CARLSON, DIRECTOR, FEDERAL BUREAU OF PRISONS, et al. v. GREEN, ADMINISTRATRIX
No. 78-1261.
Argued January 7, 1980
Decided April 22, 1980
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Powell, J., filed an opinion concurring in the judgment, in which Stewart, J., joined, post, p. 25. Burger, C. J., post, p. 30, and Rehnquist, J., post, p. 31, filed dissenting opinions.
Deputy Solicitor General Getter argued the cause for petitioners. On the briefs were Solicitor General McCree, Acting Assistant Attorney General Daniel, Robert E. Kopp, and Barbara L. Herwig.
Michael Deutsch argued the cause for respondent. With him on the brief was Charles Hoffman
Alvin J. Bronstein, Bruce J. Ennis, and William E. HeUerstein filed a brief for the American Civil Liberties Union Foundation, Inc., et al. as amici curiae urging affirmance.
John B. Jones, Jr., Norman Bedlich, William L. Robinson, Norman J. Chachkin, and Richard S. Kohn filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae.
Mr. Justice Brennan
delivered the opinion of the Court.
Respondent brought this suit in the District Court for the Southern District of Indiana on behalf of the estate of her deceased son, Joseph Jones, Jr., alleging that he suffered personal injuries from which he died because the petitioners, federal prison officials, violated his due process, equal protection, and Eighth Amendment rights. Asserting jurisdiction under 28 U. S. C. § 1331 (a), she claimed compensatory and punitive damages for the constitutional violations. Two questions are presented for decision: (1) Is a remedy available directly under the Constitution, given that respondent’s allegations could also support a suit against the United States under the Federal Tort Claims Act? And (2) if so, is survival of the cause of action governed by federal common law or by state statutes?
I
The District Court held that under Estelle v. Gamble, 429 U. S. 97 (1976), the allegations set out in note 1, supra, pleaded a violation of the Eighth Amendment’s proscription against infliction of cruel and unusual punishment, giving rise to a cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). The court recognized that the decedent could have maintained this action if he had survived, but dismissed the complaint because in its view the damages remedy as a matter of federal law was limited to that provided by Indiana’s survivorship and wrongful-death laws and, as the court construed those laws, the damages available to Jones’ estate failed to meet § 1331 (a)’s $10,000 jurisdictional-amount requirement. The Court of Appeals for the Seventh Circuit agreed that an Eighth Amendment violation was pleaded under Estelle and that a cause of action was stated under Bivens, but reversed the holding that § 1331 (a)’s jurisdictional-amount requirement was not met. Rather, the Court of Appeals held that § 1331 (a) was satisfied because “whenever the relevant State survival statute would abate a Bivens-type action brought against defendants whose conduct results in death, the federal common law allows survival of the action.” 581 F. 2d 669, 675 (1978). The court reasoned that the Indiana law, if applied, would “subvert” “the policy of allowing complete vindication of constitutional rights” by making it “more advantageous for a tortfeasor to kill rather than to injure.” Id., at 674. We granted certiorari. 442 U. S. 940 (1979). We affirm.
^
Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate “special factors counselling hesitation in the absence of affirmative action by Congress.” 403 U. S., at 396; Davis v. Passman, 442 U. S. 228, 245 (1979). The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra, at 397; Davis v. Passman, supra, at 245-247.
Neither situation obtains in this case. First, the case involves no special factors counselling hesitation in the absence of affirmative action by Congress. Petitioners do not enjoy such independent status in our constitutional scheme as to suggest that judicially created remedies against them might be inappropriate. Davis v. Passman, supra, at 246. Moreover, even if requiring them to defend respondent’s suit might inhibit their efforts to perform their official duties, the qualified immunity accorded them under Butz v. Economou, 438 U. S. 478 (1978), provides adequate protection. See Davis v. Passman, supra, at 246.
Second, we have here no explicit congressional declaration 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. Petitioners point to nothing in the Federal Tort Claims Act (FTCA) or its legislative history to show that Congress meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutional violations. FTCA was enacted long before Bivens was decided, but when Congress amended FTCA in 1974 to create a cause of action against the United States for intentional torts committed by federal law enforcement officers, 28 U. S. C. § 2680 (h), the congressional comments accompanying that amendment made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action:
“[AJfter the date of enactment of this measure, innocent individuals who are subjected to raids [like that in Bivens] will have a cause of action against the individual Federal agents and the Federal Government. Furthermore, this provision should be viewed as a counterpart to the Bivens case and its progenty [sic], in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved).” S. Rep. No. 93-588, p. 3 (1973) (emphasis supplied).
In the absence of a contrary expression from Congress, § 2680 (h) thus contemplates that victims of the kind of intentional wrongdoing alleged in this complaint shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights.
This conclusion is buttressed by the significant fact that Congress follows the practice of explicitly stating when it means to make FTCA an exclusive remedy. See 38 U. S. C. §4116 (a), 42 U. S. C. §233 (a), 42 U. S. C. § 2458a, 10 U. S. C. § 1089 (a), and 22 U. S. C. §817 (a) (malpractice by certain Government, health personnel); 28 U. S. C. § 2679 (b) (operation of motor vehicles by federal employees); and 42 U. S. C. § 247b (k) (manufacturers of swine flu vaccine). Furthermore, Congress has not taken action on other bills that would expand the exclusivity of FTCA. See, e. g., S. 695, 96th Cong., 1st Sess. (1979); H. R. 2659, 96th Cong., 1st Sess. (1979); S. 3314, 95th Cong., 2d Sess. (1978).
Four additional factors, each suggesting that the Bivens remedy is more effective than the FTCA remedy, also support our conclusion that Congress did not intend to limit respondent to an FTCA action. First, the Bivens remedy, in addition to compensating victims, serves a deterrent purpose. See Butz v. Economou, supra, at 505. Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy against the United States. It is almost axiomatic that the threat of damages has a deterrent effect, Imbler v. Pachtman, 424 U. S. 409, 442 (1976) (White, J., concurring in judgment), surely particularly so when the individual official faces personal financial liability.
Petitioners argue that FTCA liability is a more effective deterrent because the individual employees responsible for the Government’s liability would risk loss of employment and because the Government would be forced to promulgate corrective policies. That argument suggests, however, that the superiors would not take the same actions when an employee is found personally liable for violation of a citizen’s constitutional rights. The more reasonable assumption is that responsible superiors are motivated not only by concern for the public fisc but also by concern for the Government’s integrity.
Second, our decisions, although not expressly addressing and deciding the question, indicate that punitive damages maybe awarded in a Bivens suit. Punitive damages are “a particular remedial mechanism normally available in the federal courts,” Bivens, 403 U. S., at 397, and are especially appropriate to redress the violation by a Government official of a citizen’s constitutional rights. Moreover, punitive damages are available in “a proper” § 1983 action, Carey v. Piphus, 435 U. S. 247, 257, n. 11 (1978) (punitive damages not awarded because District Court found defendants “did not act with a malicious intention to deprive respondents of their rights or to do them other injury”), and Butz v. Economou, suggests that the “constitutional design” would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression. 438 U. S., at 504. But punitive damages in an FTCA suit are statutorily prohibited. 28 U. S. C. § 2674. Thus FTCA is that much less effective than a Bivens action as a deterrent to unconstitutional acts.
Third, a plaintiff cannot opt for a jury in an FTCA action, 28 U. S. C. § 2402, as he may in a Bivens suit. Petitioners argue that this is an irrelevant difference because juries have been biased against Bivens claimants. Reply Brief for Petitioners 7, and n. 6; Brief for Petitioners 30-31, n. 30. Significantly, however, they do not assert that judges trying the claims as FTCA actions would have been more receptive, and they cannot explain why the plaintiff should not retain the choice.
Fourth, an action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward. 28 U. S. C. § 1346 (b) (United States liable “in accordance with the law of the place where the act or omission occurred”). Yet it is obvious that the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules. See Part III, infra. The question whether respondent’s action for violations by federal officials of federal constitutional rights should be left to the vagaries of the laws of the several States admits of only a negative answer in the absence of a contrary congressional resolution.
Plainly FTCA is not a sufficient protector of the citizens’ constitutional rights, and without a clear congressional mandate we cannot hold that Congress relegated respondent exclusively to the FTCA remedy.
Ill
Bivens actions are a creation of federal law and, therefore, the question whether respondent’s action survived Jones’ death is a question of federal law. See Burks v. Lasker, 441 U. S. 471, 476 (1979). Petitioners, however, would have us fashion a federal rule of survivorship that incorporates the survivorship laws of the forum State, at least where the state law is not inconsistent with federal law. Respondent argues, on the other hand, that only a uniform federal rule of sur-vivorship is compatible with the goal of deterring federal officials from infringing federal constitutional rights in the manner alleged in respondent’s complaint. We agree with respondent. Whatever difficulty we might have resolving the question were the federal involvement less clear, we hold that only a uniform federal rule of survivorship will suffice to redress the constitutional deprivation here alleged and to protect against repetition of such conduct.
In short, we agree with and adopt the reasoning of the Court of Appeals, 581 F. 2d, at 674-675 (footnote omitted):
“The essentiality of the survival of civil rights claims for complete vindication of constitutional rights is buttressed by the need for uniform treatment of those claims, at least when they are against federal officials. As this very case illustrates, uniformity cannot be achieved if courts are limited to applicable state law. Here the relevant Indiana statute would not permit survival of the claim, while in Beard [v. Robinson, 563 F. 2d 331 (CA7 1977),] the Illinois statute permitted survival of the Bivens action. The liability of federal agents for violation of constitutional rights should not depend upon where the violation occurred. ... In sum, we hold that whenever the relevant state survival statute would abate a Bivens-type action brought against defendants whose conduct results in death, the federal common law allows survival of the action.”
Robertson v. Wegmann, 436 U. S. 584 (1978), holding that a § 1983 action would abate in accordance with Louisiana survivorship law is not to the contrary. There the plaintiff’s death was not caused by the acts of the defendants upon which the suit was based. Moreover, Robertson expressly recognized that to prevent frustrations of the deterrence goals of § 1983 (which in part also underlie Bivens actions, see Part II, supra) “[a] state official contemplating illegal activity must always be prepared to face the prospect of a i 1983 action being filed against him.” 436 U. S., at 592. A federal official contemplating unconstitutional conduct similarly must be prepared to face the prospect of a Bivens action. A uniform rule that claims such as respondent’s survive the decedent’s death is essential if we are not to “frustrate in [an] important way the achievement” of the goals of Bivens actions. Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 702 (1966).
Affirmed.
More specifically, respondent alleged that petitioners, being fully apprised of the gross inadequacy of medical facilities and staff at the Federal Correction Center in Terre Haute, Ind., and of the seriousness of Jones’ chronic asthmatic condition, nonetheless kept him in that facility against the advice of doctors, failed to give him competent medical attention for some eight hours after he had an asthmatic attack, administered contraindicated drugs which made his attack more severe, attempted to use a respirator known to be inoperative which further impeded his breathing, and delayed for too long a time his transfer to an outside hospital. The complaint further alleges that Jones’ death resulted from these acts and omissions, that petitioners were deliberately indifferent to Jones’ serious medical needs, and that their indifference was in part attributable to racial prejudice.
This question was presented in the petition for certiorari, but not in either the District Court or the Court of Appeals. However, respondent does not object to its decision by this Court. Though we do not normally decide issues not presented below, we are not precluded from doing so. E. g., Youakim v. Miller, 425 U. S. 231 (1976). Here, the issue is squarely presented and fully briefed. It is an important, recurring issue and is properly raised in another petition for certiorari being held pending disposition of this case. See Loe v. Armistead, 582 F. 2d 1291 (CA4 1978), cert. pending sub nom. Moffitt v. Loe, No. 78-1260. We conclude that the interests of judicial administration will be served by addressing the issue on its merits.
Petitioners do not contest the determination that the allegations satisfy the standards set out in EsteUe.
The relevant Indiana law provides that a personal injury claim does not survive where the acts complained of caused the victim’s death. Ind. Code §34-1-1-1 (1976). Indiana does provide a wrongful-death cause of action for the personal representative of one whose death is caused by an alleged wrongful act or omission. Damages may “includ[e], but [are] not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings.” But if the decedent is not survived by a spouse, dependent child, or dependent next of kin, then the recovery is limited to expenses incurred in connection with the death. Ind. Code §34r-l-l-2 (1976).
The District Court read the complaint in this case as stating claims under both §§ 34-1-1-1 and 34H-1-2. Accordingly, the court assumed that recovery on the claim was limited to expenses (all of which would be paid by the Federal Government) only because Jones died without a spouse or any dependents. The Court of Appeals read the complaint as stating only a survivorship claim on behalf of Jones under § 34-1-1-1. Thus it assumed that the claim would have abated even if Jones had left dependents or a spouse. 581 F. 2d 669, 672, n. 4 (1978). Resolution of this conflict is irrelevant in light of our holding today.
To satisfy this test, petitioners need not show that Congress recited any specific “magic words.” See the dissenting opinion of The Cheep Justice, post, at 31, and n. 2. Instead, our inquiry at this step in the analysis is whether Congress has indicated that it intends the statutory remedy to replace, rather than to complement, the Bivens remedy. Where Congress decides to enact a statutory remedy which it views as fuEy adequate only in combination with the Bivens remedy, e. g., 28 U. S. C. § 2680 (h), that congressional decision should be given effect by the courts.
Title 42 U. S. C. § 1983 serves similar purposes. See, e. g., Robertson v. Wegmann, 436 U. S. 584, 590-591 (1978); Carey v. Piphus, 435 U. S. 247, 256 (1978); Mitchum v. Foster, 407 U. S. 225, 242 (1972); Monroe v. Pape, 365 U. S. 167, 172-187 (1961).
Indeed, underlying the qualified immunity which public officials enjoy for actions taken in good faith is the fear that exposure to personál liability would otherwise deter them from acting at all. See Butz v. Economou, 438 U. S. 478, 497 (1978); Scheuer v. Rhodes, 416 U. S. 232, 240 (1974).
Some doubt has been cast on the validity of the assumption that there exist adequate mechanisms for disciplining federal employees in such cases. See Testimony of Griffin B. Bell, Attorney General of the United States, Joint Hearing on Amendments to the Federal Tort Claims Act before the Subcommittee on Citizens and Shareholders Rights and Remedies and the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 95th Cong., 2d Sess., pt. 1, p. 6' (1978).
Moreover, after Carey punitive damages may be the only significant remedy available in some § 1983 actions where constitutional rights are maliciously violated but the victim cannot prove compensable injury.
Petitioners argue that the availability of punitive damages or a jury trial under Bivens is irrelevant because neither is a necessary element of a remedial scheme. But that argument completely misses the mark. The issue is not whether a Bivens cause of action or any one of its particular features is essential. Rather the inquiry is whether Congress has created what it views as an equally effective remedial scheme. Otherwise the two can exist side by side. Moreover, no one difference need independently render FTCA inadequate. It can fail to be equally effective on the cumulative basis of more than one difference.
Robertson fashioned its holding by reference to 42 IT. S. C. § 1988, which requires that § 1983 actions be governed by
“the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of [the] civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States.”
Section 1988 does not in terms apply to Bivens actions, and there are cogent reasons not to apply it to such actions even by analogy. Bivens defendants are federal officials brought into federal court for violating the Federal Constitution. No state interests are implicated by applying purely federal law to them. While it makes some sense to allow aspects of § 1983 litigation to vary according to the laws of the States under whose authority § 1983 defendants work, federal officials have no similar claim to be bound only by the law of the State in which they happen to work. Bivens, 403 U. S., at 409 (Harlan, J., concurring in judgment). Moreover, these petitioners have the power to transfer prisoners to facilities in any one of several States which may have different rules governing survivorship or other aspects of the case, thereby controlling to some extent the law that would apply to their own wrongdoing. See Robertson, 436 U. S., at 592-593, and n. 10. Another aspect of the power to transfer prisoners freely within the federal prison system is that there is no reason to expect that any given prisoner will have any ties to the State in which he is incarcerated, and, therefore, the State will have little interest in having its law applied to that prisoner. Nevertheless, as to other sur-vivorship questions that may arise in Bivens actions, it may be that the federal law should choose to incorporate' state rules as a matter of convenience. We leave such questions for another day.
Otherwise, an official could know at the time he decided to act whether his intended victim’s claim would survive. Cf. Auto Workers v. Hoosier Cardinal Corp. (whether statute of limitation will matter cannot be known at time of conduct).
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.