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WHY BIVENS WON’T DIE: THE LEGACY OF PEOPLES V.
CCA DETENTION CENTERS
LUMEN N. MULLIGAN†
ABSTRACT
Interpreting recent Supreme Court precedent, the Tenth Circuit in Peoples v. CCA Detention Centers held that a federal prisoner confined in a
privately run prison may not bring a Bivens suit against the employees of
a private prison for violations of his constitutional rights when alternative state-law causes of action are available. The author first reviews the
Supreme Court's evolving Bivens jurisprudence and turns next to an
overview of the Tenth Circuit's opinion. Third, the author argues that,
despite the Tenth Circuit's new approach, putative constitutional claims
brought under state-law theories of recovery will often be “refederalized” producing uniform federal liability rules and federal jurisdiction. The author concludes that should the Supreme Court truly wish
to end the practice of implying causes of action from the Constitution, it
must reconsider a whole host of federal common law and jurisdictional
doctrines—a course of action the Court may find unpalatable.
TABLE OF CONTENTS
INTRODUCTION ..................................................................................... 685
I. THE SLOW DEATH OF BIVENS V. SIX UNKNOWN FEDERAL
NARCOTICS AGENTS ......................................................................... 688
II. PEOPLES V. CCA DETENTION CENTERS ........................................... 695
III. LATENT FEDERAL QUESTIONS ....................................................... 703
A. The Government Contractor Doctrine...................................... 703
B. The Necessary Construction Test.............................................. 709
CONCLUSION ......................................................................................... 715
INTRODUCTION
In what may become a landmark prisoner’s rights ruling, the United
States Court of Appeals for the Tenth Circuit in Peoples v. CCA Deten-

† Lecturer of Law, University of Kansas School of Law. B.A., University of Kansas 1995;
M.A., University of Colorado 1999; J.D., University of Michigan School of Law 2002. I am especially grateful to Jonathon E. Boatman, Esq.; Professor Bridgette Carr; Professor Jack F. Preis; and
Jeffrey L. Stowell, Esq. for their helpful thoughts and comments. Additionally, many thanks are due
to my wife Emily for her editorial help and continual support. I also note that I was employed by the
Tenth Circuit Court of Appeals when Peoples v. CCA Detention Centers was argued. This article
reveals no confidential information and reflects no one’s views but my own.

685

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tion Centers1 held that a federal prisoner confined in pre-trial detention in
a privately run prison operating under contract with the United States
Marshal Service may not bring a Bivens v. Six Unknown Federal Narcotics Agents2 claim against the employees of the federal-contractor prison
for violations of his Fifth and Eighth Amendment rights when alternative
state-law causes of action are available.3 The Peoples case raises several
concerns. As the dissent notes, it is at least questionable whether the
majority opinion: (a) conforms with Supreme Court precedent, (b) properly rejects the principle of parallelism between prisoner’s rights in publicly and privately run prisons, (c) appropriately denigrates the uniformity of federal rights, and (d) deters future constitutional violations in privately run prisons.4 Moreover, given the growth in the use of privately
run federal prisons,5 decisions such as Peoples, which, absent diversity,
deprive federal prisoner plaintiffs of a federal forum for putative constitutional claims, may well foist portions of the substantial costs of prisoner litigation onto the state courts.6 Finally, the Peoples case also raises
the issue of federalization of putative constitutional tort claims, which is
the focus this article.
Many jurists and scholars have leveled challenges to the propriety
of implying federal causes of action directly under the Constitution since
the Supreme Court first decided Bivens.7 Many have argued that implying the Bivens cause of action directly from the Constitution violates

1. 422 F.3d 1090 (10th Cir. 2005). Indeed, just prior to the publication of this article, the
Fourth Circuit adopted the Tenth Circuit's approach to Bivens actions brought against employees of
privately run federal prisons. Holly v. Scott, No. 05-6287, 2006 WL 60276, at *9 (4th Cir. Jan 12,
2006) (adopting Peoples).
2. 403 U.S. 388 (1971) (holding that federal agents acting under color of federal law may be
found liable for monetary damages for violations of the Fourth Amendment). Conventionally speaking a Bivens action is the federal equivalent of a 42 U.S.C. § 1983 action. See generally ERWIN
CHEMERINSKY, FEDERAL JURISDICTION 523–44 (2d ed. 1994); SHELDON H. NAHMOD ET AL.,
CONSTITUTIONAL TORTS 16–22 (1995).
3. Peoples, 422 F.3d at 1108.
4. Id. at 1108–13 (Ebel, J., dissenting).
5. See Richard Harding, Private Prisons, 28 CRIME & JUST. 265, 340-41 (2001) (concluding
private prisons will continue to exist and grow in the United States not replacing public prisons, but
competing with them and stimulating improvement of the total prison system); Clifford J. Rosky,
Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States, 36
CONN. L. REV. 879, 902-03 (2004); Peter J. Duitsman, Comment, The Private Prison Experiment: A
Private Sector Solution to Prison Overcrowding, 76 N.C. L. REV. 2209, 2218 (1998) (“The number
of inmates in private prisons is expected to grow thirty percent per year.”).
6. See generally Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1557 (2003)
(discussing the efficacy of the Prisoner Litigation Reform Act in reducing costs of prisoner litigation
in the federal courts).
7. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring);
Carlson v. Green, 446 U.S. 14, 31–54 (1980) (Rehnquist, J., dissenting); John C. Jeffries, The RightRemedy Gap in Constitutional Law, 109 YALE L.J. 87, 89-90 (1999); Thomas W. Merrill, The
Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 52 (1985); Thomas S. Schrock &
Robert C. Welsh, Reconsidering the Constitutional Common Law, 91 HARV. L. REV. 1117, 1135-38
(1978). But see Richard H. Fallon & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1822 (1991) (praising the Court’s decision to hold individual officers liable for constitutional violations as genius).

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principles of separation of powers.8 Several commentators have noted
that the ability to imply causes of action is simply beyond the powers
conferred upon the federal courts altogether.9 Others have noted a host
of pragmatic concerns that arise from implying causes of action directly
under the Constitution.10 Given these many concerns, the Court has been
loath to expand the scope of the Bivens cause of action since 1980.11
Indeed, the Court’s post-1980 Bivens jurisprudence may be fairly characterized as a “slow death” of the implied constitutional cause of action.12
In this article, I argue that the Peoples opinion illustrates that the
Court’s slow-death approach to the Bivens claim does not attain the goal
of ending federal-court-created liability rules for constitutional torts. I
contend that putative constitutional tort claims brought by federal prisoners in privately run prisons under state-law theories of recovery are often
embedded with federal issues capable of conferring a federal liability
rule and federal jurisdiction. I proceed as follows: part I provides a brief
outline of the Court’s slow-death methodology to eliminating the Bivens
cause of action; part II reviews the opinion in Peoples; and, part III considers two quandaries lurking in Peoples. First, many putative constitu8. In Carlson, Justice Rehnquist states:
In my view, it is ‘an exercise of power that the Constitution does not give us’ for this
Court to infer a private civil damages remedy from the Eighth Amendment or any other
constitutional provision. The creation of such remedies is a task that is more appropriately viewed as falling within the legislative sphere of authority.
Carlson, 446 U.S. at 34 (Rehnquist, J., dissenting); Davis v. Passman, 442 U.S. 228, 250 (1979)
(Burger, C.J., dissenting) (“[U]ntil Congress legislates otherwise as to employment standards for its
own staffs, judicial power in this area is circumscribed. The Court today encroaches on that barrier.”); Merrill, supra note 7, at 19–24 (arguing that inferring causes of action violates the principle
of separation of powers); Schrock & Welsh, supra note 7, at 1127–28 (same).
9. See, e.g., Malesko, 534 U.S. at 75 (Scalia, J., concurring ) (“Bivens is a relic of the heady
days in which this Court assumed common-law powers to create causes of action – decreeing them
to be ‘implied’ by the mere existence of a statutory or constitutional prohibition.”); Schrock &
Welsh, supra note 7, at 1127 (arguing that the power of judicial review does not include the power to
infer causes of action).
10. See, e.g., Bivens, 403 U.S. at 411-12 (Burger, C.J., dissenting); id. at 428 (Black, J., dissenting) (asserting that Bivens would “choke” the courts with lawsuits and prognosticating that a
Bivens remedy would open the door for frivolous suits that would inevitably delay an already slow
path of justice); Jeffries, supra note 7, at 101-02 (arguing that Brown v. Board of Education would
never have been decided if school districts had been subject to money damages and that constitutional rights would have stagnated); Schrock & Welsh, supra note 7, at 1146–71 (considering a
detailed list of “realists” concerns).
11. The Malesko court noted:
In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide
an otherwise nonexistent cause of action against individual officers alleged to have acted
unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct.
Malesko, 534 U.S. at 70.
12. See generally Matthew G. Mazefsky, Note, Correctional Services Corp. v. Malesko:
Unmasking the Implied Damage Remedy, 37 U. RICH. L. REV. 639, 661-62 (2003) (concluding that
Malesko marks the final throws of the cause of action implied directly under the Constitution);
Mariana Claridad Pastore, Comment, Running From the Law: Federal Contractors Escape Bivens
Liability, 4 U. PA. J. CONST. L. 850, 867-69 (2002) (same); Andrea Robeda, Note, The Death of
Implied Causes of Action: The Supreme Court’s Recent Bivens Jurisprudence and the Effect on State
Constitutional Tort Jurisprudence: Correctional Services Corp. v. Malesko, 33 N.M. L. REV. 401
(2003) (same).

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tional torts pursued as state-law claims may be subject to preemption
under the government contractor doctrine, which provides a federal liability rule and an avenue back to federal court. Second, many putative
constitutional claims that are filed under state-law theories of recovery
will incorporate a constitutional rule as the standard of care, which is
sufficient under the “necessary construction test” to gain federal subject
matter jurisdiction. Finally, I argue that the Court’s slow-death approach
to the Bivens cause of action achieves its goal of ending the era of implied constitutional causes of action in form only. In substance, many of
these putative constitutional actions will be “re-federalized”. I conclude
that, if the Court truly wishes to end “the heady days in which [it] assumed common-law powers to create causes of action,”13 it must reconsider a much broader scope of jurisdictional and federal common law
doctrines; a prospect it may find unattractive.
I. THE SLOW DEATH OF BIVENS V. SIX UNKNOWN FEDERAL NARCOTICS
AGENTS14
In Bivens, the Supreme Court held that a “violation of [the Fourth
Amendment] by a federal agent acting under color of his authority gives
rise to a cause of action for damages consequent upon his unconstitutional conduct.”15 Mr. Bivens had alleged that federal agents, under
color of federal law, illegally restrained him, searched his home, and
arrested him.16 The lower courts dismissed Mr. Bivens’ action, agreeing
with the defendants’ argument that Mr. Bivens’ proper remedy lay in a
state-law trespass claim.17 The Supreme Court reversed.18
The Bivens Court rejected the notion that the protections afforded
under the Fourth Amendment are strictly co-extensive to those found
under state law.19 Indeed, the Court held that the Fourth Amendment is
an independent check upon federal power consistently applied throughout the country, which “is not tied to the niceties of local trespass
laws.”20 Moreover, the Court held that the interests protected under
state-law trespass and invasion of privacy doctrines and those interests
protected under the Fourth Amendment may be inconsistent with, or
even hostile to, each other.21 For example, the Court noted that to bring a
state-law trespass claim the plaintiff must show that he did not allow the

13. Malesko, 534 U.S. at 75 (Scalia, J., concurring).
14. 403 U.S. 388 (1971). For a fuller discussion of the Bivens cause of action, Professor
Chemerinsky provides a thorough review. CHEMERINSKY, supra note 2, at 523–44.
15. Bivens, 403 U.S. at 389.
16. Id.
17. Bivens v. Six Unknown Fed. Narcotics Agents, 409 F.2d 718 (2d Cir. 1969); Bivens v.
Six Unknown Fed. Narcotics Agents, 276 F. Supp. 12 (E.D.N.Y. 1967).
18. Bivens, 403 U.S. at 390.
19. Id. at 392–94.
20. Id. at 393–94.
21. Id. at 394.

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defendant into the home.22 But the Court reasoned that an officer “who
demands admission under a claim of federal authority stands in a far different position” from the typical trespasser.23 As a result, the Court concluded that, in most cases, a mere invocation of authority by a federal
official will cause the average citizen to allow the official access to the
home, rendering trespass doctrine an ineffective remedy against abuses
of federal power.24
Finally, the Court held that the provision of monetary damages was
the appropriate remedy for a violation of Fourth Amendment rights.25
The Court acknowledged that it lacked a statutory basis for providing
this remedy and that “the Fourth Amendment does not in so many words
provide for its enforcement by an award of money damages for the consequences of its violation.”26 Nevertheless, the Court held that it could
imply such a cause of action directly from the Constitution when three
conditions were met. First, the implication is appropriate when there is a
federal statute (viz., 42 U.S.C. § 1983) granting a general right to sue for
constitutional violations.27 Second, the implication is appropriate when
there are no special factors counseling hesitation, such as making a claim
upon the federal fisc, weighing against extending a cause of action.28
Third, the implication is appropriate when there is no explicit congressional declaration stating that money damages may not be awarded for
constitutional violations caused by federal agents.29
Despite the expansive language in Bivens itself, the Court has held
that a Bivens action lies against federal officers for money damages on
only two other occasions.30 In Davis v. Passman,31 the Court held that
plaintiff could bring a cause of action for monetary damages for violations of the Due Process Clause of the Fifth Amendment.32 In Carlson v.
Green,33 the Court held that a federal claim lies against federal prison
officials for violations of the Cruel and Unusual Punishments Clause of
the Eighth Amendment.34

22. Id. at 394.
23. Id.
24. Id.
25. Id. at 395.
26. Id. at 396.
27. Id. (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). What the Court means by “general
right to sue” in this context is far from clear. Section 1983 is limited to actions against state officials. See, e.g., Wheedlin v. Wheller, 373 U.S. 647, (1963) (holding federal agents are not liable
under 42 U.S.C. § 1983). Thus, at the time Bivens was decided there was not a general right to sue
federal agents for constitutional violations, merely a general right to sue state agents.
28. Bivens, 403 U.S. at 396.
29. Id. at 396–97.
30. Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980).
31. 442 U.S. 228 (1979).
32. Id. at 243–44.
33. 446 U.S. 14 (1980).
34. Id. at 20.

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Faced with a series of rebukes concerning the appropriateness of
implying causes of action directly under the Constitution, the Court,
since Carlson, has restricted the scope of Bivens claims.35 In Chappell v.
Wallace,36 issued just three years after Carlson, the Court refused to hear
a Bivens action brought by military personnel who, lacking any remedy,
alleged that the unconstitutional actions of their superior officers injured
them.37 Harkening to the limitations upon implying causes action first
laid out in Bivens itself,38 the Court held that a special factor counseled
hesitation in hearing a Bivens claim in such circumstances: namely “the
unique disciplinary structure of the Military Establishment and Congress’
activity in the field.”39 The Court, in United States v. Stanley,40 later
reaffirmed that a Bivens action is unavailable against members of the
military “whenever the injury arises out of activity ‘incident to [military]
service.’”41
In addition to refusing to hear military claims, the Court now
broadly allows Congress to create alternative federal remedies to a
Bivens action.42 In Bush v. Lucas,43 the Court declined to hear a Bivens
claim alleging First Amendment violations brought by government employees when they had access to alternative “comprehensive procedural
and substantive provisions giving meaningful remedies against the
United States.”44 Relying on the notion, introduced in Passman45 and
Carlson,46 that Congress can create alternative remedies to a Bivens
claim, the Bush Court ruled that the congressionally installed administrative system could supplant a Bivens cause of action.47 The Bush Court,
however, went one step further than the Passman and Carlson decisions.
In Passman and Carlson, the Court reasoned that alternative congressionally created remedies to a Bivens action were acceptable as long as
they were “viewed as equally effective” to a Bivens claim.48 The Court
in Bush, by contrast, found a congressionally created alternative remedy
sufficient to bar a Bivens action, even though the administrative
scheme’s “remedies do not provide complete relief for the plaintiff,”49
35. See cases cited supra note 7.
36. 462 U.S. 296 (1983).
37. Id. at 303–04.
38. Bivens, 403 U.S. at 396 (citing “no special factors counseling hesitation”).
39. Chappell, 462 U.S. at 304.
40. 483 U.S. 669 (1987).
41. Id. at 681 (citing the “incident to service” test from Feres v. United States, 340 U.S. 135,
144 (1950)).
42. See Bush v. Lucas, 462 U.S. 367 (1983).
43. 462 U.S. 367 (1983).
44. Id. at 367.
45. Passman, 442 U.S. at 248.
46. Carlson, 446 U.S. at 18–20.
47. Bush, 462 U.S. at 386.
48. Carlson, 446 U.S. at 19; Passman, 442 U.S. at 248.
49. Bush, 462 U.S. at 388. See also David C. Nutter, Note, Two Approaches to Determine
Whether an Implied Cause of Action Under the Constitution is Necessary: The Changing Scope of

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so long as Congress “provide[d] meaningful remedies.”50 Following this
same tack, the Court in Schweiker v. Chilicky51 barred Bivens claims filed
by disabled social security beneficiaries who lacked monetary relief for
emotional distress due to delays in receiving their Social Security benefits.52 As in Bush, the Court relied upon Congress’ creation of alternative, although not equivalent, administrative relief to prohibit the Bivens
claim.53
The Court further limited who may be a proper defendant in a
Bivens action in FDIC v. Meyer.54 Here, the Court held that the logic of
Bivens itselfwhich is founded upon individual, not agency, liabilitydoes not support hearing Bivens claims against federal agencies.55
The Meyer Court concluded that “[i]f we were to recognize a direct action for damages against federal agencies, we would be creating a potentially enormous financial burden for the Federal Government.”56 As the
Bivens Court itself held that such a result should counsel hesitation in
implying a cause of action directly under the Constitution,57 the Meyer
Court took this potential fiscal impact as a ground for barring a Bivens
claim.58
Although the Court has spent fifteen years chipping away at the
edges of the Bivens cause of action, prior to Correctional Services Corporation v. Malesko,59 the following generalizations could be made about
the Court’s Bivens jurisprudence. First, a Bivens claim was considered a
free-standing, generally implied, cause of action independent of state
law.60 Second, the Court considered it fundamental that federally employed agents be subject to uniform rules, be it under Bivens or a congressionally created alternative for constitutional violations.61 Third, a
the Bivens Action, 19 GA. L. REV. 683, 694 (1985) (contending that after Davis and Carlson the
Court abandoned the “equally effective” approach).
50. Bush, 462 U.S. at 386.
51. 487 U.S. 412 (1988).
52. Schweiker, 487 U.S. at 424–25.
53. Id. at 429 (“Congress . . . has addressed the problems created by state agencies’ wrongful
termination of disability benefits” through the creation of administrative remedies).
54. 510 U.S. 471 (1994).
55. Meyer, 510 U.S. at 473.
56. Id. at 486 (internal citation omitted).
57. Bivens, 403 U.S. at 396 (noting that in the instant case, “we are not dealing with a question of ‘federal fiscal policy . . . .’”).
58. Meyer, 510 U.S. at 486.
59. 534 U.S. 61 (2001).
60. Bivens, 403 U.S. at 392–94; Robeda, supra note 12, at 405; Pastore, supra note 12, at 854;
CHEMERINSKY, supra note 2, at 526–31. At least one commentator finds that a Bivens remedy is still
“generally” available post-Malesko. See Erwin Chemerinsky & Martin A. Schwartz, Section 1983
Litigation: Supreme Court Review, A Round Table Dialogue, 19 TOURO L. REV. 625, 678 (2003)
(Professor Chemerinsky asserting: “[A]lthough the Court is continuing to narrow Bivens, it is not
overruling or signaling an overruling of Bivens. The core of Bivens is that if a federal officer violates
a constitutional right, there is generally a remedy available. That has not been overturned.”).
61. See Schweiker, 487 U.S. at 424–29 (finding uniform and comprehensive administrative
relief available); Bush, 462 U.S. at 368 (same); Carlson, 446 U.S. at 23 (“the liability of federal
officials for violations of citizens’ constitutional rights should be governed by uniform rules.”);

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Bivens claim could only be brought against individual defendants—not
agencies of the federal government.62 Fourth, although the Court had
only explicitly approved of Bivens actions for violations of the Fourth
Amendment, the Due Process Clause of the Fifth Amendment, and the
Cruel and Unusual Punishment Clause of the Eighth Amendment, the
courts of appeals considered the Bivens action generally available for any
constitutional violation.63 Fifth, a Bivens action was not appropriate
when Congress provided meaningful, alternative forms of relief, even if
that relief did not provide plaintiffs with complete satisfaction.64 Finally,
Bivens claims were precluded in the absence of affirmative action by
Congress when there were special factors counseling hesitation.65 These
Bivens, 403 U.S. at 393-94 (holding that the Fourth Amendment “is not tied to the niceties of local
trespass laws.”).
62. See Meyer, 510 U.S. at 471. Some consider this focus upon individual liability an ingenius means of skirting sovereign immunity and like doctrine. Fallon & Meltzer, supra note 7, at 1822
(praising the Court’s decision to hold individual officers liable for constitutional violations as genius). Others, however, see this focus on individual liability as little more than form over substance.
See Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability Under Bivens, 88 GEO. L. J. 65-7 (1999) (arguing that as a result of governmental
indemnification and government-provided defense individuals are not in practice liable under
Bivens). Given that the Department of Justice’s Constitutional and Specialized Tort Branch is devoted to defending federal officers against Bivens suits at public expense, Pillard’s point is a strong
one. See http://www.usdoj.gov/civil/brochure/brochure.html (last visited Jan. 30, 2006). Moreover,
the key premise of the Meyer decision—that individual, not agency, liability is the key to deterrence—runs contrary to the fundamental tort principle of respondeat superior, as well as common
sense. Compare Meyer, 510 U.S. at 485 (“It must be remembered that the purpose of Bivens is to
deter the officer.”) with DAN B. DOBBS, THE LAW OF TORTS 907 (2000) (considering, in the context
of justifying the respondeat superior rule, that “the best deterrence is to impose liability upon the
employer, who will then seek to avoid his own liability by exercising his considerable control over
employees to discourage their torts.”).
63. See Carlson 446 U.S. at 23 (Eighth Amendment); Passman, 442 U.S. at 228 (Fifth
Amendment); Bivens, 403 U.S. at 388 (Fourth Amendment). The lower courts, however, have heard
Bivens claims for a broader set of constitutional violations. See, e.g., Switzer v. Coan, 261 F.3d 985,
990 (10th Cir. 2001) (“Plaintiff’s allegations of unconstitutional delegation of Article III authority to
law clerks and staff attorneys in pro se proceedings would appear to state [a Bivens] claim.”); Ruff v.
Runyon, 258 F.3d 498, 499 (6th Cir. 2001) (remanding a Ninth Amendment Bivens claim);
Hammond v. Kunard, 148 F.3d 692, 694–95 (7th Cir. 1998) (upholding a Sixth Amendment Bivens
claim against a qualified immunity challenge); National Commodity and Barter Ass’n v. Archer, 31
F.3d 1521, 1527 (10th Cir. 1994) (“We likewise hold that if claims of violations of First . . .
Amendment rights are proven, then a Bivens remedy may be afforded to the plaintiffs for recovery of
damages for such constitutional wrongs.”).
64. See Schweiker, 487 U.S. at 424–29; Bush, 462 U.S. at 368, 386–88. This alternative
remedy doctrine raises many issues, which are beyond the scope of this article but worthy of note.
See, e.g., Susan Brandes, Reinventing Bivens: The Self-Executing Constitution, 68 SO. CAL. L. REV.
289 (1995) (arguing that Bivens stands for the proposition that judicial enforcement of constitutional
rights through monetary damages should not depend on action by Congress); Betsy J. Grey, Preemption of Bivens Claims: How Clearly Must Congress Speak?, 70 WASH. U. L. Q. 1087 (1992) (arguing that Bivens actions are available except where Congress clearly states its intent to supersede
them); Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117,
1129 (1989) (“It is surprising, as I have indicated, that Bivens decisions, while employing the form
of constitutional interpretation, concede a willingness to be reversed by Congress”); Walter E.
Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 HARV. L. REV. 1532, 1552–53
(1972) (“[W]here the judiciary independently infers remedies directly from constitutional provisions,
Congress may legislate an alternative remedial scheme which it considers equally effective in enforcing the Constitution and which the Court, in the process of judicial review, deems an adequate
substitute for the displaced remedy.”).
65. See Nichol, supra note 64, at 1142–53 (critiquing the Court’s “special factors” approach).

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factors included: (a) potential direct claims upon the federal fisc;66 and
(b) the potential to interfere with the unique nature of the military.67
The Supreme Court’s recent Malesko decision may further limit the
general availability of the Bivens action dramatically.68 Mr. Malesko, a
federal prisoner living in a privately run halfway house, had a heart condition that entitled him to use the elevator to access his fifth floor room
despite the general policy requiring inmates to use the stairs.69 One evening upon his return, an employee of the halfway house required him to
climb the stairs, which resulted in Mr. Malesko suffering a heart attack.70
Mr. Malseko then brought a Bivens suit alleging Eighth Amendment
violations against the halfway house, which was run by a private corporation under contract with the United States Bureau of Prisons.71 The
Court held that such a suit could not be brought against federal contractors who operate prisons, providing three rationales for its decision.72
First, the Court stated that the purpose of a Bivens action is to deter
individual federal officers from committing constitutional violations—
not governmental agencies or corporate entities.73 Relying heavily on
Meyer, the Court held that “threat of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens.”74 Reasoning by analogy to Meyer, the Malesko Court stated that if corporate
defendants were available for suit under Bivens, prisoner plaintiffs would
focus their suits against the corporate employer and not the individual
directly responsible for the injury.75 The Court concluded that the logic
of Meyer foreclosed hearing a Bivens action against a corporate entity.76
While this no-entity-liability principle was seemingly sufficient to
decide the case, the Court went on to provide two more rationales for its
decision.77 The second factor provided by the Malesko Court as ground66. Meyer, 510 U.S. at 486; Bivens, 403 U.S. at 396.
67. United States v. Stanley, 483 U.S. 669 (1987); Chappell v. Wallace, 462 U.S. 296 (1983).
The courts of appeals have relied upon several other special factors to bar a Bivens action. See, e.g.,
Beattie v. Boeing Co., 43 F.3d 559, 563 (10th Cir. 1994) (holding that “that the predominant issue of
national security clearances amounts to such a special factor counseling against recognition of a
Bivens claim in this case.”).
68. See, e.g., Mazefsky, supra note 12 (concluding that Malesko marks the final throws of the
cause of action implied directly under the Constitution); Robeda, supra note 12 (same); Pastore,
supra note 12 (same). But see Chemerinsky & Schwartz, supra note 60, at 678 (stating the Malesko
does not overrule the core holding of Bivens).
69. Malesko, 534 U.S. at 64.
70. Id.
71. Id. at 63.
72. Id.
73. Id. at 71.
74. Id at 70; see also Meyer, 510 U.S. at 485 (“If we were to imply a damages action directly
against federal agencies . . . there would be no reason for aggrieved parties to bring damages actions
against individual officers. [T]he deterrent effects of the Bivens remedy would be lost.”).
75. Malesko, 534 U.S. at 71.
76. Id.
77. There is a strong argument to be had that these following two rationales, then, are merely
obiter dicta.

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ing for its ruling was the need to maintain parity between the remedies
afforded prisoners at privately operated facilities and those at government-operated facilities (the “symmetry principle”).78 Thus, the Court
rejected Mr. Malesko’s Bivens claim against the private prison, at least in
part, because federal prisoners incarcerated in federally run facilities do
not have plaintiff’s contemplated remedy.79 That is to say, because federal prisoners in government-run facilities may not bring a Bivens suit
against the guard’s employer (i.e., the United States or the Bureau of
Prisons) federal prisoners in privately run prisons may not bring Bivens
suits against their corporate jailors. 80 If such an asymmetry is to be imposed, the Court reasoned that Congress was better positioned to impose
it.81
Finally, the Court reasoned that the existence of alternative remedies precluded a Bivens claim (the “alternative-relief principle”).82 The
Court pointed to two alternative remedies available to Mr. Malesko.83
The Court first stated, unexceptionally given its prior case law in Bush
and Chilicky, that the possibility of administrative relief within the Bureau of Prisons (i.e., alternative, congressionally created, administrative
relief) precludes a Bivens claim.84 In a move that was quite exceptional
given its rulings in Bivens and Carlson which reject the notion that state
torts sufficiently protect constitutional interests, the Court stated that Mr.
Malesko’s claim was quintessentially one for negligence and, thus, a
state-law tort claim was available to remedy his constitutional claim.85
The Court’s over-determination of its holding in Malesko has only
fostered confusion. Even assuming each Malesko factor (i.e., the noentity-liability principle, the symmetry principle, and the alternativerelief principle) is sufficient standing alone to bar a Bivens claim, 86 the
Malesko decision raises the further question of whether the existence of
alternative federal remedies, alternative state-law remedies, or both

78. Malesko, 534 U.S. at 71–72.
79. Id. at 71.
80. Id. at 72.
81. Id.
82. Id. (finding that Mr. Malesko was not “confronted with a situation in which claimants in
[his] shoes lack effective remedies.”).
83. Id. at 72–74.
84. Id. at 74; see also 28 C.F.R. § 542.10; Schweiker, 487 U.S. at 413 (holding that the existence of alternative federal remedies is sufficient, standing alone, to bar a Bivens suit); Bush, 462
U.S. at 368 (same).
85. Compare Malesko, 534 U.S. at 73 with Carlson v. Green, 446 U.S. 14, 23 (1980) (“the
liability of federal officials for violations of citizens’ constitutional rights should be governed by
uniform rules.”) and Bivens, 403 U.S. at 393–94 (holding that the Fourth Amendment “is not tied to
the niceties of local trespass laws.”).
86. There are good reasons to make this assumption. See Meyer, 510 U.S. at 484–85 (holding
that the no-entity-liability principle, standing alone, is sufficient to bar a Bivens action); Schweiker,
487 U.S. at 421 (holding that the federal alternative relief principle, standing alone, is sufficient to
bar a Bivens action); Bush, 462 U.S. at 388–90 (same).

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barred Mr. Malesko’s Bivens claim.87 If Malesko, properly understood,
endorses the view that the existence of a state-law remedy standing alone
precludes a Bivens action against a private defendant, then the Malesko
Court has radically departed from its past Bivens jurisprudence.88 This
issue is of particular importance in Bivens suits against employees of
privately run federal prisons because in such suits Malesko’s no-entityliability principle and the symmetry principle are inapposite.89 Moreover, given that the Bureau of Prisons’ administrative remedies are available only to persons under its authority,90 a suit brought by a federal pretrial detainee who is under the authority of the U.S. Marshal Service
would test whether the existence of a state-law remedy standing alone
forecloses a Bivens action against employees of a federal contractor running a private prison.
II.

PEOPLES V. CCA DETENTION CENTERS91

The Tenth Circuit faced just such a perfect storm of facts in Peoples. In a case of first impression in the federal courts of appeals post
Malesko,92 the Tenth Circuit held that the existence of a state-law remedy
87. Malesko, 534 U.S. at 72 (presenting both sets of alternative remedies as grounds for
barring a Bivens claim).
88. See supra notes 60–67 and accompanying text. Indeed, prior to Malesko, the Courts of
Appeals regularly heard Bivens claims against private defendants acting under color of federal law
without a determination that plaintiff lacked a state-law alternative remedy. See, e.g., Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698 (6th Cir. 1996) (holding that a
Bivens claim may be brought against a private actor if the defendant was acting under color of federal law); Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1337 (9th Cir. 1987) (same);
Reuber v. United States, 750 F.2d 1039, 1057 (D.C. Cir. 1984) (same); Dobyns v. E-Systems, Inc.,
667 F.2d 1219, 1222-23 (5th Cir. 1982) (same); Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp. 2d
282, 308 (D. Mass. 1999) (same). The First Circuit, pre-Malesko, appears to assume that such an
action is appropriate. See Gerena v. Puerto Rico Legal Serv., Inc., 697 F.2d 447, 449 (1st Cir. 1983).
Prior to Malesko, three courts of appeals had declined to answer whether a plaintiff may assert a
Bivens claim against a private actor. See DeVargas v. Mason & Hanger Silas Mason Co., Inc., 844
F.2d 714, 720 n.5 (10th Cir. 1988); Morast v. Lance, 807 F.2d 926, 930-31 n.5 (11th Cir. 1987);
McNally v. Pulitzer Publ'g Co., 532 F.2d 69, 75-76 (8th Cir. 1976). Notably, prior to Malesko, only
the First Circuit, in dicta, had stated that “[w]hile federal officers may, at times, be subject to suit for
unconstitutional behavior . . . there is no cause of action against private parties acting under color of
federal law or custom.” Fletcher v. Rhode Island Hosp. Trust Nat'l Bank, 496 F.2d 927, 932 n.8 (1st
Cir. 1974). As is illustrated above, however, the First Circuit appeared to reject this dicta by 1983.
See Gerena, 697 F.2d at 449. In any event, no circuit predicated the existence of a Bivens claim
upon the absence of a state-law remedy.
89. This question was specifically reserved by the Court. Malesko, 534 U.S. at 65 (“the
parties agree that the question whether a Bivens action might lie against a private individual is not
presented here.”). In fact, both parties to the Malesko case assumed that a Bivens action would lie
against employees of privately run prisons, which may have affected the Court’s decision. See Brief
of Petitioner, Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (No. 00-860), 2001 WL 53566, at
*13; Brief of Respondent, Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (No. 00-860), 2001
WL 883679 at *8, *12.
90. 28 C.F.R. § 542.10 (2001) (Bureau of Prisons administrative remedies “do[ ] not apply to
inmates confined in other non-federal facilities”).
91. 422 F.3d 1090 (10th Cir. 2005).
92. But see Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1104 (9th Cir. 2004) (assuming
in dicta that plaintiff may bring a Bivens claim against a guard at a privately run, federal, pretrial,
detention center); Sanusi v. INS, 100 Fed. Appx. 49, 52 n.3 (2d Cir. 2004) (unpublished) (remanding
the question). Two District Courts have substantively addressed the issue. See Sarro v. Cornell

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standing alone forecloses a Bivens action against employees of a federal
contractor running a private prison.93
Peoples is a consolidated appeal combining two suits, both brought
pro se by Mr. Peoples in the District of Kansas.94 In the first case (“Peoples I”),95 Mr. Peoples brought a Bivens claim alleging that, while being
held in pretrial detention, staff at the privately run prison failed to protect
him from other inmates after he repeatedly requested protection.96 As a
result of the staff’s failure to protect him, Mr. Peoples contends that other
inmates beat him with padlocks, chains, and full soda cans.97 Mr. Peoples clearly states an Eighth Amendment violation sufficient to survive a
Federal Rule of Civil Procedure 12(b)(6) motion if he has a means of
bringing the cause of action.98 Under the Eighth Amendment, prison
officials have an obligation to protect prisoners from attack by other
prisoners.99 As the Supreme Court has held, a “prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”100 As such, if Mr. Peoples had been
housed in a government-run prison, these allegations would have given
rise to a Bivens claim.101 The district court in Peoples I reasoned, however, that because Mr. Peoples was housed in a privately run facility and
a state-law tort claim was available, Malesko precluded a Bivens ac-

Corrs., Inc., 248 F. Supp. 2d 52, 63 (D.R.I. 2003) (holding that existence of a state-law remedy
standing alone does not foreclose a Bivens action against employees of a federal contractor running a
private prison); see also Jama v. INS, 343 F. Supp. 2d 338, 362 (D.N.J. 2004) (adopting Sarro). At
the time this article was written, there apparently was no scholarly treatment of this issue.
93. Peoples, 422 F.3d at 1103 (“Therefore, we will not imply a Bivens cause of action for a
prisoner held in a private prison facility when we conclude that there exists an alternative cause of
action arising under . . . state . . . law against the individual defendant for the harm created by the
constitutional deprivation.”).
94. Id. at 1093. Mr. Peoples did obtain counsel for his appeal of Peoples I.
95. Peoples v. CCA Detention Ctrs., No. Civ.A. 03-3129-KHV, 2004 WL 74317 (D. Kan.
Jan. 15, 2004) (Vratil, J.) (unpublished) [hereinafter Peoples I].
96. Peoples, 422 F.3d at 1093–94.
97. Id. at 1094.
98. The court notes that because Mr. Peoples is a pretrial detainee, his claim is technically a
Fifth Amendment due process claim. Id. at 1094 n.1. Nevertheless, because the standard is the same
under either the Fifth or Eighth Amendment, the court, for ease of reference, refers to this failure to
protect claim as an Eighth Amendment violation. Id. I follow the court in this regard.
99. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation omitted, alteration omitted). For
the purposes of this article, I will assume that federal contractors, and their employees, act under
color of federal law when operating a federal prison. See Rosborough v. Mngt. & Training Corp.,
350 F.3d 459, 460-61 (5th Cir. 2003) (holding, in light of Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 72n.5 (2001) and Richardson v. McKnight, 521 U.S. 399, 413 (1997) (holding that a 42 U.S.C. §
1983 plaintiff may sue privately employed prison guards because they are state actors operating
under color of state law). Neither the Tenth Circuit nor the District Courts in Peoples address the
element of acting under color of federal law. But given the strong parallels between a Bivens and §
1983 action, there is good reason to believe that these courts would apply the Fifth Circuit’s Rosborough approach in the Bivens context.
100. Farmer, 511 U.S. at 828.
101. See, e.g., Benefield v. McDowall, 241 F.3d 1267 (10th Cir. 2001) (holding that deliberate
exposure of federal inmate housed in a federally run penitentiary to risk of harm at hands of other
inmates violates the Eighth Amendment giving rise to a Bivens claim).

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tion.102 The district court, therefore, dismissed the claim for lack of subject matter jurisdiction.
In the second case (“Peoples II”),103 Mr. Peoples alleged three
Bivens claims.104 The first claim arose out of the thirteen months he
spent in administrative segregation on the direct order of the Marshal
Service, who considered him a flight risk.105 Mr. Peoples did not receive
written notice of the reason for his segregation upon his request and he
was not allowed a hearing on his segregation status for five months,
which he contended violated his Fifth Amendment due process rights.106
Mr. Peoples also alleged that while in segregation he lacked sufficient
access to legal materials and that his phone calls to his attorney were
monitored, both of which he contended violated his due process rights.107
The district court in Peoples II rejected the notion that Malesko bars a
Bivens suit against employees of a privately run prison, but nevertheless
dismissed all three due process claims on the merits for failure to state a
claim upon which relief may be granted.108
On appeal, the Tenth Circuit first held that the Peoples I district
court erred in treating as jurisdictional the issue of whether the existence
of a state-law relief precludes a Bivens action.109 The circuit relied primarily on Bell v. Hood110 in its jurisdictional analysis.111 In Bell, the
Supreme Court held that complaints seeking to recover directly under the
Constitution raise a federal question sufficient to ground subject matter
jurisdiction, excepting two scenarios.112 The Tenth Circuit concluded
that neither exception set forth in Bell applied.113 First, the court assumed without discussion that the Peoples complaints were not artfully
pleaded merely to gain federal jurisdiction.114 Second, the court quickly
dispensed with the notion that Mr. Peoples’ complaints were insubstantial.115 The court concluded, then, that Bell directly controlled and ad-

102. Peoples, 422 F.3d at 1094.
103. Peoples v. Corr. Corp. of Am., No. 02-3298, 2004 WL 2278667 (D. Kan. Mar. 26, 2004)
(Murgia, J.) (unpublished) [hereinafter Peoples II].
104. Id. at *1.
105. Peoples, 422 F.3d at 1094.
106. Id.
107. Id.
108. Id. at 1095.
109. Id. at 1095–96. Judge Ebel, who generally dissents from the majority’s opinion, concurs
in this aspect of the majority’s decision. Peoples, 422 F.3d at 1108 (Ebel, J., dissenting).
110. 327 U.S. 678 (1946).
111. Peoples, 422 F.3d at 1095.
112. Bell, 327 U.S. at 681–82.
113. See Peoples, 422 F.3d at 1096.
114. Id. at 1095 (holding that complaints that “clearly appear[ ] to be immaterial or made solely
for the purpose of obtaining jurisdiction” should be dismissed under FED. R. CIV. P. 12(b)(1) for lack
of subject matter jurisdiction).
115. Id. at 1095 (discussing insubstantiality of the complaint); see also Bell, 327 U.S. at 682–
83 (holding that complaints that are “wholly insubstantial and frivolous” should be dismissed under
FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction).

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monished litigants not to conflate the lack of a cause of action with lack
of federal subject matter jurisdiction.116
Next, the Tenth Circuit held “that there is no implied private right of
action for damages under Bivens against employees of a private prison
for alleged constitutional deprivations when alternative state . . . causes
of action for damages are available to the plaintiff.”117 The circuit recognized that this holding was in tension with the Supreme Court’s Carlson decision.118 Nevertheless, by adopting something akin to a last-intime rule, which may be a questionable interpretive tool,119 the Tenth
Circuit reasoned that given the Supreme Court’s evolving Bivens jurisprudence it was most prudent to resolve ambiguities among the Court’s
decisions by relying upon its most recent pronouncements on the topic
made in Malesko.120 The circuit concluded that “the purpose of Bivens is
only ‘to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally [as in Carlson],
or to provide a cause of action for a plaintiff who lacked any alternative
remedy [as in Davis].’”121 As a consequence, the Tenth Circuit held that
the existence of an alternative state-law remedy bars a Bivens claim
against employees of federal contractors.122
The court next turns its attention, sua sponte, to the existence of alternative state-law claims for Mr. Peoples’ Bivens suits.123 First, it holds
that Mr. Peoples could have brought his Eighth Amendment, failure-toprotect claim under Kansas common law as prison guards owe a duty of
reasonable care to safeguard a prisoner in their custody from attack by
116. Peoples, 422 F.3d at 1095–96 n3. See also Howard M. Wasserman, Jurisdiction and
Merits, 80 WASH. L. REV. 643, 643 (2005) (arguing that federal courts err by treating factual elements of substantive federal causes of action, such as an interstate commerce or employee numerousity requirement, as going to the jurisdiction of the federal court). Although a full discussion of
this issue is beyond the scope of this article, there is reason to think that the Tenth Circuit’s jurisdictional analysis is wrong-headed given its case-by-case implication approach. Here, the court dismisses Mr. Peoples’ claims without considering the merits of his claim or the merits of an affirmative defense. The dismissal of Mr. Peoples’ claims walk and talk like a common law plea in abatement not a demurrer, corresponding more to a FED. R. CIV. P. 12(b)(1) motion than to a FED. R. CIV.
P. 12(b)(6). Cf. Wasserman, supra, at 649–53 (discussing the “first phase” of litigation where jurisdictional questions are properly addressed).
117. Peoples, 422 F.3d at 1101.
118. Id.
119. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is [the Supreme] Court’s prerogative alone to overrule one of its precedents.”).
120. Peoples, 422 F.3d at 1102.
121. Id. at 1101 (quoting Malesko, 534 U.S. at 70). It is worth noting that the Tenth Circuit
chose not to refer to this text from Malesko as a holding, but rather referenced it as “statements.”
This suggests, perhaps, that even the Tenth Circuit considers Malesko’s presentation of the alternative-remedy principle as obiter dicta. Nevertheless, from the Tenth Circuit’s point of view, the status
of this rationale as dicta is immaterial. See Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.
1996) (“[T]his court considers itself bound by Supreme Court dicta almost as firmly as by the
Court’s outright holdings, particularly when the dicta is recent and not enfeebled by later statements.”).
122. Peoples, 422 F.3d at 1101.
123. Id. at 1103.

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other inmates.124 The court then considers Mr. Peoples’ Fifth Amendment, monitoring-of-his-phone-conversations claim.125 The Tenth Circuit again concludes that a Kansas cause of action, this time implied
from criminal statutory prohibitions, exists to remedy the alleged injury.126 The court then dismissed both claims for failure to state a claim
upon which relief may be granted because Mr. Peoples had alternative
state-law causes of action.127
The Tenth Circuit cryptically treats Mr. Peoples two remaining
Fifth Amendment claims (viz., improperly being held in segregation and
inadequate access to the courts). The court states that it “need not even
look to state law causes of action because we agree with the District
Court that Mr. Peoples’s allegations . . . do not rise to the level of a constitutional violation.”128 The court then proceeds to consider these
Bivens claims on their constitutional merits and dismisses them under
Rule 12(b)(6).129 The court, however, does not state whether an alternative state-law cause of action exists for these claims nor does it state
whether these Bivens claims, although failing on the merits, were appropriately brought as Bivens actions.130 One suspects that the Tenth Circuit
took this approach precisely because Kansas law does not provide an
alternative tort remedy for these Fifth Amendment violations.131 While
this lack of clarity does not offer direction to future litigants or the lower
courts, it appears fair to summarize the court’s holding as producing a
doctrine where Bivens suits must be reviewed claim-by-claim to determine whether an alternative state-law action is available. Under this
regime, Bivens claims without a state-law analogue will (presumably) be
legitimately filed and proceed to an on-the-merits review, while Bivens
claims with a state-law analogue should be dismissed for failure to state a
claim.132

124. Id. at 1104 (quoting Washington v. State, 839 P.2d 555, 559 (Kan. Ct. App. 1992)).
125. Id. at 1105.
126. Id. at 1107–08 (citing KAN. STAT. ANN. §§ 21-4001 to –4002 (2005)); Kan. Op. Atty.
Gen. No. 93-93 (1993)).
127. Peoples, 422 F.3d at 1105; see also id. at 1108.
128. Id. at 1105.
129. Id.
130. See id. at 1113 (Ebel, J., dissenting) (discussing this point).
131. Proving a negative is always difficult, but the author of this article diligently searched for
an alternative Kansas remedy to the improper administrative detention and inadequate access to the
courts claims against a private actor. The closest conceivable action to the administrative detention
claim would be a false imprisonment claim. See Brown v. State, 927 P.2d 938, 940 (Kan. 1996)
(providing elements of false imprisonment). The author was unable to unearth a Kansas-law analogue to the access to the courts claim.
132. The dissent strongly critiques this approach. “Thus, what we have here under the majority
opinion is a framework where some, but not all, due process violations should be brought as Bivens
actions and some should be brought as state-law tort suits.” Peoples, 422 F.3d at 1113 (Ebel, J.,
dissenting). Such an approach is “an intensely fact-driven endeavor,” id. at 1112, that is inappropriate given that the doctrinal inquiry here is whether a cause of action exists, providing “yet another
reason why the majority’s reasoning is flawed.” Id. at 1113.

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Assuming that the Peoples court133 correctly reads Malesko to command this result, the Tenth Circuit faces a prima facie Supremacy Clause
problem.134 Under the traditional understanding of a Bivens claim as a
free-standing cause of action independent of state law,135 it could appear
that the circuit has employed a “reverse preemption” doctrine whereby a
state-law claim preempts a federal Bivens claim. That it to say, one
could read Peoples as holding that the plaintiff had two Bivens claims
that were preempted by the existence of Kansas tort claims. Of course,
such a reverse preemption theory is doctrinal heresy.136
While the court does not address this issue directly, the better reading of Peoples illustrates that the Tenth Circuit avoids this prima facie
Supremacy Clause problem. The court achieves this result by implicitly
rejecting the traditional understanding of the Bivens claim.137 Instead of
viewing Bivens as implied generally, the circuit views Bivens actions as
implied claim-by-claim. This understanding is first evidenced during the
court’s claim-by-claim analysis of whether analogous state-law actions
exist. The court concludes each of these analyses by rendering a claimspecific ruling on whether to imply a Bivens cause of action.138 This
claim-by-claim approach is further evidenced during the court’s discussion of the Malesko symmetry principle.139 The Tenth Circuit recognizes
that under its ruling federal prisoners incarcerated in privately run prisons lack a remedy (i.e., a Bivens suit against individual officers) that is
available to federal prisoners held in government-run facilities.140 While
recognizing this as violating Malesko’s symmetry principle, the court
states, “it was not created by this decision.”141 “An implied right,” the

133. The reader will excuse this little joke.
134. U.S. CONST., art. VI, cl. 2 (“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”).
135. See supra note 60.
136. See, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 395 (1971)
(“For just as state law may not authorize federal agents to violate the Fourth Amendment, neither
may state law undertake to limit the extent to which federal authority can be exercised.”); M'Culloch
v. Maryland, 17 U.S. 316, 427 (1819) (“It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.”); Roberts v. Roadway Express,
Inc., 149 F.3d 1098, 1105 (10th Cir. 1998) (“If [Defendant] means to argue that Colorado’s Workers’ Compensation Act provides the exclusive remedy for all work-related injuries including emotional distress caused by violations of the [federal] civil rights laws, that argument is readily disposed of by the Supremacy Clause.”).
137. See supra notes 60-67 and accompanying text (outlying the traditional understanding).
138. Peoples, 422 F.3d at 1105 (“Therefore, because Kansas law gives rise to a cause of action
for damages for the injuries Mr. Peoples suffered as the result of the alleged deprivation of his
Eighth Amendment rights, we will not imply an additional cause of action directly under the Constitution in Peoples I.”); Id. at 1108 (“We conclude, then, that Mr. Peoples could have brought suit
under Kansas law [for the alleged unlawful monitoring of his phone calls]. Therefore, we will not
imply a Bivens claim as to this allegation.”).
139. Id. at 1103.
140. Id. at 1102.
141. Id. at 1103.

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court goes on to explain, “by definition, is created by the courts and cannot exist until it is judicially announced.”142
In essence, the Tenth Circuit’s view is that a Bivens cause of action
only springs into existence when no alternative remedy is available.
Prior to that moment, the federal cause of action simply does not exist.
The presence of alternative state-law relief, then, does not preempt plaintiff’s federal Bivens action under the Tenth Circuit’s view, but rather the
existence of the state-law relief fails to provide a condition precedent for
the creation of the Bivens action by implication. Thus, state-law remedies do not displace the federal Bivens action under the circuit’s view
because in those cases where alternative state-law remedies exist there
simply is no federal cause of action to displace.
While the court appears to avoid the Supremacy Clause problem, it
is unclear exactly why Bivens claims with a state-law analogue should be
dismissed as a procedural matter. While the court does make clear that
such dismissals are not jurisdictional,143 it fails to address whether the
existence of alternative state-law claims acts as an element of plaintiff’s
claim or an affirmative defense. Neither choice is attractive. On the one
hand, there appears to be little authority to treat the lack of an alternative
state-law action as an element of the Bivens claim.144 On the other hand,
if the existence of an alternative state-law claim is an affirmative defense
the reverse preemption problem rears its ugly head again, because but for
the state-law defense plaintiff would have a federal cause of action.
Moreover, an affirmative defense can be waived,145 potentially leaving a
federal court with the unsavory duty of litigating a “non-existent” federal
cause of action.
Given the increasingly complex legal analysis imposed by the Peoples regime coupled with the possibility for dismissal without the court
addressing the merits of a plaintiff’s claim, it may be appropriate for
district courts to exercise their discretion to dismiss putative Bivens
claims without prejudice when they conclude that alternative state-law
causes of action bar the claim,146 allowing prisoner plaintiffs to refile
their claims under the state–law theory. Indeed, dismissal without prejudice seems especially appropriate here as the overwhelming majority of
prisoner-plaintiffs proceed pro se.147 Of course, this ability to refile as142. Id.
143. Id. at 1095–96.
144. See, e.g., Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003) (holding post Malesko that “the elements of a Bivens claim [are properly pleaded] by alleging a violation of his constitutional rights by agents acting under the color of federal law.”).
145. See FED. R. CIV. P. 8(c).
146. See FED. R. CIV. P. 41(a)(2).
147. See Lois Bloom & Helen Hershkoff, Federal Courts, Magistrate Judges, and the Pro Se
Plaintiff, 16 NOTRE DAME J.L. ETHICS & PUB. POL’Y 475, 479–80 (2002) (“The majority of prisoners proceed pro se in these actions [civil prisoner constitutional rights litigation]—ninety-six percent
according to a recent survey.”).

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sumes that the statute of limitations will not have run, which would stymie any such attempt. Nevertheless, most state saving statutes would
provide prisoner-plaintiffs an additional window of opportunity to refile
a state claim if the statute of limitations had run while the Bivens claim
was pending as long as the first dismissal is entered without prejudice.148
The difficulties created by the majority’s application of Malesko do
not end here. Judge Ebel, while recognizing that this was a hard case,
strongly dissents and calls for the Supreme Court to take up the issue of
Bivens suits against employees of federal contractors.149 He begins his
analysis by arguing that the majority opinion fails to give Carlson its
due.150 Judge Ebel argues that Supreme Court precedent does not treat
alternative causes of action as fungible, but rather requires that alternatives to a Bivens action be alternative constitutional causes of action.151
Next, Judge Ebel contends that the majority violates the Malesko symmetry principle, because a Bivens action against staff is available to federal prisoners in government-run facilities but not in privately run facilities. Also, in Judge Ebel’s view, the majority violates the traditional parallelism between a Bivens action and a 42 U.S.C. § 1983 action, because
a § 1983 action against staff members is available to state prisoners held
in private prisons but a Bivens action is not available to federal prisoners
incarcerated in private facilities.152 Fourth, Judge Ebel asserts that the
majority, contrary to the Court’s directives in Bivens and Carlson, renders the enforcement of federal rights non-uniform by making a Bivens
action contingent upon the vagaries of state law.153 Finally, Judge Ebel

148. For instance, under Kansas law:
If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may
commence a new action within six (6) months after such failure.
KAN. STAT. ANN. § 60-518 (2005). In Kansas, examples of such judgments “not on the merits”
include: denial of class certification for lack of numerosity, Waltrip v. Sidwell, 678 P.2d 128, 133
(Kan. 1984); dismissal for failure to file an amended petition following a partially successful motion
for a more definite statement, Barrett v. Porter, 408 P.2d 574 (Kan. 1965); dismissal without prejudice, Cox v. Trousdale, 27 P.2d 298 (Kan. 1933); and dismissal for voidable service of process,
Goldsberry v. Lewis, 574 P.2d 566 (Kan. Ct. App. 1978).
149. Peoples, 422 F.3d at 1108 n.2 (Ebel, J., dissenting).
150. Id. at 1108–10.
151. Id. at 1109.
152. Id. at 1110–12.
153. Id. at 1112–13. The District of Rhode Island, in rejecting the claim-by-claim approach
later adopted by the Tenth Circuit, offered this further critique:
[W]hile Malesko indicates that the existence of state law remedies may be a factor to be
considered, in applying Bivens, state law remedies cannot be construed as a manifestation
of Congressional intent to preclude the application of Bivens. Indeed, making the federal
remedies available to a federal prisoner at a privately operated institution contingent upon
whether there are adequate alternative state law remedies would require a case by case
analysis of state law and would cause the availability of a Bivens remedy to vary according to the state in which the institution is located, a result that Bivens, itself sought to
avoid.
Sarro v. Cornell Corrs., Inc., 248 F. Supp. 2d 52, 63 (D.R.I. 2003).

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warns that the majority’s opinion will fail to deter future constitutional
violations.154
III. LATENT FEDERAL QUESTIONS
Although Judge Ebel raises strong points, I will assume that the majority correctly construes Malesko as holding that the existence of a statelaw remedy standing alone forecloses a Bivens action against employees
of a federal contractor running a private prison.155 Nevertheless, even if
cases such as Mr. Peoples’ are henceforth espoused under state-law theories of recovery, many will contain a federal question sufficient to refederalize the liability rule and provide for federal jurisdiction. This path
back to a federal question proceeds via two independent routes: the government contractor doctrine and the necessary construction test.
A. The Government Contractor Doctrine
Assuming the Tenth Circuit correctly interprets Malesko as foreclosing a Bivens action against employees of a federal contractor running
a private prison when a state-law alternative action exists,156 the government contractor doctrine provides an independent ground for refederalizing prisoner constitutional claims against employees of privately
run federal prisons.157 The Peoples court does not address this issue.158
Nonetheless, future prisoner plaintiffs in positions similar to Mr. Peoples
may find themselves subject to a federal liability rule in a federal forum
and possibly in a double bind—unable to bring a Bivens claim because of

154. Peoples, 422 F.3d at 1113 (Ebel, J., dissenting).
155. But see Sarro, 248 F. Supp. 2d at 63 (holding that Malesko does not mandate this result).
156. Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1103 (10th Cir. 2005) (“Therefore, we
will not imply a Bivens cause of action for a prisoner held in a private prison facility when we conclude that there exists an alternative cause of action arising under . . . state . . . law against the individual defendant for the harm created by the constitutional deprivation.”).
157. For general discussions of the government contractor doctrine see: Kenneth G. English,
Note, Government Complicity and a Government Contractor’s Liability in Qui Tam and Tort Cases,
33 PUB. CONT. L.J. 649 (2004) (critiquing government contractor doctrine as economically inefficient); Mazefsky, supra note 12, at 659−61 (discussing the government contractor doctrine as it is
addressed in Malesko); Sean Watts, Note, Boyle v. United Technologies Corp. and the Government
Contractor Defense: An Analysis Based on the Current Split Regarding the Scope of the Defense, 40
WM. & MARY L. REV. 687 (1999) (arguing for Congressional action to resolve doctrinal confusion
in this area); Jack M. Sabatino, Privatization and Punitives: Should Government Contractors Share
the Sovereign’s Immunities From Exemplary Damages?, 58 OHIO ST. L.J. 175 (1997) (critiquing the
extension of government immunities to institutions such as private prisons under the government
contractor doctrine); Ronald A. Cass & Clayton P. Gillette, The Government Contractor Defense:
Contractual Allocation of Public Risk, 77 VA. L. REV. 257 (1991) (providing an economic analysis
of the government contractor doctrine); A.L. Haizlip, The Government Contractor Defense in Tort
Liability: A Continuing Genesis, 19 PUB. CONT. L.J. 116 (1989).
158. Apparently the Tenth Circuit at one point considered a discussion of the government
contractor doctrine. Peoples, 422 F.3d at 1108 n.13 (“As we discussed above, the government
contractor doctrine is not applicable because there is nothing in the record indicating that the Marshal Service specifically ordered the monitoring of Mr. Peoples’s calls to his attorney.”). But the
opinion lacks any “discussion above.” Presumably, the court decided a full discussion of government contractor doctrine imprudent in this opinion.

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the existence of an alternative state-law remedy yet finding their statelaw remedy preempted by federal common law.
The Supreme Court’s leading government contractor doctrine case
is Boyle v. United Technologies Corp.,159 where the Court held that federal common law preempts state-law tort actions against independent
contractors who manufacture munitions for the federal government. In
Boyle, a copilot of a Marine Sikorsky helicopter drowned following its
crash into the Atlantic. His estate brought a successful state-law tort
claim against Sikorsky, contending that the outward-opening escape
hatch was ineffective in an underwater crash and that its handle was obstructed by other equipment.160 The Court overturned the jury verdict on
the grounds that the government contractor defense, as a matter of federal common law, preempted the state-law claim.161
The Court reasoned that federal common law preempts state law
where there is a uniquely federal interest and there is a significant conflict between federal policy and the operation of state law.162 The Court
found these criteria met in Boyle. The Court noted that without government-contractor immunity “the contractor will [either] decline to manufacture the design specified by the government, or it will raise its
price.”163 Next, the Court feared that the threat of state-law liability
would interfere with the Government’s legitimate balancing of safety
features against military efficacy in designing war materiel.164 The Court
then fashioned a three-prong test to determine when a defendant has successfully asserted a defense under the government contractor doctrine.
To wit, state-law liability for design defects in military equipment is preempted by federal common law when: (1) the United States approved
reasonably precise specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States about the
dangers in the use of the equipment that were known to the supplier but
not to the United States.165
The lower federal courts have since split on the scope of the federal
contractor doctrine outside of the military supplier context.166 A minority of courts refuse to apply the doctrine outside of military procurement
cases.167 A majority of courts, however, apply the government contractor

159. Boyle, 487 U.S. 500 (1988).
160. Id. at 503.
161. Id. at 512.
162. Id. at 507−08.
163. Id. at 507.
164. Id. at 511.
165. Id. at 512.
166. See Hazel Glenn Beh, The Government Contractor Defense: When Do Governmental
Interests Justify Excusing A Manufacturer’s Liability for Defective Products?, 28 SETON HALL L.
REV. 430, 432 (1998).
167. Id.

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doctrine in any scenario that satisfies the Boyle three part test.168 As the
Eleventh Circuit noted, the history of the government contractor doctrine
and its general rationale lend support to the conclusion that it would be
illogical to limit the availability of the doctrine solely to military contractors.169 To this end, the doctrine has been applied to cases involving
“manufacturers of letter sorting equipment for the United States Postal
Service; postal vehicles; ambulances; military air conditioners; army
surplus tree-trimming belts; service contracts for the Department of Energy; a security guard service for a federal building; and the Environmental Protection Agency.”170
While the Supreme Court has not definitively held that the government contractor doctrine applies to private prisons, the Malesko Court
suggested that it would. In a footnote citing Boyle, the Court stated,
“Where the government has directed a contractor to do the very thing
that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert [federal preemption]. The
record here would provide no basis for such a defense.”171 Thus, it appears that the Court, given an appropriate set of facts, would find the
government contractor doctrine applicable to suits brought by prisoners
held in privately run federal prisons. Indeed, the lower courts in the
Malesko litigation assumed that the government contractor doctrine
could apply and gave the argument full consideration.172
Moreover, privately run federal prisons are currently attempting to
use the government contractor doctrine as a bar to prisoner plaintiffs’
state-law claims. Recently the Southern District of New York, sitting in
diversity, considered a suit brought by two former female federal prisoners against a privately run federal prison alleging sexual misconduct by
the prison’s guards.173 The plaintiffs brought two state-law causes of
actionnegligent hiring and retaliation.174
The private prison moved for summary judgment, inter alia, on the
grounds that it was entitled to government contractor immunity.175 The
District Court assumed that the doctrine was applicable outside of the
168. Id.
169. Burgess v. Colo. Serum Co., 772 F.2d 844, 846 (11th Cir. 1985). See also Brown v.
Nationsbank Corp., 188 F.3d 579, 588–89 (5th Cir. 1999) (extending the doctrine to protect persons
from state-law liability when they in good faith assist the Government in law enforcement operations); Boruski v. United States, 803 F.2d 1421, 1430 (7th Cir. 1986) (applying the doctrine in “civilian relationships” where “a contractor has acted in the sovereign’s stead and can prove the elements of the defense.”).
170. Beh, supra note 166, at 432.
171. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 n.6 (2001); see also Mazefsky, supra note
12, at 659−61 (discussing the government contractor doctrine as it is addressed in Malesko).
172. Malesko v. Corr. Servs. Corp., 229 F.3d 374, 382 (2d Cir. 2000), rev'd on other grounds,
534 U.S. 61 (2001).
173. Adorno v. Corr. Servs. Corp., 312 F. Supp. 2d 505 (S.D.N.Y. 2004).
174. Id. at 513.
175. Id.

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military supplier context, but it held that, given the facts in the instant
case, the private prison could not satisfy the three-part Boyle test.176
In August 2005, the District Court for the District of Columbia
heard a similar argument. In Ibrahim v. Titan Corp.,177 Iraqi nationals
who were held in a privately run federal prison in Iraq brought common
law suits against the operator of the prison. Among other defenses, the
private prison argued that the plaintiffs’ common law claims were preempted by the government contractor doctrine.178 The court held the
doctrine applicable to private prisons, but as in the New York case, held
that the facts did not support a finding that the Boyle three-prong test was
met.179
Given that the federal courts currently apply the government contractor doctrine to claims brought against privately run federal prisons,
many federal inmates who are denied a Bivens claim against guards on
the basis that an alternative state-law claim exists may find they lack a
viable state-law claim as well. The Peoples case itself provides a prime
example. Recall, Mr. Peoples brought a Fifth Amendment due process
claim arising out of his thirteen months of administrative segregation.
This segregation was imposed by order of the Marshal Service, not by a
discretionary act of the private prison.180 If Mr. Peoples had brought this
claim under a state-law theory of recovery such as false imprisonment,181
his claim would have been highly susceptible to the assertion of the government contractor doctrine because, as the Malesko Court put it, the
Government “directed [the private prison] to do the very thing that is the
subject of the claim.”182 Indeed, the three-prong Boyle test, at least based
upon the scant factual background provided in the Peoples opinion,
should be met here. First, the Government, by ordering the administrative segregation, approved a reasonably precise course of conduct. Second, the private prison followed those instructions. Third, the Marshal
Service was, presumably, aware of the constitutional implications of
unjustifiably holding a pretrial detainee in administrative segregation.183

176. Id. at 521; see Scainetti v. United States ex rel. Federal Bureau of Prisons, No. 01 Civ.
9970 (SHS), 2002 WL 31844920, *1 (S.D.N.Y. Dec. 18, 2002) (unpublished) (noting that the
Southern District of New York previously faced nearly identical government contractor arguments
and applied nearly the same reasoning); Norwood v. Esmor Inc., No. 95 Civ. 8281 (LAP), 1997 WL
65913, *4 (S.D.N.Y. Feb. 13, 1997) (unpublished).
177. 391 F. Supp. 2d 10 (D.D.C. 2005).
178. Ibrahim, 391 F. Supp. 2d at 16.
179. Id. at 17.
180. Peoples v. CCA Detentions Ctrs., 422 F.3d 1090, 1093 (10th Cir. 2005).
181. See Brown v. State, 927 P.2d 938, 940 (Kan. 1996) (providing elements of false imprisonment); see also supra note 131.
182. Malesko, 534 U.S. at 74 n.6.
183. See Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). The reader will note
a slight rephrasing of the Boyle test here given the change in context from ordering a product to
ordering a course of conduct, which the author intends as mere change in the form of–not the substance of–the Boyle test. Courts applying the test in the prison context adopt a similar formulation of

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Hence, claims such as Mr. Peoples’s administrative segregation claim, if
brought under a state-law theory of recovery, would likely be preempted
under the government contractor doctrine.
This conclusion should not be overstated. As the Tenth Circuit has
made clear in other contexts, “[t]he government contractor defense . . .
[only applies] when the [contractor] has conformed to reasonably precise
specifications established or approved by the government.”184 The Second Circuit has suggested this same principle applies in privately run
prison cases as well. “The government contractor defense only shields a
[privately run federal prison] from claims arising out of its actions where
the government has exercised its discretion and judgment in approving
precise specifications to which the contractor must adhere.”185 Given
that the government contractor defense is essentially a claim that “[t]he
Government made me do it,”186 it is not surprising that both the Southern
District of New York and the District of Columbia District Courts have
denied attempts by employees of privately run prisons to invoke the government contractor doctrine absent specific evidence that the Government ordered the course of action bringing rise to the lawsuit. But this is
not to say that the doctrine could never be successfully invoked in cases,
such as Peoples, where the Government did specifically order the conduct giving rise to the suit.
Further, it is unclear what effect the preemption of state-law claims
under the government contractor doctrine would have on the availability
of a Bivens suit under the Peoples analysis. The Tenth Circuit adjudicated Mr. Peoples’s administrative segregation claim on its constitutional
merits.187 The court thereby avoided the need to discuss preemption under the government contractor doctrine. Assuming there was an alternative state-law theory of recovery for the administrative segregation claim,
such as false imprisonment,188 the court’s analysis leaves a significant
question unanswered: if such a state-law false imprisonment claim were
preempted by the federal contractor doctrine, would an alternative statelaw remedy be rendered unavailable, giving rise to a Bivens claim? Alternatively, if the government contractor doctrine is merely an affirmative defense189 to an otherwise generally available state-law claim, would
an alternative state-law claim be available (but unmeritorious) and hence
the test. See, e.g., Malesko v. Corr. Servs. Corp., 229 F.3d 374, 382 (2d Cir. 2000), rev'd on other
grounds, 534 U.S. 61 (2001).
184. Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371, 372 n.2 (10th Cir. 1990).
185. Malesko, 229 F.3d at 382.
186. In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 632 (2d Cir. 1990).
187. See supra note 128 and accompanying text.
188. See Brown, 927 P.2d at 940 (providing elements of false imprisonment).
189. See Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997) (“The [government] contractor defense is an affirmative defense”) (note omitted); but see Ryan v. Dow Chemical Co., 781 F. Supp. 934, 944−45 (E.D.N.Y. 1992) (noting the considerable confusion as to whether
Boyle lays down a “defense” or a “standard of liability.”).

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a Bivens claim inappropriate? If the former is the Tenth Circuit’s approach, then the case-by-case analysis regarding the implication of
Bivens claims has become even more complicated and fact intensive (and
hence unworkable) than Judge Ebel describes in his dissent.190 If the
latter is the Tenth Circuit’s approach, then prisoner plaintiffs such as Mr.
Peoples are stuck in a double bindthe alternative state-law claim bars a
Bivens claim yet the government contractor doctrine preempts their statelaw claim. Either approach appears unseemly.
Finally, the Peoples approach will not relieve the federal courts of
the burden of sorting through this conundrum, because the presentation
of the government contractor defense provides grounds for removal under 28 U.S.C. § 1442(a)(1). Although the well-pleaded complaint rule
generally limits jurisdiction under 28 U.S.C. § 1331 to federal questions
raised in the complaint (i.e., federal defenses do not give rise to federal
jurisdiction under § 1331),191 the constitutional grant of federal jurisdiction provides a broader scope of federal question jurisdiction than is
found under § 1331.192 As the Court has noted, Congress invoked this
broader scope of constitutional federal question jurisdiction by enacting
§ 1441(a)(1), which allows defendants, acting under color of federal authority, to remove to federal court on the basis of a federal defense, contrary to the dictates of the well-pleaded complaint rule.193 Generally
speaking, a private defendant may remove under § 1442(a)(1) if it: (a)
demonstrates that it acted under the direction of a federal officer; (b)
raises a federal defense to plaintiffs’ claims; and (c) demonstrates a
causal nexus between plaintiffs’ claims and acts it performed under color
of federal office.194 Following this line of analysis, numerous federal
courts have allowed private defendants to remove to federal court on the
basis of the Boyle federal contractor doctrine.195 Thus, Peoples may send
190. See Peoples, 422 F.3d at 1112 (Ebel, J., dissenting).
191. See Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808 (1986) (stating that the
well-pleaded complaint rule is an interpretation of § 1331, not of Article III); Louisville & Nashville
Rail Co. v. Mottley, 211 U.S. 149, 152 (1908) (establishing the rule).
192. U.S. Const. art. III, § 2 (prescribing the limits of subject matter jurisdiction for the federal
courts); see Osborn v. Bank of the United States, 22 U.S. 738, 822–23 (1824) (holding that any
federal “ingredient” is sufficient to satisfy the Constitution's federal question jurisdiction parameters), for a discussion on federal question jurisdiction, as a matter of Constitutional law, jurisdiction
“arising under the Constitution, laws, or treaties of the United States,” is quite broad.
193. Mesa v. California, 489 U.S. 121, 136 (1989) (“The removal statute itself . . . serves to
overcome the ‘well-pleaded complaint’ rule which would otherwise preclude removal even if a
federal defense were alleged.”).
194. See generally 14C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3727 (3d ed. 1998).
195. See, e.g., McAboy v. IMO Indus., No. C05-124L, 2005 WL 2898047, *3–*5 (W.D. Wash.
Oct. 27, 2005) (slip op.); In re Agent Orange Product Liability Litig., 304 F. Supp. 2d 442, 446–51
(E.D.N.Y. 2004); Carter ex. rel. Estate of Carter v. Acands, Inc., No. 3:02-CV-00009 2002 WL
31682352, *3–*5 (E.D. Tex. June 27, 2002) (unpublished); Good v. Armstrong World Indus., Inc.,
914 F. Supp. 1125, 1127-28 (E.D. Pa. 1996); Guillory v. Ree's Contract Serv. Inc., 872 F. Supp. 344,
346 (S.D. Miss. 1994); Crocker v. Borden, Inc., 852 F. Supp. 1322, 1327 (E.D. La. 1994); Akin v.
Big Three Indus., 851 F. Supp. 819, 823 (E.D. Tex. 1994); Pack v. AC & S, Inc., 838 F. Supp. 1099,
1103 (D. Md. 1993); Fung v. Abex Corp., 816 F. Supp. 569, 573 (N.D. Cal. 1992); but see Kristina

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many federal-prisoner plaintiffs out in search of a state-law theory of
recovery only to have many of these plaintiffs (assuming the courts eschew the double-bind difficulty outlined above) return to federal court
with a federal standard of liability.
B. The Necessary Construction Test
It is not only defendants, however, who may assert that putative
constitutional claims brought under the auspices of a state-law theory of
recovery raise federal issues. Under the Peoples decision, many plaintiffs’ claims may raise substantial issues of federal law in their state-law
theories on the face of the complaint by invoking the Constitution as the
standard of care. Under the jurisdictional doctrine famously espoused in
Smith v. Kansas City Title & Trust Co.196 and recently reaffirmed in
Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing,197 if a state law claim necessarily requires the resolution of a substantial issue of federal law, then the state-law claim will arise under 28
U.S.C. § 1331. Given that many state-law tort claims brought by federal
prisoner plaintiffs against defendants acting under color of federal law
will look to the constitutional standard as the appropriate duty of care,
these suits may well fall within the scope of Smith and Grable & Sons,
once again re-federalizing these claims.
The Court has established two independent tests for meeting the
§ 1331 grant of jurisdiction. The Court has long held that a suit arises
under § 1331 if federal law creates the plaintiff’s cause of action.198 As
this understanding of § 1331 was forcefully put forward by Justice
Holmes, this view is oft referred to as the “Holmes test.” The majority of
federal-question-jurisdiction cases find their way into federal court by
satisfying the Holmes test.199 The Holmes test, however, best operates as
a rule of inclusion not exclusion (i.e., it provides a sufficient, but not
necessary, ground for federal question jurisdiction).200 Federal question
jurisdiction can also arise under § 1331 if vindication of the plaintiff’s
state-law cause of action necessarily requires the construction of a substantial issue of federal law (“the necessary construction test”).201 While
L. Garcia, The Boyle Festers: How Lax Causal Nexus Requirements and the “Federal Contractor
Defense” are Leading to a Disruption of Comity under the Federal Officer Removal Statute, 28
U.S.C. § 1442(a)(1), 46 EMORY L.J. 1629 (1997) (critiquing the practice of allowing private parties
to remove to federal court by coupling the federal contractor doctrine and § 1442(a)(1)).
196. 255 U.S. 180, 199 (1921).
197. 125 S. Ct. 2363, 2367 (2005).
198. Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916).
199. Merrell Dow, 478 U.S. at 808.
200. See T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964) (Friendly, J.); see also
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983).
201. Grable & Sons, 125 S. Ct. at 2366−68; Merrell Dow, 478 U.S. at 808–09; Smith, 255 U.S.
at 199; see also Lumen N. Mulligan, Note, No Longer Safe at Home: Preventing the Misuse of
Federal Common Law of Foreign Relations as a Defense Tactic in Private Transnational Litigation,
100 MICH. L. REV. 2408, 2415 (2002) (employing the moniker “necessary construction test” for this
font of federal question jurisdiction).

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the Supreme Court instructs that the necessary construction test should
be applied with caution as this realm of jurisdiction lies at the outer
reaches of § 1331,202 and that the imbedded question of federal law must
be substantial,203 the Court itself and the courts of appeals continue to
apply the doctrine.204
Indeed, for nearly one hundred years, the Supreme Court has recognized that federal question jurisdiction will lie over state-law claims that
raise significant federal issues, of which the Smith case is the classic example.205 In Smith, a stockholder sued in federal court to enjoin his corporation from purchasing bonds issued pursuant to the Federal Farm
Loan Act.206 The plaintiff’s theory of the case was that such a purchase
would constitute a breach of fiduciary duty under Missouri law because
the corporation could only purchase bonds “authorized to be issued by a
valid law” and that the Federal Farm Loan Act was unconstitutional.207
Although the plaintiff pursued a state-law cause of action, the Court held
202. Merrell Dow, 478 U.S. at 810.
203. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (holding that
plaintiff's right to relief must necessarily depend upon the “resolution of a substantial question of
federal law”); Smith, 255 U.S. at 199 (holding that cases that present issues merely colorable as
federal or unreasonably relying upon federal law are not proper grounds for federal question jurisdiction).
204. See, e.g., Grable & Sons, 125 S. Ct. at 2368 (taking federal question jurisdiction over a
quiet title action as resolution of the state-law claim required a determination of whether the Internal
Revenue Service had given adequate notice of sale); U.S. Express Lines Ltd. v. Higgins, 281 F.3d
383, 388–91 (3d Cir. 2002) (taking federal question jurisdiction over malicious prosecution claim
that required the construction of federal maritime law); Greenberg v. Bear, Stearns & Co., 220 F.3d
22, 25–27 (2d Cir. 2000) (finding federal question jurisdiction lies in case to overturn arbitration
award based upon negligent interpretation of federal law); Torres v. S. Peru Copper Corp., 113 F.3d
540, 542–43 (5th Cir. 1997) (finding federal question jurisdiction lies in case involving state tort
claim that could affect foreign mining industry, because the case implicated significant foreign
policy considerations); Additive Controls & Measurement Sys., Inc. v. FlowData, Inc., 986 F.2d
476, 477–79 (Fed Cir. 1993) (taking federal question jurisdiction over state-law business tort when
ownership of federal patent was the decisive issue); Garvin v. Alumax of S.C., Inc., 787 F.2d 910,
911–15 (4th Cir. 1986) (finding federal question jurisdiction over state tort claim against manufacturer and owner of a ship loader because plaintiff's ability to proceed in the face of a state law immunity defense turned on plaintiff's asserted claim that the immunity defense was preempted by the
Federal Longshoremen’s and Harbor Workers’ Compensation Act); W. 14th St. Commercial Corp.
v. 5 W. 14th Owners Corp., 815 F.2d 188, 192–96 (2d Cir. 1984) (finding federal question jurisdiction over claim for declaratory judgment that defendant breached a lease in violation of the Federal
Condominium and Cooperative Abuse Relief Act even though that Act provided no federal cause of
action); see also WRIGHT ET AL., supra note 194, § 3564; Note, Mr. Smith Goes to Federal Court:
Federal Question Jurisdiction over State Law Claims Post-Merrell Dow, 115 HARV. L. REV. 2272,
2291–93 (2002) [hereinafter Mr. Smith] (arguing that the necessary construction test should be
delimited by the principles of comity between federal and state courts and unique federal competency); Martin H. Redish, Reassessing the Allocation of Judicial Business Between State and Federal Courts: Federal Jurisdiction and “The Martian Chronicles,” 78 VA. L. REV. 1769, 1788−94
(1992) (providing a thorough analysis of the necessary construction test). This is not to say that the
application of this doctrine is without confusion or frustration. See Almond v. Capital Props., Inc.,
212 F.3d 20, 23 (1st Cir. 2000) (“The Supreme Court has periodically affirmed this basis for jurisdiction [i.e., the necessary construction test] in the abstract . . . , occasionally cast doubt upon it,
rarely applied it in practice, and left the very scope of the concept unclear.”).
205. Grable & Sons, 125 S. Ct. at 2367.
206. Smith, 255 U.S. at 195.
207. Id. at 198.

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that if on the face of the complaint plaintiff’s right to relief depends upon
the construction of a significant issue of federal law, then federal question jurisdiction arises under the predecessor statute to 28 U.S.C. §
1331.208 In so doing, the Court found that a plaintiff could avail himself
of a federal forum on a state-law theory of recovery without being diverse from the defendant because plaintiff’s Missouri cause of action
necessarily required the court to pass upon the constitutionality of a federal act.
Despite the potential for the necessary construction test to be the
exception that swallowed the rule, the Supreme Court has not “treated
‘federal issue’ as a password opening federal courts to any state action
embracing a point of federal law.”209 Indeed, it has consistently held that
the necessary construction test “must be read with caution.”210 To this
end, the Court has required that the imbedded federal issue in the statelaw claim be a substantial one in order to invoke federal question jurisdiction under the necessary construction test.211 Further, the Court recently clarified that presenting a substantial federal issue imbedded in a
state-law cause of action is not sufficient for jurisdiction to arise under §
1331.212 The federal courts must also consider congressional intent before taking jurisdiction under the necessary construction test.213 As the
Court put it, “the federal issue will ultimately qualify for a federal forum
only if federal jurisdiction is consistent with congressional judgment
about the sound division of labor between state and federal courts governing the application of § 1331.”214
While these limitations on the application of the necessary construction test are considerable, many putative constitutional torts, such as
those in the Peoples case, could be re-federalized under the necessary
construction test. Consider again Mr. Peoples’s Fifth Amendment due
process claim arising out of his thirteen months of administrative segregation. If Mr. Peoples had brought this claim under a state-law theory of
recovery such as false imprisonment,215 it may well have raised an actually disputed and substantial issue of federal law.216
208. Id. at 199; see also Kaighn Smith, Jr., Federal Courts, State Power, and Indian Tribes:
Confronting the Well-Pleaded Complaint Rule, 35 N.M. L. REV. 1, 10 (2005) (discussing Smith).
209. Grable & Sons, 125 S. Ct. at 2368.
210. Merrell Dow, 478 U.S. at 809.
211. See Grable & Sons, 125 S. Ct. at 2367; City of Chi. v. Int’l Coll. of Surgeons, 522 U.S.
156, 164 (1997); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988); Merrell
Dow, 478 U.S. at 814; Franchise Tax Bd., 463 U.S. at 27–28; Gully v. First Nat’l Bank in Meridian,
299 U.S. 109, 117−18 (1936); Smith, 255 U.S. at 199; Shulthis v. McDougal, 225 U.S. 561, 569
(1912).
212. See Grable & Sons, 125 S. Ct. at 2367.
213. See Mr. Smith, supra note 204, at 2290−91 (foreshadowing the Grable & Sons Court’s
comity discussion).
214. Grable & Sons, 125 S. Ct. at 2367; see also Franchise Tax Bd., 463 U.S. at 8.
215. See Brown, 927 P.2d at 940 (providing elements of false imprisonment).
216. Grable & Sons, 125 S. Ct. at 2368.

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Under Kansas law, for example, false imprisonment may be brought
to remedy “any unlawful physical restraint by one of another’s liberty,
whether in prison or elsewhere.”217 Thus, a necessary element for plaintiff to prove is that defendant acted unlawfully. In many states, it is settled that to bring a claim of false imprisonment against a defendant acting under color of law, plaintiff must prove that defendant violated the
constitutional standard of care set by the Fourth Amendment.218 In these
states, then, because an element of the state-law false imprisonment
claim necessarily requires the court to make a determination of whether
defendant’s actions comported with the strictures of the Fourth Amendment, a substantial federal issue will be raised.219 Moreover, this necessary construction of constitutional law is not unique to false imprisonment claims against defendants acting under color of law; many putative
constitutional torts brought under other state-law theories will raise similar questions of constitutional law.220 Of course, mere reference to federal law as part of a state-law claim is insufficient to implicate federal
question jurisdiction under the necessary construction test.221 Similarly,
ministerial application of federal law in a state-law analysis is insufficient to invoke federal question jurisdiction under § 1331 pursuant to the
217. Arceo v. City of Junction City, 182 F. Supp. 2d 1062, 1086 (D. Kan. 2002) (quoting
Gariety v. Fleming, 245 P. 1054, 1055 (Kan. 1926)).
218. See, e.g., Ex parte Duvall, 782 So. 2d 244, 246–48 (Ala. 2000) (holding state-law torts of
assault, unlawful arrest, false imprisonment and conspiracy barred as a matter of law because officer
met the Fourth Amendment’s probable cause standard when detaining plaintiff); Susag v. City of
Lake Forest, 115 Cal. Rptr. 2d 269, 278–79 (Cal. Ct. App. 2002) (holding that state-law claims of
battery, intentional infliction of emotional distress, and false imprisonment fail as a matter of law
because plaintiff “did not meet his burden of producing evidence showing they used physical force
against or exerted authority over him that resulted in a ‘seizure’ under the Fourth Amendment.”);
State v. Hall, 716 A.2d 335, 337 (Md. Ct. Spec. App. 1998) (holding existence of constitutional
probable cause bars state-law claim of false imprisonment); Sanducci v. City of Hoboken, 719 A.2d
160, 166 (N.J. Super. App. Div. 1998) (dismissing plaintiff’s state-law false imprisonment claim
because defendant met the constitutional probable cause standard); Renk v. City of Pittsburg, 641
A.2d 289, 293 (Pa. 1994) (false imprisonment plaintiff must show that defendant’s actions were
unlawful, which often amounts to whether defendant acting under color of law had probable cause).
One must not mistakenly find, however, that because a defendant is liable for a state-law false imprisonment claim that defendant is necessarily liable under the Fourth Amendment. Baker v.
McCollan, 443 U.S. 137, 146–47 (1979) (“Just as ‘[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner,’ false imprisonment does not become a
violation of the Fourteenth Amendment merely because the defendant is a state official.”).
219. In other states this issue is an affirmative defense. See, e.g., Miller v. City of Jacksonville,
603 So. 2d 1310, 1312 (Fla. Dist. Ct. App. 1992); Broughton v. State, 335 N.E.2d 310, 315 (N.Y.
1975) (noting that under New York law, “[j]ustification may be established by showing that the
arrest was based on probable cause.”). In these jurisdictions, a privately employed federal prison
guard may well have a sufficient federal defense to remove to federal court under 28 U.S.C. §
1442(a)(1). See supra Part III.A.
220. See, e.g., Ex parte Duvall, 782 So.2d at 246–48 (holding state-law torts of assault, unlawful arrest, and conspiracy barred because officer acted with probable cause); Susag, 115 Cal. Rptr.
2d at 278–279 (holding that plaintiff’s claims of battery and intentional infliction of emotional
distress fail because defendant acted with probable cause).
221. See, e.g., Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49, 53–55 (2d Cir. 1996) (holding
federal approval of Stock Exchange rules insufficient to take federal question jurisdiction in a statelaw tort case); Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d 561, 570–71 (2d Cir. 1995)
(holding mere reference to federal labor laws that endorse collective bargaining agreements insufficient to take federal question jurisdiction over a contract claim).

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necessary construction test.222 But in cases where the constitutionality of
defendant’s conduct will be a central element of a plaintiff’s state-law
cause of action, the federal question is substantial.223
Furthermore, hearing putative constitutional claims brought by federal prisoners in federal court under the necessary construction test
would not displace the congressionally mandated division of labor between the state and federal courts.224 When state-law causes of action,
like those under consideration here, incorporate federal law as controlling an element of the claim, these claims are categorized as hybrid
causes of action.225 Prior to Grable & Sons, some courts of appeals held
the existence of a federal private right of action as the definitive factor
for divining congressional intent on the propriety of taking federal question jurisdiction over hybrid claims.226 Grable & Sons, however, makes
clear that the existence of a federal private right of action is not required
before taking federal question jurisdiction under the necessary construction test.227 Rather, the relevant question is whether taking jurisdiction
over the claim “would . . . materially affect, or threaten to affect, the
normal currents of litigation.”228 This boils down to a gate-keeping function. The Court will not allow the necessary construction test to flood
the federal courts, absent specific congressional approval or diversity,
with suits that are traditionally the exclusive reserve of the state courts.229
Following the Grable & Sons decision, the lower courts, while being
222. See, e.g., Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1291-93 (11th Cir. 2004)
(holding federal law requiring certain banking contracts to be in writing insufficient to take federal
question jurisdiction over a contract claim); Bailey v. Johnson, 48 F.3d 965, 968 (6th Cir. 1995)
(holding that referencing a federal table of drugs insufficient to take federal question jurisdiction
over a state statutory claim).
223. See Merrell Dow, 478 U.S. at 814 n.12 (noting jurisdiction was appropriate in Smith
because the federal issue raised was a constitutional one); Smith, 255 U.S. at 199 (holding plaintiff’s
state-law claim, which necessarily requires inquiry in to constitutionality of federal act, arises under
28 U.S.C. § 1331); Almond v. Capital Prop., Inc., 212 F.3d 20, 22-24 (1st Cir. 2000) (taking federal
question jurisdiction and noting that the federal interest is high where “important constitutional
issues” are presented and low “where a state tort claim merely incorporate[s] a federal fault standard.”); Arthur R. Miller, Artful Pleading: A Doctrine in Search of Definition, 76 TEXAS L. REV.
1781, 1788 (1998) (“In Smith, the decision as to the constitutionality of the federal act would determine the continued vitality of the statute [and] all federal programs or conduct that were based on
the statute.”). But see Mr. Smith, supra note 204, at 2288 (critiquing this constitutional law versus
statutory law dichotomy).
224. See Grable & Sons, 125 S. Ct. at 2368 (imposing this requirement for taking jurisdiction
under the necessary construction test).
225. See Pauline E. Calande, Note, State Incorporation of Federal Law: A Response to the
Demise of Implied Federal Rights of Action, 94 YALE L.J. 1144, 1148-57 (1985) (discussing creation
of hybrid state law claims).
226. See, e.g., Zubi v. AT&T Corp., 219 F.3d 220, 223 n.5 (3d Cir. 2000) (holding the federal
courts may not take federal question jurisdiction over state-law claims absent a federal private right
of action). See also TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 n.2 (6th Cir. 2000); Sparta
Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209,1212(9th Cir. 1998); PCS 2000
LP v. Romulus Telecomm., Inc, 148 F.3d 32, 35 (1st Cir. 1998); Seinfeld v. Austen, 39 F.3d 761,
764 (7th Cir. 1994); Rogers v. Platt, 814 F.2d 683, 688 (D.C. Cir. 1987).
227. Grable & Sons, 125 S. Ct. at 2369−70.
228. Id. at 2371.
229. Id.

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careful not to open the doors of the federal courts to claims traditionally
heard in the state courts, have injected a new-found life into the necessary construction test.230
In the context of federal prisoner litigation, federal jurisdiction under the necessary construction test as delineated in Grable & Sons appears especially appropriate because this litigation has long taken place
in federal court and Congress clearly envisions that the federal courts
will bear the brunt of federal prisoner litigation. Prior to the passage of
the Prisoner Litigation Reform Act231 (“PLRA”) in 1996, excluding habeas corpus claims, the federal courts heard upwards of 40,000 prisonerplaintiff civil suits a year—approximately one-fifth of the overall civil
federal docket.232 While the PLRA has limited the number of prisoner
suits on the federal docket significantly, it has not altered the underlying
fact that prisoner litigation is primarily conducted in the federal courts—
with approximately seventy-five percent of all prisoner civil litigation
taking place in a federal forum.233 While Congress has sought to limit
the flood of perceived frivolous prisoner litigation, it has done so with
the clear intention that the federal courts will retain jurisdiction over
these claims. For example, the PLRA’s limitations on prisoner suits are
limited to federal claims over which the federal courts could take federal
question jurisdiction. 234 Moreover, Congress has enacted numerous
other devices to control litigation by prisoner plaintiffs—from summary
dismissal of frivolous cases235 to discovery rules236—that further evidence that it envisions taking federal jurisdiction over large amounts of
prisoner litigation in the federal courts. Further, as the Court in Carl-

230. See Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194−96 (2d Cir. 2005) (applying
Grable & Sons and taking jurisdiction over state-law contract claim that required construction of
federal cable television law because taking this jurisdiction would not upset the flow of litigation in
state and federal courts); Municipality of San Juan v. Corporacion Para El Fomento Economico De
La Ciudad Capital, 415 F.3d 145, 148 n.6 (1st Cir. 2005) (applying Grable & Sons and taking jurisdiction over state-law contract claim that required construction of HUD regulations); Hayes v.
American Airlines, Inc., No. 04CV3231CBAJMA, 2005 WL 2367623, *3−*4 (E.D.N.Y. Sept. 27,
2005) (unpublished) (applying Grable &Sons and taking jurisdiction over state-law unjust enrichment claim because taking this jurisdiction would not upset the flow of litigation in state and federal
courts); In re Zyprexa Products Liability Litig., 375 F. Supp. 2d 170, 172−73 (E.D.N.Y. 2005)
(applying Grable & Sons and taking jurisdiction over state-law restitution claim); Mr. Smith, supra
note 204 at 2292–93; Redish, supra note 204, at 1793 (arguing that federal question jurisdiction over
hybrid claim should lie to “increase the level of state-federal judicial interchange in the shaping and
development of the relevant federal statute.”).
231. Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77 (Apr. 26, 1996)
(codified at 11 U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915, 1915A; 42 U.S.C.
§§ 1997-1997h (2005)).
232. Schlanger, supra note 6, at 1557 (this includes both state and federal prisoner suits).
233. Id. at 1573 n.52 (“a very gross estimate might be that about a quarter of what prison and
jail officials think of as inmate litigation is currently filed in state court.”).
234. 18 U.S.C. § 3626(d) (2005) (“The limitations on remedies in this section shall not apply to
relief entered by a State court based solely upon claims arising under State law.”).
235. See 28 U.S.C. § 1915A (2005) (screening prisoner cases for frivolousness prior to serving
defendant).
236. See FED. R. CIV. P. 26(a)(1)(E)(iii) (no required disclosures in prisoner-plaintiff cases).

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son237 noted, Congress has approved of the Bivens cause of action (albeit
after the fact) as a complementary theory of recovery to the Federal Torts
Claims Act.238 In furtherance of this congressional acceptance of federal
jurisdiction over Bivens claims, Congress created the Constitutional
Torts Branch of the Department of Justice, which defends these actions
exclusively in federal court.239 As these factors illustrate, there should be
little concern that taking federal jurisdiction over putative constitutional
torts espoused under a state-law theory of recovery “would . . . materially
affect, or threaten to affect, the normal currents of litigation” envisioned
by Congress.240
Under Grable & Sons, then, many putative constitutional claims
filed by federal prisoners espousing a state-law theory of recovery may
be re-federalized. These hybrid cases will often raise substantial issues
of constitutional law and taking federal jurisdiction over them will not
materially alter the balance of federal-court versus state-court litigation.
In so doing, courts will in effect employ a uniform federal standard of
care and a federal forum will be accessible—as is the case for claims refederalized under the government contractor doctrine. In substance,
then, the goals the Bivens Court set out—uniform rules of liability enforceable in a federal court—will often be advanced in putative constitutional tort litigation against federal actors, even as the form of the Bivens
action withers.241
CONCLUSION
There can be little doubt that the current Supreme Court considers
implying federal causes of action from federal statutes or the Constitution beyond its powers.242 The Tenth Circuit in its Peoples decision

237. Carlson v. Green, 446 U.S. 14, 19–20 (1980).
238. The Federal Torts Claim Act is codified at 28 U.S.C. § 2680(h) (2005). As part of the
Senate Report, Congress considered the interaction of the FTCA and Bivens:
[A]fter the date of enactment of this measure, innocent individuals who are subjected to
raids…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 at 3 (1973).
239. See Pillard, supra note 62, at 66 n.6 (discussing the numbers of Bivens suits filed and
their defense).
240. Grable & Sons, 125 S. Ct. at 2371.
241. See Carlson, 446 U.S. at 23 (“[T]he liability of federal officials for violations of citizens’
constitutional rights should be governed by uniform rules.”); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 393-94 (1971) (holding that the Fourth Amendment “is not tied to the
niceties of local trespass laws.”). See also supra Part I discussing slow death of the Bivens cause of
action.
242. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (“Bivens is
a relic of the heady days in which this Court assumed common-law powers to create causes of action
– decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition”);

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grasps the Court’s directive and takes it (nearly) to its logical conclusion
by foreclosing a Bivens action against employees of a federal contractor
running a private prison when an alternative state-law action exists.243
Nevertheless, this victory for the opponents of implied federal causes of
action may be Pyrrhic. As I endeavored to illustrate above, many putative constitutional claims brought by federal prisoner plaintiffs under
state-law theories of recovery may be re-federalized either as a matter of
federal common law, under the government contractor doctrine, or pursuant to Byzantine jurisdictional doctrine, via the necessary construction
test.
All this is to illustrate a broader point. Sharply distinguishing between federal common law and implied rights of action for the purpose
of eliminating the latter is impracticable as these concepts differ only as a
matter of degree, not as a matter of kind.244 First of all, most scholars
consider the Bivens action to be merely a species of federal common
law,245 rendering the federal common law versus implied cause of action
distinction moot. Even if one does not consider Bivens an instance of
federal common law, numerous scholars have argued that there is no
meaningful difference between the “legitimate” practice of inferring a
federal liability rule sufficient to confer federal question jurisdiction
without congressional pre-approval as a matter of federal common law246
Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (abandoning the power of federal courts to imply
federal causes of action from statutes).
243. Peoples v. CCA Detentions Ctrs., 422 F.3d 1090, 1105 (10th Cir. 2005).
244. See Merrill, supra note 7, at 4–6 (contending that federal common law and implied causes
of action differ only as a matter of degree).
245. See, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 405 (Harlan, J.,
concurring) (noting that the federal common law in Bivens arose not directly from the Constitution,
but rather from the combination of the Court’s historical ability to provide a remedy for the violation
of individual liberties and an interpretation of 28 U.S.C. § 1331); Grey, supra note 64, at 1104
(“Most commentators contend that the Constitution does not require the Bivens remedy, but rather
that it is a creature of federal common law”); Daniel J. Meltzer, State Court Forfeitures of Federal
Rights, 99 HARV. L. REV. 1128, 1172-73 (1986); Merrill, supra note 7, at 48–49 (considering
whether federal courts may decide implied remedies “in the manner of ‘a common law tribunal’”)
(quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)); Henry P. Monaghan, Foreword, Constitutional
Common Law, 89 HARV. L. REV. 1, 23–25 (1975) (concluding that the Bivens action is a species of
federal common law).
246. The Court clearly accepts federal common law as a legitimate practice. See, e.g., Boyle v.
United Tech. Corp., 487 U.S. 500, 527 (1988) (adopting federal common law liability rule for federal military contractors to state products liability action); Illinois v. City of Milwaukee, 406 U.S. 91,
99-100 (1972) (adopting federal common law liability rule regarding interstate nuisance); Zschernig
v. Miller, 389 U.S. 429 (1968) (holding, as a matter of federal common law, that an Oregon statute
that required probate courts to evaluate the normative value of foreign political systems, under the
guise of reciprocity, before transferring property to foreign next of kin invalid as an intrusion upon
the federal government's exclusive right to conduct foreign affairs even though the president and
Congress had failed to act); Banco de Nacional de Cuba v. Sabbatino, 376 U.S. 398, 438 (1964)
(adopting federal common law liability rule for issues involving foreign affairs); Clearfield Trust Co.
v. United States, 318 U.S. 363, 366-67 (1943) (adopting federal common law liability rule that one
who seeks to raise laches as defense against United States in suit to recover payment on forged
commercial paper must prove actual damage resulting from United States’ delay in notifying of
forgery); D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 461-62 (1942) (adopting federal commonlaw rule that one who makes fraudulent note to bank later insured by FDIC may not raise a claim of
lack of consideration in FDIC action to enforce note); Hinderlider v. La Plata River & Cherry Creek

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and the “illegitimate” practice of inferring a federal liability rule sufficient to confer federal question jurisdiction without congressional preapproval by inferring a cause of action.247
The Peoples case proves this point. Under the Peoples regime, the
implied Bivens cause of action against employees of private federal prisons is expunged from the federal courts in form only, not in substance.
Uniform federal rules of liability will come to govern many constitutional violations committed by privately employed custodians of federal
prisoners by other means. The slow death of the Bivens cause of action,
then, has only made application of these uniform federal judge-made
rules conceptually more difficult to apply; it does not eliminate them.
Should the Supreme Court truly desire to end the substance—not merely
the form—of the implied federal cause of action, it may well need to
excise huge swathes of federal common law and fonts of jurisdiction.
But such a pill may be too bitter to swallow.248

Ditch Co., 304 U.S. 92, 110 (1938) (adopting federal common law liability rule regarding water
ways).
247. See, e.g., George D. Brown, Letting Statutory Tails Wag Constitutional Dogs - Have the
Bivens Dissenters Prevailed?, 64 IND. L. J. 263, 266 (1989) (concluding that “all forms of judicial
lawmaking by federal courts - whether presented as constitutional adjudication, statutory interpretation or federal common law - are essentially the same and should be placed under the general rubric
of federal common law.”); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99
HARV. L. REV. 881, 889–90 (1986) (concluding that there is no meaningful difference “between the
creation of federal common law and the ordinary interpretation of federal enactments”); Merrill,
supra note 7, at 4–6.
248. See, e.g., Donald L. Doernberg, Juridical Chameleons in the “New Erie” Canal, 1990
UTAH L. REV. 759, 810−11 (1990) (contending that federal common law must exist to implement the
Constitution and federal legislation); CHEMERINSKY, supra note 2, ch. 6; Henry J. Friendly, In
Praise of Erie--And of the New Federal Common Law, 39 N.Y.U. L. REV. 383 (1964). But see
Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327, 356-57 (1992) (concluding that
because federal common law has no principled limits it must be abandoned).