Response  |  Volume 161

W(h)ither Bivens

By
James E. Pfander & David P. Baltmanis
Responding to Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question , 161 U. Pa. L. Rev. 509 (2013)
Posted on Apr. 8, 2013

Response - W(h)ither <i>Bivens</i>








While we agree with Vázquez and Vladeck on many points and have great admiration for their work, we disagree with them about the post–Westfall Act viability of state common law claims brought in state court against federal officials to vindicate constitutional rights. Vázquez and Vladeck regard such claims as having been saved by the language in the Westfall Act that preserves the right of individuals to bring suits against federal officials “for a violation of the Constitution of the United States.” In contrast, we think the text, structure, and history of the Westfall Act all point in a single direction: the foreclosure of all state common law claims against federal officials for actions within the scope of their official duties. We think the only claims against federal officials saved by the Westfall Act were those based on federal rights of action, including constitutional tort claims under Bivens and federal statutory claims otherwise authorized. Such a reading not only comports with text and history, but also gives effect to the evident purpose of the Westfall Act. The point of the Act, after all, was to secure federal employees’ absolute immunity from suits based on state common law (an immunity the Westfall Court had previously rejected). The exceptions in 28 U.S.C. § 2679(b)(2) were fashioned to preserve existing federal law remedies.



 Previous Response

Catch-All Doctrinalism and Judicial Desire

Anya Bernstein