About the National Immigration Project  Non-profit membership immigrant rights organization of attorneys, judges, jailhouse lawyers, advocates, community organizations, law students, etc.  Provides legal and technical assistance  5 active listservs  Hosts CLE seminars  Authors practices advisories and four immigration law treatises  Advocates for fair and just administrative policies/legislation  Engages in select impact litigation, and  Participates as amici curiae in federal courts cases. 1 NIPNLG.org

NIPNLG Damages Webinars BIVENS ACTIONS October 16, 2014 Lynn Coyle, Dominguez & Coyle Mary Kenney, American Immigration Council Trina Realmuto (m), NIPNLG 2

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) Money damages for constitutional tort committed by defendant acting under color of federal law/authority Suit against individual officer, not United States. Claim for damages arises directly under Constitution without explicit statutory cause of action (“implied” constitutional cause of action) 3

Dual Purpose of Bivens Action Providing a remedy under Bivens: Serves to deter future constitutional violations by holding federal officers accountable for unlawful actions; Provides victims with the only viable compensation for the injuries they suffered. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) 4

Why Bivens Cases Are Important Important tool to address misconduct by immigration agents: Physical and sexual abuse Wrongful detention Wrongful deportation Can impact future conduct of agents Although some aspects of Bivens cases may appear difficult to beginners, there are resources to assist 5

Bivens Cause of Action Plaintiff has a constitutionally protected right; Federal officer acting under color of federal law/authority violated that right; Plaintiff lacks a statutory cause of action, or an available statutory cause of action does not provide a meaningful remedy; and An appropriate remedy, namely damages, can be imposed. 6

Jurisdiction 28 U.S.C Government may challenge jurisdiction, arguing that: The INA precludes jurisdiction or Bivens is not available in immigration cases For assistance with responses, contact: Mary Kenney at Trina Realmuto at 7

Gov’t Challenges to Jurisdiction Government may challenge jurisdiction under: 8 U.S.C. § 1252(g), which divests courts of jurisdiction to hear claims arising from the decision to: commence proceedings adjudicate cases or execute removal orders Section 1252(g) should not bar challenges to acts preceding initiation of proceedings or acts separate from the adjudication of cases and execution of removal orders non-discretionary acts See Reno v. American-Arab Anti Discrimination Committee, 525 U.S. 471, 482 (1999) 8

Contexts in Which Bivens Claims Have Been Recognized 4th Amendment: Bivens (search and seizure by local police) 5th Amendment Equal Protection Clause: Davis v. Passman, 442 U.S. 338 (1979) (sex discrimination suit by female former congressional employee against former Member of Congress) 8th Amendment: Carlson v. Green, 446 U.S. 14 (1980) (case against prison officials for failure to provide competent and timely medical care to inmate) 9

Bivens in “New Contexts” The Supreme Court is reluctant to recognize Bivens claims in “new contexts.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) Test for a new context: whether courts have recognized Bivens remedy in cases with similar “legal and factual components” Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc); see also Hernandez v. United States, 757 F.3d 249, 272 (5th Cir. 2014) 10

Test for Extending Bivens Even in a “new context,” Bivens is appropriate unless: there is an available alternative remedial scheme which would adequately compensate the plaintiff; Note that the availability of a remedy under the FTCA does not preclude a Bivens action for the same injury; thus the FTCA is not an alternative remedial scheme. Carlson v. Green, 446 U.S. 14, (1980), and special factors do not outweigh Bivens’ deterrent effect. Wilkie v. Robbins, 551 U.S. 537, 550 (2007) 11

Filing Considerations Venue: 28 U.S.S. § 1391(b); see e.g., Gonzalez v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011) Statute of limitations: Suit must be brought within the state limitations period for personal injury actions where claim arose Jury trial is available 12

Defendants Suit against individual federal agents Bivens suits cannot be brought against: Agencies: FDIC v. Myers, 510 U.S. 471 (1994) Private correctional facilities under contract with federal agency: Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) Public Health Service employees; suits over their wrongdoing limited to FTCA: Hui v. Castaneda, 130 S.Ct (2010) 13

Unknown Defendants Name unknown officers as “Jane Doe” and “John Doe” Pursue early discovery regarding identity of Doe defendants Watch the statute of limitations with respect to identifying Doe defendants 14

Pleading Considerations Ashcroft v. Iqbal, 129 S.Ct (2009) Allegations in complaint must be plausible Must plead with specificity Legal conclusions must be supported by factual allegations Do not include “threadbare” recitals of the elements of the cause of action 15

Pleading Sufficiency If problem with sufficiency of complaint, can seek leave to amend; be sure to follow local rules Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009) (affirming district court’s denial of leave to amend where plaintiff did not comply with local rule requiring plaintiff to submit proposed amended pleading) 16

Immunity of Defendants Absolute immunity: judges, legislators, and prosecutors when acting in official capacity Qualified immunity = “good faith” immunity Officers only held responsible for violating clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) Qualified Immunity is immunity from suit, not simply immunity from liability 17

Qualified Immunity, cont’d. Test for Qualified Immunity: 1. do the alleged facts show a violation of a constitutional right? 2. was the constitutional right clearly established?  Saucier v. Katz, 533 U.S. 194 (2001) Court may decide step two before step one. Pearson v. Callahan, 555 U.S. 223 (2009) 18

Qualified Immunity, cont’d. Example, excessive force in immigration context: Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006) (No qualified immunity where officer alleged to have violated the Fourth Amendment by physically assaulting and arresting noncitizen without provocation) 19

Qualified Immunity, cont’d. “Cleary established:” Individual officer immune from damages if constitutional rights were not “clearly established.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) The factual circumstances need not be identical: “fair warning” that the alleged treatment was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002) 20

Motion to Dismiss Based on Qualified Immunity Because claim to immunity from suit, discovery will be limited Alternate discovery strategies: Prior to filing suit, file FOIA Consider filing FTCA or § 1983 suit before Bivens suit and conducting discovery through these Responding to qualified immunity motions to dismiss: Plead specific facts to show violation of constitutional right Submit detailed affidavits from plaintiffs and witnesses Interlocutory appeal available for denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511 (1985). 21

Supervisory Liability No respondeat superior liability Supervisor’s liability must be based upon his or her own action. See, e.g., Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2013) 22

Relief Compensatory and punitive damages are available Where both FTCA and Bivens claims are brought, a judgment in FTCA case will bar a Bivens judgment. See, e.g., Manning v. U.S., 546 F 3d 430 (7th Cir. 2008) (FTCA judgment barred Bivens claim) 23

Attorneys’ Fees Because suit is against individual officers, no attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, et seq., or section State law governs percentage of recovery in contingency fee cases 24

Helpful Resources NIPNLG-NPAP Accountability Mentoring Program NIPNLG FTCA FAQ Practice Advisory for Immigration Attorneys Sample Claim Letters and Complaints Sample Fee Agreements Amicus Support Damages trainings / materials Police Misconduct Law and Litigation (Avery, Rudovsky, Blum) 25

Q & A 26

Upcoming Damages Webinars Wednesday, OCT. 22 nd FTCA PART II - DISTRICT COURT Jonathan Feinberg and Javier Maldonado Thursday, OCT. 30 th § 1983 ACTIONS Justin Cox and Sunita Patel 27 nipnlg.org