Public Health Law Map - Beta 5 - Medical and Public Health Law Site

constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979)]
Bivens suits have been acknowledged by the Court as having more of a deterrence
effect against federal officials from committing constitutional torts than the FTCA.
This is chiefly because a Bivens suit is a personal suit against the official, and
punitive damages are recoverable. The government is substituted for the defendant in
FTCA cases, and the FTCA does not allow punitive damages. Thus a Bivens
defendant is at risk of personal liability, including punitive damages, while the
government pays all damages in FTCA cases. Procedurally, a plaintiff is entitled to a
jury trial in a Bivens action, but not in a FTCA case.[Carlson v. Green, 446 U.S. 14
(1980)]
The main defense for a federal official in a Bivens action is official immunity from
actions for damages. There are two types of official immunity available as
affirmative defenses: absolute and qualified.[Butz v. Economou, 438 U.S. 478
(1978)] Absolute immunity is granted to judges, prosecutors, legislators, and the
President, so long as they are acting within the scope of their duties. Qualified
immunity applies to federal officials and agents who perform discretionary functions,
but may be overcome by a showing that their conduct violated a constitutional
right.[Harlow v. Fitzgerald, 457 U.S. 800 (1982)] Absolute and qualified immunity
are discussed more fully below.
a) Bivens and Alternative Remedies
Bivens actions have been restricted by the Supreme Court when Congress has
created other avenues for review and compensation. For example, the Court denied
a Bivens action for procedural due process violations under the Social Security Act
disability provisions because Congress had created an independent remedial scheme
to restore benefits. [Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)] Courts are
careful not to extend Bivens where it is unnecessary or inappropriate. Some factors
that may counsel hesitation in allowing Bivens action against federal actors include:
conflict with federal fiscal policy; the existence of a comprehensive remedial
scheme providing meaningful remedies created by Congress; and the unique
structure and nature of the military. Id. at 421.
b) Public Health Bivens Claims
The courts are usually reticent to allow Bivens claims in public health cases. In
Nebraska Beef v. Greening, 398 F.3d 1080 (8th Cir. 2005), plaintiff brought a
Bivens suit against U.S. Dept. of Agriculture food safety inspectors for damages to
its reputation and business. The appellate court dismissed the suit, noting that the
Supreme Court has been reluctant to extend Bivens suits to new areas. The court
explained that there is a "presumption against judicial recognition of direct actions
for violations of the Constitution by federal officials or employees," and "if
Congress has not explicitly created such a right of action, and if it has created other
remedies to vindicate (though less completely) the particular rights being asserted
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