The Myth of Personal Liability: Who Pays When Bivens Claims Succeed 72 Stanford Law Review 2020

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72 Stan. L. Rev. 561 (2020)
The Myth of Personal Liability: Who Pays When Bivens Claims Succeed

handle is hein.journals/stflr72 and id is 583 raw text is: ARTICLE
The Myth of Personal Liability:
Who Pays When Bivens Claims Succeed
James E. Pfander, Alexander A. Reinert & Joanna C. Schwartz*
Abstract. In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law
creates a right to sue federal officials for Fourth Amendment violations. For the last three
decades, however, the Court has cited the threat of individual liability and the burden of
government indemnification on agency budgets as twin bases for narrowing the right of
victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and
Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less
as a feature of the Bivens liability rule than as a bug. But, to date, there has been no
empirical examination of who pays when Bivens claims succeed.
This Article studies the financial threat that successful Bivens claims pose to federal officers
and their employing federal agency. Information supplied by the Federal Bureau of
Prisons in response to a Freedom of Information Act request identified successful Bivens
actions over a ten-year period; in the vast majority of cases (over 95%), individual
defendants contributed no personal resources to the resolution of the claims. Nor did the
responsible federal agency pay the claims through indemnification. The data suggest, in
short, that recent hostility to Bivens litigation rests on a perceived threat of personal
liability that is much more theoretical than real. The data also raise important questions
about the adequacy of existing constitutional remedies and the manner in which the
Department of Justice exercises its settlement authority under the Federal Tort Claims Act
and the Judgment Fund.
'James E. Pfander is the Owen L. Coon Professor of Law, Northwestern Pritzker School of
Law; Alexander A. Reinert is the Max Freund Professor of Litigation & Advocacy and the
Director of the Center for Rights and Justice, Benjamin N. Cardozo School of Law; and
Joanna C. Schwartz is a Professor of Law, UCLA School of Law.
We thank Dick Fallon, Paul Figley, Greg Sisk, and participants in faculty workshops at
the Northwestern Pritzker School of Law and the Benjamin N. Cardozo School of Law for
comments on early drafts. We are also grateful to Wade Formo for able research
assistance, and to Ethan Amaker, Hannah Begley, Nicole Collins, Lori Ding, Nathan
Lange, Elizabeth Reetz, Aletha Smith, Gregory Terryn, Reid Whitaker, and the editors of
the Stanford Law Review for excellent editorial assistance.

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