CITES BY TOPIC:  Bivens Actions

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)-pro per successfully sued six federal narcotics agents for acting outside the law.  Official immunity asserted but denied.


Hafer v. Melo, 502 U.S. 21 (1991)-Supreme Court held that state officials acting outside the color of law may be held personally liable for the injuries or torts they case and that official or sovereign immunity may not be asserted.

Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978)- federal agent of Dept. of Agriculture not entitled to absolute immunity from suit when acting outside of lawful authority and violating constitutional rights.


Bell v. Hood, 327 U.S. 678 (1946)-FBI agents who violated Constitutional rights of a petitioner were held personally liable and not afforded official immunity.
Belknap v. Schild, 161 U.S. 10 (1896)-patent infringement by federal officers.  Supreme court said they could be held personally liable and remanded case for another trial.

Printz/Sheriff Coroner, Ravalli County, Montana v. United States, 521 U.S. 898 (1997)

We have observed that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). And the same must be said of a directive to an official in his or her official capacity. To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. 15 Indeed, it merits the description "empty formalistic reasoning of the highest order," post, at 15. By resorting to this, thedissent not so much distinguishes New York as disembowels it. 16

[Printz/Sheriff Coroner, Ravalli County, Montana v. United States, 521 U.S. 898 (1997)]


Olmstead v. United States, 277 U.S. 438 (1928):

[277 U.S. 438, 481]   The situation in the case at bar differs widely from that presented in Burdeau v. McDowell, 256 U.S. 465 , 41 S. Ct. 574, 13 A. L. R. 1159. There only a single lot of papers was involved. They had been obtained by a private detective while acting on behalf of a private party, without the knowledge of any federal official, long before any one had thought of instituting a [277 U.S. 438, 482]   federal prosecution. Here the evidence obtained by crime was obtained at the government's expense, by its officers, while acting on its behalf; the officers who committed these crimes are the same officers who were charged with the enforcement of the Prohibition Act; the crimes of these officers were committed for the purpose of securing evidence with which to obtain an indictment and to secure a conviction. The evidence so obtained constitutes the warp and woof of the government's case. The aggregate of the government evidence occupies 306 pages of the printed record. More than 210 of them are filled by recitals of the details of the wire tapping and of facts ascertained thereby. 14 There is literally no other evidence of guilt on the part of some of the defendants except that illegally obtained by these officers. As to nearly all the defendants (except those who admitted guilt), the evidence relied upon to secure a conviction consisted mainly of that which these officers had so obtained by violating the state law.

As Judge Rudkin said below (19 F.(2d) 842):

'Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals. ... We are concerned only with the acts of federal agents, whose powers are limited and controlled by the Constitution of the United States.'

The Eighteenth Amendment has not in terms empowered Congress to authorize any one to violate the criminal laws of a state. And Congress has never purported to do so. Compare Maryland v. Soper, 270 U.S. 9 , 46 S. Ct. 185. The terms of appointment of federal prohibition agents do not purport to confer upon them authority to violate any criminal law. Their superior officer, the Secretary of the Treasury, has not instructed them to commit [277 U.S. 438, 483]   crime on behalf of the United States. It may be assumed that the Attorney General of the United States did not give any such instruction. 15  

When these unlawful acts were committed they were crimes only of the officers individually. The government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes. Compare the Paquete Habana, 189 U.S. 453, 465 , 23 S. Ct. 593; O'Reilly de Camara v. Brooke, 209 U.S. 45, 52 , 28 S. Ct. 439; Dodge v. United States, 272 U.S. 530, 532 , 47 S. Ct. 191; Gambino v. United States, 275 U.S. 310 , 48 S. Ct. 137, and if this court should permit the government, by means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present all the elements of a ratification. If so, the government itself would become a lawbreaker.

Will this court, by sustaining the judgment below, sanction such conduct on the part of the executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. 16 The maxim of unclean hands comes [277 U.S. 438, 484]   from courts of equity. 17 But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling. 18  

The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. 19 Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination. The rule is one, not of action, but of inaction. It is sometimes [277 U.S. 438, 485]   spoken of as a rule of substantive law. But it extends to matters of procedure as well. 20 A defense may be waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by the court itself. 21 It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

[Olmstead v. United States, 277 U.S. 438 (1928)]


Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

No one has ever suggested that Congress would be powerless to displace the other common law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned remedy in GO>Bivens v. Six Unknown Fed. Narcotics Agents, 403 [517 U.S. 88] U.S. 388 (1971). See GO>Mitchell v. Forsyth, 472 U.S. 511 (1985); GO>Harlow v. Fitzgerald, 457 U.S. 800 (1982). Similarly, our cases recognizing qualified officer immunity in 1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common law immunity that officers would have retained under suits premised solely on the general jurisdictional statute. See GO>Tower v. Glover, 467 U.S. 914, GO>920 (1984). For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in 1983 cases. See GO>Martinez v. California, 444 U.S. 277, GO>284 (1980). There is no reason why Congress' undoubted power to displace those common law immunities should be either greater or lesser than its power to displace the common law sovereign immunity defense.

[Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)]


Young v. IRS, 596 F.Supp. 141 (N.D.Ind 09/25/1984)

Plaintiff's complaint asserts that the civil rights statutes, 42 U.S.C. 1981, 1983, and 1986, give this court jurisdiction over his suit. However, none of these provisions is an appropriate basis for relief in this case. Section 1981 is restricted by the import of its language to discrimination based on race or color. Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880); Willingham v. Macon Telegraph Publishing Co., 482 F.2d 535, 537 n. 1 (5th Cir. 1973). In fact, the language of 1981 militates against plaintiff's case, because the section provides that "all persons" shall be subject to taxes. Section 1983 prohibits deprivation of rights under color of state law. However, actions of IRS officials, even if beyond the scope of their official duties, are acts done under color of federal law and not state law, thus making 1983 inapplicable. Seibert v. Baptist, 594 F.2d 423 (5th Cir. 1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); Mack v. Alexander, 575 F.2d 488, 489 (5th Cir. 1978). Section 1986 creates a cause of action for failure or neglect to prevent a 1985 conspiracy. However, 1985(1) deals with conspiring to prevent an official from discharging his duties, while 1985(2) deals with obstructing justice, both of which are inapplicable here. Section 1985(3) requires that there be "some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators' action," Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), none of which is alleged to be present here. It is therefore obvious that none of these statutory provisions can provide plaintiff with a basis for suit.

The court notes that two general jurisdiction statutes may have some potential applicability to this case. However, the court is convinced that neither one of these statutes will supply this court with jurisdiction over plaintiff's claim. The first statute, 28 U.S.C. 1340, grants the district court original jurisdiction of any civil action arising under any act of Congress providing for internal revenue. The very language of the statute indicates that this section does not create jurisdiction in and of itself. Section 1340 makes clear that the jurisdiction extends to civil actions arising under the Internal Revenue laws; as such, the suit must be based on some cause of action which the Internal Revenue Code recognizes and allows the plaintiff to bring. Absent some recognition of this kind of suit under the Internal Revenue Code, 1340 will not create an independent basis for jurisdiction. As one court has noted, "given the limitations which Article III of the Constitution places on the jurisdiction of the federal courts, it is doubtful that the various jurisdictional statutes [like 1340] could do more than waive the congressionally imposed jurisdictional amount requirement." Crown Cork & Seal Co. v. Pennsylvania Human Relations Commn., 463 F. Supp. 120, 127 n. 8 (E.D.Pa. 1979).

It appears that this case does not arise under the Internal Revenue Code. Plaintiff does not seek either to enforce any provision of the Code or to pursue a statutory remedy under the Code. Rather, he seeks damages for the alleged violation of his rights. In fact, the whole thrust of plaintiff's case is that he is outside the scope of the Code so that the actions of the defendants are violations of his rights. However, if the plaintiff's claim comes from outside the Code, then it logically cannot "arise under" the Code, and therefore 1340 cannot provide plaintiff with jurisdiction.

A second possible source of general jurisdiction is 28 U.S.C. 1331, the federal question jurisdiction statute. Plaintiff claims that he is outside the scope of the federal income tax laws. Such a claim brings into question the interpretation of several provisions of the Internal Revenue Code. This may be sufficient to create some kind of federal question jurisdiction based on the interpretation of the Code. However, this federal question would not provide a sufficient jurisdictional basis for plaintiff's damage claim. In order to recover damages, the plaintiff must show that he can recover damages for violations stemming from defendants' alleged unconstitutional activity. Plaintiff can obtain damages against the defendants under only one of two theories: a claim under the Federal Tort Claims Act, 28 U.S.C. 2671-2680; or an implied cause of action under the principles of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As will be discussed more fully in the next section of this order, a claim under the Federal Tort Claims Act will fail on principles of sovereign immunity. Furthermore, in Seibert v. Baptist, 594 F.2d 423, 429-32 (5th Cir. 1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980), the court refused to recognize a Bivens-type cause of action against the IRS and IRS officials and agents. The actions of the present defendants in assessing the taxes and penalties against the plaintiff and in generally operating under the IRS regulatory framework were not of the outrageous nature of those found in Bivens. This court agrees with the Seibert court and refuses to recognize a Bivens-type cause of action against the IRS or IRS officials and agents for the collection and assessment of taxes. Thus, while a federal question may exist, it provides no basis for plaintiff to recover damages. As such, 1331 cannot provide this court with jurisdiction over plaintiff's damage claim.

[Young v. IRS, 596 F.Supp. 141 (N.D.Ind 09/25/1984)]