Academic journal article Fordham Urban Law Journal

Iqbal Signals Bivens' Peril: A Call for Congressional Action

Academic journal article Fordham Urban Law Journal

Iqbal Signals Bivens' Peril: A Call for Congressional Action

Article excerpt

 I.   The Shifting Attitude of the Court toward Bivens
        A. The History of Bivens
        B. The Current Court's Attitude Toward Bivens
        C. Given that Bivens is Disfavored, What Options Does the
           Court or Congress Have?
 II.  Arguments for and Against a Codification of Bivens
        A. Arguments for Replacing Bivens by Statute
        B. Arguments Against Replacing Bivens by Statute
 III. Congress Should Adopt a Statute to Replace Bivens
        A. Where Clearly Established Law has Been Violated, a
           Cause of Action Should be Available Against the
           Offending Agent
        B. Absent a Violation of Clearly Established Law, a Cause of
           Action Against the Government Should Exist for
           Violations of an Individual's Constitutional Rights
        C. Flat Non-Pecuniary Damage Award Option


In May 2009, the Supreme Court handed down its decision in a case that could have severely limited the availability of causes of action against federal agents who, in their capacity as government actors, violate the constitutional rights of individuals.

The case, known as Ashcrofi v. Iqbal, (1) arose in the aftermath of the September 11, 2001 terrorist attacks. (2) The suit was brought by a man named Javaid Iqbal, a citizen of Pakistan, who was arrested on charges of fraud related "to identification documents and conspiracy to defraud the United States." (3) Iqbal was designated as a person "of high interest" and was placed in the Administrative Maximum Special Housing Unit of the Metropolitan Detention Center (MDC). (4)

Iqbal pled guilty to the criminal charges and was deported to Pakistan where he filed charges against thirty-four current and former federal officials. (5) Focusing on his treatment at the MDC, Iqbal alleged violations of his constitutional rights. (6) Specifically, Iqbal alleged that he was designated as a person of high interest because of his race, religion, or national origin, in violation of his First and Fifth Amendment rights. (7) Among the federal officials named as defendants by Iqbal were Federal Bureau of Investigation (FBI) Director Robert Mueller and United States Attorney General John Ashcroft. (8) Iqbal alleged that "'each [defendant] knew of, condoned, and willfully and maliciously agreed to subject' [him] to harsh conditions of confinement '... solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'" (9) Ashcroft and Mueller moved to dismiss for failure to state sufficient allegations to show their involvement in clearly established unconstitutional conduct. (10) The district court denied this motion. (11)

The Supreme Court, however, determined that Iqbal failed to state a cause of action under the standard set forth in the recently decided case Bell Atlantic Corp. v. Twombly. (12) The Court remanded the case, which afforded Iqbal the opportunity to amend his complaint. (13)

It was significant to the outcome of this case that Iqbal was forced to rely solely on an implied cause of action, known as a Bivens cause of action, rather than a claim sanctioned by Congress through statute. (14)

This Note examines the propriety of a statutory replacement for the Bivens action. Part I of this Note outlines the history of implied causes of action generally, including the shifting attitude of the Court toward its power to fill gaps through the use of implied causes of action, as well as the Court's attitude toward the Bivens action specifically. Part II examines the arguments for and against the adoption of a statutory replacement for Bivens in the context of the United States post-9/11. Part III contemplates a statutory replacement for Bivens, which would strike a balance between deterring rogue government individuals and protecting government officials who violate constitutional rights in the good faith execution of their jobs. …

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