Correctional Services Corp. v. Malesko: The Supreme Court's Continued Refusal to Stand Behind...

Correctional Services Corp. v. Malesko: The Supreme Court's Continued Refusal to StandBehind "Bivens"Author(s): Elizabeth MartinSource: Public Contract Law Journal, Vol. 32, No. 1 (Fall 2002), pp. 197-211Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25754515 .

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Correctional Services Corp. v. Malesko: The Supreme Court's Continued Refusal to

Stand Behind Bivens Elizabeth Martin

I. Introduction 197 II. Bivens 198

HI. Bivens Progeny 200 A. Davis v. Passman and Carlson v. Green: The Supreme

Court (Briefly) Extends Bivens 200 B. The Narrowing of Bivens: The Dissent Becomes the

Majority 202 1. Early Limitations on Bivens 202 2. Special Factors 202

IV. Malesko 204 A. Factual Background 204 B. Procedural History 204 C. Court's Holding 204

V. Why Malesko Was Wrongly Decided and Why It Is Important to Recognize Liability Against CSC 205

A. Problems with the Court's Holding According to

Precedent 205 1. The "Available Alternative Remedies" Argument 205 2. The "Federal Fisc" Argument 206 3. The "Deterrence" Argument 207

B. Policy Reasons Why The Court Should Have Allowed Malesko's Claim 208 1. Symmetry with ? 1983 208 2. Additional Damages Awards 209 3. Richardson's Policy Concerns 210

VI. Conclusion 210

I. Introduction

On November 27, 2001, the Supreme Court handed down its decision in

Correctional Services Corp. v. Malesko, a case in which an inmate in a half

way house run by Correctional Services Corporation (CSC), a private cor

Elizabeth Martin is a third-year student at The George Washington University Law School in

Washington, D.C., and a member of the Public Contract Law Journal.

197



~1 98 Public Contract Law Journal Vol. 32, No. 1 Fall 2002

poration under contract with the Federal Government, sought to sue CSC for the alleged violation of his Eighth Amendment rights under the Bivens doctrine.1 In Malesko, the Supreme Court declined to "extend" Bivens liability to reach government contractors like CSC.2 The Court's decision was not

unexpected. The Court has significantly narrowed the holding of the Bivens doctrine since its inception in 1971, when the majority ruled that damages remedies for constitutional violations could be read directly from the Con stitution.3 In the three decades since Bivens was decided, a substantial amount of commentary has developed arguing that the dissenters in Bivens have be come the majority.4 Commentators continue to assert that the Bivens dis senters' rise to power has allowed the justices, concerned that the judiciary lacks the authority to imply damages remedies, to betray Bivens' core goals.5

Maksko constitutes the latest example of the Court's reticence to recognize Bivens claims. This note will analyze the Supreme Court's change of heart

regarding Bivens, demonstrate that the Court should have allowed Mr. Malesko's claim according to Bivens' original intent, and highlight why it is important that government contractors such as CSC be liable for Bivens damages.

II. Bivens

When Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics was decided by the Supreme Court in 1971, it possessed the potential to

change the entire landscape of jurisprudence for constitutional violations. The Bivens Court recognized for the first time that "a private right of action

against federal agents ... acting under color of their authority ... could be

1. See Com Servs. Corp. v. Malesko, 122 S. Ct. 515 (2001). 2. Id. at 519. 3. See Bush v. Lucas, 462 U.S. 367 (1983) (Bivens action brought by federal employees

for deprivation of their First Amendment rights disallowed where a comprehensive re medial scheme already existed by nature of their employment relationship); Schweiker v. Chilicky, 487 U.S. 412 (1988) (disallowing Bivens action where Congress created an adequate remedial scheme); Chappell v. Wallace, 462 U.S. 296 (1983) (Bivens does not apply in the military context because of the special nature of the military field and its remedial measures); FDIC v. Meyer, 510 U.S. 471 (1994) (Bivens actions may not be brought against federal agencies). See also John E. Theuman, When Will Private Right of Action for Damages ("Bivens" Action) Be Implied from Provision of Federal Constitution? Supreme Court Cases, 111 L. Ed. 2d 715 (1999) (tracking the Supreme Court's Bivens jurisprudence from that case to FDIC v. Meyer).

4. See, e.g., Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. Cal. L. Rev. 289, 297 (1995).

5. See id.; see also George D. Brown, Letting Statutory Tails Wag Constitutional Dogs? Have the Bivens Dissenters Prevailed?, 64 Ind. L.J. 263 (1989); Perry M. Rosen, The Bivens Constitutional Tort: An Unfulfilled Promise, 67 N.C. L. Rev. 337, 343-45 (1989).



Correctional Services Corp. v. Malesko 199

implied directly from the [Constitution]."6 Relying on Bell v. Hood, the Bivens Court held that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."7 The Bivens Court was persuaded by the fact that agents acting under color of federal law are uniquely capable of harming plaintiffs like Bivens.8 The Court ruled that "power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting?albeit unconstitutionally?in the name of the United States pos sesses a far greater capacity to harm than an individual trespasser exercising no authority other than his own."9 Although the holding in Bivens recognized a damages remedy only for Fourth Amendment violations committed by fed eral agents, the Bivens doctrine was subsequently extended to reach the vi olations of other constitutional rights, including the Eighth Amendment

right to be free from cruel and unusual punishment.10 The Bivens majority's recognition of an implied damages remedy for vio

lations of constitutional rights by federal agents seemed revolutionary, but the Court narrowed that holding by recognizing that in specific situations it

would be unwise to grant a Bivens remedy.11 In Bivens, the Court implied that it would not recognize a damages remedy where "special factors counsel hes itation"?for example, where the federal fisc would be affected by the im

position of damages.12 In addition, the Court implied that where Congress has declared money damages inappropriate, remitting plaintiffs to other,

equally effective remedies, Bivens damages would be improper.13 The Court

explicitly adopted these limitations on Bivens as its jurisprudence pro

gressed.14 Although the Bivens dissenters vigorously disagreed and their ban ner has been carried in subsequent cases (such as Malesko), the heart of the Bivens decision was the Court's acknowledgment of the judiciary's compe tence to imply remedies directly from the Constitution.15 Justice Harlan's concurrence articulated it best:

I note that it would be at least anomalous to conclude that the federal judiciary? while competent to choose among the range of traditional judicial remedies to imple

6. Theuman, supra note 3, at *2.

7. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971) (quoting Bell v. Hood, 327 U.S. 678,684(1946) (internal citations omitted)).

8. Id.

9. Id.

10. See Bivens, 403 U.S. at 392; Davis v. Passman, 442 U.S. 228, 234 (1979) (extending Bivens to reach the violation of Fifth Amendment rights); Carlson v. Green, 446 U.S. 14, 18 (1980) (allowing Bivens damages for the violation of Eighth Amendment rights where

no special factors were present). 11. Bivens, 403 U.S. at 396. 12. Id. at 397. 13. Id. 14. See Carlson, 446 U.S. at 18-19.

15. See Corr. Servs. Corp. v. Malesko, 122 S. Ct. 515, 519, n.3 (2001); see also Bandes, supra note 4, at 293.



200 Public Contract Law Journal Vol. 32, No. 1 Fall 2002

merit statutory and common law policies, and even to generate substantive rules gov

erning primary behavior in furtherance of broadly formulated policies articulated by statute or constitution, is powerless to accord a damages remedy to vindicate social

policies which, by virtue of their inclusion in the constitution, are aimed predomi

nantly at restraining the government as an instrument of the popular will.16

In what has become a familiar argument, the Bivens dissenters found no

authority within the judicial sphere to read damages remedies into the Con stitution.17 Justice Black stated that implying a private civil damages remedy was "an exercise of power that the constitution does not give [the Court]."18

The Bivens dissenters also focused on deterrence.19 Reading the majority's opinion as relying on the deterrent effect of damages remedies, Justice Burger's dissent focused on the exclusionary rule's arguable inability to deter federal agents from violating individual rights.20 Justice Black conceded that

perhaps a new remedy for Fourth Amendment violations should be crafted, but he focused on the judiciary's incompetence to create such a remedy, and stated that the Court should leave the task of crafting a truly deterrent remedy to Congress.21 It is important to note, however, that the issue of Bivens dam

ages as a remedial scheme intended to deter was raised most explicitly by the

dissenters, not by the majority.22 A fair reading of the Bivens decision shows that the majority was concerned first and foremost not with deterrence, but

with the idea that "the judiciary has a duty to enforce the Constitution ...

[so] the Court must ensure that each individual before it receives an adequate remedy for the violation of constitutional rights."23

III. Bivens Progeny

A. Davis v. Passman and Carlson v. Green; The Supreme Court (Briefly) Extends Bivens

In Davis v. Passman, the Supreme Court extended the Bivens doctrine to

provide a damages remedy for constitutional violations outside of the Fourth Amendment.24 One year later, in Carlson v. Green, the Court dealt with the situation presented in Malesko?the extension of Bivens to a plaintiff seeking

16. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 403 (1971) (Harlan, J., concurring) (internal citations omitted).

17. Id. at 428 (Black, J., dissenting). 18. Id.

19. Id. at 415 (Black, J., dissenting). 20. Id. at 411-24 (Burger, C.J. dissenting). 21. Id.

22. Id.

23. Bandes, supra note 4, at 293.

24. See Davis v. Passman, 442 U.S. 228, 233-234 (1979).



Correctional Services Corp, v. Malesko 2 Ol

redress for the violation of his Eighth Amendment rights.25 In Carlson, the Court explicitly held that a damages remedy could be implied directly from the Eighth Amendment.26

The Court in Carlson focused on the important role of Bivens in creating symmetry with 42 U.S.C. ? 1983.27 The majority held that just as "a state official contemplating illegal activity must always be prepared to face the

prospect of a ? 1983 action being filed against him ... A federal official

contemplating unconstitutional conduct similarly must be prepared to face the prospect of a Bivens action."28

In addition, the Carlson court addressed the factors that the Bivens ma

jority hinted might preclude a Bivens claim.29 Focusing on the second factor, i.e., that in some situations the imposition of a damages remedy is better left to Congress's discretion, the Court held that this would be satisfied only where evidence exists that Congress intended a remedial scheme "to replace, rather than complement," the Bivens damages remedy.30 In Carlson, where the plaintiff claimed cruel and unusual punishment at the hands of the police officers who arrested him, the Court found "no explicit congressional dec laration that persons injured by federal officers' violations of the Eighth

Amendment may not recover money damages from the agents but must be remitted to another remedy, equally effective in the view of congress."31 Though the Federal Tort Claims Act would arguably have provided the plain tiff in Carlson with a damages remedy for the violation of his Eighth Amend

ment rights, the Carlson Court found no proof that Congress intended the FTCA to be an exclusive remedy for Eighth Amendment violations when it was enacted.32

The Carlson majority faced a strong dissent from Justice Rehnquist, who wrote that, "in my view, absent a clear indication from congress, federal courts lack the authority to grant damages relief for constitutional violations."33

Rehnquist, it should be noted, penned the majority's decision in Malesko,

25. See Carlson v. Green, 446 U.S. 14 (1980). It is important to note that while Malesko did not specifically plead an Eighth Amendment violation, the Court assumed that such a violation was at the heart of his complaint. Corr. Servs. Corp. v, Malesko, 122 S. Ct. 515, 524 (2001) (Stevens, j., dissenting).

26. See Carlson, 446 U.S. at 19; see also Gene R. Nichol, Bivens, Chilicky, and Con stitutional Damages Claims, 75 Va. L. Rev. 1117, 1119 (1989).

27. Carlson, 446 U.S. at 24-26. 28. Id. at 25 (quoting Robertson v. Wegman, 436 U.S. 584, 592 (1978) (internal

quotations omitted)). 29. Id. at 18-24. 30. See Theuman, supra note 3, at *3.

31. Carlson v. Green, 446 U.S. 14, 19 (1980); see also William Kratzke, Some Recom mendations Concerning Tort Liability of Government and Its Employees for Torts and Consti tutional Torts, 9 Admin. L.j. 1105, 1131 (1996).

32. See Rosen, supra note 5, at 358.

33. Carlson, 446 U.S. at 41.




and reiterated, in spirit if not explicit text, his skepticism regarding the ju diciary's authority to imply damages remedies.34

B. The Narrowing of Bivens; The Dissent Becomes the Majority 1. Early Limitations on Bivens

In the years following Davis and Carlson, the Court narrowed the Bivens doctrine as the debate over the judiciary's authority to imply damages rem

edies from the Constitution continued.35 In the 1983 case, Bush v. Lucas, the

Supreme Court refused to grant a Bivens remedy to federal employees who

alleged the violation of their First Amendment rights; the Court held that a

comprehensive remedial scheme already existed by nature of their employ ment relationship.36 Five years later, in Schweiker v. Chilicky, the Supreme Court disallowed a Bivens claim based upon the denial of Social Security under the Fifth Amendment because the Court held that Congress had cre

ated its own adequate remedial system.37 The Court also has disallowed Bivens actions against military personnel, holding that "Congress' development of a comprehensive scheme of military justice constituted special factors coun

seling hesitation."38 Most recently before Malesko, the Court disallowed a Bivens claim against

the Federal Deposit Insurance Company. In FDIC v. Meyer, the Court, con cerned about the implications damages against FDIC would have on the federal purse and unconvinced that the imposition of Bivens liability on FDIC would have enough of a deterrent effect on federal agents, held that Bivens did not apply to federal agencies.39 It should be noted that federal agencies serve as the "institutional arm[s] of the government," and are thus different than private corporations acting as federal agents.40

2. Special Factors It has been argued that the special factors analysis in actuality represented

an "escape hatch" for the Court if the majority decided not to compensate individuals for constitutional violations by federal actors.41 It seems that the

Court has increasingly employed this escape hatch in recent years as the

34. Com Servs. Corp. v. Malesko, 122 S. Ct. 515, 579, n.3 (2001). 35. See Nichol, supra note 26.

36. See Bush v. Lucas, 462 U.S. 367 (1983). 37. See Schweiker v. Chilicky, 487 U.S. 412 (1988). 38. Theuman, supra note 3, at *2.

39. See FDIC v. Meyer, 510 U.S. 471 (1994). 40. Com Servs. Corp. v. Malesko, 229 F.3d 374, 380 (2d Cir. 2000) (quoting Cohen v.

Empire Blue Cross, 176 F.3d 35 (2d Cir. 1999), which held that private corporations acting as federal agents could be distinguished from "institutional armfs] of the government").

41. Nichol, supra note 26, at 1126.




Bivens dissenters have become the Court's majority. In fact, the Bivens re

quirement of deference to Congress has come, post-Bivens, to "virtually subsume the general rule [announced in that case] in favor of a judicial cause

of action."42

In Bush, the Supreme Court seemingly conflated the two special factors of Bivens and Carlson (where hesitation was warranted because the federal fisc was involved, and where Congress created an equally effective remedy that was meant to be exclusive), holding that the existence of any congres

sionally created remedy "was itself a factor counseling hesitation."43 This

holding allowed the Court to avoid considering whether the congressional remedy was truly equally effective.44 It further appears to betray Bivens, which was concerned with providing the victims of constitutional violations with

adequate remedies.45 In fact, it has been argued that the Court in Bush de ferred to a congressional scheme that was not equally effective.46 This seems to fly in the face of Carlson, which held that "... the inquiry is whether

Congress has created an equally effective remedial scheme. Otherwise the two [schemes?one congressionally created and the other judicially created] can exist side by side."47

In Schweiker, the Court expressly admitted that it was no longer con

cerned with whether congressionally created remedies were as effective as

Bivens remedies; as long as Congress had entered the fray, the Court was

willing to step aside.48 The Schweiker Court said: "Whether or not we be lieve that its response was the best response, Congress is the body charged

with making [remedial schemes] ... Congress has discharged that respon

sibility to the extent it affects the case before us, and we see no legal basis that would allow us to revise its decision."49 This view fails to make sense

in light of the Bivens doctrine itself. If the Constitution allows monetary damages for the violation of certain rights, which is what Bivens articulated, then why does it matter whether Congress has established another remedial framework?50 The Court's reliance on the "escape hatch" leaves Bivens's

promises "empty and unfulfilled."51

42. Bandes, supra note 4, at 291.

43. Id. at 297. 44. Id. 45. Id. 46. Id. 47. Carlson v. Green, 446 U.S. 14, 23 (1980). 48. Rosen, supra note 5, at 361.

49. Schweiker v. Chilicky, 487 U.S. 412, 429 (1988) (citation omitted); see also Ban des, supra note 4, at 297.

50. Nichol, supra note 26, at 1124. 51. Rosen, supra note 5, at 345.




IV. Malesko

A. Factual Background

John Malesko was a former federal prisoner who was housed at the Le

Marquis Community Corrections Center, a halfway house operated by a pri vate corporation, the Correctional Services Corporation (CSC), under con tract with the Federal Bureau of Prisons.52 Malesko suffered from a heart condition that required prescription medication and necessitated that he not

overly exert himself.53 Because Malesko was housed on the fifth floor of Le

Marquis, he was allowed to use the prison's elevator to reach his quarters.54 Malesko alleged that he suffered a heart attack when a prison guard refused to refill a prescription for his medicine and subsequently forced him to use

the stairs to reach his room.55 As a result of his heart attack, Malesko claimed that he suffered permanent injuries.56

B. Procedural History Malesko filed a pro se action against CSC and other unnamed John Doe

defendants on March 27, 1997, alleging that his constitutional rights were

violated under color of federal law according to the Supreme Court's holding in Bivens.57

Malesko tried to amend his complaint with the name of one of the guards who allegedly violated his rights, but the U.S. District Court for the Southern District of New York held that this amendment was time-barred.58 The dis trict court also held that Malesko could not bring a Bivens action against

CSC according to FDIC v. Meyer.59 The Second Circuit reversed the district court with respect to Malesko's

Bivens claim against CSC.60 CSC subsequently filed a petition for a writ of

certiorari, which was granted on March 5, 2001. The Supreme Court heard oral argument in the case on October 1, 2001, and handed down its decision on November 27, 2001.

C. Court's Holding The Court in Malesko refused to "extend" Bivens' holding to confer a right

of action for damages against private entities acting under color of federal

52. Corr. Servs. Corp. v. Malesko, 122 S. Ct. 515, 517 (2001). 53. Id. at 518. 54. Id. 55. Id. 56. Id.

57. Brief for Petitioner at 3, Corr. Servs. Corp. v. Malesko, 122 S. Ct. 515 (2001) (No. 00-860).

58. Malesko v. Corr. Servs. Corp., No. 97 Civ. 4080, 1999 WL 549003, at *2-3 (S.D.N.Y. July 28, 1999).

59. Id. at *l-2 (citing FDIC v. Meyer, 510 U.S. 471 (1994)). 60. Malesko v. Corr. Servs. Corp., 229 F.3d 374, 376 (2d Cir. 2000).



Correctional Services Corp. v. Malesko

law.61 The Court stated that since 1971 it had extended the Bivens holding only in narrowly tailored situations, e.g., to provide a remedy against indi vidual officers who acted unconstitutionally and to provide a remedy for a

plaintiff who otherwise lacked one.62 The Court found that Malesko had available to him "alternative remedies ... at least as great, and in many respects greater, than anything that could be had under Bivens."63 The Court cited state tort remedies and the Bureau of Prisons's own Administrative

Remedy Program as remedies that Malesko could have pursued.64 The Court also held that an extension of Bivens as invited in Malesko would not serve the Bivens goal of deterring individual officers from committing constitu tional violations.65 Finally, the Court held that imposing liability of the kind

sought by Malesko was more appropriate for Congress.66

V. Why Malesko Was Wrongly Decided and Why It Is Important to Recognize Liability Against CSC

A. Problems with the Court's Holding According to Precedent 1. The "Available Alternative Remedies" Argument

In its decision disallowing Malesko's Bivens claim, the majority of the Court relied, in part, on the fact that alternative remedies existed.67 As the dissent in Malesko correctly pointed out, however, the fact that Malesko

might have availed himself of state tort remedies is not dispositive according to Bivens and Carlson, in which the Court implied damages remedies even

though the plaintiffs theoretically had other avenues of relief.68 In addition, there is a strong argument to be made that one uniform body of law should

govern constitutional violations like that alleged by Malesko.69 This argu ment was made most forcefully by Justice Harlan in the Bivens decision itself when he stated that, in his view, it was important for constitutional violations to "be compensable according to the uniform rules of federal law, especially in light of the very large element of federal law that must in any event control the scope of official defenses to liability."70

In addition to state tort law remedies, the Malesko majority highlighted the Bureau of Prisons's own remedial scheme as an available alternative

61. Malesko, 122 S. Ct. at 517. 62. Id. at 519-21. 63. Id. at 522. 64. Id. at 522-23. 65. Id. at 522. 66. Id. 67. Id. 68. Id. at 526. 69. Id. (quoting Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 409 (1971)) (Harlan, ]., concurring in judgment). 70. Id.




method that rendered Bivens damages unnecessary.71 This assertion fails for two reasons. First, as the Malesko dissenters pointed out, administrative rem

edies available through the Bureau of Prisons are "by no means the sort of

comprehensive administrative remedies previously contemplated by the Court in Bush and Schweiker"72 Also, in McCarthy v. Madigan, the Supreme Court held that an inmate was not required to exhaust the Bureau of Prisons's

remedial procedures before bringing a Bivens cause of action.73 It seems in

congruous for the Court to hold, on the one hand, that prisoners need not

exhaust Bureau of Prisons remedial schemes before bringing a Bivens action, and then to use the fact that such remedial schemes exist as a reason to

disallow Bivens claims.74

2. The "Federal Fisc" Argument The Malesko majority relied to a large degree on its decision in Meyer to

hold that, like a federal agency, a corporation acting as a federal agent cannot

be liable under Bivens. One of the main reasons that the Supreme Court in

Meyer disallowed a Bivens cause of action was the effect such a judgment would have on public purse strings.75 The imposition of damages against a

private corporation like CSC, however, does not raise the same dangers re

garding the safety of the public fisc as the imposition of damages against a

government agency would engender. That is, if the assistant to the Solicitor General was correct in Malesko,

and the Government does not indemnify federal agents facing liability in most cases, then Bivens liability against such agents would not affect the federal fisc, since the contractors, and not the Government, would remu nerate the victims of unconstitutional conduct. Justice Ginsburg noted this issue during oral argument when she asked, "[W]hy does it make a large difference whether you sue the CEO or the corporation itself? Practically in terms of your interest in the government money, if the corporation is going to pick up the tab, does the Government care?"76

In addition, even if the Federal Government always indemnified federal contractors for their liability under Bivens in cases where federal contractors

could prove that their constitutionally violative conduct was directed by the Government itself, these contractors could avail themselves of the govern ment contractor defense articulated in Boyle v. United Technologies, and they would not be forced to pay damages.77 Though the Malesko majority noted that the record in that case "would provide no basis for such a defense," it

71. Id. at 523. 72. Id. at 526, n.7.

73. McCarthy v. Madigan, 503 U.S. 140, 149 (1992). 74. See id.; Corr. Servs. Corp. v. Malesko, 122 S. Ct. 515, 523 (2001); Kratzke, supra

note 31, at 1141-44. 75. See FDIC v. Meyer, 510 U.S. 471 (1994). 76. Transcript of Oral Argument at 24, Malesko, 122 S. Ct. at 515. 77. See Boyle v. United Tech. Corp., 487 U.S. 500, 503-10 (1988).




does seem that, in terms of public policy, Bivens liability against government contractors like CSC would not substantially endanger the federal fisc.78

3. The "Deterrence" Argument The Malesko majority focused on Eweris* goal of deterring federal agents

from violating the Constitution. The Court stated that "[t]he purpose of Bivens is to deter individual federal officers from committing constitutional violations."79 The Malesko court found that allowing Malesko's claim "would not advance Bivens1 core purpose of deterring individual officers from engag

ing in unconstitutional wrongdoing."80 The Court, however, misconstrued Bivens by framing it as a case concerned first and foremost with deterrence. In fact, it was in Carlson that the Court recognized that Bivens damages might

more forcefully deter federal agents from violating the Constitution than other remedies.81 The Bivens Court did not rely on the deterrent value of

damages remedies to hold that damages could be implied from the Consti tution.82 Rather, the Court relied on the competence of the judiciary and the

necessity of righting constitutional wrongs for its holding.83 In addition, if deterrence is a beneficial byproduct of Bivens actions, then

allowing a Bivens action against government contractors such as CSC would better serve this goal because federal contractors most likely could not avail themselves of the shield of qualified immunity in such suits, and thus would be more likely to take affirmative steps to ensure the compliance of their

subagents with the Constitution.84 While there has been a significant amount

of commentary in recent years to the effect that the Government should waive sovereign immunity for the purposes of Bivens actions, allowing Bivens

claims to be levied against private corporations like CSC would further the

goal of deterrence and allow sovereign immunity to stand.85 In Malesko, the majority argued that allowing Bivens actions against private

corporations under contract with the Federal Government would decrease the number of suits brought against the wrongdoing actors themselves.86 This

78. Malesko, 122 S. Ct. at 523, n.6.

79. Id. at 521. 80. Id. at 523. 81. Carlson v. Green, 446 U.S. 14, 20-21 (1980). 82. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971). 83. Id. at 395-97. 84. See Transcript of Oral Argument at 11, Corr. Servs. Corp. v. Malesko, 122 S. Ct.

515 (2001). It should be noted that federal contractors found to violate the Constitution

might be able to avail themselves of the government contractor defense articulated by the Supreme Court in Boyle, if the conduct that violated the Constitution was directed

by the Government. Boyle v. United Tech. Corp., 487 U.S. 500, 503-10 (1988). As was noted by the majority in Malesko, this was not an issue in that case.

85. See Bandes, supra note 4, at 337-51 (arguing that the Federal Government should

forgo sovereign immunity in order to allow for the redress of constitutional violations).

86. Malesko, 122 S.Ct.at521.




argument may be true, but it does not logically mean that any deterrent value of Bivens suits would be lessened. Justice Souter recognized this point during oral argument when he said:

I would suppose that the deterrent effect of holding the private corporation liable for the acts of its employee would be very significant. I assume that a private cor

poration ... is going to be very careful about employees who, in effect, saddle it with

significant liability. So, on the deterrence theory, it seems to me you?you would lose the argument.87

In addition, the deterrent value of holding even federal officials liable under Bivens for constitutional violations is questionable. Despite the assis tant to the Solicitor GeneraPs protestations to the contrary during oral ar

gument, scholars argue that "virtually without exception, the Government

represents or pays for representation of federal officials accused under Bivens and pays the costs of settlement or judgment."88 If that is true, then "indi vidual liability under Bivens is fictional, because the Federal Government in

practice functions as the real party in interest by paying for the representation and reimbursing the sued individuals when they settle or pay judgments."89

B. Policy Reasons Why Hie Court Should Have Allowed Malesko's Claim 1. Symmetry with ? 1983 When the Supreme Court decided Bivens in 1971, one of the bases of its

holding was the hope that a judicially created damages remedy for consti tutional violations at the hands of federal agents might produce symmetry

with the congressionally enacted 42 U.S.C. ? 1983, which imposes liability on state actors.90 It seems clear that the Court created Bivens, at least in part, because of the inequity inherent in the fact that state actors are forced to "toe the constitutional mark while ... federal officials [are] let off the hook."91

Allowing a Bivens claim in Malesko would further the symmetry that the Court tried to create in 1971. That is, allowing Malesko to sue CSC for the violation of his constitutional rights would be analogous to a ? 1983 action

87. Transcript of Oral Argument at 11, id. at 515. 88. Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Result of Public Officials'

Individual Liability Under Bivens, 88 Geo. L.J. 65, 67 (1999). 89. Id. at 65. It is important to note, however, that the Assistant Solicitor General

denied this characterization of the Government's willingness to cover the costs of federal officials' Bivens suits during oral argument in Malesko. If the Assistant Solicitor General was incorrect at oral argument, and the Government does routinely indemnify federal

employees, then it is possible that extending Bivens liability to private corporations might implicate the federal fisc (see above). Still, indemnification would mean that Bivens dam ages against CSC would not set back Bivens' deterrent goal. At oral argument, it seems that CSC wanted to have it both ways. This note shows why that is inappropriate. Tran script of Oral Argument at 24, Corr. Servs. Corp. v. Malesko, 122 S. Ct. 515 (2001).

90. Nathan R. Home, Bivens Actions: Removing the "Special" from the "Special Factors"

Analysis in Bivens Actions: Vennes v. An Unknown Number of Unidentified Agents of the United States, 28 Creighton L. Rev. 795, 807 (1995).

91. Nichol, supra note 26, at 1127.




in which the prisoner in a state-run prison could sue the state for the violation of his constitutional rights.92

During the oral argument in Malesko, one of the justices remarked that if there should be symmetry, perhaps it "should be between someone who is a federal prisoner in the federal prison and someone who's a federal prisoner in a private prison ... there would be no action against the Bureau of Prisons if the Bureau of Prisons had been the jailer. So why should it be?why shouldn't that be the symmetry?"93 The reason for a difference in remedies available to federal and state prisoners is sovereign immunity, which is not an issue in the context of a federal prisoner in a privately run institution. Prisoners in federal prisons have no recourse against the managing institution of their prisons because sovereign immunity bars suits against the Federal Government. Section 1983, however, allows no such immunity for state gov ernments. If symmetry were crafted so that federal prisoners in public and

private prisons had the same remedies for constitutional violations, CSC would be treated as a sovereign entity, immune from suit. In light of the fact that even state governments are not immune from suit, it makes little sense to allow a private corporation under contract with the Government to avoid

liability for constitutional harms.

2. Additional Damages Awards Between 1971 and 1995, the Bivens doctrine resulted in damage payouts

to plaintiffs in only four instances.94 One reason asserted for this relative dearth of Bivens success is that juries are reluctant to hold federal officials liable for doing their jobs when it is really the Federal Government that is at fault.95 Allowing a suit against a private corporation contracting with the Government would fix this problem because juries would conceivably be less reticent to hold corporations liable for constitutional violations at the hands of their employees. In addition, in cases where a series of decisions by various actors led to a constitutional violation, juries might be unwilling to hold individual officials liable. Again, holding CSC liable in such a case would

remedy this problem, and might result in more damages remedies for the victims of constitutional violations. Finally, where a series of decisions led to

the harm and those decisions were dictated by the Government itself, a

situation in which juries would seemingly be most reticent to imply damages, the government contractor defense might preclude a damages award.96 Al

92. It is important to note that total symmetry is not possible because of sovereign

immunity. A federal prisoner in a federal prison run not by a private corporation but by the Bureau of Prisons would not be able to sue the Federal Government for constitutional violations under either Bivens or ? 1983.

93. Transcript of Oral Argument at 40, Malesko, 122 S. Ct. at 515. 94. See Rosen, supra note 5, at 343-44.

95. See Bandes, supra note 4, at 340.

96. See Boyle v. United Tech. Corp., 487 U.S. 500, 503-10 (1988).




lowing Bivens liability against private corporations, it seems, not only makes

sense, but ensures just remedies.

3. Richardson's Policy Concerns In Richardson v. McKnight, the Supreme Court held that officials employed

by a private prison under contract with a state could not avail themselves of

qualified immunity for the purposes of a ? 1983 action, even though officials in a state-run prison are entitled to such an immunity.97 Though the Rich ardson decision rejected a symmetry argument similar to that advanced in this note, the majority's policy arguments in that case apply with equal force in the situation of Malesko?and they are a strong argument for the impo sition of Bivens damages in Malesko. In finding that there should be no im

munity from suit for private prison officials in the state sector, the majority of the Richardson court held that

the most important special government immunity producing concern?protecting the

public from unwarranted timidity on the part of public officials?is less likely present when a private company subject to competitive market pressures operates a prison. A

firm whose guards are too aggressive will face damages that raise costs, thereby threat

ening its replacements by firms with safer and more effective job records.98

It is incongruous for the Court to hold that there should be no suit-barring immunity available to private corporations in the state sphere because the

unique nature of the marketplace makes such a protection unnecessary, and

yet to hold that in the federal sphere, where presumably the market is the same, private corporations should be immunized from suit.

VI. Conclusion

In Richardson, the majority faced a vigorous dissent from Justice Scalia, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Thomas. One of the dissenters' main problems with the Court's holding was the effect it

might have on contracting out.99 Justice Scalia wrote:

The only sure effect of today's decision?and the only purpose, as far as I can tell? is that it will artificially raise the cost of privatizing prisons. Whether this will cause

privatization to be prohibitively expensive, or instead simply divert state funds that could have been saved or spent on additional prison services, it is likely that taxpayers and prisoners will suffer as a consequence.100

In Malesko, the Richardson dissenters, joined by Justice O'Connor, were able to "vindicate" the rights of government contractors done wrong by the Richardson decision.101

97. Richardson v. McKnight, 521 U.S. 399, 402-12 (1997). 98. Id. at 409. 99. Id. at 414-23 (Scalia, J. dissenting). 100. Id. at 422-23. 101. Corr. Servs. Corp. v. Malesko, 122 S. Ct. 515, 524-28 (2001) (Stevens, J. dis

senting).




The Malesko decision encourages contracting out by disallowing Bivens

liability against contractors, but it does so at the expense of prisoners such as Malesko and thousands of similarly situated men and women.102 Further, as noted above, it is not clear that allowing Bivens liability against private corporations would have the kind of detrimental effect on contractors en visioned by the Richardson dissenters. What is clear is that refusing prisoners in privately run institutions a damages remedy against the corporations that

house them betrays the goals, promises, and protections of Bivens. The most recent in a long line of cases narrowing Bivens to the point of virtual evis

ceration, Malesko is perhaps best described as the case in which the Bivens dissenters finally won.103 And at the same time, prisoners whose constitu tional rights have been violated lost.

102. "The BOP has since 1981 relied exclusively on contracts with private institutions and state and local governments for the operation of halfway house facilities to help federal

prisoners reintegrate into society." Id. at 518.

103. It should be noted that other scholars, notably Susan Bandes (supra note 4), have

argued that the Bivens dissenters "won" when they narrowed the Bivens doctrine in de

cisions that came before Malesko. If they had already achieved their goal of decimating Bivens, then the Malesko decision was a (costly) extension of that victory.



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