Wednesday, January 2, 2013

A Bivens Action

     Can a person sue the federal government for civil rights violations--for example, a raid on a medical clinic without adequate cause?
     In 1971, such lawsuits became possible with the Supreme Court decision in Bivens v. 7 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971). 
     Webster Bivens filed a lawsuit against the government for violation of his Fourth Amendment rights after six FBI agents searched his house for narcotics and arrested him without a warrant and without reasonable cause.  The Fourth Amendment protects us from unreasonable search and seizure. 
     Up until this time there had only been in place a state law protecting citizens from invasion of privacy, not a federal law, so the FBI claimed that Bivens had "no cause for action" against federal employees.  The District Court agreed and dismissed the lawsuit.  (If there isn't a law in place, a litigant can't claim a law has been broken, despite a Bill of Rights amendment that implies certain protections, such as that of privacy.)  Bivens appealed the case and the Second Circuit upheld the lower court's decision, saying again that Bivens didn't have a claim because a federal law had not been broken.
     But Bivens persisted, claiming that his Fourth Amendment right to protection from unreasonable search and seizure implied by the Fourth Amendment in the Bill of Rights had been ignored by FBI agents.  The Supreme Court agreed to hear this case because it needed to establish whether a plaintiff could bring a claim against federal agents for violating the Fourth Amendment.  Prior to this, federal government employees had enjoyed a certain immunity from such lawsuits, based on an assumption that a government of the people can't be sued by the people, any more than a person could sue himself.
     Bivens v. 7 became important case law when the justices overturned the lower courts' decisions, and established that if a person's constitutional rights have been violated by federal officials, that person may recover damages under a civil action against the government.  Their decision was based on a right to redress that had been previously established in state courts when an individual's constitutional rights had been violated--not having a similar federal right seemed inconsistent.  Three justicies (Burger, Black and Blackman) disagreed, saying that such a decision would lead to "another avalanche of new federal cases," in which people would claim the right to monetary damages after unreasonable searches and seizures.
     But why should there be an avalanche of cases against the government, if its officials are staying within the bounds of the law?  There's the problem:  when people are invested with power, it is often the case that they abuse that power, unless there are restraints (such as a citizen's right to redress) in place to curb abuses of power.
      As it turns out, Bivens actions are rarely successful.  My lawyers tell me that fewer than 3% of the lawsuits brought against the federal government for violations of constitutional rights are successful.  There is one report, possibly anecdotal, that of the twelve thousand Bivens lawsuits brought against federal agents from 1979 to 1985, only three were ruled in favor of the plaintiff.  Most Bivens actions have been waged against law enforcement agents--police, FBI employees, and other criminal justice employees.  Bivens actions may apply to violations of the First, Fourth and Sixth Amendments, but there is a curious, irrational provision that restricts federal employees from filing Bivens cases against their superiors (a result of the decision in Caryl Leventhal vs. Janet Reno, where the court decided that federal employees had other ways to seek compensation within the parameters of the employment contract).
     Why do so few plaintiffs prevail when they bring a Bivens action against a federal agent?  Why should people who work for the federal government in positions of power (like prosecutors, FBI agents, and judges) ever be immune from penalties when they commit crimes against citizens, by abusing them (in cases of police brutality) or otherwise violating their rights?  Federal immunity seems especially unfair given that state government officials can be sued much more easily for violating citizens' rights under 42 U.S.C. [Section] 1983 (6).
      The Supreme Court implied that people like Bivens, had a right to seek damages against an unfair federal government--and it's this idea of something being implied that creates controversy, thereby allowing federal courts to sidestep punishments for federal employees who violate the rights of American citizens.  It is likely that very few Bivens actions are brought against federal employees because lawyers like mine tell their clients that they might as well forget about filing a Bivens lawsuit, since the chances of success are slim and the cost of waging a case is so high.  (Bivens himself was represented, pro bono, by his lawyer at the time, Stephen A. Grant.)
     "You might as well forget about trying to sue the government for the raid on your clinic," my lawyer, Gilbert Schaffnit, told me.
     "Because they're rarely successful."
     "But, what if I think the search and raid were unjustifiable?"
     "You're still unlikely to win."
     "What if I think my Fourth Amendment right was violated?"
     "You'd have to prove that."
     "So?  Isn't that why I have attorneys?"
     "It might cost as much as a million dollars."
     "How can I prove it, without seeing the affidavits the FBI presented to Magistrate Jones?"
     "That's another problem."
     "Can we force the government to open the affidavits in my case?"
     "Yes, maybe, if we appeal to a higher court on the basis that your prosecutors have dedicated enough time to this investigation, and should not make you wait any longer."
     "But if you do that," said my other lawyer, Mark Thomas, "you open up the possibility of being indicted, or you may get all the patients' medical records back just when you've decided to close the clinic."
     "How can I be indicted, if there wasn't 'reasonable cause' for the raid in the first place?"
     "We don't know," the lawyers both said.
     "Why aren't Bivens actions successful?" I asked.
     "They just aren't," Schaffnit said.   


  1. A person can sue the federal government for violating their rights. The accused should start as soon as possible to look for a constitutional lawyer to represent them in such a suit. A constitutional lawyer explained it to me in this way. Prosecutors, members of the court system and law enforcement entities become vulnerable to suit whenever they break their own rules. So that is the burden of proof that you would have.

    It is very likely when an innocent person stands trial that there was a breach of the rules. How did the proceedings fail to protect the innocent?

    The problem that most people have is the relatively short time the injured party has to file. Finding representation is a real challenge when the days are numbered from the date of arrest. And then there are filing mistakes that cause your suit to be dismissed.

    I just read that there are 2400 cases of Medicare fraud pending. That number indicates that you are correct in thinking that the feds are constantly in a planning mode to take down doctors and other health care providers suspected of fraud. The whistleblower program is obviously a big success. I am sure that you would argue that too much damage is done before indictment or formal charges are made and that damages sustained by innocent citizens is far outside the intent of the Bill of Rights.

    I believe that we need to change the rules governing the proof needed for probable cause and for search and seizure warrants because citizens are not secure in this country under current rules. The numbers of innocent people arrested without sufficient evidence testifies to that.

    We know there are some very upset citizens out there but who are the revolutionaries?

    Change is never easy and not everyone agrees that change is even needed. Think back to the colonists. For liberty sake, they left all they knew to escape tyranny. Their peace was only short lived and then, ever-persistent tyranny caught with them. When the Revolutionary War was fought; only one third of the settlers were on the revolutionaries’ side. The rest of the folks were either staunchly British or were not committed to either side of the fight. Interestingly, after the revolutionaries won the war, over 1000 settlers who sided with British rule were put on ships headed for some other place to dwell.

    1. Where did you locate that figure, "2,400 Medicare fraud cases pending"? I wonder how a Medicare fraud case is defined? Most of my colleagues tell me that Medicare is always requesting records, as they "scout" for potential "perpetrators" of fraud. Those wouldn't be considered "fraud cases," however. Is mine a "fraud case"? Neither I nor my attorneys even know.

  2. Look under I was reading about whistleblower activities. Then I noticed the Law Enforcement and Prosecution section. FBI Director Robert Mueller stated that the FBI and HHS OIG have over 2400 open health care fraud investigations.

    You do not have a criminal case. You have never been indicted or arrested. You have an investigative case due to an executed search warrant(s) and forfeitures of funds from bank accounts under your control.

    It sounds like Medicare requests records to verify and document that payment is legitimately payable. That is just part of doing business with entities such as Medicare and insurance companies. You colleagues are not being investigated for fraud.

    I was reading about 2400 cases on another web page that seems to be talking about the same 2400 investigative cases. It states, “In 2009, the FBI opened investigations into more than 2400 cases and the Department of Justice has filed more than 800 indictments and obtained more than 600 convictions. These efforts have resulted in more than $3 billion in fines and penalties.” see

    I’m going to call the contact number on that site and hopefully I’ll find out how he knows that information.

    Also, what happened in the 200 indictment cases? Were they criminal or civil in nature? What happened in the other 1600 investigations? How many cases were dismissed due to insufficient information?

    How are Medicare fraud cases defined? Google, “The Legal Underpinnings of Fraud cases, The False Claim Act, The Fraud Enforcement and Recovery Act of 2009, The Stark Law, and The Federal Anti-kickback Law.

    Is your case a fraud case? Personally, I think you were robbed.

    I believe that I was set up and then robbed. Allegedly, I was involved in a criminal case. In reality, I was handcuffed and kidnapped off my own property without any warrant at all. I had to pay a ransom to get out of jail plus a $25 booking fee and four additional dollars for a blanket and pillow that I didn’t even see. Because they were overbooked at the jail, I had the choice of sleeping in a plastic boat or on the floor for the night. Now, I have a criminal record and my mug shot with booking information is plastered all over the Internet. If releasing that type of information to the public is meant to deter crime, then it is punishment before conviction. What does the Bill of Rights say about punishment before trial? That was some crazy stuff.

  3. NPR had an interview today with a NY Times reporter who writes about conditions in northern Mali, where Al Qaeda is in charge. Citizens are accused of crimes they didn't commit, like stealing, and have sham trials--if there is any pretense of due process at all. Their punishment is amputation of hands or feet--this is happenng now, frequently, and the "government" and its officials are not sanctioned for unfair treatment, mutilation, human rights abuses, and arbitrary interpretations of the Koran as "law." How far are we, really, in this country, from such a mockery of the idea of sane government? If our government can continue to rob its citizens, and to exercise petty, neurotic vindictiveness or pursue self-gain by setting people up and insisting on their guilt without having to prove, in public, in a court of law, anything they allege, and if it can strike fear into all onlookers (as Al Quaeda does by amputating the limbs of villagers in public displays, or staging public executions) by raiding, imprisoning, indicting, or otherwise violating the rights of its populace--who should be able to know the nature of their alleged crimes, meet their accusers, and mount a defense in a rational court of law--we're not so different, fundamentally, from the people halfway around the world we call "terrorists."

  4. And crucifixion to the Romans.

    It is not power that corrupts but fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it. Aung San Suu Kyi

    Shortly after my case was dropped I received a harassing phone call from a deputy.