Bivens, Section 1983, and RFRA Litigation
In addition to various forms of personnel actions, employees may be subject to other consequences as a result of actions taken in the performance of their duties. For decades, members of the public have been able to file lawsuits personally against federal employees under the Supreme Court’s 1971 landmark decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Over time, legal defenses to Bivens developed, largely out of case law for individual-capacity lawsuits filed against state level officials under the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983.
More recently, in 2020, the Supreme Court interpreted the Religious Freedom Restoration Act of 1993 (RFRA) to personally expose all federal employees to civil lawsuits claiming infringement of religious freedoms. This has created a new avenue for the public to file lawsuits personally against federal employees. Because those cases are so new, many questions about the legal defenses to RFRA cases still need to be answered in the courts.
At Shaw Bransford & Roth, we have represented federal employees in landmark Bivens cases and we have experience representing federal employees in the new landscape of legal issues opened through RFRA cases. Because of our employment law expertise, we are uniquely equipped to help government employees and officials defend both the employment consequences and individual-capacity lawsuits that can arise from their conduct on the job. We offer legal services to government employees being personally sued under Bivens, Section 1983, and RFRA, and their related employment matters.
Individual Capacity Lawsuits
By issuing Bivens, the Supreme Court opened the door for members of the public to sue federal employees in their individual capacities for allegedly unconstitutional conduct. In the decades since, the Supreme Court has narrowed the scope of Bivens and limited the kinds of lawsuits that can proceed against federal employees under that legal theory. Nonetheless, plaintiffs still can and do file Bivens lawsuits against federal employees for actions and omissions stemming from the performance of their duties, requiring federal employees to defend those lawsuits in federal court.
Oftentimes, the Department of Justice will defend the sued federal employee either directly with DOJ attorneys or indirectly by paying for a private law firm like Shaw, Bransford & Roth to provide legal defense services. DOJ has approved us on its list of law firms who provide personal-capacity legal defense services and has paid our firm to provide those services for numerous federal employees and officials.
Whether it be for a lawsuit under Bivens, Section 1983, or RFRA, it is critical for a federal employee served with an individual-capacity lawsuit to obtain the right defense attorneys.
1. Bivens Actions
In 1971, with Bivens, the Supreme Court held that even absent statutory authorization, it would allow a damages action against federal employees for alleged unreasonable searches and seizures under the Fourth Amendment.
In the years since Bivens, plaintiffs have tried persuading the federal courts to acknowledge what are now referred to as “implied causes of action” for other kinds of alleged constitutional violations. Those cases at first gained some traction with the Supreme Court. In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court held that the Fifth Amendment Due Process Clause granted a damages remedy for a gender discrimination against a Member of Congress, and in Carlson v. Green 446 U.S. 14 (1980), the Court held that the Eighth Amendment Cruel and Unusual Punishments Clause granted a damages remedy for inadequate medical treatment by Federal Bureau of Prisons personnel.
In the 2000s, our law firm represented federal employees in court cases that marked turning points in the Supreme Court’s treatment of implied causes of action. We represented a federal employee in Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), which established that federal employees involved in “extraordinary rendition” could not be sued under a Bivens legal theory. Arar set the stage for later decisions in other federal courts to hold that plaintiffs could not sue under Bivens when the case involved a national security context.
We also co-represented a defendant in Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015), and in its successor, Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the landmark Supreme Court decision that established the modern legal framework that federal courts are required to apply when confronted with a Bivens claim. The Abbasi decision effectively limited the ability of the courts to extend a Bivens cause of action to a “new context,” reserving this role for Congress.
Abbasi set the stage for the Supreme Court’s most recent Bivens case, Egbert v. Boule, 142 S. Ct. 1793 (2022), in which the Court solidified its instructions to the federal courts: only cases that present facts virtually identical to Bivens, Davis, or Carlson are allowed to proceed against federal employee defendants. While Egbert is good news for federal employees, the case still allows plaintiffs to file Bivens-style lawsuits requiring federal employees to defend against them.
2. Section 1983 Actions
Soon after the Civil War and ratification of the Fourteenth Amendment, Congress enacted the Civil Rights Act of 1871, which in part created a statutory cause of action against state employees for allegedly violating people’s civil and constitutional rights. That Act was later codified at 42 U.S.C. § 1983, and such lawsuits are now commonly called Section 1983 actions.
Federal courts adjudicated Section 1983 actions for 100 years before the Supreme Court issued its Bivens decision in 1971. It was then only natural when Bivens allowed lawsuits against federal employees for allegedly violating people’s constitutional rights that the federal courts borrowed heavily from Section 1983 case law to adjudicate Bivens cases.
After more than 50 years of federal court adjudication of Bivens cases, many of the legal defenses (for example, qualified immunity) are nearly identical between Section 1983 cases and Bivens cases. Our law firm’s experience in defending Bivens cases accordingly makes our attorneys well positioned to defend state employees facing Section 1983 lawsuits.
3. Religious Freedom Restoration Action of 1993 (RFRA) Actions
The legal avenues to sue federal employees available to the public changed in 2020, when the Supreme Court authorized lawsuits against all federal employees for certain religious freedom claims.
More than 25 years after Congress enacted RFRA (codified at 42 U.S.C. § 2000bb) the Court issued its Tanzin v. Tanvir, 141 S.Ct. 486 (2020) decision, opening a new form of action against federal employees. In Tanzin, the Court interpreted RFRA to allow individual capacity lawsuits for claims that federal employees “substantially burden[ed] a person’s exercise of religion.” RFRA itself states that one defense to such a claim is available if the federal employee defendant demonstrates “that application of the burden to the person – (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.”
Within months of Tanzin, our law firm created a webinar to educate federal employees about their newly established legal exposure and about how to potentially obtain DOJ-provided legal defense counsel. We delivered the webinar to multiple federal employee groups including: the National Association of Assistant United States Attorneys (NAAUSA), Women in Federal Law Enforcement (WIFLE), and FEDagent and FEDmanager subscribers.
Attorneys like ours with experience in defending against Bivens actions have an advantage in defending federal employees against RFRA lawsuits. In the short time since Tanzin, federal courts have already begun borrowing from Bivens and Section 1983 case law to allow legal defenses to RFRA claims.
Spillover Into Employment Issues
When a member of the public sues you (a government employee) personally, the plaintiff is making a claim that while performing your job duties you engaged in some type of conduct that violated the plaintiff’s civil and/or constitutional rights. The very nature of such an allegation opens the door for your employer to investigate and to then potentially take a disciplinary action against you. Obtaining a lawyer who can defend you in both arenas—against the lawsuit and against an action by your employer—may improve your chances of succeeding in both matters.
At Shaw, Bransford & Roth, we represent federal employees in all aspects of employment across government. We are familiar with where you work. We are familiar with what you do. And with over 40 years of legal services to federal employees on employment matters, we can both defend you in court and defend you against your employer.
Government agencies often initiate administrative investigations into the events underlying individual-capacity lawsuits, whether in reaction to a plaintiff’s filing of the lawsuit itself, a hotline complaint filed with ones of an agency’s investigative offices, or as a result of an agency’s own interest in managing its employees. Any number of investigative bodies may conduct an administrative investigation into such allegations, including Offices of Inspector General, Offices of Professional Responsibility, and Offices of Internal Affairs. Likewise, if the events underlying the lawsuit garners media attention or generates a report to Congress, you may be called to testify regarding the matters in a congressional inquiry.
Following administrative inquiry, the government can, and does, address concerns brought to its attention through disciplinary action against the accused employee. While individual-capacity court litigation focuses on allegations that you violated a person’s civil and/or constitutional rights, agencies do not need to prove those violations to discipline you for your related conduct. Indeed, the same events underlying an individual-capacity lawsuit may give rise to very different charges of misconduct, such as “failure to follow instructions,” “failure to follow policies,” “poor judgment,” or something broader like “conduct unbecoming.” Our law firm has spent more than 40 years defending government employees against those kinds of charges, and our attorneys are equipped to advise and defend you in the employment matters that are sure to arise should you be served with an individual-capacity lawsuit.