Liability of Federal Officials: An Analysis of Alternatives

Abstract

Since 1971 Bivens v. Six Unknown Federal Narcotics Agents the federal courts have been defining a system of litigation for adjudicating alleged violations of citizens' constitutional rights by federal employees. Supreme Court began this process by sanctioning citizen initiated civil suits in the absence of affirmative action by Congress.' This incremental process of defining administrative liability has significant consequences for the public service. As Peter Schuck has stated his oft quoted review of this stream of litigation, The Court's steady expansion of official liability and construction of immunity can thus be viewed, not merely as an additional constraint upon governmental decisions lodged elsewhere, but as a fundamental redistribution of political and decisional influence-from the legislative and executive branches of state and federal governments to the federal courts.2 I have reviewed elsewhere3 the current state of litigation against federal officials and the characteristics of that litigation. In that analysis I pointed out that the court has continually stated its recognition that Congress could establish an effective remedial system if it so chose.4 However, over the past eight years Congress has considered similar proposals by different administrations, but it has not achieved final action. Numerous legal commentators have pointed out the desirability of establishing a comprehensive scheme that addresses the problems inherent the current system rather than engaging continuing incremental adjustment. A predominant view is that Congress should establish such a framework.5 Supreme Court itself has recently acknowledged, at least with respect to alleged constitutional torts involved the U.S. civil service employment area, that Congress is a better position than a court to evaluate a new species of litigation, part, because it has fact-finding procedures, such as hearings, that are not available to the courts.6 Scholars the legal community have analyzed the rising tide of constitutional tort litigation and have actively proposed alternatives. Yet it is incumbent upon public administrators as well to consider the various interests and policy choices involved. As Marshall Dimock recently observed, The best way to get cooperation between the law and managerial professions is to demonstrate as concretely as possible how their respective roles overlap and merge into a common process.7 My purpose here is to present some alternatives for a system to adjudge alleged grievances involving violations of constitutional rights and to analyze them terms of criteria that address several of the contending interests at stake. No claim is made that either the alternatives or the criteria are definitive or exhaustive. objective is to provide a point of departure for a broader discussion and consideration of the issues involved by the public administration community. Toward this end, the current state of the law as it applies to federal employees is briefly delineated. Then, criteria are specified based not only on previous judicial prescriptions and legal commentary but on factors pertinent to the viability and effectiveness of the public service as well. Finally, three alternatives are discussed terms of the criteria.