it should be dismissed.

Watanabe’s claim reaches beyond the prison into American streets, where immigration officers have been accused of beating and running over migrants. Georgetown law professor Steve Vladeck, who filed a friend-of-the-court brief in the case, said the dispute could determine whether federal law enforcement officers can be held to account when they violate constitutional rights. “What’s at stake here is whether, basically, we as a country are going to hold federal law enforcement officers accountable when they violate clearly established constitutional rights,” Vladeck said. “I mean, it really is, I think, that stark.”

Mason, who worked at the Justice Department for nearly 35 years in an office that evaluated such claims, said rogue officers are rare and problems are typically systemic. “It’s a result of agency culture, it’s a result of training, it’s a result of all sorts of things, but these failures are really institutional,” Mason said.

The Supreme Court created a right to sue federal officers for wrongdoing in a 1971 case known as Bivens. Mason said the precedent has been hollowed out for years and the court should finally overrule it because it gives plaintiffs false hope. “In fact in the last 20 years, I’m only aware of one Bivens case that has resulted in a judgment for the plaintiffs that … didn’t get reversed on appeal, and that’s in thousands and thousands and thousands of cases filed,” she said.

Supporters of Watanabe said Mason’s count did not account for settlements or how lawsuits can deter other bad behavior. Their argument is that if individual federal officers and agents can be on the hook financially, they could think twice before breaking the law. “That’s why damages are so important,” said Gregory Cui, an attorney at the MacArthur Justice Center, a civil rights legal organization. “Because they’re a way to try to fix things, to give a person the means to pay for medical care or rebuild his life.”

Cui and other legal experts said the Supreme Court agreed to hear the case at a time when abuses by federal immigration agents and others were in the spotlight.

The same legal experts said now was the wrong time for the court to eliminate one of the few avenues of accountability for errant federal officers.

Vladeck put the stakes in more absolute terms. “A world with no Bivens is a world in which federal law enforcement officers would enjoy absolute immunity, where no matter how egregious their conduct is, no one can hold them liable,” Vladeck, of Georgetown Law Center, said. “As alarming a prospect as that may have been five years ago, it should be an especially terrifying one today, and it ought to be one that even this Supreme Court is worried about endorsing.”

In a friend-of-the-court brief, Cui reported that the grievance process for people inside federal prison almost never works for inmates, who succeed just 1% of the time in changing things such as access to medical care or better conditions behind bars.

Both sides agree Congress has the power to give people whose rights have been violated by federal officers a clear way to sue. But so far, lawmakers have not advanced legislation to hold federal officers accountable.