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Published By Citizens' Justice Programs
Post Office Box 90, Hull, Massachusetts 02045
Suing Your Federal Government for Civil Rights Violations
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994
All Rights Reserved
On the occasion of the 200th anniversary of the Bill Of Rights, many
attorneys may not realize that these rights each contain within them an
intrinsic enabling authority for the purpose of redressing violations of these
rights by those federal employees entrusted to uphold and protect them.
It is worth remembering that the authors of the Bill Of Rights were heavily
influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who
declared that there were "three absolute rights ... the right of personal
security, the right of personal liberty and the right of personal property. 
Blackstone believed the principal aim of society is to protect individuals in
the enjoyment of these absolute rights which were vested in them by the
immutable laws of nature. 
Blackstone's ideas became embodied in the Federalist papers, and in the
writings of James Madison on property interests, which he defined in quite broad
"In its larger and juster meaning, it embraces every thing
to which a man may attach a value and have a right, and which leaves to every
one else the like advantage ... [A] man has a property in his opinions, and the
free communication of them. He has a property of peculiar value in his religious
opinions, and in the profession and practice dictated by them. He has a property
very dear to him in the safety and liberty of his person. He has an equal
property in the free use of his faculties, and free choice of the objects on
which to employ them."
"The protection of these faculties" Madison wrote in The
Federalist No. 10, "is the first object of government."
As Madison might have anticipated, and as modern students of law and history
may realize, in the pursuit of its various other objectives, the federal
government from time to time treads on these rights and "faculties"
and on the natural rights of mankind whose protection is found in the Ninth
Amendment of the U.S. Constitution.
When Congress enacted Title 42 U.S. Code §1983 and other federal civil
rights laws for the redress of violations of these rights, it did not extend
liability to federal officials and employees. Instead, these laws were held to
apply to "state action", and the actions of county and municipal
government (except when federal officials conspired with others. See Fonda
v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)
The dilemma on how to obtain compensation for victims of "constitu
tional torts" by federal actors remained essentially unresolved until the
case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
Bivens has had more impact on the accountability of federal
government officials than perhaps any other decision in the history of American
law. The central issue in Bivens was whether the Fourth Amendment of the Federal
constitution created an implied right of action. This was decided affirmatively
in a claim for damages by individuals whose home was searched unreasonably (and
hence unconstitutionally) by federal narcotic agents. Jurisdiction was not
claimed under title 42 U.S. Code § 1983, which as of this writing, has not
yet been held to extend liability to federal officials in most circumstances.
Instead the enabling legislation was found under Title 28 U.S. Code § 1331
which grants general jurisdiction on the basis of a federal question.
Subsequent cases have held the Bivens theory of recovery applies to other
claims under the various rights enumerated in the Constitution. (For decisions
concerning redress of Fifth Amendment claims with Bivens actions, See Young
v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey
v. Indiana Hospital, (DC PA 562 F.Supp. 1251. 
Litigants who seek to bring claims against federal officials for abuses of
their authority have been confused concerning the proper way to characterize
their actions in the pleadings. Generally speaking, how one drafts a complaint
and not what evidence is to be introduced determines whether a claim can survive
as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337
F.Supp. 834, 844 D.N.J. (1972).
For example, cases have held that if other theories of recovery are pleaded,
a Bivens action must fail. This has forced attorneys to select whether they wish
to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its
strict presentment requirements and other federal law or to rely on a Bivens
theory. A complaint alleging both theories are at risk of a dispositive
motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)
Another easy mistake to make is in deciding who to name as a defendant. A
lawsuit naming the FBI or United States Department of Justice per se as
defendants may fail because the agencies are likely to raise certain immunity
defenses which have yet to be abolished.
Federal employees may become personally liable for constitutional
deprivation by direct participation, failure to remedy wrongs after learning
about it, creation of a policy or custom under which constitutional practices
occur or gross negligence in managing subordinates who cause violations. (Gallegos
v. Haggerty, Northern District of New York, 689 F.Supp. 93)
Although certain federal officials have absolute immunity from private suit,
most executive officials enjoy only qualified immunity. The rationale for the
distinction is that higher officials require greater liability than officials
with less complex and discretionary responsibilities. Hatori v. Haya,
751 F.Supp. 1401.
Any action is considered to be against the "sovereign" and hence
fails to state a claim if judgment would "interfere with public
administration, or compel the United States to act in foreign policy, or enjoin
foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort
v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)
Many litigants facing civil lawsuits in which the United States is the
plaintiff have erroneously sought to counterclaim against the U.S. The United
States, however, to this date has not waived sovereign immunity for claims for
damages, (See United States v. Northside Realty Associates, 324 F.Supp.
287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney
General where plaintiff in the suit was the United States on the ground that
although the suit was initiated by the Attorney General, the real party in
interest was the United States).
When lawsuits are brought against federal officials, they must be brought
against them in their "individual" capacity not their official
capacity. The theory appears to be that when federal officials perpetrate
constitutional torts, they do so ultra vires and lose the shield of
sovereign immunity. Williamson v. U.S. Department of Agriculture, 815
F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101,
(CA DC 1991).
Bivens actions, again, are by no means an exclusive remedy for
redressing abuses of authority by federal government employees, even in a
political context. In the celebrated case of Socialist Workers Party v.
Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied)
one of the many claims of the plaintiff, a Trotskyite communist organization,
was for 193 surreptitious entries or burglaries committed by the F.B.I. Another
set of claims was for the use of disruptive informants in the organization,
which successfully proved itself to be a non-violent, educational group more
involved in promoting and discussing ideas rather than in any violent act.
Judge Thomas Griesa's final decision in the case allowed recovery under the
Federal Tort Claims Act for the intentional torts of invasion of privacy for the
use of informants as well as for the F.B.I.'s burglaries, under a theory of
trespass. Many other counts were dismissed in the case for failure to adhere to
the procedural requirements of the Federal Tort Claims Act (FTCA).
Why plaintiff's counsel selected the FTCA rather than the Bivens
theory of recovery is not known.
The social consequences of having available remedies such as Bivens and the
FTCA are significant. Together with the Freedom of Information Act, The Privacy
Act, and the willingness of disillusioned persons within government to act as "whistleblowers,"
a limited deterrent effect exists to serious violations of civil rights by
The sensation caused by the illegal federally sponsored research experiments
on mentally disabled children sequestered for nearly 40 years and revealed only
recently indicates the changes in public sentiments.
Nevertheless, many courts have considered civil rights claims to be "disfavored
actions." Consider the court in Littleton v. Berbling, 468 F.2d.
390 (7th Cir. 1971):
"The civil damages suit is worthless, especially if the
victim of oppression is a social misfit or an unsavory character."
The words of Justice Louis Brandeis however, offer another view:
"Decency, security and liberty alike demand that
government officials shall be subjected to the 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, 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 the law, it invites every man to come a law
unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S.
1. Unfinished Business: A Civil rights Strategy For America's Third
Century. Clint Bolick Pacific Research Institute For Public Policy, San
Francisco, CA 1990.
3. First Amendment litigation concerning IRS tax exempt status for minority
political and religious movements is also common. For an historical perspective
see Income Disadvantages of Political Activities, (Colum. L. Rev. 273
(1957). Also, Clark, The Limitation On Political Activities: A Discordant
Note In the Law Of Charities, 46 VA L.Rev. 439 (1960). See also, Communist
Party v. Commissioner of Internal Revenue, 332 F.2d. 325, 329(D.C. Cir.
1964; Wolfe v. U.S. Tax Court, (1981) (D.C. Colo. 513 F.Supp. 912.
The author is an attorney in private practice in Boston.